The Queen v Giordano

3. Further, as a result of enquiries made of the registry, I was able to inform the parties that although the appeal index for Mr Henderson's appeal had not yet been settled, it was listed to be settled this Wednesday, 1 October, and that if that was achieved the appeal could be listed on 13 or 15 October, that is, two weeks from now. Ms MacKenzie at that stage indicated that the DPP had, I think, all the papers that they needed to provide for that appeal index and that they would be able to meet a hearing date of 13 or 15 October.

• first, to finalise any grant of bail and then to grant an immediate stay of that bail to enable the DPP to appeal the grant, with an undertaking from the DPP to expedite the hearing of the appeal, or
• the second alternative, to list Mr Henderson's appeal for mid-October, again on the basis of an undertaking by the DPP, this time an undertaking to be ready for the hearing that is listed, and then to adjourn this bail application with liberty to relist at any stage.

5. Now, I do note the general sense of frustration which, I think, we all share about how long this application has taken to get to this point and so I suppose the alternative is, rather than simply adjourning it again, for the bail application to be withdrawn, and I say that because the other possibility, of course, is for me to simply refuse it at this stage, but I do not think I have grounds for doing that right now, subject to one thing that I will come to shortly. In any case, if I do that, then that, I think, makes it more difficult to make a subsequent bail application based on the same set of circumstances.

6. However, for the reasons that I am about to state, I have chosen the latter course, namely to list Mr Henderson's appeal for mid-October and adjourn this bail application, and the reasons for that are as follows.

7. First, finalising the grant of bail, only to have it immediately stayed pending appeal court consideration, would needlessly waste the time of all involved, including the parties, their legal representatives and the court.

8. Secondly, it would impose an extra burden on Mr Henderson. Although he has Legal Aid for his substantive appeal, there is no reason to believe that he would receive Legal Aid for the bail appeal, and even if he did receive that, it would take some time to be finalised.

9. Among other things, this could mean that the bail appeal would take longer to determine than the substantive appeal. Furthermore, the outcome of the bail appeal would not resolve Mr Henderson's substantive matters, but would leave them still to be determined, and indeed possibly delayed further because of the delay caused by the bail appeal.

10. Finally, the fact that it appears that the substantive appeal could now be heard in two weeks time seriously weakens the argument for granting bail at all.

11. Ms MacKenzie drew my attention last week to the case of The Queen v Giordano (1982) 31 SASR 241, a South Australian Full Court decision. Mr Stubbs commented on the fact that it was 1982 and also a South Australian decision. However, it was a Full Court decision, and there's a High Court case, Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, which suggests, among other things, that single judges of Supreme Courts should follow intermediate appellate courts of other jurisdictions unless there's a good reason not to (at [135]).

12. That case, Giordano, made points similar to those also picked up in the case of Tieleman & Anor v The Queen [2004] WASCA 285 (9 September 2004), which was a 2004 Western Australian Full Court decision. Both those cases, and the High Court case of the United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 which is referred to in Tieleman, make it clear that where it cannot be shown that the custodial sentence involved will be substantially served before the appeal is finally determined, it will be very difficult to find exceptional circumstances (Giordano at 243, Tieleman at [24] and United Mexican States at [41]).

13. Now, as I've said already, when we were discussing this on the basis that the appeal might not be heard until, quite likely, February, by which stage Mr Henderson would have served 12 months out of a 14 month non-parole period, that issue seemed to be resolvable in his favour. When we're talking about only another two weeks, I think the matter becomes rather different.

14. For all these reasons, I therefore provide at this stage a provisional listing for the appeal hearing of 15 October, and I have chosen that date just to give two more days for Mr Henderson's legal representatives to get organised, and I adjourn the bail application with liberty to relist it at two days notice should it appear that the appeal cannot be heard on 15 October for reasons out of Mr Henderson's control.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions