Sherd v R [2011] ACTCA 17

Court of Appeal (ACT)|2011-09-22

[2011] ACTCA 17 (22 September 2011)

PROCEDURE - courts and judges generally - bail - jurisdiction of Court of Appeal to grant bail pending appeal - Court of Appeal has jurisdiction.

CRIMINAL LAW - jurisdiction, practice and procedure - bail - jurisdiction of Court of Appeal to grant bail pending appeal - Court of Appeal has jurisdiction.

APPEAL AND NEW TRIAL - in general and right of appeal - bail - jurisdiction of Court of Appeal to grant bail pending appeal - Court of Appeal has jurisdiction.

CRIMINAL LAW - jurisdiction, practice and procedure - bail - pending appeal - need for special or exceptional circumstances - family hardship not a special or exceptional circumstance.

High Court Rules 2004 (Cth), r 8.07.2

Commonwealth of Australia Constitution Act (Cth), s 73

Bail Act 1982 (WA), Sch 1 Pt C cl 4A

Ettridge v Director of Public Prosecutions (Qld) [2003] HCA 68; (2003) 78 ALJR 157

Griffiths v Australian Postal Commission (1987) 87 FLR 139

In the Matter of an Application for Bail by Hillier [2007] ACTCA 9

Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514

Das and Ors v The King-Emperor (1945) 61 TLR 245

R v Spilsbury [1898] 2 QB 615

Ex parte Blyth [1944] KB 532

Ex parte Speculand [1946] KB 48

Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620

United Mexican States v Cabal and Ors [2001] HCA 60; (2001) 209 CLR 165

Ex parte Maher [1986] 1 Qd R 303

Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265

Chew v The Queen (1991) 66 ALJR 209

Roos v Director of Public Prosecutions (1994) 68 ALJR 632

Edelsten v Ward (No 2) (1988) 63 ALJR 346

Eastman v The Queen (1997) 72 FCR 190

Narain v Director of Public Prosecutions (1987) 71 ALR 248

Hayes v The Queen (1974) 48 ALJR 455

Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169

R v Collins (1986) 41 SASR 208

Brown v The Queen [1979] Tas R 304

Chew v The Queen (No 2) (1991) 66 ALJR 221

Robinson v The Queen (1991) 65 ALJR 519

Parsons v The Queen (1998) 72 ALJR 1325

Re Jackson [1997] 2 VR 1

Bulejcik v The Queen (1995) 70 ALJR 144

Kostikidis & Anor v The Queen (1996) 71 ALJR 79

Peters v The Queen (1996) 71 ALJR 309

Re Pinkstone's Applications [2003] HCA 46; (2003) 77 ALJR 1561

Hanson v Director of Public Prosecutions (Qld) [2003] QCA 409; (2003) 142 A Crim R 241

The Queen v Giordano (1982) 31 SASR 241

R v Ryan [1930] SASR 125

Sinanovic v The Queen (No 1) [2001] HCA 35; (2001) 122 A Crim R 524

R v Wilson (1994) 34 NSWLR 1

Gruffyd v The Queen (1972) 56 Cr App Rep 585

Coulter v The Queen (1987) 61 ALJR 537

Stevenson v The Queen (1984) 58 ALJR 422

Re Pennant [1997] 2 VR 85

R v Southgate (1960) 78 WN (NSW) 44

Baker v The Queen [2004] HCA 45; (2004) 78 ALJR 1483

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 30 of 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The application for a stay of proceedings is dismissed.

IN THE SUPREME COURT OF THE ) No. ACTCA 30 of 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. In Ettridge v Director of Public Prosecutions (Qld) [2003] HCA 68; (2003) 78 ALJR 157, Callinan J said (at 157; [1] to [2]):

[1] Anyone who turns out to have been wrongly imprisoned, even for a day, is entitled to feel a deep sense of grievance. Accordingly our system of law is intended to ensure, so far as is possible, that an accused person be given a fair trial, and if convicted, not be excessively penalised. Even so, trials can and do miscarry, and punishments more harsh than the crime and the circumstances of the convicted person warrant, are sometimes imposed. Unfortunately however whether either of those events has occurred can only be determined in hindsight, and with the careful evaluation of the trial by an appellate court with the benefit of argument and the time to undertake it. In the meantime, conventionally, all concerned are, as a practical and a legal matter, obliged to accept that the conviction and punishment have been regularly entered and imposed.

