Bailey v Director Of Public Prosecutions [1988] HCA 19

High Court of Australia Mason CJ Wilson, Brennan, Dawson and Toohey JJ Bailey v Director Of Public Prosecutions [1988] HCA 19

ORDER Application granted Appeal allowed Order set aside and matter to be remitted to Court of Criminal Appeal

Cur adv vult

3 May 1988 Mason CJ, Brennan, Dawson and Toohey JJ.

Under s 5(1)(c) of the Criminal Appeal Act 1912 NSW a person convicted on indictment may appeal to the Court of Criminal Appeal with the leave of the court against the sentence passed on his conviction. In contrast with special leave to appeal, which is attracted only by some special feature of the case, leave to appeal is ordinarily granted when the applicant makes out a sufficiently arguable case that the sentence imposed is inappropriate in all the circumstances.

The applicant before the Court of Criminal Appeal raised a case which arguably called for consideration of the principles which the Court of Criminal Appeal (SA) had laid down in Smith (1987) 44 SASR 587. In the present case, it appeared for the first time before the Court of Criminal Appeal (NSW) that at the time when the applicant was sentenced he had been infected with the AIDS virus though he was virtually without symptoms. The consequence of the discovery of this infection was that the applicant would be detained, not among the general gaol population, but in a special unit which is said to be more stressful than the general gaol by reason of its isolation. There was evidence that stress has a potentially adverse effect on the development of AIDS symptoms.

After a full hearing, the Court of Criminal Appeal reserved its decision. The majority of the court (Street CJ and Slattery CJ at CL) refused leave to appeal. Kirby P dissented. The majority stated its reasons with elliptical brevity:

In this application we are of opinion that a case has not been made out on the merits justifying the intervention of this Court in relation to the sentence passed on the appellant. If it be necessary to reconsider the principles governing the respective roles of the Court of Criminal Appeal and the Corrective Services administration, for reasons which we need not elaborate we do not consider that this is an appropriate case in which to undertake that task. In our view, leave to appeal should be refused; the whole of the time served should count.