FEDERAL COURT OF AUSTRALIA

Dunstan v Director of Public Prosecutions [1999] FCA 921

CRIMINAL LAW – Bail – appellant charged with various offences arising out of bomb-like devices being sent by post to various people – before committal for trial magistrate denies bail – judge of Supreme Court “reviews” that bail decision under s 43 Bail Act and grants bail – Full Court purports to review that review and refuses bail – On committal no application for bail made – bail formally refused – accused person applies to Supreme Court for bail – treated by second judge as an application to “review” a bail decision – bail again refused – appeal to Federal Court – whether Supreme Court has power to review a review – statutory right to bail unless Court satisfied that it is “justified in refusing bail” – weight to be given to “presumption in favour of bail” – relevance of changed circumstances – DPP concedes possible “difficulties” in proving intent to cause bodily harm and abandons charges alleging “dangerous” quality of devices – accused person now adequately treated for depression – whether proceedings before second judge misconceived – whether relied unduly on conclusions of Full Court – whether matter should be remitted to ACT Supreme Court – whether bail should be granted despite some degree of risk of future offences

Bail Act (ACT) 1992 (ACT) ss 3, 5, 8, 9, 10(3), 12, 19, 20, 22, 23A, 39(5)(d), 40(b), 41, 42, 43, 44, 45, 55, 57AA

Crimes Act 1900 (ACT) ss 19, 27(3)(e), 129(2)

Magistrates Court Act 1930 (ACT) s 94

Supreme Court Act 1933 (ACT) ss 8, 13

Federal Court of Australia Act 1976 (Cth) s 24

Bail Act 1978 (NSW) ss 8A, 59

Bail Act 1985 (SA) s 10

Report of the Bail Review Committee (1976) (NSW Parliamentary Papers No. 46 of 1976)

Brouwer v Titan (1997) 73 FCR 241, 149 ALR 50, referred to

Carr v Finance Corporation of Australia Ltd (No 1)(1981) 147 CLR 246, referred to

CDJ v VDJ (1998) 72 ALJR 1548, referred to

DPP v Kanfouche [1992] 1 VR 141, cited

DPP v Hiep Huu Le (1998) 156 ALR 110, cited

Farquar v Fleet (1989) 50 SASR 490, discussed

Gray v Sweatman (1987) 45 SASR 517, referred to

Green v Lynch (1983) 70 FLR 206, referred to

Jure Maric v The Queen [1981] 2 NSWLR 100, cited

Maric v R [1981] 2 NSWLR 100, cited

R v Budiman (1997) 97 A Crim R 548 at 550, cited

R v Connell (1990) 3 WAR 516, cited

R v Hamill (1986) 25 A Crim R 316, distinguished

R v Hilton (1987) 7 NSWLR 745, discussed

R v Masters (1992) 26 NSWLR 450, discussed

Sanofi v Parke Davis Pty Ltd (No. 1) (1982) 149 CLR 147, cited

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346-8, 27 ALR 367 at 380-2, followed

COLIN GEORGE DUNSTAN v DIRECTOR OF PUBLIC PROSECUTIONS

A 43 OF 1999

JUDGES:       WHITLAM, MADGWICK AND GYLES JJ

DATE:            7 JULY 1999

PLACE:          CANBERRA

THE COURT ORDERS THAT:

1.                  Leave is given to appeal from the order of the Supreme Court of the Australian Capital Territory made on 2 June 1999.

2.                  The appeal is allowed.

3.         The order made by the Supreme Court is set aside and the following order is made in its stead:

(1)        Bail be granted to Colin George Dunstan on conditions that:

(a)                he enters into an agreement, in writing, to observe the following requirements as to his conduct while released on bail –

1.                  not to approach within 100 metres of the Australian Taxation Office;

2.                  not to approach within 100 metres of the office of the Human Rights and Equal Opportunity Commission;

3.                  not to approach within 20 metres of any Post Office or Post Office facility;

4.                  not to approach within 100 metres of the office of the Australian Government Solicitor;

5.                  not to approach within 100 metres or contact or cause to be contacted, except through legal representatives, any witness named in the Police Statement of Facts and such members of such persons’ family as may be notified by the Director of Public Prosecutions to his solicitor;

6.                  to surrender forthwith his passport and undertake not to apply for any passport or other travelling document;

7.                  not to approach within 100 metres of any international point of departure;

8.                  to reside at a nominated address in the ACT;

9.                  to report to the officer in charge of the Belconnen Police Station between 8.00am and 10.00am each morning and 6.00pm and 10.00 pm each evening;

10.              not to leave the ACT;

11.              to consult twice weekly with Dr Hugh Victor Veness or, after lodgement of a certificate from Dr Veness with the Registrar of the Supreme Court that once a week is sufficient, once weekly; and

12.              to take such medication and accept such treatment as directed by Dr Veness.

(b)        he and an acceptable person each enter into an agreement, in writing, to pay to the Australian Capital Territory the sum of $3,000 if he fails to appear in court in accordance with his undertaking to appear.

(2)         Sokkha Hac is an acceptable person for the purposes of condition (b) above.

(3)         The address of Mr Dunstan not be published and any publication of

requirement 8 in condition (a) above not refer to the address shown but simply refer to “a nominated address in the ACT”.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

WHITLAM J:

1                     I have had the advantage of reading in advance the reasons for judgment of

            Madgwick J and Gyles J.

2                     For the reasons given by Gyles J, I agree that leave to appeal should be given and the appeal allowed.  However, in the unusual circumstances of this case, I consider that this Court should determine the appellant’s application for bail.  His trial is fixed to commence on 19 July 1999.  The respondent has not identified any further evidence or information to be given or obtained on a rehearing by the Supreme Court prior to that date.  (It is true that counsel for the respondent made a feint reference to the opportunity to cross-examine Dr Veness on such a rehearing, but such cross-examination could have been raised in this Court on the question whether to receive Dr Veness’ report in evidence.  The respondent must have known at least 3 days before the hearing in this Court that the appellant proposed to tender that report.)  Accordingly, the question of bail should be determined on the basis of the material before the court below supplemented by the further evidence in the latest report of Dr Veness.

3                     The respondent opposed the grant of bail to the appellant on the basis of the matter referred to in s 22(1)(c) of the Bail Act 1992 (ACT).  For the reasons give by Madgwick J, I am not satisfied that the protection of the community requires that the appellant not be granted bail.  So far as the other matters in s 22(1) are ascertainable, in my opinion, particularly in the light of the analysis by Gyles J of the evidence and information before this Court, bail should be granted on the conditions proposed by Madgwick J. 

Associate:

Dated:              7 July 1999

REASONS FOR JUDGMENT

MADGWICK J:

4                     I agree with the reasons and conclusions of Gyles J except as to how the Court should finally dispose of the matter.  Before dealing with that subject, I wish also to add some remarks of my own.

The legislative policy

5                     The intention of the Bail Act (ACT) 1992 ("the Act") seems to be that, in relation to more serious charges, an accused person will have rights to

·                    a decision by an "authorised [police] officer" as to whether he or she should be granted bail:  s 13 and s 14;

·                    an initial decision by a judicial officer, upon application, as to whether he or she should be granted bail:  s 19(1)(a);

·                    apply thereafter, as often as the accused person wishes, "in relation to bail" (s 19(2)) but to have a second or subsequent decision made on an application "for bail" only in limited circumstances:  s 19(5);

·                    apply on an unlimited number of occasions for, and to have considered, an "enlargement" or "variation" bail - by the unlimited number of applications "in relation to bail" that may be made;

·                    have an authorised officer's decision to refuse to grant bail reviewed by the same or another authorised officer on a number of occasions that might be limited by regulation:  s 38;

·                    have a review by a court of any decision (by a court or otherwise) "in relation to bail":  s 41;

·                    have a review by the Supreme Court of any decision in relation to bail (including by the Supreme Court itself), whether or not there has otherwise been a review by the Magistrate's Court or an authorised officer: s 43. 

It appears that an informant has rights to:

·                    move a court to vary or revoke bail, on a change in circumstances being made out and perhaps on other sufficiently pressing grounds - this is implied by s 19(1)(b), s 19(5) and the necessities generally of the subject matter of the legislation:  justified complaints, both minor and major, by an informant, as well as by an accused person, about the present operation of undoubtedly correctly made past bail decisions are apt to arise;

·                    seek a review by a court (including the Supreme Court) in the same circumstances as an accused person:  s 41 (although an accused person has additional rights of a "backstop" nature under s 46).

6                     There is an express right in an accused person to make an unlimited number of "applications in relation to bail" granted by s 19(2), which appears in Part IV, that Part being entitled "Grant of Bail".  No like right is expressed in Part VI, entitled "Review of Bail Decisions".  It would appear to be implied by the express words of s 43 that there is no right to a review by the Supreme Court where there has already been such a review, although care needs to be taken in the application of such an interpretative principle.  The notion of a "review" connotes a process of reconsidering the merits of a decision and, if necessary, making another decision which, in the opinion of the reviewer, is the "correct or preferable" decision, as trite administrative review law acknowledges.  The Act represents a measured and balanced system for the careful and fair consideration of an accused person's rights in relation to bail, including to have the Supreme Court investigate, on a review, the merits of a case and another judicial officer's (including a Supreme Court judge's) primary decision.  No consideration of justice demands, and every reasonable practical consideration denies, an interpretation of the Act which would give either party the right to a review of a review (or a review of a review of a review, ad infinitum).  It is likely that the legislature intended that (except in relation to the right to a review by the Supreme Court regardless of whether a less authoritative court had undertaken a review) the right to a review should be of a decision made under Part IV, not of one made under Part VI.  Historically, bail decisions of superior court judges were not subject to appeal (see, for example, Jure Maric v The Queen [1981] 2 NSWLR 100) and a right to successive bail applications to different judges of the one superior court, without any necessity to show changed or at least special circumstances, was thought excessively to favour the interests of an accused person.  Provisions such as s 22A of the NSW Bail Act 1978 were the result; although an unlimited number of such applications may be made by an accused person (s 22(1)), that section enables the Supreme Court of that State to refuse to entertain a second bail application if the Court is not satisfied that there are "special facts or special circumstances".  It would be anomalous if there were restrictions on the number of occasions on which applications for bail might be entertained by an ACT court but none as to the number of reviews. 

7                     These considerations show an intention by the legislature which would oust any presumption that might possibly be said to arise from the terms of s 26(1) of the Interpretation Act (ACT) 1967 that statutory powers may be exercised and duties performed "from time to time as occasion requires".

Errors in court below

8                     I would express the errors that it seems to me were made by Miles CJ as follows:

(1)               His Honour misconceived the nature of his task which was to consider Mr Dunstan's application for bail de novo, not to review a formal refusal of bail by the magistrate.  This was an error of law and of principle.

(2)               That error led him to rely to an impermissible degree on the Full Court's assessment of the degree of risk to the community which Mr Dunstan allegedly posed, rather than apply his mind to the different circumstances which prevailed when the matter was before him.

(3)               The Full Court's decision having been made without jurisdiction, it was an error to consider that it required respect or that considerable weight be given to it.

(4)               Miles CJ misapprehended the facts in that he did not appreciate the significance of the change in circumstances since the matter was before the Full Court, particularly:

(a)                     that the anticipated charges, in substance, were less serious than those previously in prospect;

(b)                     the DPP had properly conceded that there might be difficulties in proving the charges that involved an intent to do harm;

(c)                     that acceptable evidence of any strength that the various devices were actually "explosives" and/or capable of causing serious bodily harm to persons was still not available to the Crown;

(d)                     that an account of his actions had been given by Mr Dunstan which, although it might tend to prove other charges not laid, was exculpatory in relation to those which were laid;

(e)                     the more complete and up-to-date evidence that was available evidence from Dr Veness (although it is proper to say that this aspect of the changed circumstances was only revealed by the new evidence before us).

Whether leave is required

9                     As to the question whether a decision by a Supreme Court judge that an application for bail is interlocutory, so as to require leave, I tend strongly to the view that that question should have an affirmative answer.

