Citation : TIELEMAN -v- THE QUEEN [2004] WASCA 164

Criminal law and procedure - Bail - Application for bail pending appeal - Necessity to show "exceptional reasons" why appellant should not be kept in custody - Prospects of success on appeal - Other circumstances discussed - Whether exceptional reasons may be found in a combination of circumstances individually insufficient

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

Respondent : Commonwealth Director of Public Prosecutions

Respondent : Commonwealth Director of Public Prosecutions

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

Caratti v The Queen [1999] WASCA 91

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

Clark v The Queen [2004] WASCA 91

Ex p Maher [1986] 1 QdR 303

Jemielita v The Queen (1994) 12 WAR 362

Lim v Gregson [1989] WAR 1

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

R v Baker [2002] NSWCCA 184; (2002) 130 A Crim R 417

R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198

Stalker v The Queen [2002] WASCA 364

Tieleman v The Queen [2004] WASCA 164

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

Draper v The Queen [2000] WASCA 160

Duke v The Queen [1999] WASCA 215

Macleod v The Queen [2003] HCA 24; (2003) 197 ALR 333

Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

R v Bernt (1994) 70 A Crim R 1

R v Ianelli [2003] NSWCCA 1; (2003) 139 A Crim R 1

R v Kastratovic (1985) 19 A Crim R 28

R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34

R v MRW (1999) 113 A Crim R 308

R v Southgate [1960] NSWR 477

R v Wilson (1994) 73 A Crim R 532

R v Wood [1974] VicRp 16; [1974] VR 117

Robinson v The Queen (1991) 65 ALJR 519

Tieleman v The Queen [2004] WASCA 164

Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999

Wills v Petroulias [2003] NSWCA 286; (2003) 204 ALR 162

1 On 1 July 2004, after a trial before McKechnie J and a jury, the appellants and one Wharton were convicted of conspiring to defraud the Commonwealth, contrary to the Crimes Act 1914 (Cth), s 29D. On 13 July they were sentenced to 5 years imprisonment with an order for their conditional release after serving 18 months. The sentence was backdated to 30 June, when the appellants commenced to serve time in custody. They would therefore be entitled to enter into the recognisance and secure their release on 31 December 2005.

2 The appellants made applications for leave to appeal against conviction and sentence. The grounds of appeal are the same in each case.

3 They applied for bail pending the hearing and determination of their appeals. They relied on their prospects of success, when the applications for leave might be heard and determined and therefore how much of the 18 months imprisonment they might be required to serve, financial and business circumstances which were similar in character, and personal and family circumstances which were also of a similar kind.

4 Their applications for bail were heard on 27 July by Roberts-Smith J. His Honour gave extensive reasons for his decision. On 3 August he refused both applications.

5 Since that occurred and since they instituted these appeals against the refusal of bail, the applications of the appellants for leave to appeal against conviction and sentence, together with similar applications for Wharton, have been listed for hearing by the Court of Criminal Appeal on 1-3 December inclusive. Not only was that not known when the appellants instituted their appeals against the refusal of bail, but it was not known when the appeals were argued, on 9 September. On hearing the appeals we dismissed them. These are my reasons for joining in those orders.

6 The appeals against the decisions made by Roberts-Smith J were undoubtedly competent: Jemielita v The Queen (1994) 12 WAR 362, applying Lim v Gregson [1989] WAR 1. The oddity, of course, is that although the question of the grant or refusal of bail arises squarely in the exercise of the Court's criminal jurisdiction, an appeal against such a decision is made under the Supreme Court Act 1935 (WA), s 58(1)(b), to the Full Court.

7 The grounds of appeal relied upon by both appellants are the same. They raise no question of any mistake of fact by Roberts-Smith J, nor is there any suggestion that his Honour erred in his evaluation of the strength of the respective cases of the appellants in relation to their applications for leave to appeal against conviction and sentence. It is contended that his Honour erred in adopting an incorrect test for the grant of bail pending appeal. This argument focuses upon the consideration to be given by a judge considering an application for bail to the strength of the applicant's case on appeal. It is said that his Honour erred by holding that an applicant for bail pending appeal should demonstrate that he or she was "most likely to succeed" in the appeal. The argument puts it that to adopt such a test is to set too onerous a standard and that the proper formulation of this criterion is that the applicant must show that he has a ground of appeal at least, which is "strongly arguable" and has "strong prospects of success".

