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[2008] HCA 58
procedural. Application for bail refused. Tilley was directed to serve his written case and draft notice of appeal forthwith; the respondent was to file and serve a summary of argument within 21 days, and...
4 cited instruments linked from this judgment.
Tilley asked to be released on bail while the High Court considered whether to grant special leave to appeal. The Court accepted that he had served much of his five-year non-parole period and noted substantial delays in the appeal process. But the respondent had not yet replied to his written case, so Hayne J considered it too early to assess whether the special-leave application had the very strong prospects ordinarily required for bail at that stage. Bail was refused, while deadlines were set to move the application forward promptly.
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2,185 words · generated 05/10/2026
The proceeding was not the determination of Tilley’s criminal appeal. Hayne J was deciding an interim application for bail while Tilley’s application for special leave to appeal to the High Court remained pending. The distinction matters: the judgment did not decide whether the conviction was safe, whether the Court of Appeal had dealt properly with the grounds, or whether special leave should ultimately be granted. It decided whether bail was justified before those matters had been fully argued.
In March 2004, the Commonwealth Director of Public Prosecutions indicted Murray James Perrier, Peter Hans Malman, Voicu Pop and Peter Alan Tilley for conspiring to import into Australia a trafficable quantity of heroin, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) ([1]). The four accused pleaded not guilty. On 24 March 2005, after a 34-day trial, the jury found each guilty ([2]).
Tilley was sentenced on 23 August 2005 to seven years’ imprisonment, with a non-parole period of five years ([3]). In September 2005, he applied to the Victorian Court of Appeal for leave to appeal against both conviction and sentence ([4]). The applications were not heard until 25 June 2007, and judgment was delivered on 6 June 2008 ([4], [6]). Hayne J observed that the materials did not explain the long intervals. The Court of Appeal delay was particularly striking because Tilley’s co-accused Perrier, who had received a life sentence, died before his application was determined ([6]).
Tilley then sought special leave in the High Court. His stated complaint was that three written arguments on specified grounds had been presented to, and accepted by, the Crown and the Court at the Court of Appeal hearing, but had not been read or adjudicated upon ([10]). The respondent disputed that account, relying on the Court of Appeal’s reasons and arguing that they showed written submissions on the relevant grounds had been considered ([10]).
Tilley asked for bail without oral argument. Hayne J refused the application. At the same time, he made procedural directions requiring Tilley to serve his written case and draft notice of appeal forthwith, the respondent to file and serve a summary of argument within 21 days, and Tilley to reply within seven days if he wished ([15]-[16]). The order therefore had two distinct effects: it refused interim release, but accelerated the progress of the special-leave application.
The governing problem was the timing of the bail request. Tilley had not yet received a response to his written case in the special-leave proceeding. Hayne J considered that the relevant prospects could not yet be assessed adequately without that response ([14]). The judgment therefore turns on the state of the material available at that procedural stage, not on a conclusion that Tilley’s proposed appeal lacked merit.
Hayne J described the principles through two cited authorities. In Peters v The Queen, Dawson J identified the High Court’s bail power as connected to preserving the effectiveness of the Court’s prospective appellate jurisdiction, by preventing the subject matter of that jurisdiction from becoming futile ([12], referring to Chamberlain v The Queen). Peters also described occasions for bail as “rare indeed” and identified a possible situation where a sentence may be served, or substantially served, before the special-leave application is heard, provided the application has a reasonable prospect of success ([12]).
Hayne J also quoted United Mexican States v Cabal. It stated that bail before special leave will ordinarily be granted only if the Court is satisfied there are “very strong grounds” for concluding that leave will be granted. The applicant must also show that the custodial sentence, or the greater part of it, is likely to expire before the leave application is heard ([12]). The judgment thus presents two related considerations: the risk that the sentence will substantially run its course before the application is decided, and the strength of the case for granting special leave.
The sentence-related consideration favoured Tilley to an extent. Hayne J accepted that Tilley had served much of his five-year non-parole period, and acknowledged that further time would pass while procedural steps were taken ([13]). But that did not complete the test. Hayne J considered that the prospects of special leave could not be assessed until the respondent had answered the written case. On the material then available, he could not say that there were very strong grounds for concluding that leave would be granted ([14]). The outcome followed from that gap in the submissions, rather than from a finding about the ultimate correctness of the conviction or the alleged failure to consider arguments.