10                  The ordinary test as to whether an order is final or interlocutory is whether the order finally determines the rights of the parties (see Sanofi v Parke Davis Pty Ltd (No. 1) (1982) 149 CLR 147 at 152) and such a test concerns the legal rather than the practical or real effect of the order in question: ibid at 153.

11                  It is not necessary, in order to render proceedings interlocutory, "that there must be engrafted a requirement that there is also to be 'a principal cause pending between them'":  DPP v Hiep Huu Le (1998) 156 ALR 110.  In fact, however, in the case of a bail decision, there is such a "principal cause":  no question of bail arises before there are criminal charges laid which are to be curially determined and, at the point where criminal charges are withdrawn or determined to finality, there ceases to be any question of potential loss of liberty remediable or ameliorable by bail. 

12                  A decision in relation to bail under the Act, being a primary decision, is liable to enlargement, variation or revocation by another "primary" decision or on review.  A review decision is liable to variation, enlargement or revocation by a later "primary" decision.  The right of an accused person to make successive applications "in relation to" bail is unlimited and the right to have a later application "for" bail considered exists where new information has emerged or where he or she was not legally represented at the hearing of the initial application.  The Court may have regard to "any information it considers relevant and reliable":  s 19(6).  None of these matters is a common feature of final judgments and they are, in greater or lesser measure, the sort of characteristics commonly exhibited by interlocutory judgments.

13                  In the light of s 19(6), the sole question of importance as to whether the subject judgment is interlocutory is whether leave is necessary for an appeal.  Considerations of practicality, justice between the parties, and the public interest in an unfragmented process of managing the consideration of criminal charges favour the view that bail decisions ought not be subject to appeal without leave (indeed, leave given sparingly).  The nature of the proceeding and the consequences of its categorisation for the nature of the appellate process to some extent inform each other:  R v Connell (1990) 3 WAR 516 approved in DPP v Hiep supra.  Quintessentially, it would appear appropriate as a matter of imputed legislative policy that appeals in relation to bail should only be by leave.  This can confirm an impression otherwise arising that bail decisions are interlocutory.

Bail should now be granted

14                  Ordinarily, it would undoubtedly be the right course to remit Mr Dunstan's application for rehearing by another judge of the ACT Supreme Court.  However there are special circumstances here.  As Gyles J demonstrates, the matter is somewhat finely balanced. I think that the balance favours our direct intervention.  The decisive matters include, but are not limited to, the constraints of time as Mr Dunstan's trial approaches and that, as a matter of legal analysis and factual probabilities, he should and would have been allowed to continue to enjoy the bail granted to him by Higgins J.  I return to this below.  In the very special circumstances we should, exceptionally, deal with the matter ourselves.

15                  Doing so, the first matter is that, as a matter of the jurisdiction of the ACT Supreme Court, the bail status which Mr Dunstan ought to have had, up to the moment of his committal for trial, was that ordered by Higgins J and it seems highly likely that the committing magistrate would not have disturbed that bail status.  The DPP might, before conclusion of the committal, have made an application to revoke bail but would have been unable to show changed circumstances or other sufficiently pressing grounds.

16                  Section 22 requires that “in making a determination regarding the grant of bail” a court should have regard to the matters therein set out. We therefore must do so. As to s 22(1)(a), it is highly probable, though of course nothing is certain, that Mr Dunstan will appear to face his trial.  As to s 22(1)(b), Mr Dunstan’s interests, in relation to his “need … to be free for the purposes of preparing for his appearance before a court and obtaining legal advice”, strongly favour his being granted bail. The same is true of his need to be free “for other purposes”, notably to continue his medical treatment by Dr Veness.

17                  The only matters as to which doubt exists are those referred to in s 22(1)(c), which, it will be recalled, is in the following terms:

“(c)     the protection of the community, having regard only to –

the likelihood of the person interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or any other person;

(ii)               the likelihood of the person committing an offence while released on bail; and

(iii)             the likelihood of the person harassing a victim or other persons while released on bail.”

18                  As to the various possible modes of obstruction of the course of justice, referred to in para (i), there is scant prospect that any of them may eventuate. As to the harm to which para (iii) is directed, even if a present predilection by Mr Dunstan for such obstruction could be satisfactorily inferred, which I think it cannot, if Mr Dunstan has access to legal advice about the serious consequences that might befall him, including revocation of his bail, if he were to “harass” a victim or other person while on bail, I think there is an acceptably low risk of this occurring.

19                  Turning to “the likelihood of [Mr Dunstan] committing an offence while released on bail”, s 22(1)(c)(ii), which has been the major matter of concern, the only reason for considering that there is any real possibility of this is the sum of the events and the actions of Mr Dunstan, out of which the charges against him arose. There is no doubt that the events were terrifying to certain individuals and alarming to members of the public, and there is evidence that it was by sheer good fortune (though Mr Dunstan disputes this) that no-one was caused serious physical injury. On his own account Mr Dunstan tried, by posting devices that at least closely resembled letter bombs, and one, at least, of which was dangerous, to deliver very sobering messages to a considerable number of people, in relation to whom he felt grievances. It appears that his normally law-abiding tendencies were displaced by an acute sense of injustice and chronic, severe and ineffectively treated depression. There remains, it is plain enough, some degree of risk that these precipitants of criminal behaviour might again be actuated.

20                  However, that an individual has committed one short-lived series of criminal acts, albeit of a terrorising character, does not necessarily give rise to an inference that there is any real likelihood (in the sense of a substantial chance) that he or she will do so again. There are few, if any, other circumstances to support such an inference here. On the other hand, there have been several important supervening events, which tend against drawing such an inference. One is that Mr Dunstan’s desperation and sense of grievance have been widely publicised. Another is that some of his victims have, as he acknowledges, shown sufficient fairness of mind, despite the circumstances, to speak well of his past behaviour in ways that they need not have done. Another is that the legal system has manifestly operated to give careful consideration to his contentions and he has had some success in relation to its operations. Mr Dunstan is an intelligent man, well able to understand these matters. Finally, Mr Dunstan has made his way to a treating doctor, whose treatment, including a regime of medication, appears to be successful in alleviating his depression.

