IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) ACT G 66 of 1995 GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DAVID HAROLD EASTMAN Applicant AND: THE QUEEN Respondent CORAM: Burchett J. PLACE: Sydney DATE: 7 January 1997 REASONS FOR JUDGMENT BURCHETT J.: On 3 November 1995, David Harold Eastman (the applicant) was convicted, at a trial before a judge of the Supreme Court of the Australian Capital Territory and a jury, of the crime of murder, and shortly afterwards he was sentenced to life imprisonment. He appealed to this Court against his conviction and sentence. Pending the hearing of the appeal, which has been set down to commence on 10 March 1997, the applicant applied by notice of motion to be granted bail, or alternatively that his place of incarceration be changed from Lithgow Gaol to the Belconnen Remand Centre near Canberra. I refused bail, and then referred the question whether an order in relation to the applicant's custody should be made under Order 52 rule 40 of the Rules of the Court to the judges who will be hearing the appeal. My reasons for these decisions, which I reserved at the time of making them, are as follows. First, as regards the application for bail. This application was made during vacation to me, as a judge of the Court, in reliance upon Order 52 rule 35(3) of the Rules. Rule 35(3) provides: "The Court or a Judge may, upon such terms as it thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal." The rule was treated as valid, without question, by all members of the Full Court in Chamberlain v The Queen (1982) 69 FLR 445, where the actual decision of the Court (made by majority: Fox and Northrop JJ., Lockhart J. dissenting) was to grant bail pending the hearing of Mrs Chamberlain's appeal against her conviction and sentence of life imprisonment for the murder of her infant daughter. After the dismissal of Mrs Chamberlain's appeal (Chamberlain v R. (1983) 46 ALR 493), she applied for special leave to appeal to the High Court of Australia, making a further application for bail in the meantime: Chamberlain v The Queen [No. 1] (1983) 153 CLR 514. Brennan J., who heard this application, said (at 520) that "an application for bail before the verdict is set aside is in substance an application to suspend the effect of the verdict." In the later case Narain v Director of Public Prosecutions (1987) 71 ALR 248, his Honour referred (at 249) to a stay order as having "the same effect as the grant of bail", and again (at 250) as being "a similar order" to a grant of bail. These views would suggest that Order 52 rule 35(3) should be seen as authorized by the rule-making power in section 59 of the Federal Court of Australia Act 1976 in its operation upon section 29(1). Section 29(1) provides: "Where an appeal to the Court from another court has been instituted - (a) the Court or a Judge ... may order, on such conditions (if any) as it or he thinks fit, a stay of all or any proceedings under the judgment appealed from; and (b) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates." So to understand s.29 would also be consistent with the terms of s.29A, which expressly contemplates that an appellant may be "released on bail pending the determination of the appeal". The terms of section 29 may, perhaps, be compared with the similar language of the provisions held to empower the making of orders in the nature of bail in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 and Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158. At all events, the decision of the Full Court in Mrs Chamberlain's bail application is binding upon me, and the view that section 29 includes the remedy of bail pending an appeal, which is generally available by statute in the States, is in harmony with the approach taken by the majority of the High Court in Chamberlain v The Queen [No. 2] (1984) 153 CLR 521 to the construction of section 24 of the Federal Court of Australia Act. I refer to the joint judgment of Gibbs C.J. and Mason J. at 529-530 and the judgment of Deane J. at 614-616. Although Brennan J., who took a more restrictive view of the effect of section 24 than that of the majority in Chamberlain [No. 2], expressed some doubts in Chamberlain [No. 1] (and see also Narain at 250) about the power of a judge of the High Court, in the absence of some statutory authority, to grant bail pending an application for special leave, save in an extreme case where the right to make the application itself would be rendered futile without such a grant, the availability of that power was accepted by Fullagar J. in Re