The delay remained important, but in a different way. Hayne J regarded the unexplained periods as concerning and said the matter’s further progress should not be delayed ([7]-[9], [15]). He did not treat delay by itself as satisfying the bail threshold. Instead, it supported directions designed to move the special-leave application forward. The order illustrates the distinction between concern about delay and the separate legal requirements for release on bail.
This judgment is a short application of existing principles, not a broad restatement of the law of bail or appellate review. It does not purport to change the threshold for bail pending special leave. Rather, it collects and applies the principles described in Peters and Cabal to a case where the applicant had served much of the non-parole period, but the written case remained unanswered.
The judgment also addresses delay in criminal proceedings, but carefully limits what it decides. Hayne J cited Jago v District Court (NSW) for the proposition that common law did not recognise a separate right to a speedy trial apart from the right to a fair trial ([8]). He also repeated Brennan J’s observation in Jago that this did not make speed unimportant: justice delayed is justice denied, and courts seek, within their resources, to avoid unnecessary delay ([8]).
Hayne J expressly did not examine what consequences might follow in Victoria from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which provides a guarantee of trial without unreasonable delay ([8]). The case therefore cannot be treated as deciding the operation or consequences of that Charter provision. Nor does it decide whether the delays in Tilley’s own proceedings breached a legal right or required a particular remedy. Hayne J said he could not determine whether the alleged effect on Tilley’s progression within the prison system was made out ([9]).
The practical “after” state visible in the judgment is procedural rather than doctrinal. The application for bail was refused, but the special-leave process received a timetable under r 41.10.1 of the High Court Rules 2004 ([15]-[16]). The judgment does not report the later determination of the special-leave application, so no outcome on the proposed appeal can be inferred from this decision.
At [12], Hayne J sets out the central threshold from Cabal: “Ordinarily, a person will be admitted to bail before the grant of special leave in a criminal case only where the Court is satisfied there are very strong grounds for concluding that leave will be granted.” In plain English, being in custody while an appeal application is pending does not itself justify bail. The applicant must make a particularly strong preliminary showing that the High Court is likely to grant permission to appeal.
The same paragraph adds a sentence-timing consideration: the applicant needs to show that the sentence, or most of it, is likely to expire before the leave application is heard ([12]). That consideration explains why Tilley relied on the time already served. But the judgment treats sentence timing and appeal prospects as connected requirements, not as alternatives.
At [14], Hayne J explains the decisive evidentiary difficulty: “Until that is done I consider that it is not possible to decide what prospect Mr Tilley has of securing a grant of special leave.” The respondent had not yet been called on to answer Tilley’s written case. In plain English, the material was incomplete, and Hayne J was not prepared to assess the likelihood of special leave without the respondent’s position.
At [15], Hayne J states that “the further progress of the matter should not further be delayed.” This was not a finding that bail should be granted. It was the reason for directions setting out a timetable for the written steps. The distinction is central to reading the disposition: the Court responded to delay by expediting the application, while still refusing release.
The passage at [8] about there being no separate common-law right to a speedy trial should also be read with its qualification. Hayne J did not say that delay was unimportant. He expressly endorsed the importance of avoiding unnecessary delay, and reserved the possible effect of the Victorian Charter provision.
The decision is most directly relevant to an application for bail made before the High Court has granted special leave in a criminal case. It is particularly relevant where the applicant argues that the custodial sentence, or a substantial part of it, may be served before the special-leave application is decided. The judgment signals that sentence timing alone is not enough: the prospects of special leave remain a separate and demanding consideration ([12]-[14]).
It is also relevant where the written submissions are incomplete or the respondent has not yet answered the applicant’s case. Tilley’s application was refused at that stage because Hayne J considered the prospects could not yet be adequately assessed ([14]). The decision does not establish that every incomplete record requires refusal. It does show why the stage of the proceedings and the material available may matter in applying the threshold.
