IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPTTAL TERRITORY DISTRICT REGISTRY GENERAL DIVISTON ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: JANET DILYSE HUGHES Applicant AND: THE QUEEN Respondent ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 14 April, 1983 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. That the application be dismissed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G11 of 1983 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: JANET DILYSE HUGHES Applicant AND: THE QUEEN Respondent CORAM: Neaves J. 14 April, 1983 REASONS FOR JUDGMENT This is an application for bail pending the hearing of an appeal by the applicant, Janet Dilyse Hughes, against her conviction and sentence in the Supreme Court of the Australian Capital Territory on a charge under sub-section 4(3) of the Poisons and Narcotics Drugs Ordinance 1978 of the Territory that she had a controlled substance in her possession for the purpose of supplying the substance to another person or to other persons. The controlled substance was cannabis (see the Ordinance, sub-section 4(1) and Schedule 12). The charge arose from the discovery at premises known as 77 Piddington Street, Watson, which were owned by the applicant, more than 400 growing cannabis plants and a quantity of dried material derived from those plants. The applicant and a male person who was tried with her were convicted on 11 February, 1983. The learned trial Judge entertained an application by the applicant for bail pending sentence. Bail was granted to the appli- cant on her own recognizance of $1,000 on strict reporting conditions. Sentence was awarded on 3 March, 1983, the applicant being sentenced to imprisonment for one year with a non-parole period of six months. On 4 March, 1983, the applicant appealed, as of right, to this Court pursuant to sub-section 24(1) of the Federal Court of Australia Act 1976 against her con- viction and sentence. The grounds of the appeal against conviction relate to the sufficiency of the directions given by the learned trial Judge on two matters. The first concerns what is sufficient to constitute possession, within the meaning of that expression in sub-section 4(3) of the relevant Ordinance, by the applicant of the cannabis plants and the dried material. The second relates to the sufficiency of the directions given as to the proper construction and effect of sub-section 4(4) of the Ordinance. That sub-section provides that in proceedings for an offence against sub-section 4(3), a person who has in his possession a quantity of a controlled substance, being a quantity that exceeds the prescribed traffickable quantity for that substance, is, unless the contrary is proved or the person proves that he had lawful authority to have the substance in his possession, to be taken to have the substance in his possession for the purpose of supplying the substance to another person or to other persons. There was no dispute that the quantity of cannabis alleged to be in the possession of the applicant exceeded the prescribed traffickable quantity of the substance. In relation to the sentence imposed, the applicant contends that the trial Judge wrongly exercised his discretion and that the sentence is excessive. For the Crownitwas submitted that I should not entertain the application for the reason that on 4 March, 1983, an application for bail had been made by the applicant to a Judge of this Court and bail had been refused. It was submitted that, in the circumstances, no further application could be made to a Judge of this Court for bail and reference was made to In re Kray (1965) Ch. 736. Although the proposition was at one stage put in such absolute terms, it was, I think, later conceded that a subsequent application could be entertained if based on fresh evidence. J took this qualification to mean that a further application could be heard if, in the words of Green C.J. in Trotter v The Queen (1977) Tas. S.R. (Pt. 2) 75, "the circumstances relevant to the exercise of the discretion on the second application are different from those which applied when the first appli- cation was determined." The power of a Judge of this Court to entertain an application for bail pending the hearing of an appeal derives from the provisions of the Federal Court of Australia Act 1976 and Order 52, sub-rule 35(3) of the Federal Court Rules. Sub-rule 35(3) provides that the Court or a Judge may upon such terms as it (or he) thinks fit admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal. The question whether successive applications for bail may be made has been the subject of judicial consideration but not all that has been said appears to be consistent, unless the differences are explicable by reference to particular statutory provisions in force in different jurisdictions: see, for example, In re Kray (supra); R v Fraser and Jacobs (1982) 13 L.R. (N.S.W.) 150 at N p. 153; Trotter v The Queen (supra); and In the Appli- cation of Harrod (1978) N.S.W.L.R. 331. The matter was not fully argued before me and I, therefore, refrain from expressing any final view. However, I am prepared to entertain the application on the basis, which I think is established, that there has been a change