8 Then it is contended that the judge erred by giving separate consideration to whether particular matters advanced in support of the applications for bail would constitute exceptional reasons why the appellants should not be kept in custody. His Honour failed, so it is asserted, to consider whether, in combination, the circumstances advanced constituted exceptional reasons. The appellants argue that the combination of:

"(i) the financial hardship of incarceration pending the appeal;

(ii) the likely delay in hearing and delivery of judgment on the appeal;

(iii) the likelihood of the [appellant] serving a substantial portion of the non-parole period of his sentence;

(iv) the effect on the [appellant's] family and others; and

(v) the strongly arguable grounds of appeal;

were sufficient to warrant a grant of bail in the present case."

The provisions of the Bail Act

9 The Bail Act 1982 (WA) does not confer a right to bail upon a defendant charged with or convicted of an offence who is in custody awaiting an appearance in a court exercising that court's criminal jurisdiction. The decision whether or not to grant bail rests in the discretion of the court, but the jurisdiction to grant bail is to be exercised subject to and in accordance with the Act and the provisions of various parts of Sch 1 to the Act: Bail Act, s 13.

10 It is to be borne in mind that bail is granted to enable a defendant (as that term is defined by the Act) to be released from custody and to remain at large until required to appear in court and to then surrender from bail and again go into the custody of the court. Roberts-Smith J was exercising jurisdiction under the Act, Sch 1, Pt A, cl 4(d). He was considering the grant of bail pending an appearance in the Court of Criminal Appeal in connection with the appellants' applications for leave to appeal against their convictions and sentences.

11 It was not then the case, but it can now be seen that if his Honour had granted bail, it would, on notice to the appellants, have been for their appearance before the Court of Criminal Appeal on 1 December. It would thereafter fall to the Court of Criminal Appeal to consider any application to renew bail pending the final determination of their appeals which the appellants might make. It is important to bear that in mind when one is considering arguments concerned with the possibility that the Court of Criminal Appeal might reserve its judgment on the applications before it and that, therefore, if then denied bail, the appellants would be required to continue, at least until the final decisions upon their applications for leave, to serve the sentences imposed upon them by McKechnie J.

12 The discretion to grant bail which Roberts-Smith J was asked to exercise, is closely circumscribed by the law. The Bail Act, Sch 1 Pt C cl 4, provides, so far as material:

"In deciding whether or not to grant bail to a defendant who is in custody ... awaiting the disposal of appeal proceedings, the judicial officer shall ... consider whether -

(a) ...

(b) ... there are exceptional reasons why the defendant should not be kept in custody,

and shall only grant bail to him if he is satisfied that -

(c) ... in the case of an appellant, the reason mentioned in par (b) exists; and

(d) he may properly do so having regard to the provisions of clauses 1 and 3 ... ."

13 The test for granting bail to a convicted person pending an appeal, including, as in these cases, an application for leave to appeal, whether against conviction or sentence, is entirely statutory. The common law has, in my opinion, no contribution to make. Under cl 4 of Pt C of Sch 1 to the Act, the court has no power to grant bail unless the judge is satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the final determination of his or her appeal, putting to one side, for present purposes, the need to satisfy cls 1 and 3 of this Part of the Schedule, which stipulate the matters to be considered in exercising the discretion to grant or refuse bail generally.

14 The question then is, what may constitute the exceptional reasons of which the clause speaks? They must be reasons concerned with why the convicted appellant should be released from custody pending the appeal, although he or she has been convicted and is a sentenced prisoner. The wording of the clause suggests that where exceptional reasons exist, there will generally be more than one of them although, of course, one exceptional reason would obviously suffice. It is but a short step, as the clause is worded, to suppose that the appellants' contention is correct. The matters advanced as reasons why the appellant should not be kept in custody, may acquire their exceptional character in combination although if they were fewer in number they may not suffice to satisfy the judge that they were sufficiently exceptional.

15 "Exceptional" is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases. The test for the grant of bail pending appeal has been considered by courts in different contexts. We were referred to a number of cases where different language has been used, but where that has been done it has, in my opinion, only been by way of a gloss upon, or explanation of, the statutory formula and it must be remembered that the test for the grant of bail to an appellant pending the determination of an appeal is expressed in the words of the statute, which have a clear meaning. The grounds of appeal in this case, as has been seen, tend to fall into the error of substituting other words for the statutory test and then arguing about which of the other words are correct. The answer is that the correct words are those which correctly express the meaning of the statute.

16 We were referred to a number of decided cases and many were discussed by Roberts-Smith J. I wish to refer to only a few.