Cooper's Application for Bail [1961] Argus LR 584 and by Mason J. in Hayes v The Queen (1974) 48 ALJR 455 (see also the comment of Mason CJ. in Zoeller v. Federal Republic of Germany (1989) 64 ALJR 137 at 138). Brennan J., despite his doubt, considered the merits of the application in Chamberlain [No. 1], as he said (at 518), "as though the discretion to be exercised is conferred in general terms". The Court being invested with power to grant bail pending the hearing of an appeal, the next question is upon what principle that power should be exercised. In Re Kulari [1978] VR 276 at 277, Young C.J. said "it is clear that bail will only be granted after conviction and pending an appeal in very exceptional circumstances." (Emphasis added.) However, I think the overwhelming weight of authority suggests that the rule is simply, as Fullagar J. stated it in Re Cooper's Application for Bail (supra) at 584, that "bail will not be granted after conviction and pending appeal unless exceptional circumstances are shown." A sentence of imprisonment so short that, without bail, success on the appeal would not even alleviate the appellant's punishment, together with "the general nature of the evidence and the grounds of appeal" and the general good character of the appellant, there constituted exceptional circumstances. The test was stated in the same terms by Mason J. in Hayes v The Queen (supra) and by Fox and Northrop JJ. in Chamberlain v The Queen (supra) at 447 and 450. Fox J. elaborated the matter (at 447) as follows: "I do not doubt that the law is that the applicant must show exceptional circumstances before the court can order her release on bail. This phrase is not a term of art. Plainly it covers and can relate to a wide variety of different situations. It is true, as counsel for the applicant argued, that the courts have in recent years taken a wider view of the power to grant bail pending or during trial, and the practice has developed of doing so more freely than was formerly the case. The situation after conviction is, however, very different. There are plainly policy reasons why there should not be a wide latitude in granting bail simply because a notice of appeal against conviction or sentence is lodged." In South Australia, the Full Court of the Supreme Court, in a judgment delivered by King C.J. for himself Zelling and Matheson JJ. in The Queen v Giordano (1982) 31 SASR 241, has stated that "[t]he inveterate practice of this Court, as of appellate courts in the other Australian States and in England, has been that bail is not granted pending appeal against conviction or sentence for an indictable crime unless the circumstances are exceptional". In the same judgment, it is also stated (at 243): "I do not think that the liberality with which bail is now granted to persons who have not been found guilty, can be extended to those who have been found guilty. In my opinion, the Court should adhere to the practice that bail is granted pending appeal against conviction or sentence for serious crime only in exceptional circumstances. It is unnecessary, and would be unwise, to attempt to compile a list of the circumstances which would be regarded as exceptional. The totality of the circumstances must be looked at. Some relevant factors are indicated by the cases. Reference has been made in the cases to the prospects of the success of the appeal. I do not think, however, that the court which considers the application for bail can be expected to assess the prospects of success of the appeal, unless those prospects are obvious. ... The prospect of undue delay, not caused by the appellant, in the appeal coming on for hearing is undoubtedly a factor ... . An important factor is the duration of the term of imprisonment which has been imposed, especially if it is so short that the term may expire before the appeal is determined ... . No one factor can be regarded as decisive. The court hearing the application must consider all the circumstances in order to determine whether they can be regarded in the aggregate as exceptional." In Queensland, the test of "exceptional circumstances" has been accepted by Kelly S.P.J., Thomas and Moynihan JJ.: Re Maher (1985) 19 A Crim R 177. Thomas J. put the matter thus (at 183): "The discretion is one that is not lightly to be exercised, and is one that requires factors of sufficient force to outweigh the public factors I have mentioned. I am content to use the phrase 'exceptional circumstances' to describe such factors." In Western Australia, it has also been said that "the discretion to grant bail