21                  It is a wrong approach to deny a person bail in an effort to eliminate the risk that such a person might commit offences if free to do so.  There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass.  The question posed by the Bail Act is whether the Court is satisfied that any risk is sufficient to justify the Court denying the accused person a legal right, the right to bail established by s8.  Weight must be given to this presumption in favour of bail.  I am not satisfied that the degree of  risk that Mr Dunstan would commit an offence if released on bail justifies the Court denying him bail.

22                  Neither party suggested any conditions of bail different from those fashioned by Higgins J, except that Mr Dunstan asked to be required to see Dr Veness only once a week, on grounds of expense.  I think that there is no objection to this, provided Dr Veness agrees that adequate treatment of Mr Dunstan would not thereby be compromised. A condition that Mr Dunstan “shall consult twice weekly with Dr Veness or, after the lodgment of a certificate from Dr Veness with the Registrar of the ACT Supreme Court that once a week is sufficient, once weekly” and otherwise as the relevant condition was formulated by Higgins J, will suffice.

Associate:

Dated:              7 July 1999

REASONS FOR JUDGMENT

GYLES J:

Introduction

23                  As a matter of urgency, the Court heard together an appeal and an application for leave to appeal by Colin George Dunstan (the appellant) from a decision of the Chief Justice of the Australian Capital Territory Supreme Court on 2 June 1999 refusing him bail.  If any rights of the appellant are to be of real value, this urgency has been necessary.  It has inevitably led to less time for argument and consideration than might be desirable.  It also made impractical convening a bench of 5, a course which otherwise might have been desirable once it became clear that we were indirectly reviewing the jurisdiction of the Full Court of the Australian Capital Territory Supreme Court and the merits of a decision of it.

24                  The appellant was born on 27 September 1955.  He is a university graduate and commenced working in the Commonwealth Public Service in 1982.  He has no convictions.  He is a long-standing resident of the Australian Capital Territory.  He has deeply felt grievances relating to his employment, principally against officers of the Australian Taxation Office and the Human Rights and Equal Opportunity Commission.

25                  On 4 December 1998 the appellant was taken into custody in circumstances of some drama.   After the reported explosion of a letter bomb device at Fyshwick Mail Exchange in the Australian Capital Territory, followed by the discovery of a number of other such letters addressed to persons with some connection with the grievances of the appellant, a search ensued, and the appellant was found in the Australian Capital Territory.

26                  A short history of the matter from then on is as follows:

22 February 1999:        Application for bail pursuant to Part IV of the Bail Act 1992 (ACT) (“the Act”) refused by Chief Magistrate Cahill.

19 March 1999:           Bail granted on strict conditions by Higgins J of the Supreme Court of the Australian Capital Territory on review of the refusal pursuant to Part VI of the Act.

6 April 1999:                Hearing of application by the Director of Public Prosecutions (“the DPP”) for review of the decision of Higgins J by the Full Court of the Supreme Court of the Australian Capital Territory, constituted by Miles CJ, Gallop and Crispin JJ. 

9 April 1999:                Bail revoked by Supreme Court.

27 April 1999:              Committal hearing – appellant committed on 57 charges – 1 of breach of s 129(2) of the Crimes Act 1900 (ACT), 28 of breach of s 19 of the Crimes Act 1900 (ACT) and 28 of breach of s 27(3)(e) of the Crimes Act 1900 (ACT).  The appellant made no application for bail.  Bail was formally refused and the appellant remanded in custody.

10 May 1999:              Directions hearing in the criminal proceedings before Miles CJ – the trial was fixed for 19 July 1999.  The appellant foreshadowed a bail application and the Chief Justice stood the matter over to 2 June directing that any affidavit should be filed within fourteen days.

24 May 1999:              Notice of Motion to be granted bail filed by the appellant, together with an affidavit by the appellant sworn 21 May 1999.

2 June 1999:                 Draft Indictment provided to appellant, dropping some charges and adding others.

                                    Hearing of bail application by Miles CJ.  Bail refused. 

Bail Act 1992 (ACT)

27                  The Act constitutes a comprehensive set of provisions in relation to bail.  Indeed, it expressly purports to abolish any inherent power of the Supreme Court to grant bail (s 57AA).  No question arises here as to inherent power.

28                  The principal sections relevant to the present case dealing with the grant of bail are as follows:

5.      Availability of bail

(1)               Subject to subsection (2) and section 9, an accused person may be granted bail in respect of any period during which he or she is not required to attend court in relation to the offence with which he or she has been charged.

…

8.      Bail for offences other than minor offences

…

(2)               A person –

(a)   accused of an offence to which this section applies;  or

(b)   to whom this section applies;

            is entitled to be granted bail in accordance with this Act unless –

(c)    the court or authorised officer is satisfied that, having regard to the matters referred to in whichever of sections 22 and 23 apply to the accused person, the court or authorised officer is justified in refusing bail;  or

(d)   the requirement for bail is dispensed with under section 10.

19. General provisions relating to court bail

(1)       Subject to section 20, a court may –

(a)               grant bail to an accused person who is being held in custody in connection with the offence with which he or she has been charged;  or

(b)               enlarge, vary or revoke bail granted to an accused person.

(2)       There is no limit to the number of applications in relation to bail that may be made to a court by a person accused of an offence.

(3)               All applications to a court in relation to bail shall be dealt with as soon as is reasonably practicable.

(4)               Notwithstanding the provisions of subsections (2) and (3), a court may refuse to entertain an application in relation to bail if it is satisfied that the application is frivolous or vexatious.

(5)               Where a court has made a decision in relation to an application for bail by an accused person, a court may only consider a further application for bail by the accused person if –

(a)               the accused person was not represented by a legal practitioner at the hearing of his or her first application to a court for bail in respect of the offence with which he or she is charged;  or

(b)               the accused person can show that there is fresh evidence or information of material significance to the granting of bail to the accused person that was not available to be put before the court at the time of the hearing of the immediately preceding application to a court for bail.

(6)               In determining whether to grant bail to an accused person, a court may have regard to any information it considers relevant and reliable.