of circumstances since the previous application was made and, in any event, reference Lo Lhe Court's records shows that when the previous application was refused the learned Judge reserved leave to the applicant to renew the application at an appropriate time. I, therefore, proceed to consider the application on its merits. It is common ground that the principle which governs the granting of bail after conviction and sentence is that it will not be granted otherwise than in exceptional circumstances. As Sugerman J. (as he then was) said, in The Queen v Southgate (1960) 78 W.N. (N.S.W.) 44: "The guilt of the appellant having been established by verdict of a jury in what must be taken, until the contrary is shown, to have been a trial properly conducted and without error of law, it is most unusual that an appeliant should be admitted to bail pend- ing the determination of his appeal or of any application for leave to appeal against his conviction or against his sentence." To establish exceptional circumstances the applicant relies on an affidavit affirmed on 12 April, 1983, by Mr. T.J. Higgins who is a partner in the firm of solicitors acting for the applicant. Mr. Higgins deposes to a number of circumstances affecting the applicant. The affidavit has annexed to it the ante- cedents report which was before the learned trial Judge on 3 March, 1983. It was submitted for the Crown that I should reject much of the material in the affidavit filed on behalf of the applicant on the ground that the deponent could only have been aware of what is deposed to on information and belief, but the facts have been stated without any such qualification. Reference was made to a passage in the judgment of Ellicott J. in Yates v The Queen (unreported - 27 August, 1982). His Honour was there dealing with the question of the weight to be given to evidence which had been put before him on information and belief. In the result his Honour accepted the evidence as factual. In the present case I am not prepared to reject the affidavit or any part of it. The weight to be attached to it is, of course, another matter. The Crown has supplemented the material before me by an affidavit sworn on 13 April, 1983, by Acting Detective Sergeant J.G. Manning of the Australian Federal Police. That affidavit deals in a more detailed and precise way with some of the matters referred to in the affidavit filed on behalf of the applicant. The substantial ground on which the applicant relies is the length of time which will elapse between the date on which sentence was imposed on her and the likely date of disposition of the appeal. It appears that when the first application for bail was made there was some expectation that the appeal would come on for hearing during the sittings of this Court appointed to commence in Canberra on 22 March, 1983. This did not eventuate but, subject to the appeal books being filed, the appeal wiil be listed for hearing at the sittings of the Court appointed to commence in Canberra on 17 May, 1983. I understand there is every likelihood that the matter will be Listed on that day. It is, of course, open to the applicant to seek an earlier hearing if the circumstances warrant it. Having regard to the serious nature of the offence for which the applicant has been convicted and notwithstanding that the learned trial Judge saw fit to grant the applicant bail between conviction and sentence, I have formed the conclusion that the period which is likely to elapse between the date of sentence and the date when the appeal comes on for hearing is not, of itself, sufficient to constitute "exceptional circumstances" as referred to in the authorities. The other matters relied on by the applicant may be summarised as the difficulty in her solicitors obtaining instructions from her because of restrictions on telephone conmunication with those in custody at . Mulawa Training Centre in Sydney where the applicant is at present held, the interruption until 1984 of her course of studies at the Canberra College of Advanced Education which could otherwise be completed by June, 1983, and inadequate opportunity while in custody for the treatment of an eye infection which she has developed. While some difficulty may be experienced by her solicitors in communicating with the applicant, I do not regard the nature of those difficulties, which cannot be put higher than inconvenience and expense, as significant so far as the present application is concerned. Nor do I regard the interruption to the applicant's studies as an exceptional circumstance. So far as medical treatment is concerned, the only detailed evidence before me suggests that the applicant has received appropriate treatment and that no further treatment is necessary. If that state of affairs is disputed by the applicant more detailed evidence, including medical evidence, would need to be put before the Court. I have given careful consideration to all these matters in conjunction with the main submission concerning the time which will elapse before the appeal is disposed of but I am not satisfied that exceptional circumstances have been established. I therefore dismiss the application. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Neasmeon Associate