after conviction should be exercised only if the applicant can show exceptional circumstances": Walser (1994) 73 A Crim R 154 at 155, per White J. The position appears to be the same in England. Halsbury 4th edition (1990) volume 11(2) para. 904, referring to the power of the Court of Appeal to grant an appellant bail pending the determination of his appeal, states: "The power to grant bail is rarely exercised. Exceptional circumstances must be shown to exist." See also para. 998, and Donovan on The Law of Bail (1981) p.98. In some cases, the word "special" has been used to describe the circumstances in which bail may be granted. This was how the test was stated in Reg. v Southgate (1960) 78 WN(NSW) 44 and The King v Salon [1952] Argus LR (C.N.) 1053. See also the dissenting judgment of Lockhart J. in Chamberlain at 452. In R v Hilton (1987) 7 NSWLR 745, Street C.J. (with whom Hunt and Rogers JJ. agreed) referred (at 750) to "the common law approach of requiring special or exceptional circumstances to be established before bail is granted to a convicted person pending appeal". This way of stating the test is now enshrined in the Bail Act 1978 (NSW), section 30AA: see R v Wilson (1994) 34 NSWLR 1. It does not seem to me that the word "special" has been seen, or should be seen, as expressing any different test from that stated by Fullagar J. in Re Cooper's Application for Bail by reference to "exceptional circumstances". If there is a difference, I should follow the majority of the Full Court of this Court in Chamberlain and the High Court judgments of Fullagar J. and Mason J. to which I have referred. Cf. the analogous case of an application for bail pending an appeal from an extradition order, where Mason J. has suggested that any jurisdiction would be subject to a test of "exceptional circumstances" : Zoeller v Federal Republic of Germany (supra, at 138-139). To show exceptional circumstances, the applicant puts forward the proposition that his appeal has very strong prospects of success. As to that, counsel for the Crown properly drew my attention to two unreported decisions of the Court of Criminal Appeal of New South Wales, Reg. v Welsh (Hunt CJ at CL, Newman J and Bell AJ, 6 November 1996) and Reg. v Skuse (Hunt CJ at CL, Smart and McInerney JJ., 24 October 1996) that do appear to support the ground of misdirection in respect of certain allegedly hearsay evidence upon which the applicant relied. This evidence was admitted on a limited basis, but the applicant claims that, once it was so admitted, he became entitled to a direction under s.60 of the Evidence Act 1995 that it was evidence of the truth of the hearsay conveyed by it, which favoured his case. In Reg. v Welsh, this section was described as having "extraordinarily wide ramifications". But counsel's principal answer was to point to the complexity of the circumstantial case mounted by the Crown at the trial. He said the applicant's ground could not be assessed on its own; in the context of the whole of the evidence, the impact of the particular hearsay material, he asserted, would have been insignificant, even if the jury had been given the direction for which the applicant contended in his appeal. On this basis, the rule commonly referred to as the proviso, assuming the validity of the ground of appeal, would, counsel argued, be likely to be held to apply. Neither s.24, the section conferring on the Court jurisdiction with respect to appeals from the Australian Capital Territory, nor s.28, which elaborates the incidents of that jurisdiction, contains any express reference to the proviso. However, it was held in Duff v. R (1979) 28 ALR 663 at 673 and Groves (1981) 5 A. Crim. R. 274 at 293-294, per Smithers J., by analogy to the earlier High Court decision in Stokes v The Queen (1960) 105 CLR 279, that the substance of the proviso is applicable in an appeal to this Court from the Supreme Court of the Australian Capital Territory. Although a separate ruling in Duff, which would have narrowed the available grounds of appeal, was over-ruled by the majority of the High Court (Brennan J. dissenting) in Chamberlain [No. 2], the majority of the Court also accepted the view that the principle applied in Stokes was "the same principle" which is embraced by the proviso (see the joint judgment of Gibbs CJ. and Mason J. at 530, and the judgment of Deane J. at 615), and was applicable in this Court. The applicant's trial extended over a period of six months, and the evidence was voluminous and complex. It would be impossible, without the full argument and examination of