YOUNG v JACKMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 5 July 1993 [1993] NSWCA 299 Clarke JA The claimant, Gary Mylecharane Young, was convicted by this Court ofcontempt of court in a judgment delivered on 2 June 1993 which ordered he be detained in custody for a period of six months to commence on that date. He has filed in Court a document entitled "Notice of Appeal", which was, as appears on its face, prepared by him personally whilst in custody. The Notice of Appeal raises a number of matters which are said to indicate the error in the judgment of 2 June. In addition, there is annexed a petition for a writ of habeas corpus. The matter was before the Court last Monday when it was adjourned until today to enable the claimant to appear and argue the case and for service to be effected upon the Registrar of the Court of Appeal, which had been the moving party in the original proceedings. When the matter was called on today Mr Arnold, solicitor, announced his appearance for Mr Young, the claimant, and he informed the Court that his application today was for bail pending the hearing of a leave application to the High Court. He also advised that the application for leave had been filed and that the proceedings were returnable before a justice of the High Court on Wednesday of this week. While he thought that there may have been some chance that the application for leave would be heard on that date, Mr Kalfos, who has appeared for the Registrar, has informed the Court that the proceedings on Wednesday will, in essence, be an application for bail and that it is unlikely that the leave application will be heard for some months. Mr Arnold has not filed any evidence in support of his application, but he has urged two grounds upon the Court as reasons why bail should be granted. The first ground is that there is no likelihood that, if he were granted bail, the claimant would fail to appear at later proceedings or for the purpose of being taken back into custody. Although there is no evidence before the Court enabling that claim to be evaluated, I have taken the view that I should have regard to my own knowledge of the background of the matter, which was gained during the hearing of the proceedings, which led to the 21 June judgment. Although one can never be certain, my strong impression is that the claimant has decided to return to Australia and to face up to the problem created by his earlier conduct. Certainly he was granted bail pending the hearing before this Court and that bail included a condition which enabled him to leave the country for a short time for a set purpose. He, of course, appeared and gave evidence during the hearing and I am reasonably confident that if he was granted bail he would appear wherever and whenever needed. 2 UNREPORTED JUDGMENTS The second ground relied upon is based upon a decision of Mr Justice Fullager in Re Cooper's application for bail, (1961) ALR 584. Before coming to that, I should advert to the basic requirement that an applicant for bail, who has been convicted of a crime, must show special or exceptional circumstances before being entitled to bail. In respect of convictions in the District Court or the Criminal Division of the Supreme Court and later appeals to and from the Court of Criminal Appeal, s30AA of the Bail Act 1978 applies. That section clearly applies when there is an appeal from the Court of Criminal Appeal pending in the High Court and it provides that bail shall not be granted by the Court of Criminal Appeal or any other Court in the absence of special or exceptional circumstances. That section does not apply in the present case, but it seems to me that there is a common law principle to similar effect which should be applied in this case. Accordingly, it is necessary to consider whether there are any special circumstances and that is where Re Cooper's application for bail becomes relevant. Mr Justice Fullager was asked to grant bail in a matter in which the applicant had been in custody consequent upon an order of the Court sentencing him to imprisonment for two months. His Honour concluded that the shortness of the sentence, the fact that the applicant had been of good character, and the fact that the grounds of appeal did not appear to be frivolous, constituted, in the circumstances of that case, exceptional circumstances. Mr Arnold has urged upon this Court similar considerations and has placed particular reliance upon the shortness of the sentence. Of course, each case has to be determined on its own facts and it may be that one important consideration is whether there is sufficient likelihood of the special leave application being successful. (See Walker v The Queen, High Court, 18 August 1989.) In the circumstances of the present case it would seem to me to be quite inappropriate for a judge of this Court to endeavour to reach a conclusion as to the likelihood of success of the leave application when the same type of application is being made before a Justice of the High Court on Wednesday and when that Justice will be in a much better position than I am to speak of the likelihood of the success of the leave application. Having regard to the hearing on Wednesday, and to the fact that the claimant was convicted of a serious crime shortly after he returned to Australia after an absence of many years, I am not disposed to the view that special circumstances have been shown in this case I should also indicate that, insofar as there had been matters raised in the documents before the Court, some of those matters were originally raised in this Court and abandoned during the hearing. The particular matter I have in mind appears in para7 of the claimant's affidavit, which is sworn on 26 June 1993, and in which he seeks to agitate the issue of autrefois acquit and a separate issue of dual jeopardy. There had been early reference to the proceedings in the United States upon which these claims were based, but in the hearing before this Court any suggestion of dual jeopardy or autrefois acquit was not pressed. There are, in addition, other matters in the Notice of Appeal which were themselves not raised in the hearing before this Court, such as the reliance on the Human Rights and Equal Opportunity Act (Commonwealth) 1988 and s39 of the New South Wales Anti-Discrimination Act. They are not, I think, the only new matters. URJ YOUNG v JACKMAN (Clarke JA) 3 I mention these facts for two reasons: first, because I do not think, even having regard to them, exceptional circumstances have been made out and, secondly, to ensure that it is appreciated that a deal of the material now relied upon was not in issue in the hearing before this Court. In all the circumstances, I refuse the application for bail. I decline to make an order in respect of costs.