A further relevant pattern is one involving lengthy appeal delays. The judgment documents delay between initiating appeal applications, their hearing, and the delivery of judgment, and expresses concern about unexplained periods ([4]-[9]). It demonstrates that such concern can lead to procedural expedition. It does not establish that delay alone requires bail, nor does it resolve what remedies may be available for delay in other circumstances.
Finally, the case involves an allegation that an appellate court did not consider written arguments. That allegation was recorded, and the respondent’s contrary position was also noted, but Hayne J did not decide the merits of the alleged omission ([10], [14]). The judgment should therefore not be cited as deciding how the principles in Jones v The Queen apply to a disputed claim that written submissions were overlooked.
The supplied judgment contains no account of later cases applying, distinguishing or criticising Tilley. It is therefore not possible, from this source alone, to describe how subsequent courts have treated it. The text identifies the authorities Hayne J relied on or discussed, but those are earlier authorities: Jago, Jones, Peters, Cabal and Chamberlain ([8], [10], [12]).
The judgment’s own treatment of those authorities is relatively specific. Jago is used for the common-law position on a separate speedy-trial right and for the importance of avoiding unnecessary delay ([8]). Peters and Cabal inform the exceptional bail threshold and the relevance of likely sentence expiry ([12]). Chamberlain is cited through Peters as a source concerning preservation of the subject matter of prospective appellate jurisdiction ([12]). Jones is mentioned because Tilley invoked principles of that kind, but the judgment records a dispute about whether they applied ([10]).
Any account of later treatment would require sources beyond the judgment supplied here. No subsequent citation history or later judicial interpretation should be inferred from the fact that this judgment cites those earlier authorities.
Several matters were expressly left unresolved. First, the judgment does not decide whether the Court of Appeal failed to read or determine Tilley’s asserted written arguments. The respondent relied on paragraphs [39] and [40]-[53] of the Court of Appeal reasons, while Tilley disputed whether those reasons dealt with the particular arguments he meant ([10]). Hayne J did not resolve that contest in deciding bail.
Second, the judgment does not determine whether the delays in Tilley’s proceedings had legal consequences beyond the need for expedition. Hayne J said the reasons for the delays could not be identified from the material before him, and did not determine whether the alleged effects on prison conditions were made out ([4]-[9]).
Third, the consequences of s 25 of the Victorian Charter for delay in criminal proceedings were expressly left open ([8]). The judgment says it was neither necessary nor appropriate to examine that question for this bail application. It is not authority for a conclusion about the Charter’s operation.
Fourth, the judgment does not establish how the bail threshold would apply after the respondent’s answer was filed. Hayne J’s refusal was based on the inability to assess prospects at the then-current stage. The order required the written steps to occur, but the judgment does not disclose the later result ([14]-[16]).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
HAYNE J
PETER ALAN TILLEY APPLICANT
AND
THE QUEEN RESPONDENT
Tilley v The Queen [2008] HCA 58
19 December 2008
M84/2008
ORDER
1. Application for bail refused.
2. The applicant shall forthwith serve his written case and draft notice of appeal on the respondent.
3. The respondent shall within 21 days of the service of the applicant's written case and draft notice of appeal file and serve its summary of argument.
4. The applicant may within 7 days of service of the respondent's summary of argument file and serve his reply (if any).
5. Subject to any further or other directions of the Court or a Justice, further steps in the application shall be taken in accordance with the Rules.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tilley v The Queen
Criminal law – Jurisdiction, practice and procedure – Bail – Bail pending application for special leave to appeal.
HAYNE J. In March 2004, the Director of Public Prosecutions for the Commonwealth filed an indictment in the County Court of Victoria charging Murray James Perrier, Peter Hans Malman, Voicu Pop and Peter Alan Tilley with having conspired with each other and with others to commit an offence against s 233B(1)(b) of the Customs Act 1901 (Cth) of importing into Australia prohibited imports to which s 233B of that Act applied, namely, narcotic goods consisting of not less than a trafficable quantity of the narcotic substance heroin.
Eleven months later, on 2 February 2005, the four accused were arraigned before Judge King. Each pleaded not guilty. Of the four accused, all other than Mr Perrier were then on bail and their bail was continued until the jury returned to consider their verdicts. On 24 March 2005, on the 34th day of the trial, the jury returned verdicts of guilty against each accused. The accused other than Mr Tilley were sentenced on 19 May 2005.
