IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G68 of 1983 DISTRICT REGISTRY ) ) ) GENERAL DIVISION BETWEEN: STEFANO PELLE Applicant AND: THE QUEEN Respondent ORDER JUDGE MAKING ORDER: Neaves J DATE OF ORDER: 29 August 1983 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. The application be dismissed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G68 of 1983 ) ) ) GENERAL DIVISION BETWEEN: STEFANO PELLE Applicant AND: THE QUEEN Respondent CORAM: Neaves J. DATE: 29 August 1983 REASONS FOR JUDGMENT This is an application by Stefano Pelle ("the applicant") for bail pending the hearing of an appeal instituted by him in this Court against his con- viction and sentence in the Supreme Court of the Australian Capital Territory on a charge of conspiracy or, alternatively, pending the hearing of an application which he proposes to make to the High Court for the issue of writs of habeas corpus, prohibition and certiorari. The applicant was charged with an offence against paragraph 86(1)(a) of the Crimes Act 1914 (Cwlth). It was alleged that he conspired with certain named persons and with persons unknown to commit an offence against a law of the Commonwealth, namely sub-section 4(3) of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory. That sub-section provides that a person who has a controlled substance:in his possession for the purpose of supplying the substance to another person or to other persons is guilty of an offence. A "controlled substance" is a substance specified in Schedule 8 or Schedule 12 to the Ordinance. The trial was before a Judge and jury. The jury convicted the applicant of the charge laid against him. On 26 August 1983 the applicant was sentenced to imprisonment for a term of two years six months with a non parole period of six months. The applicant has appealed, as of right, to this Court pursuant to sub-section 24(1) of the Federal Court of Australia Act 1976 against his conviction and sentence. The grounds of appeal against conviction relate, in the main, to the admissibility of evidence and the sufficiency of the directions given by the learned trial judge. In addition to those grounds it is asserted that the indictment was bad in law in that the offence charged is one not known to the law. The applicant has also appealed against the severity cf the sentence awarded to him. I was informed that the applicant has instructed his legal advisers to make application to the High Court for the issue of writs of habeas corpus, prohibition and certiorari in order to have determined by that Court the question whether the indictment disclosed an offence known to the law. The power of a Judge of this Court to entertain an appiication for bail 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. I doubt whether it is open to a Judge of this Court to entertain an application for bail by a person con- victed of a criminal offence in the Supreme Court of the Australian Capital Territory where the ground of the appli- cation is that proceedings are to be taken in the High Court in relation to the validity of the indictment charging the offence of which the applicant was convicted. It is, however, unnecessary to express a definitive view on that question as the applicant has, as I have said, appealed as of right to this Court and the matter which it is pro- posed to argue before the High Court forms a ground of the appeal to this Court. The application for bail pending the hearing of the appeal to this Court is clearly within the Court's jurisdiction. There is no doubt 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. The applicant relies on his affidavit sworn 26 August 1983. In that affidavit he states that he is 48 years of age, was born in Calabria, is married and lives in the Australian Capital Territory with his wife and his five children aged between 16 and 22 years. He also gives some information as to the assets owned by his wife and himself in the Australian Capital Territory and the State of New South Wales. He further states that all his family connections are in the Australian Capital Territory and that he has surrendered his passport. The main thrust of the argument presented by Mr. Kilduff, counsel for the applicant, was that the applicant had good prospects of being successful in his argument that the indictment charged an offence which is not known to the law. It was submitted that, to fall within paragraph 86(1)¢a) of the Crimes Act 1914, the conspiracy charged must be a conspiracy to commit an act. Reliance was placed on the principle of the common law that criminal responsibility is founded exclusively upon an act or omission accompanied by the relevant criminal intent and on decisions to the wee et m effect that "having in possession" does not constitute an act or omission but simply involves the accused with specified facts or circumstances: see R. v. Grant [1975] 2 N.Z.L-R. 165 at pp. 168, 169. Of the authorities relied upon by counsel for the applicant, Beckwith v. The Queen (1976) 135 C.L.R. 569; 12 A.L.R. 333 and R. v. Grant, supra, concerned the question whether an accused could properly be charged with attempting to have in his possession narcotic goods. In both cases the question was answered in the negative. The decision in Beckwith v. The Queen turned on the construction of sections 233B and 237 of the Customs Act 1901 and that in R. v. Grant on the construction of section 72 of the Crimes Act 1961 of New Zealand. The other authorities relied upon were R. v. Heath (1810) Russ and Ry 184; 168 E.R. 750 and Dugdale v. The Queen (1853) 1 E & B435; 118 E.R. 499. Both concerned the application of the common Law principle to which I have referred. I was informed that the validity of the indictment was not challenged on the ground now advanced until after the jury had returned a verdict of guilty. The learned trial judge was then asked to reserve the question for the consideration of the High Court pursuant to section 72 of the Judiciary Act 1903 but he declined to do so. I do not propose to express a view upon the argument as to the validity of the indictment. I doubt, however, whether the authorities relied upon will prove to be of assistance in considering the proper meaning and effect of paragraph 86(1) (a) of the Crimes Act 1914. Suffice it Lu say Lor present purposes that the prospects of the applicant succeeding in his appeal on that ground are not such as to constitute "exceptional circumstances" warranting the release of the applicant on bail. In this connection I of note from the report/ Beckwith v. The Queen in the Australian Law Reports that in that case the High Court refused an application for release on bail pending the hearing of argument upon the question whether the indictment on which the appellant had been convicted disclosed an offence. That circumstance must, however, be read in the light of the comment made by Brennan J. in Chamberlain v. The Queen (1983) 57 A.L.JI.R. 356 that the grant of bail pending an application for special leave to appeal to the High Court will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending. Some reference was made in the course of argument to the length of time which will elapse before the appeal to this Court can be heard as justifying the release of the applicant on bail. A sitting of the Full Court of this Court is appointed to commence in Canberra on 1 November 1983 and I see no reason why, if the necessary preliminary steps are taken with due expedition, the appeal should not be heard at those sittings. Having regard to the serious nature of the offence for which the applicant has been convicted, I ° do not regard the period which 1s likely to elapse before the appeal can come on for hearing as being sufficient to constitute "exceptional circumstances" as referred to in the authorities. In my opinion exceptional circumstances have not been made out and I, therefore, dismiss the application. I certify that this and the six (6) preceding pages are a true copy of Reasons for Judgment herein of the Honourable Mr. Justice Neaves. '7 [- O° , Associate 29 August 1983.