20.  Limitation on power of magistrates to grant bail

A magistrate may not grant bail to a person under section 19 where the person has appeared before the Supreme Court –

(a)               following his or her committal for trial or sentence;  or

(b)               on appeal against a conviction or order in respect of a sentence imposed on the person

22.  Criteria for granting bail to adults

(1)               In making a determination regarding the grant of bail to an accused person who is not a child, a court or an authorised officer shall have regard to the following matters, so far as they are ascertainable:

(a)               the probability of the person appearing in court in respect of the offence for which bail is being considered, having regard only to –

(i)                 the background and community ties of the person, having regard to the nature of his or her home environment and employment and to his or her criminal record;  and

(ii)               the circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the person absconding;

(b)               the interests of the person charged, having regard only to –

(i)                 the period that the person may be held in custody if bail is refused and the conditions under which he or she would be held in custody;

(ii)               the need of the person to be free for the purposes of preparing for his or her appearance before a court and obtaining legal advice and for other purposes;  and

(iii)             the need of the person for physical protection, whether the need arises because the person is incapacitated by intoxication, injury or use of drugs or arises from other causes;

(c)                the protection of the community, having regard only to –

(i)                 the likelihood of the person interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or any other person;

(ii)               the likelihood of the person committing an offence while released on bail;  and

(iii)             the likelihood of the person harassing a victim or other persons while released on bail.

(2)               In subparagraph (1)(c)(ii) a reference to an offence shall be read as including a reference to an offence against a law in force in the Territory and a law of the Commonwealth, a State or another Territory (including an external Territory).

23A.    Victim’s concern about need for protection

(1)               Where a court is determining the grant of bail to an accused person –

(a)               the prosecutor shall inform the court of any concern of which he or she is aware expressed by the victim about the need for protection from violence or harassment by the accused person;  and

(b)               the court shall receive any submission in respect of that concern and have regard to it in the context of the matter referred to in paragraph 22(1)(c).

(2)               Where an authorised officer determining the grant of bail to an accused person is aware that a victim has expressed concern about the need for protection from violence or harassment by the accused person, the authorised officer shall have regard to that concern in the context of the matter referred to in subsection 8A(1) and paragraph 22(1)(c).

Sections 5 and 8 are in Part II of the Act – the other sections are in Part IV.

29                  The principal sections relevant to the present case which deal with the review of bail contained in Division 2 of Part VI of the Act are as follows:

41.  Right of review of bail decisions

An accused person or the informant may apply under this Division for review of any decision by a court or an authorised officer in relation to bail.

42.  Power of magistrate to review

Subject to section 44, a magistrate may review any decision made by an authorised officer or a magistrate (including himself or herself) in relation to bail.

43.  Power of Supreme Court to review

(1)               The Supreme Court may review any decision of an authorised officer, the Magistrates Court or the Supreme Court (however constituted) in relation to bail.

(2)               The power of the Supreme Court to review a decision under this section may be exercised whether or not any power to review the decision under section 38 or 42 has been exercised or has been sought to be exercised.

44.  General limitation on power of court to review

A court may not, pursuant to this Division, review a decision in circumstances where, had the decision not been made, the court would be prohibited from making a decision in relation to the grant of bail.

45.  Exercise of power to review

(1)               The power to review a decision under this Division includes a power to affirm or vary the decision or to substitute another decision.

(2)               A decision as varied or substituted shall be in conformity with this Act.

(3)               The review of a decision shall be by way of rehearing and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review.

…

(7)               A court may refuse to entertain a request to review a decision pursuant to this Division if the court is satisfied that the request is frivolous or vexatious.

…

Proceedings at first instance

30                  There is an issue as to whether the application before Miles CJ on 2 June was an application for bail pursuant to Part IV or for review of the committing Magistrate’s refusal of bail on 27 April pursuant to Part VI.  The Notice of Motion and affidavit in support are drawn as the former, but Miles CJ treated the proceeding as the latter.  The appellant was unrepresented, and the transcript reveals that he was obviously puzzled by the concept of the Court reviewing a decision of the Magistrate refusing bail when he had expressly declined to make any application for bail to the Magistrate.  Counsel for the DPP referred to s 94 of the Magistrates Court Act 1930 (ACT) as support for the view that the Magistrate had made a decision, and referred to the Magistrate’s words on the occasion, namely:

Bail not applied for it is formally refused and you will be remanded in custody.

31                  While s 94 required that the Magistrate turn his mind to the question, I cannot discern any duty to deal with any deemed or notional application for bail when none is made.  The refusal of bail by the magistrate here was no doubt explained by s 10(3) and s 12 of the Act but did not amount to a substantive decision to refuse bail on the merits.  Sections 19 and 20 of the Act clearly gave the Supreme Court power to grant bail on application under Part IV, and that is what the appellant sought.  As will appear from these reasons I would not regard s 19(5) as providing any barrier.  It follows that his Honour erred in his categorisation of the application, and so failed to hear and determine the matter before him.  Having read the transcript, I would not regard the appellant’s acquiescence as of any practical significance.

Power to review a review of a bail decision

32                  There is another procedural (indeed, statutory) issue to which I should immediately refer.  It will be observed from the chronology of events that the Full Court decision which revoked bail was a review of the decision of Higgins J, which was itself a review of a decision of the Chief Magistrate.  That Full Court decision established the status quo and, as will be seen later, was pivotal to the reasoning of the Chief Justice in the present case.  The Chief Justice, of course, had been a member of the Full Court.

33                  It is apparent from the decision of the Full Court that the then counsel for the appellant had argued unsuccessfully that there was no jurisdiction in the Supreme Court to review a decision of the Supreme Court which was itself a review of the initial decision by a magistrate.  The appellant (who appeared before us in person) did not raise any point about this in the application before the Court and it was not raised before the court below.  The Director objects to the point being considered.  The question of successive reviews was, however, raised on behalf of the Director in order to submit that this Court should not grant leave to appeal, but should leave the appellant to that remedy.  It was submitted that successive reviews were authorised, subject to the power conferred by s 45(7) to refuse to entertain a request to review if the Court is satisfied that the request is frivolous or vexatious.  This raises a question of considerable general importance which is purely a matter of statutory construction.  There is no reason not to consider it particularly as the substance of it has been raised in any event.