Before she had sentenced Mr Tilley, Judge King was appointed a judge of the Supreme Court of Victoria. Accordingly, on 23 August 2005 another judge of the County Court, Judge Gaynor, passed sentence upon Mr Tilley. Judge Gaynor sentenced Mr Tilley to a term of seven years' imprisonment and fixed a non‑parole period of five years.
In September 2005, Mr Tilley gave notice of application for leave to appeal to the Court of Appeal of the Supreme Court of Victoria against both his conviction and sentence. Mr Tilley's applications were heard with applications made by two of his co‑accused, Mr Perrier and Mr Pop. The applications of the co‑accused proceeded only in relation to sentence. The applications did not come on for hearing in the Court of Appeal until 25 June 2007. It is not possible to say from the material filed in this Court why it is that there was such a long delay between Mr Tilley filing his applications in September 2005 and the applications coming on for hearing in June 2007. On the face of things, however, the delay is of a length that would require cogent explanation.
The material filed by the Director of Public Prosecutions, in opposition to the grant of bail, records that at various times before September 2006 Mr Tilley sought, and was granted, extensions of time within which he was to file his outline of written submissions in support of his applications to the Court of Appeal. And as is often the case, amendments were made to both the grounds of appeal and the outline of submissions in the days immediately before the applications came on for hearing. But without further explanation, neither of these sets of circumstances appears to justify a delay of more than 21 months between the commencement of proceedings in the Court of Appeal and their coming on for hearing.
Be this as it may, Mr Tilley's application for leave to appeal against conviction and sentence and his co‑accused's applications for leave to appeal against sentence having been heard on 25 June 2007 it was not until almost exactly one year later, on 6 June 2008, that judgment was delivered in the Court of Appeal. Again, it is not possible to say from the material available to me why it is that disposition of the applications took so long. One applicant, Mr Perrier, who had been sentenced to life imprisonment, died before his application was determined.
The reasons of the Court of Appeal ultimately published do not, at least on their face, suggest any great complexity about the issues that were argued or state any explanation for why the joint reasons of the Court should have taken so long to prepare. It must, however, be said that the delay appears to be such that it could be justified only by compelling reasons of the most extraordinary kind. It is as well to explain why that is so.
In Jago v District Court (NSW)1, this Court held that there is not a right at common law to the speedy trial of a criminal charge which is a right separate from the right to a fair trial. It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that:
"(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees –
...
(c) to be tried without unreasonable delay".
It is sufficient to notice that, as Brennan J said in Jago2, to hold that no right to a speedy trial was recognised by the common law "is not to say that the courts of this country do not regard speed in the disposition of criminal cases as desirable. To the contrary, it is a truism that justice delayed is justice denied." That is why, as Brennan J went on to record3, "within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases both criminal and civil".
The material presently available does not suggest that there was, in this case, any reason external to the court that would explain why judgment reserved in June 2007 should take until June 2008 to deliver. Even if soon after the hearing it was thought to be apparent that the applications must be dismissed, leaving the matters undecided for so long is at least undesirable. Mr Tilley alleges that the pendency of his applications for so long worked hardship on him because it denied his progression in the prison system to less onerous conditions of confinement. I cannot decide whether that is so. And if the likely disposition of the applications was not apparent at or soon after the completion of the hearing, to leave the matters for so long not only amplified the difficulty of disposing of them, but also necessarily increased the difficulties that would be encountered if a retrial were to be ordered.
Mr Tilley now seeks special leave to appeal to this Court contending that what he describes as "the three written arguments for grounds 1, 6 and 11, presented to and accepted by the Crown and the Court at the hearing on June 25th 2007, were not read nor adjudicated upon" by the Court of Appeal. That is, it would appear that Mr Tilley seeks to invoke principles of the kind considered by this Court in Jones v The Queen4. Application of those principles to this case is disputed. The respondent in its written submissions opposing the grant of bail submits that the Court of Appeal "explicitly states that the written submissions (as opposed to oral argument) on [the relevant grounds] were considered" and refers in this respect to pars [39] and [40]‑[53] of the Court of Appeal's reasons5. In his written case, and in his written submissions in reply to the respondent's submissions about bail, Mr Tilley disputes that the "written submissions" referred to by the Court of Appeal include what he had earlier described as "the three written arguments".