the material which will occur at the hearing of the appeal, to reach any conclusion on the likely result. If it comes to the question whether the proviso should be applied, I simply do not have before me the evidence upon which that question will have to be answered. Nothing other than the cogency he claimed for his point under s.60 of the Evidence Act was put forward by the applicant to render the case exceptional. In these circumstances, I entertained no doubt that the application did not meet the test for a grant of bail pending the hearing of the appeal. The application for a transfer from Lithgow Gaol to the Belconnen Remand Centre confronts a different problem. It is accepted by the Crown that such a transfer, perhaps four weeks before the date fixed for the commencement of the hearing of the appeal, may be justified, and that the Centre could accommodate the applicant securely. The applicant, it should be observed, seeks an earlier transfer. But Order 52 rule 40 confers power, not on a judge of the Court (as rule 35 does with respect to bail), but only on "the Court hearing an appeal". Accordingly, I was unable to make any order under rule 40, and I referred the matter to the judges to whom the appeal has been assigned. In concluding these reasons, I raise the question whether the limiting words "hearing an appeal" are of any utility in rule 40, and also whether the rule should not be expanded, in keeping with rule 35, to empower the "Court or a Judge" to make the necessary order, which would generally be routine. As well, having regard to the generality of s.24 of the Federal Court of Australia Act and the views that have been expressed by Brennan J., I draw the Attorney-General's attention to the question whether it is desirable to amend the Act, for the avoidance of doubt, to include an express statutory power to grant bail, pending an appeal, in exceptional circumstances (cf. Bail Act 1978 (N.S.W.), s.30AA). I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett. Associate: Date: 7 January 1997 Appearance for the Applicant: In person Counsel for the Respondent: Mr M.F. Adams, Q.C. (instructed by the Director of Public Prosecutions) Hearing date: 2 January 1997 CATCHWORDS CRIMINAL LAW AND PRACTICE ) PRACTICE AND PROCEDURE ) - bail pending the hearing of an appeal from the Supreme Court of the Australian Capital Territory to the Federal Court - jurisdiction - principles on which bail can be granted pending an appeal - requirement of exceptional circumstances - whether strong prospect of success had been shown as an exceptional circumstance - whether "the proviso" applies in a Federal Court appeal - power under Rules of Court in judges hearing an appeal to give directions as to custody. Federal Court of Australia Act 1976, ss. 24, 28, 29, 29A, 59 Evidence Act 1995, s.60 Bail Act 1978 (N.S.W.), S.30AA Federal Court Rules, Order 52, rr 35, 40 Chamberlain v. The Queen (1982) 69 FLR 445 Chamberlain v. The Queen [No. 1] (1983) 153 CLR 514 Chamberlain v. The Queen [No. 2] (1984) 153 CLR 521 Narain v Director of Public Prosecutions (1987) 71 ALR 248 Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga (1992) 34 FCR 169 Minister for Immigration, Local Government and Ethnic Affairs v. Montero (No. 2) (1992) 26 ALD 158 Re Cooper's Application for Bail [1961] Argus LR 584 Zoeller v Federal Republic of Germany (1989) 64 ALJR 137 at 138 Re Kulari [1978] VR 276 at 277 Hayes v The Queen (1974) 48 ALJR 455 The Queen v. Giordano (1982) 31 SASR 241 Re Maher (1985) 19 A Crim R 177 Walser (1994) 73 A Crim R 154 at 155 Reg. v Southgate (1960) 78 WN(NSW) 44 The King v Salon (1952) 59 Argus LR (C.N.) 1053 R. v Hilton (1987) 7 NSWLR 745 R. v Wilson (1994) 34 NSWLR 1 Reg. v Welsh (unreported, Court of Criminal Appeal of NSW, 6 November 1996) Reg. v Skuse (unreported, Court of Criminal Appeal of NSW, 24 October 1996) Duff v R. (1979) 28 ALR 663 Groves (1981) 5 A.Crim R. 274 Stokes v The Queen (1960) 105 CLR 279 DAVID HAROLD EASTMAN v THE QUEEN No. ACT G66 of 1995 Burchett J. Sydney 7 January 1997 IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) ACT G 66 of 1995 GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DAVID HAROLD EASTMAN Applicant AND: THE QUEEN Respondent CORAM: Burchett J. PLACE: Sydney DATE: 7 January 1997 MINUTE OF ORDER THE COURT ORDERS THAT: 1. The application for bail be refused. 2. The application to change the applicant's place of incarceration pending the hearing of his appeal to the Belconnen Remand Centre be referred to the judges hearing his appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.