[2] But there are exceptional cases. And when these are shown to exist, the courts may react by allowing bail to a convicted person pending the hearing of his or her appeal.

2. The appellant, Benjamin Thomas Sherd, was charged with three counts of assault occasioning actual bodily harm arising out of an in incident on 12 March 2010 where he and others beat three persons with weapons, fists and feet leading to the three victims bleeding from the wounds inflicted.

3. Mr Sherd pleaded guilty in the Magistrates Court to the three counts, one in respect of each victim, and was committed to the Supreme Court for sentence. He ultimately appeared before Nield AJ on 22 June 2011 and was sentenced on the first count to two years imprisonment to date from 22 June 2011, to one year and seven months imprisonment on the second count, to date from 22 April 2012, that is to be cumulative as to four months on the earlier sentence, and to one year and seven months imprisonment on the third count, to date from 22 August 2012, that is to be cumulative as to one year and five months on the sentence for the second count. The total period of imprisonment was two years and nine months and a non-parole period of one year and nine months, to expire on 21 March 2013, was set.

4. Mr Sherd has appealed against that sentence on the following grounds set out in his Notice of Appeal:

(a) Alternatives to full time imprisonment by suspension of any term of imprisonment or by way of periodic detention were not properly considered;

(b) There was error in both the consideration and the application of the Crimes (Sentencing) Act 2005;

(d) His Honour erred in determining that there was to be parity to the sentencing of David Welsh [sic] and the appropriate discount allowed for the plea of guilty;

(e) The principle of totality was not properly applied;

5. On 29 July 2011, Mr Sherd appeared before me by video-link from the Alexander Maconochie Centre to apply for bail. The application document was in the form of an application for bail to the Supreme Court, namely Form 4.8 (AF2006-382). It was supported by two affidavits, one each made by Mr Sherd's fiancée and his mother.

6. Nevertheless, it was filed and numbered in the appeal proceedings in this Court, the Court of Appeal, and approached by Mr Sherd and his lawyers on that basis. I also approached it on this basis and am prepared to continue to do so.

7. The matter was adjourned to 5 August 2011 as I required further submissions. I also arranged for the parties to be advised that I had concerns about the jurisdiction I had to grant bail and requested submissions on that issue.

8. I required clarification of the basis for the application and that Mr Sherd's lawyers file and serve an Application in Proceedings in this Court making the application. The Application that was filed sought a stay of the sentence. I also gave directions for further submissions to be filed.

9. It seemed to me that, while the Court of Appeal, constituted by a single judge, has express jurisdiction to deal with a stay (see s 37E of the Supreme Court Act 1933 (ACT) (the Supreme Court Act)), and to do so with conditions (Griffiths v Australian Postal Commission (1987) 87 FLR 139 (at (142)), conditions, in the case of criminal proceedings, have a very different character, for they are likely to be in the nature of bail conditions. If, however, bail is granted with conditions then there is a regime for ensuring compliance and addressing breaches. On the other hand, where there are merely conditions to the grant of a stay, the regime for ensuring compliance of bail-like conditions is far more problematic.

10. Thus, it would be much more desirable for any release of an appellant in respect of an appeal in criminal proceedings to be by way of bail rather than by a stay on conditions.

11. Mr Sherd's counsel submitted that, were I to grant a stay of the sentence, that would have the effect of placing Mr Sherd back in the custody of the trial court, the Supreme Court, and in those circumstances, it would have jurisdiction to grant him bail in the ordinary way. I am not at all sure that this is the effect of a stay, but because of my decision in this matter, I do not need to address this issue.

12. Unlike the position in other jurisdictions (e.g. s 30 of the Bail Act 1978 (NSW); s 310 of the Criminal Procedure Act 2009 (Vic); r 8.07.2(c) of the High Court Rules 2004 (Cth)), no statutory provision in the Territory expressly grants to the Court of Appeal jurisdiction to grant bail in respect of appellants to the Court of Appeal. It is to be noted that Connolly J did, in In the Matter of an Application for Bail by Hillier [2007] ACTCA 9, grant bail in the Court of Appeal pending appeal, but his Honour did not identify the source of his jurisdiction or address that issue.