Mr Tilley applies for bail. He asks that his application be determined without oral argument. As noted earlier, the Director of Public Prosecutions has submitted written argument opposing the grant of bail. Mr Tilley accepts, correctly, that this Court's power to admit to bail is exercised only in exceptional circumstances. But he says that the chronology of events earlier described warrants exercising the power.
In particular, Mr Tilley submits that having now served nearly four years of a sentence in respect of which a non‑parole period of five years was fixed, the circumstances are so exceptional that this Court should admit him to bail. In support of that submission, Mr Tilley refers to Peters v The Queen6, where Dawson J pointed out that this Court's power to grant bail is to be found in its power to preserve from futility the exercise of its jurisdiction by preserving the subject‑matter of the prospective application for special leave to appeal. Recognising that the occasions on which this Court will grant bail are "rare indeed", Dawson J went on to say that "[i]n accordance with those principles one occasion when bail may be granted is where there is a risk that the sentence will have been served or substantially served by the time an application for special leave to appeal is heard " (emphasis added). And as the Court pointed out in :
"Ordinarily, a person will be admitted to bail before the grant of special leave in a criminal case only where the Court is satisfied there are very strong grounds for concluding that leave will be granted. The applicant will also need to show that it is likely that the custodial sentence or the greater part of it will have expired before the application for leave is heard."
I accept that much of the non‑parole period fixed in Mr Tilley's case has now been served. The interlocutory steps to be taken in relation to the application for special leave will mean that still more time will elapse.
On the material presently available, however, I do not consider that it is possible to say that Mr Tilley's application for special leave has a sufficient prospect of success to warrant his admission to bail. He has filed his written case but the respondent has not yet been called on to answer that written case. Until that is done I consider that it is not possible to decide what prospect Mr Tilley has of securing a grant of special leave. I cannot say on the material now available that there are very strong grounds for concluding that leave will be granted.
As indicated earlier in these reasons, however, there are aspects of the progress of this matter through the courts which appear to give no little cause for concern. Whatever cause for or explanation of the several delays that have occurred in the process may later be identified, it is plain that the further progress of the matter should not further be delayed. That being so, and with a view to expedition of the determination of the application for special leave, I will now direct, pursuant to r 41.10.1 of the High Court Rules 2004, that Mr Tilley forthwith serve his written case and a draft notice of appeal on the respondent. The respondent shall within 21 days after service of the applicant's written case and draft notice of appeal file and serve its summary of argument and the applicant may within seven days of service of the respondent's summary of argument file and serve his reply, if any. Subject to any further or other directions of the Court or a Justice, further steps in the application shall be taken in accordance with the Rules.
The application for bail is refused.
(1989) 168 CLR 23; [1989] HCA 46. ↩
(1989) 168 CLR 23 at 44‑45. ↩
(1989) 168 CLR 23 at 45. ↩
(1989) 166 CLR 409; [1989] HCA 16. ↩
R v Perrier [2008] VSCA 97. ↩
(1996) 71 ALJR 309. See also United Mexican States v Cabal (2001) 209 CLR 165 at 181‑182 [39]‑[43]; [2001] HCA 60. ↩
(1996) 71 ALJR 309 at 310. ↩
Chamberlain v The Queen [No 1] (1983) 153 CLR 514; [1983] HCA 13. ↩
(1996) 71 ALJR 309 at 310. ↩
(2001) 209 CLR 165 at 182 [43]. ↩
Tilley
The Queen [2008] HCA 58
(1989) 168 CLR 23
(1989) 166 CLR 409
(1996) 71 ALJR 309
(2001) 209 CLR 165
(1983) 153 CLR 514
Application for bail refused. Tilley was directed to serve his written case and draft notice of appeal forthwith; the respondent was to file and serve a summary of argument within 21 days, and Tilley could reply within seven days. Further steps were to proceed under the High Court Rules 2004, subject to further directions.