17 In Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514, Brennan J was concerned with an application for bail pending an application for special leave to appeal to the High Court. His Honour made the point that a statutory power to grant bail must be found and having concluded that it lay in inherent power necessarily imported by the power to appeal to the High Court upon the grant of special leave, his Honour observed, at 519-20, that the power would be considered to be conferred in general terms. Nonetheless, his Honour noted that in various State jurisdictions where a statutory power to grant bail pending an appeal existed, the circumstances in which the power would be exercised were described in general terms by the courts as "very exceptional", "exceptional", "exceptional or unusual", or "special".

18 His Honour went on to add the cautionary observation that to grant bail after conviction and pending appeal was effectively to "invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted." His Honour made it clear that care must be taken not to administer the power to grant bail in a manner which may have that effect. Care must be taken not to "whittle away the finality of the jury's finding". I would, with respect, take those observations as conveying no more than the caution that the consideration of the question of bail pending appeal must be against the background of the fact that a jury has found guilt to be established beyond reasonable doubt and the trial judge has passed sentence accordingly.

19 In Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265 Callinan J was dealing with an application for bail after the grant of special leave and pending the appeal in the High Court. Referring to the observations of Brennan J in Chamberlain, at 266[10], his Honour said:

"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."

20 Nonetheless, at 267[15], his Honour did not dissent from the decisions of single judges in other cases that special circumstances must be shown to justify a grant of bail pending appeal, but as his Honour pointed out, the decision of those cases was no doubt affected by their particular facts. In this case, his Honour decided to grant bail and he detailed the particular matters which would justify the grant of bail. Some of those were concerned with the discernible strength of the case of the applicants for bail on their appeal, an appeal which, if successful, would cause their convictions to be quashed and would justify a retrial. His Honour noted that a substantial portion of the sentences would be served if bail was not granted. The circumstances were such, his Honour said, that if ultimately the appellants were acquitted, those acquittals "would be hollow victories". His Honour made it clear, at 267[19], that it was "the combination of the matters to which I have referred and the facts of the cases before me that demonstrate sufficiently exceptional circumstances to warrant bail."

21 United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 was an extradition case. The applicants for bail had been held in custody pending their extradition, against which they appealed, finally to the High Court, a single judge of which court granted bail pending the hearing of the application for special leave which had been referred to the full High Court. The bail was granted under a section of the Extradition Act 1988 (Cth), which empowered the grant of bail pending the appeal, "if there are special circumstances justifying such a course".

22 The High Court, Gleeson CJ, McHugh and Gummow JJ, in discussing the exercise of the power to grant bail pending appeal in a criminal case, at 181[40], reaffirmed that the court would apply the exceptional circumstances test adopted in earlier decisions, including Marotta. At 181[39] their Honours cited with approval the decision of Thomas J in Ex p Maher [1986] 1 QdR 303, at 310, where his Honour pointed out that to allow a prisoner bail pending an appeal made the conviction appear contingent until confirmed, placed the court in an invidious position if the appellant was unsuccessful and had to be returned to prison, encouraged unmeritorious appeals, undermined respect for the judicial system by having the appellant at liberty, although recently sentenced, and undermined the public interest in having convicted persons serve their sentences as soon as practicable.

23 Against that background, at 181-2[41], their Honours said:

"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."

24 I would, with respect, think that such considerations will loom large for this Court in considering whether there are exceptional reasons why the defendant should not be kept in custody, but I would not suggest that we ought to hold that those matters must necessarily be found in considering the case for bail. I think it to be clear that what may constitute exceptional reasons will depend upon the facts of the particular case. But having said that, it would seem to me, speaking generally, that it will be difficult to find exceptional reasons where there are not strong grounds for concluding that the appeal will be allowed; nor would it generally be possible to demonstrate exceptional reasons in a case where it could not be shown that the custodial sentence will be substantially served before the appeal is finally determined. But if those things can be shown it may yet be necessary to demonstrate additional circumstances in a particular case before the Court will exercise its discretion to grant bail on the basis that it is satisfied that exceptional reasons justifying that course exist. The Court will take a cautious approach, having regard to the terms in which the statutory power is framed, and considerations of the kind expressed by Brennan J in Chamberlain, by Thomas J in Ex P Maher, and by the High Court in Cabal.