13. In Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514, Brennan J noted that there was no inherent jurisdiction in a court of general jurisdiction to grant bail pending an appeal to a person serving a sentence after conviction; statutory power for that had to be conferred, a view apparently confirmed by the Privy Council in Das and Ors v The King-Emperor (1945) 61 TLR 245 (at 247). His Honour referred to a number of English and Australian authorities which, on inspection, seem to me to be clear that, at common law, once a conviction has been entered, there is no inherent jurisdiction to grant bail.

14. As Lord Russell of Killowen CJ said in R v Spilsbury [1898] 2 QB 615 (at 620) when citing with approval from Chitty's Criminal Law Vol 1, 2nd Ed at p 97:

The Court of King's Bench ... in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever ... and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution.

15. It is clear that "execution" there means the imprisonment following conviction: Ex parte Blyth [1944] KB 532 (at 540); Ex parte Speculand [1946] KB 48.

16. Despite that, Brennan J considered that a power to grant bail may be found in the inherent power to preserve from futility the exercise of the Court's jurisdiction to grant special leave to appeal, as had been exercised by the Court to prevent execution of a sentence of death pending a determination of such a grant on the application of a prisoner sentenced to death as in Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620.

17. In this jurisdiction, that becomes problematic, for s 57AA of the Bail Act 1992 (ACT) purports to abolish any inherent power of the Supreme Court to grant bail. Whether that provision can stand, or, at least, have full effect, in the face of s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act) poses a real question. For reasons that appear below, I do not have to resolve that fraught issue.

18. The respondent submitted that there was no jurisdiction for me to grant bail to Mr Sherd and the application should be dismissed. It was also submitted that the grounds for a stay had not been made out.

19. The respondent initially submitted that, as the application was, in form, an application to the Supreme Court, it had to be dismissed as there was no jurisdiction: the Court's power given by s 20B of the Bail Act did not fit the circumstances. That may be accepted but, as noted above (at [6]), the application was always intended to be to the Court of Appeal and the Application in Proceedings subsequently filed (and of which reasonable notice - more than the required two days by Practice Direction No 1 of 1999 - was given) was expressly made to the Court of Appeal.

20. The respondent next submitted, relying on Chamberlain v The Queen (No 1), that the Court of Appeal had no jurisdiction to grant bail. It was submitted that, while the Court of Appeal is described as the Supreme Court when exercising its appellate jurisdiction under Pt 2A of the Supreme Court Act (s 37E of that Act), the Legislation Act 2001 (ACT) (the Legislation Act) made it clear that when the term "Supreme Court" is used, it does not refer to the "Court of Appeal". I am not at all sure that this is the effect of the defining of these terms in the Dictionary to the Legislation Act, but, again, I do not need to decide this.

21. It is correct, as the respondent submitted, that there is no express statutory provision in the ACT in relation to bail for matters before the Court of Appeal. As noted above (at [12]), that contrasts with other jurisdictions, though not every jurisdiction in Australia.

22. The respondent also submitted that, even were there to be a power in the Court of Appeal to grant bail, it would have to be exercised by a full court and not a single judge. The powers of a single judge are, it was submitted, exhaustively set out in s 37J of the Supreme Court Act and the grant of bail was not one of the matters in the section.

23. The respondent did refer to s 37Q of the Supreme Court Act, described by the respondent as "a curious provision". It provides:

37Q Bail time on appeal does not count towards sentence

If a person who has been convicted and sentenced to a term of imprisonment appeals to the Court of Appeal (against the conviction, or sentence, or both), any time spent while released on bail pending the decision on the appeal does not count as part of the term of imprisonment.

24. This section is in relevantly identical terms to s 29A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), as it stood in 1997; now, s 30AL of that Act. I refer to this section later in these reasons.

25. The respondent submitted that this provision did not confer any jurisdiction on the Court of Appeal. I agree. Presumably, the reference to it being a "curious provision" was because, without a jurisdiction in the Court of Appeal to grant bail pending appeal, it had no work to do - an "orphan" provision.