34                  It is, to say the least, most unusual for there to be a full rehearing review of the decision of an inferior tribunal by a single judge being subjected to another full rehearing review by another single judge, and it is strictly that jurisdiction which was exercised by the Full Court here.  Normally, when a Court is authorised to exercise a power, such as a power to review, the Court is functus once the power is exercised by a single judge, subject to any special appeal provisions.  There is no appeal, even to the Court in banc.  See, for example, Maric v R [1981] 2 NSWLR 100 and DPP v Kanfouche [1992] 1 VR 141.  The Supreme Court Act 1933 (ACT) is consistent with this pattern.  It provides that jurisdiction will generally be exercised by a single judge (s 8), although there is power for a judge to order that the jurisdiction of the Court in the matter shall be exercised by the Full Court (s 13), as happened in the present case.  The Act does not provide for appeals from the decision of a judge to the Full Court.  The appellate review of decisions of judges of the Supreme Court is by this Court pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth).

35                  The nature of bail, and the provisions of Part IV, make it most unlikely that the legislature would have intended unlimited successive reviews, subject only to the power conferred by s 45(7).  Bail is always temporary.  Bail is defined to mean authorisation granted to a person under the Act to be at liberty (s 3).  An accused person may be granted bail only in respect of any period during which he or she is not required to attend court in relation to the offence with which he or she has been charged (s 5).  When the accused comes back before the Court, another decision about bail may be made. 

36                  Part IV envisages that the Court has power to enlarge, vary or revoke bail in applications pursuant to it (s 19(1)(b)).  Changed circumstances should be dealt with pursuant to this power rather than by way of review under Part VI which in my opinion is restricted to cases where the applicant wishes to contend that the decision under review was wrong, albeit perhaps on different materials.  Part VI is framed in a fashion typical of appellate review by way of full rehearing.  Section 43(2) implicitly proceeds upon the basis that there may only be one review absent special provision.

37                  I do not regard s 39(5)(d) or s 40(b) as a sufficient indication to the contrary of this analysis.  I rather read each as designed to ensure that the policy I discern is adhered to and to be, in effect, enacted out of an abundance of caution.  The latter might have been thought desirable in view of s 43(2).

38                  Leaving aside textual considerations, it is helpful to approach this question by bearing in mind that at common law there was no appeal (by review or otherwise) from decisions relating to bail.  Court bail was simply dealt with by the Court having cognisance of the matter, subject to the general jurisdiction of the Supreme Court, as the superior court of the place, to grant or revoke bail.  Any such order was the exercise of original, not appellate jurisdiction.  Indeed, the Bail Review Committee 1976 (NSW) recommended against any provision for appeal from or review of a bail decision. 

39                  In the light of this, it would be odd, to say the least, if the policy were to not only permit reviews, but to permit successive reviews.  It is difficult to think of any rational explanation for such a policy, and there is no relevant discussion in the Second Reading speeches.  It would breed uncertainty and proliferate litigation.  It would tend to take control of bail away from the trial court to successive Supreme Court reviews.  It would set up a de facto internal appeal structure in the Supreme Court, where none exists for other purposes.  Above all, it is unnecessary.  As I construe the Act, there is available one review of every initial bail decision by a Court plus the possibility of a Supreme Court review in relation to the decision of a magistrate.  In addition, there is the possibility of an appeal to this Court.  This is a significant change from the common law position, and is an adequate safeguard against aberrant exercise of discretion. 

40                  The nature of bail is such that the relevant circumstances change from week to week, and, indeed, day to day.  The provisions of Part IV and V are designed to deal with those exigencies by de novo decisions at first instance.  The possibility of a trailing series of reviews of past decisions seems anomalous.  Indeed, this is illustrated by the situation which developed in New South Wales.  The New South Wales Act had no equivalent of s 19(2) of the Act.  Having considered the Report of the Bail Review Committee (1976) (NSW Parliamentary Papers No 46 of 1976), upon which the New South Wales Act was largely based, and the Second Reading speeches, this is not likely to have been a policy decision.  It left a gap in the power at first instance, particularly in relation to the revocation of bail.  That led to the review provisions of the Act being stretched, and then amended, to overcome the problem.  Much of this is illustrated by the history of R v Masters (1992) 26 NSWLR 450 which had occurred prior to the enactment of the Act.  The same gap does not exist in the Act.  The difference in the relevant provisions is sufficient to distinguish the remarks in R v Hamill (1986) 25 A Crim R 316 relied upon by the DPP.  I also observe that those parts of the judgment relied upon by the DPP were obiter dicta, as that was the first review of an initial decision.  It is also not clear that the point was argued.

The significance of the approach by the Full Court

41                  It follows, in my opinion, that the Full Court decision was made without statutory authority, and, if there had been an appeal on that ground, it would have been set aside.  There was no appeal, and the judgment stands as that of a superior Court.  In my opinion, neither that circumstance, nor failure of Mr Dunstan to take the point before his Honour or here, relieves this Court from the duty to form a view as to the validity of the judgment.  As I have said, the question is one of statutory construction unaffected by any facts, and was pivotal to the decision below.

42                  This may be illustrated by the following quotations from his Honour’s judgment, all taken from pages 377 to 379 inclusive of the appeal papers:

·                    … there is no obligation cast on the applicant to show that the magistrate’s decision was based on some error of law or fact and in relation to the present application, the Court will act on the material before it.  Nevertheless, the fact is that the Full Court has previously revoked bail for reasons given at the time and unless there has been a change in circumstances, or some other extraordinary circumstances that would justify a judge coming to a decision different from that of the Full Court, that decision must be accorded due respect.

·                    …I should say I do not intend to set out the factual circumstances as alleged by the prosecution or the substance of the charges as they relate to those factual circumstances, beyond what was said in the Full Court.

·                    Ultimately, it is necessary to say only that the position as it was perceived by the Full Court has not essentially changed.

·                    As I have said, the prosecution case in relation to all matters is essentially as was disclosed to and perceived by the Full Court, save that there are fewer charges and some are pursuant to a section of the Crimes Act 1914, which was an issue not addressed by the Full Court.