25 Finally, I wish to refer to Baker v The Queen [2004] HCA 45; (2004) 78 ALJR 1483. An appeal to the High Court from the NSW Court of Criminal Appeal, the decision of which court is reported as R v Baker [2002] NSWCCA 184; (2002) 130 A Crim R 417. The case concerns a statutory procedure under the Sentencing Act 1989 (NSW) whereby persons who have been sentenced to indeterminate terms of imprisonment, never to be released, may apply for an order, which may be made in the discretion of the court, to fix a minimum term and additional term to constitute the sentence in substitution for the indeterminate term. The purpose of seeking such an order is obviously to obtain the capacity to be released into the community on completion of service of the minimum term so fixed. The discretionary power of the judge is conferred by the Act in language which is similar to cl 4 of Pt C of Sch 1 of the Bail Act under consideration in this case. The determination of a minimum term and additional term is not to be made unless the Court "is satisfied that special reasons exist that justify making the determination."

26 The case is principally concerned with the constitutional validity of the legislation, having regard to the doctrine of separation of powers, but in the course of their judgments a number of the members of the High Court endorsed what had been said by Ipp AJA, with the agreement of the other members of the court, in the Court of Criminal Appeal of NSW when his Honour gave to the term "special reasons" the meaning which I have ascribed to the term "exceptional reasons" earlier in these reasons: see particularly per Kirby J (dissenting) at 1507[125] and Callinan J at 1517-8[173]-[176]. Callinan J relied particularly upon what was said by Bingham LCJ in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208. At 1518[175] Callinan J said:

"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."

27 That observation, of course, echoes what his Honour said in Marotta. The same observation was made by Gleeson CJ in Baker, at 1487-8[13], where his Honour said, citing Cabal:

"There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. 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."

28 With respect, I would adopt those observations and apply them to cl 4 and the term "exceptional reasons" used in that clause, defining the word "exceptional" as I have indicated earlier in these reasons.

29 I have read the cases decided by single judges of this Court to which we were referred. I do not propose to quote from them. To my mind, although different words are used from time to time in discussing the test for the grant of bail pending appeal, the decisions in those case are entirely consistent with the statement of the general principles at which I have arrived in these reasons. The cases to which I refer are Caratti v The Queen [1999] WASCA 91, a decision of Miller J; Stalker v The Queen [2002] WASCA 364, a decision of Roberts-Smith J; and Clark v The Queen [2004] WASCA 91, a decision of Barker J.

30 In my opinion, Roberts-Smith J did not make the errors of law of which the appellants' grounds complain. His Honour's judgment is at [2004] WASCA 164. At [11] his Honour referred to "the threshold test" for the grant of bail in terms of cl 4. He defined the word "exceptional" to mean "unusual or extraordinary or special, a reason not ordinarily to be seen, out of the ordinary". It is perfectly clear that his Honour was giving the word its ordinary meaning and he did not make the mistake of supplanting the words in the clause by the use of some other terminology which might or might not mean the same thing. His Honour went on to talk about various matters which had been relied upon and, as I have said, he referred to a good many decided cases.

31 His Honour spent some time reviewing the grounds of appeal and asking himself the question whether, on a somewhat cursory overview of the merits of the appellants' case, the appeals were most likely to succeed. I can see nothing wrong in law in that approach. His Honour dealt in detail with those grounds of appeal which were advanced to him as being especially strong. It is not surprising, in those circumstances, that after reviewing the grounds particularly relied upon by the appellants, his Honour expressed a conclusion about their strength. He found a number of them to be arguable grounds, but thought that none of them was most likely to succeed and therefore concluded, at [165], that, "The proposed grounds of appeal do not demonstrate that high degree of likelihood of success as to constitute exceptional reasons why the applicants should not be kept in custody pending their appeal."

32 His Honour did not overlook what had been advanced to him in relation to the appellants' personal circumstances. He described them in some detail. As I have said, there appears to have been no dispute about the facts.

33 In summary, it was put that the appellant Tieleman, a chartered accountant living and working here in Perth, would suffer severe economic damage to his professional practice which might possibly be lost if he was unable to carry it on for the time expected before the appeal was heard and judgment was delivered, possibly not before April 2005, by which time he would have served somewhat more than half of the minimum term of his sentence. The evidence of the potential for harm to the practice was canvassed in detail by Roberts-Smith J. Included in that evidence was material expressing concern at the possible loss of the jobs of two employees and the possibility of grave financial harm being suffered by two other persons, not the appellants, who are also partners and shareholders in the accounting practice.

34 All of Tieleman's children are pursuing secondary or tertiary studies. Their capacity to do so may be jeopardised if the income of the family ceases because Tieleman is in gaol. Nor would he be able to perform his ordinary husbandly and fatherly duties. He would be unable to pursue his practice of regular visits and care for his elderly parents, neither of whom enjoys the best of health. Mrs Tieleman deposed in an affidavit that she relies heavily upon her husband for her emotional and psychological health.