26. The respondent also relied on what the High Court had said in United Mexican States v Cabal and Ors [2001] HCA 60; (2001) 209 CLR 165. In that decision, the Full Court, constituted by Gleeson CJ and McHugh and Gummow JJ, considered bail in respect of appeals pending to that Court. Though an extradition case, their Honours considered bail in the context of both criminal cases as well as extradition cases. It appears to be the only Full Court decision in respect of bail in that Court.

27. The respondent relied particularly on their Honour's reference, with approval, to what Thomas J had said in the seminal Queensland decision of Ex parte Maher [1986] 1 Qd R 303, where his Honour had pointed out (at 310) the consequences of the grant of bail pending the hearing of an appeal. In the words of their Honours (at 181), a grant of bail:

makes the conviction appear contingent until confirmed;
places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
encourage unmeritorious appeals;
undermines respect for the judicial system in having a 'recently sentenced man walking free';
undermines the public interest in having convicted persons serve their sentences as soon as is practicable.

28. Notwithstanding these comments, it is to be noted that their Honours also referred with apparent approval to the decision of Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265. In that decision Callinan J commented on the view, expressed by Brennan J in Chamberlain v The Queen (No 1), that a verdict of a jury was not to be treated for the purposes of an application for bail as provisional, an observation rather like the first dot point in [27] above. His Honour said (at 266; [10]):

With respect, I doubt whether a grant of bail does treat a verdict of guilty as provisional. The verdict stands unless and until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail.

29. Despite this, the High Court has expressed on a number of occasions concern about whether a grant of bail shows some provisionality about a conviction and, by extension, about a sentence. See, for example, Markovina v The Queen (1998) 72 ALJR 1522 (at 1523) per Hayne J, and Chew v The Queen (1991) 66 ALJR 209 per McHugh J. It has also been said, as a related consideration, that the jurisdiction to grant such bail should not be used simply to preserve the status quo: Roos v Director of Public Prosecutions (1994) 68 ALJR 632 (at 633) per Toohey J; Edelsten v Ward (No 2) (1988) 63 ALJR 346 per Brennan J.

30. The respondent further referred to the following passages from United Mexican States v Cabal and Ors (at 181-2):

Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances.

The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. ... Secondly, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. [Footnotes omitted]

31. The respondent submitted that Mr Sherd could not meet either of these two conditions and so neither bail nor a stay should be granted.

32. These two issues identified by the High Court feature prominently in all decisions of both the High Court and of intermediate courts of appeal in respect of applications for bail pending appeal.

33. What the respondent did not refer to, however, was the following passage from United Mexican States v Cabal and Ors, where the Court said (at 180-1):

In our view, the power to grant bail in a criminal or extradition case is an incident of the power conferred by s 73 of the Constitution to hear appeals from the orders of certain courts. It is not a question of inherent jurisdiction. The grant of judicial power carries with it authority to do all that is necessary to effectuate its main purpose. Because that is so, the Court has authority to do all that is necessary to effectuate the grant of appellate jurisdiction conferred by s 73 of the Constitution. It therefore has power to stay orders that are or may become the subject of its appellate jurisdiction. If the Court did not have power to stay an order the subject of an appeal, it might fail to do full justice to the appellant or potential appellant.

The Court has power, therefore, to stay orders in criminal cases - even orders concerned with sentences of death or imprisonment. When the court grants bail in a criminal case, it does so as an incident in the course of staying the order that is the authority for detaining the prisoner and to make the stay order effective. If there is an application for special leave to appeal or an appeal under s 73 of the Constitution against an order of imprisonment, this court has jurisdiction to stay that order. It also has jurisdiction to grant bail so as to make the stay order effective. Although orders staying proceedings or admitting to bail make the appellate jurisdiction of the Court effective, the orders are made in the original jurisdiction of the Court. (Footnotes omitted)

34. It is clear from this passage that the power to grant bail is not a question of the exercise of an inherent jurisdiction of the court; the exercise of the inherent jurisdiction, if required, is in the power to stay proceedings to effectuate the grant of appellate jurisdiction. The power to grant bail is an incidental power to the jurisdiction to stay proceedings to protect the appellate function of the court. This is clearly supported by a careful reading of what Brennan J said in Chamberlain v The Queen (No 1) (at 518).