·                    …I should also say that I am of the view that the situation as perceived by the Full Court with regard to issues relating to danger to the public if the accused were released on bail, remains essentially the same.

In my opinion, his Honour’s reliance upon the invalid Full Court decision was inevitable, but amounts in substance to error.  The judgment was not authorised by the Act, and should not have been given. 

43                  His Honour held that the Full Court decision had established the principles applicable to the grant or refusal of bail and the review thereof, and said that he was applying those principles.  There are aspects of the Full Court decision in this respect which require close examination because of the manner in which they influenced his Honour’s decision in this case and because of their general importance to the administration of justice in the Australian Capital Territory.

Importance of presumption in favour of bail

44                  Analysis of the application of the Act to this case must commence with s 8(2), which is set out above, in conjunction with s 55, which provides as follows:

Where a court or an authorised officer, in making a decision in relation to bail (not being a decision in proceedings for an offence committed in connection with bail), is to be, or may be, satisfied as to any matter, it is sufficient if the court or authorised officer is satisfied on the balance of probabilities.

45                  The combined effect of these sections is that the appellant was entitled to bail unless the Court was satisfied, on the balance of probabilities, that having regard to the applicable matters referred to in s 22, the Court was justified in refusing bail.  The Full Court do not expressly refer to either of sections 8(2) or 55 in the critical part of their reasoning.  The only oblique reference to s 8 is where, in paragraph 26, they referred to the prima facie right to bail that the Act confers.  The Full Court accepted the DPP’s submission that s 22 was not a code, and that the three matters it listed were not exhaustive.  This is a debatable question and there is no necessity to decide it for the purposes of this case as no matter outside s 22 was taken into account.

46                  I return to the significance of s 8(2).  The decision in R v Hilton (1987) 7 NSWLR 745 left no doubt as to the fundamental change which had been made in the law relating to bail by the Bail Act 1978 (NSW), which is the broad model for the Act.  It is to be recalled that the NSW Act had been introduced following the Report of the Bail Review Committee, 1976.  It was a major reform.  In Hilton, the applicant for bail was tried and found guilty of conspiring to bribe a public officer, and was sentenced to nine years penal servitude with a non-parole period of six years.  The application was for bail pending appeal.  It was held that, notwithstanding the fact that after conviction there was no prima facie entitlement to a grant of bail, the prisoner was nonetheless entitled to apply and in the absence of any statutory criterion, the Court could not imply that the necessity at common law to find special or exceptional circumstances before granting bail to a convicted person applied.  Bail was, in fact, granted.  By way of footnote, the New South Wales Act was amended thereafter, and the Act picks up the amendment (see s 9).

47                  It is also worth recalling that Street CJ said in Hilton, at 748E, in relation to a case (to be contrasted with the present) where there was no statutory prima facie entitlement:

…, a convicted person must make a good case justifying the exercise in his favour of the statutory discretion under s 13 to grant him bail.  In this sense he bears an onus of putting forward material sufficient to satisfy the Court that bail should be granted to him.  The Court must be satisfied of any relevant matter on the balance of probabilities (s 59).

(Section 59 is the equivalent of s 55 of the Act).

This passage underlines the practical and legal significance of the statutory presumption of bail where it does apply by virtue of s 8 and of the onus borne by the prosecution if it wishes to displace that presumption.

48                  The same point is made in the cases in relation to the statutory presumption against bail for certain drug offences contained in s 8A of the New South Wales Act, the substantive provision of which is:

A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the authorised officer or court that bail should not be refused.

49                  In R v Masters (supra) at 473, the Court of Criminal Appeal said, in relation to this section:

The presumption against bail expressed in that section imposes a difficult task upon the person so charged to persuade the court why bail should not be refused.  That 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.  That is the effect of a series of decisions by single judges of the Supreme Court, most recently collected and discussed in R v Kissner (Hunt CJ at CL, 17 January 1992, unreported).  We agree with that interpretation of s 8A. 

This line of cases was again referred to by the Court of Appeal in R v Budiman (1997) 97 A Crim R 548 at 550. 

50                  The terms of s 8A in the New South Wales Act are merely the obverse of s 8(2) of the Act and the presumption in s 8 should be accorded no less weight than the courts attached to the legislative intention behind s 8A. 

51                  The same point is put positively by Legoe J of the South Australian Supreme Court in Farquar v Fleet (1989) 50 SASR 490.  The applicant had been charged with murder.  The bail authority, namely a special magistrate, refused bail, relevantly on the basis of the seriousness of the charge and the reasonable fear that the applicant would tamper with evidence pertaining to the charge.  The matter went to the Supreme Court for review.  It was governed by the Bail Act 1985 (SA) and his Honour, at 492, summarised the effect of s 10 of that Act as:

… the bail authority shall release on bail unless, having regard to the matter specified in subss (a)-(g) of s 10, “The bail authority considers that the applicant should not be released on bail”. 

52                  An argument was put that the previous authorities in South Australia which had held that in cases with the serious charge of murder the applicant for bail should establish some exceptional or special circumstances before bail is granted still applied.  His Honour rejected this, at 493, in the following terms:

…  on a proper interpretation of the Bail Act 1985, particularly ss 10 and 11, I do not consider that the same principles apply.  Indeed, as I read the Bail Act, the starting point for the court reviewing a bail authority’s decision and, indeed, the discretion that the bail authority and court of review should exercise, is one based on the fact that bail should be granted and the applicant released unless the factors set out in the sub-sections of s 10 persuade the bail authority (or the court reviewing the bail authority) that the applicant should not be released on bail.

53                  I also note that in R v Masters (supra), which it will be recalled was a case dealing with s 8A of the New South Wales Act, their Honours said at 473F:

Smart J proceeded … upon the basis that, as part of discharging its onus to show why bail should not be granted, the Crown had to establish that Richards was likely to commit further serious offences if released on bail.  The onus which he applied was incorrect.  For the purposes of deciding whether Richards had persuaded him that he was not likely to commit suchoffences, it was necessary for Smart J to make his own assessment as to whether Richards had committed the further offence in South Australia to which he had confessed in his signed record of interview.  That obligation was not satisfied by merely saying that it was a question to be determined by a jury in South Australia. 

