REGINA v HENRY BUDIMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, SHELLER and POWELL JJA 12 November 1997, 12 November 1997 [1997] NSWCA 263 Criminal law — Bail — defendant found guilty by jury of drug importation offences (Ecstasy) — application by DPP for revocation of bail granted by trial judge — referral to Court of Appeal — presumption against bail — Bail Act 1978, s8A; Customs Act, s233B Mason P This is an application by the Commonwealth Director of Public Prosecutions to review the decision of his Honour Acting Judge Stewart in relation to a grant of bail to Mr Henry Budiman. The power of this Court to review that decision is given by s65 of the Bail Act 1978. Consistent with the practice of the Supreme Court, adopted since 1979, an application of this nature when made to the Supreme Court was referred to the Court of Appeal. The authorities discussing that practice are referred to in The Queen v Roberts, Court of Appeal unreported 14 March 1997. In that case I emphasised, when giving the reasons with which Justices Powell and Beazley agreed, that the jurisdiction of this Court is an original jurisdiction not depending upon demonstrating error on the part of the trial judge. Nevertheless it was acknowledged that this is a matter in which an appellate court should exercise restraint having regard to the fact that a trial judge will be in a much better position than an appellate court to weigh up the various factors supporting or negating an application for bail. Mr Bellanto of Senior Counsel suggested that these principles may not apply, or may not apply with the same force, where the application to the Supreme Court is one seeking revocation of bail, bail having been granted by a decision of a judge as distinct from an application for bail where bail was previously refused. I will come back to that argument. It was submitted also by Mr Bellanto that the Court should only entertain an application such as this where "special circumstances" are found to exist. Reference was made to Pt12 12(1)(b) of the Supreme Court Rules. Those words are used there but in the context of the question of referring a matter to the Court of Appeal. They are not part of the limits on the jurisdiction of the Court of Appeal when a matter has been referred to it. Mr Budiman was convicted following a verdict by a jury on 27 October 1997. The learned trial judge granted bail and stood the matter over for sentence to 28 November 1997. Mr Budiman had been in custody between February of this year and 20 August 1997. Bail had been refused when he was committed for trial in May but it had been granted when the trial could not commence on its fixed date, 28 July, and the conditions under which it was granted were met on 20 August 1997. Between the time when he entered bail and the trial and from the time of conviction until today he has satisfied the extremely stringent reporting and other conditions to which the grant of bail was made subject. He has had to surrender his passport and report regularly to various persons. The basis of the application on behalf of the Crown to review bail is that the trial judge erred or, alternatively, 2 UNREPORTED JUDGMENTS this Court should reach a different view to the trial judge, because he failed to give effect to the presumption against the grant of bail imposed by s8A of the Bail Act and he failed to give effect, or proper effect, to the fact that MrBudiman had been convicted of an offence and an offence which carries the likelihood of a significant custodial sentence. It is not necessary to recount the facts of the offence. They are set out in a document called "statement of facts" to which the Court was taken. I do not understand the essential facts to be in issue in the sense of the facts upon which the conviction was based. They indicate a significant level of involvement in an importation of a commercial quantity of the drug known as Ecstasy. The offence for which Mr Budiman stands convicted is that prescribed by s233B of the Customs Act. It carries a maximum - and I emphasise maximum - life sentence. S8A of the Bail Act is clearly engaged because it refers to s233B of the Customs Act and because the goods are of a nature and quantity required for an offence under s25(2) of the Drug Misuse and Traff' cking Act 1985. It being applicable, the Court is faced with the statutory requirement that - and I am reading from s8A(2) - "\.. a person accused of an offence to which the section applies would not be granted bail unless the person satisfies the authorised officer or court that bail should not be refused." As Mr Bellanto emphasised, this does not create an absolute position but rather a presumption. The nature of the presumption is discussed in the judgment of the Chief Judge at Common Law in The Queen v Kissner given on 17 January 1992 where his Honour said, speaking of s8A: "Tts effect is not merely to place an onus upon the applicant to establish his entitlement to bail. He must satisfy the Court that bail should not be refused. Wood J said (and I agree) that the presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily be refused bail." His Honour referred to various reasons for presumed deprivation of liberty one of which was the intention not to answer bail created by the severity of the likely penalties coupled with the capacity to abscond created by the overseas contacts and financial resources which are usually found in this type of case. It is, as I have said, only a presumption and one of the factors relevant to the exercise of the presumption is the strength of the Crown case. Here, however, the Crown case has been established to the satisfaction of a jury. If one assumes - as I am prepared to do - that the conviction will be the subject of an appeal, then one would apply, at least by analogy, the principles reflected in s30AA of the Bail Act and discussed in Wilson's case. In The Queen v Wilson (1994) 34 NSWLR 1 at 6 the then President, Mr Justice Kirby, said: "in an application for bail, where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed". In that case Mr Justice Hunt, Chief Judge at Common Law, said at 7: "it has to have an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application". I emphasise that s30AA is only relevant as indicative of a more general principle. URJ REGINA v HENRY BUDIMAN (Mason P) 3 Its terms have not yet been directly engaged. But returning to s8A, which clearly is engaged, I am of the view that his Honour Acting Judge Stewart fell into error in failing to have regard, or apparent regard, to the clear imperative of that provision. The Court has been taken to the transcript of the hearing in which bail was granted, in effect, by continuing conditions of bail that had been imposed prior to conviction. It is not easy to see the basis which led his Honour "with some misgivings" (his Honour's words) to grant bail. His Honour did, apparently, have regard to the fact that Mr Budiman had no prior convictions. He was aware of - and I will accept he took into account - the fact he had been in custody for about seven months between arrest and the time bail was entered in August this year. It had been submitted that it was desirable that he have access to his lawyer to prepare for a sentencing hearing late in November. It was also clear to his Honour that Mr Budiman had been most scrupulous in responding to his bail in the period prior to this conviction. But, making all those allowances, the learned judge, in my view, erred in failing to give effect to the conviction, the likely sentence and the imperative of s8A. The Court was taken to an affidavit today of Mr Santosi, the consul representing the Government of the Republic of Indonesia in this and other States. That affidavit confirmed that Mr Budiman had been, as I have already indicated, scrupulous in answering the bail conditions so far as they involve reporting to the consul. It also confirmed that he had surrendered his passport and that he would not be receiving any alternative travel documents from that country. I have had regard to that, but I do not see that it answers the force of the other matters to which I have referred. I would propose that bail would be revoked. Sheller JA I agree. Powell JA As do I. Mason P The order of the Court is that the bail is revoked. Bail revoked Counsel for the claimant: K A Chapple Solicitors for the claimant: DPP (Cth) Counsel for the opponent: A Bellanto QC/B Rigg Solicitors for the opponent: Trevor Nyman & Co