35. This answers two of the issues raised by the respondent. On this analysis, s 57AA of the Bail Act is irrelevant as the power to grant bail is not an exercise of any inherent jurisdiction with respect to bail. Similarly, since s 37J of the Supreme Court Act grants to a single judge the statutory power to stay the judgment from which the appeal is taken it brings with it the incident, as so described by the High Court, to grant bail to give effect to that power. Thus, the power to grant bail is exercisable by a single judge.

36. This analysis also gives meaning to the inclusion of the provision, described as "curious" by the respondent, namely s 37Q of the Supreme Court Act, for it must have been included in the knowledge of or acceptance by the legislature that the grant of power in s 37J(1)(d) or (e), to stay or suspend a judgment from which an appeal has been taken, included the incidental power to grant bail. As those powers are not otherwise enumerated in s 37E of the Supreme Court Act which establishes the jurisdiction of the Court of Appeal then, as s 73 of the Constitution does for the High Court, so s 37E for the Court of Appeal confers "the authority necessary to effectuate its main purpose". In this regard it would be possible to call in aid, if necessary, s 48A of the Self-Government Act to support such a jurisdiction.

37. I am fortified in this approach by the decision of Burchett J in Eastman v The Queen (1997) 72 FCR 190. There, his Honour had to consider whether the rule permitting bail to be granted pending appeal was intra vires when there was no express power to make such a rule. His Honour found the power stemmed from s 29 of the Federal Court Act.

38. His Honour was influenced by the comment of Brennan J in Narain v Director of Public Prosecutions (1987) 71 ALR 248 (at 249), that a stay order had "the same effect as the grant of bail". This similarity was noted by Mason J in Hayes v The Queen (1974) 48 ALJR 455 (at 466), and by the Full Court, constituted by Mason, Murphy, Wilson, Brennan and Deane JJ, in Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631 (at 638). See also what Brennan J said in Chamberlain v The Queen (No 1) (at 520).

39. Burchett J noted that s 29 of the Federal Court Act gave the court power to stay or suspend the operation of an order or proceedings under a judgment from which an appeal is taken. This, his Honour found, gave the court power to grant bail. His Honour also noted, that this was consistent with the terms of s 29A of that Act which is relevantly identical to s 37Q of the Supreme Court Act (for which see [23] and [24] above).

40. His Honour further noted that the language of s 29 of the Federal Court Act was consistent with provisions that had been held to empower the making of orders in the nature of bail in cases such as Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169.

41. Accepting, as I do, that s 37E of the Supreme Court Act gives the Court of Appeal an inherent power to stay the judgment or proceedings on it from which an appeal is being taken for the purpose, as the High Court has said, of effectuating the Court of Appeal's main purpose of hearing appeals, this reasoning supports my view that the Court of Appeal has power to grant bail as an incident of the power to stay the judgment from which the appeal is taken.

42. While not especially supportive of the power, I do note that s 9E of the Bail Act is at the very least consistent with this conclusion.

43. Accordingly, I find that, as a single judge of the Court of Appeal, I have power to stay proceedings and as an incident of that power, I have the power to grant bail.

44. That is important for, as I have noted above (at [9]), although the power to stay or suspend the decision from which an appeal has been taken includes the power to do so with conditions (which, in criminal cases, would be similar, if not identical, to the conditions attaching to a grant of bail) there would be no regime for the monitoring and, if necessary, activating a breach procedure for violations of such conditions if necessary. In this case, s 37Q of the Supreme Court Act seems that I do not have to make a stay order before granting bail.

45. I have referred (at [30]) to what the High Court described as the essential grounds on which bail pending appeal is granted. These seem to me to be what I must at least first consider in this Application.

46. There is no doubt that, in all Australian jurisdictions, special or exceptional circumstances must be shown to justify a grant of bail pending an appeal. This is uniform both by statutory prescription and judicial authority: s 9E of the Bail Act; s 30AA of the Bail Act 1978 (NSW); s 23A of the Bail Act (NT); Schedule 1, Pt C, cl 4A of the Bail Act 1982 (WA); Ex parte Maher; R v Collins (1986) 41 SASR 208; Brown v The Queen [1979] Tas R 304; Re Zoudi [2006] VSCA 298; (2006) 14 VR 580; United Mexican States v Cabal and Ors; Eastman v The Queen.