35 The circumstances of the appellant Pearce are not dissimilar, although he is a younger man with a young family. Again, he is the sole source of income for the family and he supports his mother-in-law financially. Mrs Pearce has become unwell as a result of her husband's incarceration. She is losing weight and suffering from stress, for which she is receiving medical treatment. The evidence supported the view that the harm which might be suffered, financially and otherwise, by the appellants and their families was substantial.

36 But his Honour noted that the difficulties described by the evidence were not unusual consequences of the appellants' conviction and incarceration. Unless the convictions had high prospects of being quashed, these were consequences which would inevitably flow and would be properly regarded as resulting from the offenders' commission of the offence. His Honour doubted, at [79], that the appellants were truly irreplaceable in their accounting practice, but in any event, observed that he was not "persuaded" that these aspects of the application constituted an exceptional reason for granting bail pending appeal.

37 His Honour considered what was then known or prognosticated as to when the appeal might be heard and determined. He considered that a substantial portion of the custodial sentences would have been served even if the convictions were quashed. His Honour referred to the decision of Callinan J in Marotta and expressly noted what had been said there about the combination of facts and circumstances being sufficient to demonstrate exceptional circumstances to warrant the grant of bail pending appeal.

38 It is clear from the judgment that his Honour overlooked none of the circumstances to which he had been referred. He expressly discussed them all and evaluated their persuasive power. Although his Honour said they were individually of insufficient power to constitute exceptional reasons, "Nonetheless, they remain circumstances to be taken into account." [72]. It is certainly clear that his Honour paid most attention to an evaluation of the strength of the appellants' case on appeal, the case of each man being the same. But in my opinion that was appropriate in this case because of the view that his Honour took about the persuasive power of the other circumstances advanced.

39 Clearly, there could not be exceptional reasons for the grant of bail unless the prospects of success on appeal were affirmatively established to be so high that it could be said that there was a high degree of likelihood that the Court of Criminal Appeal would quash the convictions. In the circumstances of this case, as Roberts-Smith J correctly, in my respectful opinion, appreciated, that must be so, given that no other circumstance or circumstances were established which could be said to provide exceptional reasons why the appellants should not be kept in custody despite their pursuit of a merely arguable appeal.

40 I summarise, in the following way, the reasons why I joined in the dismissal of these appeals.

41 The power to grant bail pending appeal provided by Sch 1 Pt C cl 4 of the Bail Act is truly discretionary. Therefore an appeal against the exercise of that discretion may not succeed unless, in the ordinary way, it can be seen that the judge misapprehended relevant facts, overlooked some relevant fact, took into account irrelevant facts, misapprehended the law, or in some other way it can be seen that there has been error in principle and that the discretion has miscarried. It may be established that the discretion has miscarried simply because the decision of the judge was one which could not be arrived at upon any reasonable basis, applying the appropriate principles guiding the making of the decision to the facts of the case which were or ought to have been found.

42 The discretion to grant bail pending appeal, if readily exercised, has a clear capacity to invest a conviction and sentence with a provisional quality which, for reasons of the kind expressed by Thomas J in Ex p Maher, strikes at the proper administration of this area of the law. The circumstances in which the discretion may be exercised to grant bail are therefore closely circumscribed by the requirement to demonstrate

exceptional reasons why the defendant should not be kept in custody pending the hearing and determination of his or her appeal. Those exceptional reasons will be matters of fact demonstrated or established by the applicant for bail. There is no closed list of what circumstances may constitute exceptional reasons, but it will be necessary for the judge hearing the application to evaluate their strength or persuasive power alone or individually, and, if necessary, in their combination.

43 That was, in my view, the way Roberts-Smith J approached the case. He found arguable grounds of appeal, but could put the prospects of success on the appeals no higher. That view was open to him. His Honour found that in the case of each appellant, the results of their incarceration included substantial harmful effects on their business, their capacity to support their families, upon employees and partners in their business, harmful effects of various kinds, all potentially grave, upon members of their families, but nothing in that regard which might be properly described as exceptional or out of the ordinary in a case such as that of these appellants who have families, businesses, financial commitments and property, any or all of which may be lost or jeopardised by their imprisonment. It was open on the facts established before his Honour for him to exercise his discretion as he did. Indeed, it seemed to me that had bail been granted to these appellants on the material before the Court that would have been a decision difficult to justify.

