FEDERAL COURT OF AUSTRALIA Clarke v The Queen [2000] FCA 171 PETER SURYA CLARKE v THE QUEEN A 101 of 2000 MILES, FINKELSTEIN and DOWSETT JJ 15 FEBRUARY 2000 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY A 101 of 2000 BETWEEN: PETER SURYA CLARKE Applicant AND: THE QUEEN Respondent JUDGES: MILES, FINKELSTEIN and DOWSETT JJ DATE OF ORDER: 15 FEBRUARY 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application be refused. IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY A 101 of 2000 BETWEEN: PETER SURYA CLARKE Applicant AND: THE QUEEN Respondent JUDGES: MILES, FINKELSTEIN and DOWSETT JJ DATE: 15 FEBRUARY 2000 PLACE: CANBERRA EX TEMPORE JUDGMENT MILES J: 1 This is an application by way of notice of motion in which the applicant seeks an order that he be granted bail pending the determination of his appeal to the Full Court from a conviction in the Supreme Court of the Australian Capital Territory. 2 The power to grant bail pending the determination of an appeal arises from s 59(1)(f) of the Federal Court of Australia Act 1976, which gives the judges power to make rules relating to the custody of convicted persons and under o 52 r 35(3) of the Federal Court Rules 1979, the Court or a judge has power to admit an appellant to bail pending an appeal. It is pursuant to that power that the present application is made and if any order is made it would be pursuant to that power. I say that because the possibility arose at the commencement of the hearing that the Court was concerned with the application of the Bail Act 1992 (the Bail Act) of the Australian Capital Territory. That is not the case and the Court exercises its own power. 3 The nature of the power was described by a Full Court in the decision of Chamberlain v R in 1982, (1983) 69 FLR 445. The principle well recognized at common law was there applied. That principle is that bail will not be granted pending the hearing of an appeal from a conviction and sentence unless there are exceptional or special circumstances. There are many decisions of other courts which contain that principle and it has been applied by single judges of this Court many times, by Burchett J in Eastman v R (1997) 72 FCR 190 and by Finn J in Geiger v R [1999] FCA 1870. 4 The background of the present application was set out in a previous decision of the Full Court sitting on an application for leave to appeal against the refusal of bail by the trial judge in the Supreme Court after conviction but pending sentence. At that stage, the Bail Act of the Territory did apply to the appellant's situation and the Court was constrained to apply the law under that Act. 5 So in some respects the situation has changed, but what the Full Court had to say about the background and circumstances remains applicable to the present application. I will refer to them just briefly by quoting from the previous decision. "On 29 June 1999 the applicant was found guilty of the offences of armed robbery (s 101, Crimes Act 1900 (ACT)) and assault occasioning actual bodily harm (s 24 of that Act) by a jury following a trial over which the judge who refused bail had presided. The allegation by the Crown was that the applicant, at about 2.40 pm on 23 November 1998, entered the Westpac Bank in Petrie Plaza armed with a knife. He demanded money from a teller in the bank, threatening violence to a woman against whose neck he held the knife. The woman was cut, although it appears that was not intentional. The applicant ultimately left the bank with $2,868." 6 Those circumstances led to his conviction on both charges. 7 It being clear that the applicant is to show special or exceptional circumstances before the Court can grant the application, it is necessary for us to look at what material might constitute such special circumstances. The applicant who appears for himself had some difficulty in this regard because he did not come prepared to argue the point. However, he was given the opportunity to address us on anything in the case which might conceivably or arguably constitute special circumstances and we consider that he has had the opportunity to fully argue the relevant issues. Although he appears for himself, he is clearly an intelligent person who has a background in the law and, in fact, has practised as a barrister at the Victorian bar. 8 As far as we are able to discern, there are only three or so matters which could arguably constitute special circumstances. 9 The first is that he says that he needs to be free in order to seek out and prepare fresh evidence which can be placed before the Full Court on the hearing of the appeal, or which at least would be the subject of an application to be relied upon as fresh evidence in the appeal. However, apart from being told that the fresh evidence relates to the withholding of some photographic evidence on the part of the prosecution during the trial, we are unable to assess what weight would be given to that material even if it were available and even if it were assumed to be admissible and allowed to be admitted for the purposes of the appeal. 10 The second aspect upon which he relies is that he needs to consult a competent lawyer who can then advise him as to how the fresh evidence can be used and how the point relating to the fresh evidence can be utilised for the purpose of the appeal. 11 There is a third aspect and perhaps it may best be summarised by saying that it relates to the applicant's deteriorating psychological condition whilst he remains in custody. It seems to me that it is likely that whatever psychological condition he is suffering, it is likely that it will not improve whilst he remains in custody and may well be deteriorating. However, the evidence on the point, which is otherwise well covered in the reports which we have before us, is quite inconclusive and we are unable to come to any firm decision as to what effect giving the appellant his freedom pending the appeal, would have in this respect. Apart from those aspects, the Court is not aware of the strength or otherwise of the appellant's grounds for challenging the validity of his conviction. On the face of it the sentence and particularly the non-parole period of two years fixed would appear, at least arguably, within the range of what was available to his Honour as a sentencing option. 12 In short, there is nothing in any of the above which constitutes special or exceptional circumstances and the Court is therefore unable to grant the application. The circumstances upon which the applicant relies are common to many persons who wish to appeal from convictions and who have to remain in custody pending their appeals. Unfortunate as those circumstances may be, they are not special or exceptional and for those reasons I would refuse the application. The order of the Court is, therefore, application refused. I certify that the preceding twelve (12) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. Associate: Dated: 15 February 2000 IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY A 101 of 2000 BETWEEN: PETER SURYA CLARKE Applicant AND: THE QUEEN Respondent JUDGES: MILES, FINKELSTEIN and DOWSETT JJ DATE: 15 FEBRUARY 2000 PLACE: CANBERRA EX TEMPORE JUDGMENT FINKELSTEIN J: 13 I agree. I certify that paragraph 13 is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 15 February 2000 IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY A 101 of 2000 BETWEEN: PETER SURYA CLARKE Applicant AND: THE QUEEN Respondent JUDGES: MILES, FINKELSTEIN and DOWSETT JJ DATE: 15 FEBRUARY 2000 PLACE: CANBERRA EX TEMPORE JUDGMENT DOWSETT J: 14 I also agree. I certify that paragraph 14 is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 15 February 2000 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Mr R C Refshauge Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 15 February 2000 Date of Judgment: 15 February 2000