47. The courts have clearly identified as a special or exceptional circumstance justifying the grant of bail pending appeal that the sentence will have been fully or substantially served before the appeal is heard.

48. There is some difference of views in the courts, however, as to what this means. In Chew v The Queen, McHugh J made it clear that it is the whole of the sentence, not merely the custodial portion that is relevant. His Honour said (at 210):

... even if the applicant is released on parole before the decision is given in his appeal, there will be a substantial amount of his sentence to be served while on parole.

49. As Toohey J commented (at 222) in Chew v The Queen (No 2) (1991) 66 ALJR 221, "any non-custodial period is still a part of the sentence." See also Robinson v The Queen (1991) 65 ALJR 519 (at 520); Parsons v The Queen (1998) 72 ALJR 1325 (at 1326); Re Jackson [1997] 2 VR 1 (at 3).

50. There is, however, a number of cases which have approached the question as if the relevant period is only the custodial portion. See, for example, Bulejcik v The Queen (1995) 70 ALJR 144; Kostikidis & Anor v The Queen (1996) 71 ALJR 79 (at 80); Peters v The Queen (1996) 71 ALJR 309 (at 310); Marotta v The Queen (at 267; [18]4): United Mexican States v Cabal & Ors (at 182); R v Antoun [2005] NSWCCA 270 (at [16]); and Re Zoudi (at 587-8).

51. In my view, having regard to those cases, in particular what has been said in them by a Full Court of the High Court and by two intermediate courts of appeal, one constituted by five judges for the purposes of deciding this issue, the relevant period is the custodial position of the sentence.

52. A second issue, which Mr Sherd actually agitated, "is the prospects of success of the appeal". It is always a factor to which regard must be had on such an application: Re Pinkstone's Applications [2003] HCA 46; (2003) 77 ALJR 1561 (at 1563; [17]). Indeed, following United Mexican States v Cabal & Ors, it is one of the two essential matters that must be considered, the other being the expiry of the sentence: Hanson v Director of Public Prosecutions (Qld) [2003] QCA 409; (2003) 142 A Crim R 241 (at 244; [7]).

53. This is clearly a difficult issue, for it is inappropriate to try the appeal on a bail application; indeed it is neither possible nor desirable to do so: The Queen v Giordano (1982) 31 SASR 241 (at 243).

54. Clearly, where the appeal has no or little prospects of success, as in a frivolous appeal, that will tell strongly against the grant of bail, even where a substantial portion of the sentence will have been served prior to the hearing of the appeal: R v Ryan [1930] SASR 125 (at 130); R v Waters (1990) 9 Petty Sessions Review 4016 (at 4018).

55. In the High Court, before special leave to appeal has been granted, the applicant must show he or she has a very strong case: Re v Pinkstone's Applications (at 1563; [17]).

56. There are exceptional cases where, for example, a recent ruling of the High Court has clear and direct application to the case such that the appeal then is almost certain or inevitably to be upheld: Sinanovic v The Queen (No 1) [2001] HCA 35; (2001) 122 A Crim R 524 (at 527; [11]). Such a strong case would justify bail.

57. In between these cases are those where the grounds of the appeal are arguable, but the prospects cannot be said to be strong. It is clear that this cannot, by itself, justify a grant of bail. As the Full Court of the Supreme Court of Victoria said in Re Clarkson [1986] VicRp 54; [1986] VR 583 (at 586):

It should be clearly understood that the fact that there is a fairly arguable ground of appeal cannot, standing alone, be regarded as constituting exceptional circumstances so as to justify the grant of bail pending appeal.

58. See also R v Wilson (1994) 34 NSWLR 1 (at 6).

59. This is not inconsistent with what Dawson J decided in Peters v The Queen (at 310-1) even though his Honour considered that the point to be raised was merely "not hopeless" and that there were reasonable prospects that it would succeed. There was, however, in that case a real expectation that were bail not to be granted, the appeal "would in all practical respects be futile". It was that circumstance which required there to be at least arguable prospects of success on appeal. That is the converse to the situation referred to above (at [53]).