44 Finally, in relation to the prospect that a substantial portion of the sentences might be served before the final decision of the Court of Criminal Appeal is known, his Honour, in my opinion, approached that correctly. Of itself, such a consideration will generally not be regarded as providing an exceptional reason for the grant of bail and the point rather falls away now that it is known when the appeals are to be heard. If the decision on those appeals is reserved it will, in my view, be open then to the appellants to make a new application for bail for their appearance to receive the final judgment of the Court of Criminal Appeal, if leave should be granted to them to appear before the Court on that occasion under the Criminal Code (WA), s 699(1).

45 STEYTLER J: I have had the advantage of reading the judgment of Murray J.

46 It seems to me, as it does to Murray J, that, in considering whether or not there are "exceptional reasons", for the purposes of Sch 1, Pt C, cl 4 of the Bail Act 1982, why an appellant should not be kept in custody, the word "exceptional" is to be given its ordinary meaning. That is to say, the

reasons must be unusual or out of the ordinary. As was pointed out by Gleeson CJ in Baker v The Queen [2004] HCA 45; (2004) 78 ALJR 1483 at 1487 - 1488 [13], this kind of formula 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. Each case will depend upon its own circumstances.

47 Only two grounds of appeal are raised against the finding of the primary Judge that no such reasons existed. The first is that he adopted "an incorrect test for the grant of bail pending appeal, by adopting the standard of 'most likely to succeed' in relation to the proposed Grounds of Appeal". The second is that he "erred in failing to make any assessment of the combination of factors that could probably go to a grant of bail".

48 As Murray J has said, the primary Judge in this case gave to the word "exceptional" its ordinary meaning. He said (Tieleman v The Queen [2004] WASCA 164 at [11]) that it meant "unusual or extraordinary or special, a reason not ordinarily to be seen, out of the ordinary". That was the test which he applied.

49 While his Honour did say, so far as the prospects of success on appeal were concerned, that he took the test to be that it must be shown, without detailed argument, that the appeal is most likely to succeed, that comment was made against a background in which he found (at [72]) that there was nothing in the personal and familial circumstances of the appellants "which would elevate them into an exceptional reason". The comment was also made in a context in which his Honour took into account what had been said by the High Court (Gleeson CJ, McHugh and Gummow JJ) in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 at 181 [41] to the effect that the history of decisions of that Court showed that "ordinarily" it would grant bail in criminal cases only if two conditions are satisfied, namely:

"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."

50 Of course, in an appeal to the High Court, the case in question will be one which will ordinarily have been considered by an appellate court. However, as Barker J pointed out in Clark v The Queen [2004] WASCA 91, when regard is had to the authorities considered in Cabal, similar

conditions will ordinarily be considered to be relevant to the question whether "exceptional reasons" exist for the purposes of Sch 1, Pt C, cl 4 of the Bail Act.

51 Given that his Honour had concluded that the personal and familial circumstances of the appellants (referred to in the judgment of Murray J) did not, of themselves, give rise to exceptional reasons for a grant of bail pending the appeal, it was necessary for his Honour to evaluate the prospects of success of each appeal and also to take into account the proportion of the sentence imposed which would probably have been served by the time of the hearing of the appeal and then to consider whether those circumstances, or the whole of the circumstances taken together, amounted to exceptional reasons (cf Baker, above, at 1518 [175]). That is what, in effect, he did. He found that the grounds of appeal could not be said to have such a prospect of success on appeal as to be described as "most likely to succeed". In that circumstance, and taking into account (at [87]) the length of time which, as it seemed to him, might elapse before the appeal was heard, bearing in mind the length of the overall sentence of imprisonment, as well as each appellant's personal and familial circumstances (his Honour said, at [72], that, while these did not amount to an exceptional reason, "they remain circumstances to be taken into account"), the primary Judge, in effect, concluded that there was insufficient to amount to exceptional reasons for a grant of bail. In my opinion, he was right in that conclusion.

52 It was for these reasons that I joined in the dismissal of these appeals.

53 TEMPLEMAN J: I joined in the dismissals of the appeals on 9 September 2004 because I was not persuaded that Roberts-Smith J mis-exercised his discretion in declining to grant bail to the applicants, pending their appeals.

54 I have since had the advantage of reading in draft the reasons published by Murray J. It was for the reasons set out by his Honour that I joined in the order dismissing the appeals. There is nothing I wish to add.

• The proceedings thus far
• The appeals against the refusal of bail
• The provisions of the Bail Act
• The general principles
• The decision under appeal
• Conclusion