60. It is also worth noting that if the prospects of success of the appeal is the only basis for applying for bail, then the applicant is required to show that the appeal is "most likely to succeed" which would be required to meet the test of exceptional circumstances: Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303. Very strong grounds must be shown, sometimes referred to as "virtually certain of success" (R v Waters (at 4018)) or "extraordinarily high prospects of success" (R v Wilson (at 7)).

61. I also have regard to what fell from Young CJ in Re Kulari [1978] VicRp 29; [1978] VR 276 (at 277-8):

It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances but the fact that there is a prima facie arguable ground of appeal is, I think, of very little weight where the ground of appeal is that the sentence imposed is too severe.

62. That special or exceptional circumstances are required and bail should not readily be granted pending appeal is supported by the practical aspects referred to by King CJ in The Queen v Giordano (at 242):

There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.

63. This was well expressed by Edmund Davies LJ in the case of Gruffyd v The Queen (1972) 56 Cr App Rep 585 (at 589):

[O]nce bail is granted pending an appeal, judges who later hear it are presented with an additionally heavy problem. Bail inevitably raises hopes, and to wreck them by ordering a return to custody is a painful duty for any judge. Nevertheless, there are times when such a duty is unavoidable.

64. Mr Sherd's appeal is not likely to be heard until February 2012. It is clear that it is the time until the appeal is heard, not some prognostication about when judgment may be delivered, that is relevant: Coulter v The Queen (1987) 61 ALJR 537 (at 538). As was pointed out in Tieleman v The Queen (at 312; [44]), if the Court of Appeal reserves its decision, the appellant may make a fresh application for bail at the end of the hearing.

65. Mr Sherd's non-parole period will expire on 21 March 2013. It cannot be said that an appeal heard in February 2012 will be an exercise in futility or that so substantial a part of the sentence will have then been served that bail is necessary to preserve the subject matter of the appeal. It is regrettable that, if the appeal succeeds, some of the time he has served in full-time custody may not have been required to have been served as part of an appropriate sentence. It is a regrettable but inescapable fact that time in full-time custody that has already been served cannot be restored; that is always so: Markovina v The Queen (at 1523; [9]). It is also clear on the authorities that even if a successful appeal means that the appellant would not be liable for imprisonment at all, this is not in itself a special or exceptional circumstance: Stevenson v The Queen (1984) 58 ALJR 422.

(a) he had financial and personal need for bail, particularly as he would lose his business and his partner would lose financial support for herself and their children were bail not granted;

(b) there were errors of law in the sentence which would require Mr Sherd to be re-sentenced and that any re-sentence would be based on his circumstances which would justify a fully suspended sentence or the imprisonment being wholly or partly by periodic detention.

67. It has to be said at once that, ordinarily, family hardship will rarely amount to a special or exceptional circumstance justifying the grant of bail pending appeal: Re Pennant [1997] 2 VR 85; Robinson v The Queen. Personal hardships can amount to such special or exceptional circumstances, but they must be very special or unusual: R v Southgate (1960) 78 WN (NSW) 44 (at 46). Such hardships are a regrettable but inevitable concomitant of the custodial sentence and, if it is the proper sentence, then it has to be endured, no matter how much sympathy the judge has for those suffering the hardships.

68. It may be that, were the other matters finely balanced, such a consideration may, in combination with the other matters, tip the balance to justify the grant of bail. As the Court said in United Mexican States v Cabal and Ors (at 185-6; [52]), though in the context of the extradition cases:

It is therefore accepted that special circumstances 'need to be extraordinary and not factors applicable to all defendants facing extradition'. It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances justifying bail. (Footnotes omitted).

69. Similarly, in Baker v The Queen [2004] HCA 45; (2004) 78 ALJR 1483, Callinan J, though referring to a question of release from indeterminate sentencing, said (at 1518; [175]):

It is not necessary to catalogue the matters which could constitute special reasons within s 13A(3A) of the Sentencing Act. It may be that it is only in combination, or in increasing degrees of relevance and importance that circumstances may come to be, or provide special reasons.

70. To the same effect was what fell from Gleeson CJ in that case where, after referring to United Mexican States v Cabal and Ors, his Honour said (at 1487; [13]), about "special circumstances":

This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.

71. Thus, the circumstances, whether singly or in combination, must mean that they are unusual or extraordinary or special a circumstance or circumstances not ordinarily to be seen, out of the ordinary. See Tieleman v The Queen (at 309).

72. A difficulty is, however, that bail is merely a temporary release from custody, particularly if the appeal is ultimately dismissed or some period of full-time custody remains even on re-sentencing, and many of these hardships endure beyond the period when the applicant will be on bail.

73. As to the ground raised by Mr Sherd that there were errors of law in the sentence, these were identified by his counsel as follows:

(i) disparity with the sentence imposed on David John Welch of the following bases. Unlike Mr Sherd, he had pleaded not guilty and been committed for trial, but received a discount for his plea of 20% which Mr Sherd, who pleaded guilty in the Magistrates Court and was committed for sentence to the Supreme Court only received a lesser discount of 17.5%. Further, Mr Welch received the same sentence as Mr Sherd, notwithstanding that, unlike Mr Sherd, Mr Welch had committed the offence while on bail. It was also put that Mr Welch had been sentenced separately on agreed facts which reduced his involvement where Mr Sherd had no opportunity to dispute that version;

(ii) evidence was given by Danielle Brown of the hardship she and her children would face if Mr Sherd was incarcerated, but his Honour in sentencing said "there is nothing in the evidence to show how [the family] may be affected";

(iii) there was also evidence of the need for Mr Sherd to assist his mother to care for her granddaughter and to provide financially for his partner and child through his business; and

(iv) challenges to some of the findings of fact constituting the offences and Mr Sherd's actions made by his Honour which were, it was submitted, not based on the facts.

74. I have read the transcript of the sentencing hearing for Mr Sherd as well as his Honour's remarks on sentence. It is, however, neither appropriate nor possible that I analyse in detail the errors claimed by Mr Sherd that his Honour made: R v Waters (at 4018). It is almost impossible to assess prospects unless they are obvious: The Queen v Giordano (at 243).

(i) Mr Welch was dealt with for different offences, though there were similarities in the sentencing options, but also on a different statement of facts. Though there may be some undesirability of this in the circumstances, these led to what arguably is an inevitably different sentencing outcome.

(ii) His Honour was well aware of the issue of parity and addressed it expressly. Whether he did so adequately is a matter for argument.

(iii) Mr Sherd's evidence expressly acknowledged that he had a weapon and an inference was available from his evidence that he could and did use it to assault the victims. The exact seriousness of the offences in the light of this evidence is a matter for argument.

(iv) Although the oral evidence of the victims did not address some of the issues challenged by Mr Sherd, a number of these were dealt with in the Agreed Statement of Facts which was accepted by Mr Sherd.

(v) The evidence of Ms Brown was quite limited and the only evidence about the assistance he provides to his mother was in the Pre-Sentence Report which was also quite limited. Whether this was adequately taken into account is a matter for argument.

76. In the end, Mr Sherd has an arguable case and his appeal may well be upheld, but it cannot be said to be virtually certain of success or to have extraordinarily high prospects of success. It may be that the Court of Appeal will be persuaded that there were errors in the sentence or that it was manifestly excessive. The prospects of success, however, are not so strong as to satisfy the test of special or exceptional circumstances.

77. Even taking at its highest the hardships experienced by Mr Sherd's family, I am not satisfied that these constitute special or exceptional circumstances which would justify the grant of bail.

78. I have also considered whether the matters raised by Mr Sherd constitute, in combination, special or exceptional circumstances and conclude that they do not.

80. Insofar as the application for a stay is a different application, it, too, must be dismissed.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Respondent: Mr T Jackson (29 July 2011)

Solicitor for the Respondent: ACT Director of Public Prosecutions

Capital Territory (Self-Government) Act 1988

Court of Australia Act 1976

(Sentencing) Act 2005

At a glance

Court

Decision date

Source

Judgment (179 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (29)