By transposing the parties and the onus, this assists in appreciating the task which the prosecution has in carrying the onus of properly satisfying a court that the presumption in favour of bail should be displaced where it applies. 

Risk and community protection

54                  In this context, the Full Court in the present case said in paragraph 21:

Furthermore, whilst s 22(1)(a) uses the term “probability” and s 22(1)(c) uses the term “likelihood”, there is no requirement of proof on the civil standard that the conduct of the kind specified is likely to occur.

Whilst this may be correct, a problem arises when this is read with the later statement at paragraph 26:

However, it is the matter of the protection of the public specified in s 22(1)(c) that causes us most concern.  Any risk that the defendant might engage in the sort of conduct that gave rise to the charges he is facing is a strong indication that bail should not be granted, despite the prima facie right to bail that the Act confers. (emphasis mine)

These statements are liable to cause those endeavouring to follow the Full Court to fall into error by not giving proper weight to the effect of s 8(2).

55                  In my view, it is wrong to approach the issue under s 8(2) and s 22(1)(c) on the basis of the elimination of risk.  The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not (see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346-8, 27 ALR 367 at 380-2).  If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.

56                  It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention.  In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation.  Discussion of the matter in terms of risk is calculated to encourage that basis.

57                  We do not sit on appeal from the Full Court judgment, and it may be that, notwithstanding the passages to which I have referred, when considered as a whole their Honours did not actually apply the wrong test.  A problem is that the judgment below simply accepts the Full Court principles without further elucidation.  His Honour did not expressly ask himself the correct question, and, as analysed below, the manner in which he dealt with the facts certainly supports the conclusion that he did not give proper consideration to the fundamental importance of s 8(2) as it applied to the case before him. 

Changed circumstances

58                  Furthermore, in my opinion, his Honour was in error in holding that the Full Court decision remained a safe guide to the exercise of his discretion, assuming that it ever was.  I cannot agree with his Honour in thinking that the passage of time and events, and the evidence before him, had not significantly altered the factual substratum of the application.  At the time of the Full Court decision, there had been no committal hearing and, indeed, no brief had been provided by the DPP to the appellant.  By the time the evidence before the Chief Justice was complete, there had been a committal for trial involving the provision of the prosecution statements and the provision of material by the appellant to the committing Magistrate, which statements and material were also before his Honour.  The appellant was cross-examined by the DPP before his Honour upon that material.  Furthermore, a draft indictment had been provided (albeit on the morning of the hearing before his Honour to an unrepresented applicant) which omitted the most serious charge and some other charges, and included a whole new set of charges based upon a new statutory provision.  The DPP had indicated to his Honour that there may be difficulties of proof of a number of the charges.

59                  It was also significant that more than 3 months had passed since there had been any serious consideration of the personal and psychological situation of the appellant.  In addition, a trial date had been fixed which involved a considerable expedition of a complex case in which legal aid had only just been granted to the appellant.  It was necessary for both the appellant and his new lawyers to acquaint themselves with the matter.  The appellant had not opposed the early date and, indeed, professed to be keen to have the matter on. 

60                  The gravamen of the Full Court’s decision may be gathered from the following passages in paragraphs 26 and 28:

26.              However, it is the matter of the protection of the public specified in s 22(1)(c) that causes us most concern.  Any risk that the defendant might engage in the sort of conduct that gave rise to the charges he is facing is a strong indication that bail should not be granted, despite the prima facie right to bail that the Act confers.  The concern of some of those to whom the packages were addressed was the subject of evidence to the effect that they would consider hiring private security services to ensure the safety of themselves and their families should the defendant be allowed bail.  That concern, in our view, reflects the seriousness of the risk. …

28.       We are of the opinion that, whilst the risk that the defendant will not answer bail cannot be overlooked, the risk of conduct endangering the life and safety of others whilst on bail is sufficiently high that it requires the refusal of bail.  …In our view, the granting of bail poses an unacceptable risk of danger to the public.  The protection of the public alone requires the revocation of bail.

It will be recalled that the Chief Justice, in his decision, expressly adopted the Full Court in that respect.

61                  I have already dealt with the Full Court’s reference to risk in this context.  Leaving that aside, there were two main elements in the approach by the Full Court to the facts.  The first was based upon the apparent seriousness of the charges and the danger which would exist to people if the conduct were repeated.  The second related to the propensity of the appellant to repeat that conduct if bail were granted.  It seems to me that the circumstances which were before, or should have been before, the Chief Justice relevant to each element were significantly different from those before the Full Court.

62                  The Full Court had the following to say about the offences:

14.              In summary, the offences are alleged to have been committed in early December 1998 when the defendant was alleged to have sent packages containing explosive devices through the post to each of the 28 persons named in the charges under s 19 and s 27(3)(e) of the Crimes Act.  The devices were improvised from compressed gas cartridges.  One of the devices exploded during routine mail sorting operations at the Fyshwick Mail Exchange, giving rise to the charge under s 129(2).  No person received physical injury on that occasion, but the internal roofing of the Mail Exchange was damaged.

15.              Following the explosion, investigations revealed that there were 21 packages in the Mail Exchange containing similar explosive devices in similar packaging.  A further similar explosive device was delivered to a person in Sydney after having been returned through the post.  Further and similar explosive devices were delivered through the post, to persons in Victoria, New South Wales and Queensland. …

23.      There is no doubt that the offences charged are extremely serious and that, as we are informed, there is a strong circumstantial case against the defendant.  However, apart from directing our attention to the absence of a report at this stage from explosives experts who examined the devices found, counsel for the defendant did not raise any contentious issues on the matter of the strength of the evidence or the likelihood or otherwise of conviction. 

Circumstances of the alleged offences

63                  The issue at that time would seem to have been the nature of the evidence to associate the defendant with the mailing of the explosive devices, which was described at that stage as being only in very general terms.   For the purposes of bail, that association could be assumed by the time of the judgment below.  In this sense, the prosecution case had improved.  On the other hand, there was evidence which, if accepted, was consistent with the appellant wishing to send a warning to those to whom the packages were addressed, but with no intention that they be injured.  Indeed, it was consistent with there being no recklessness involved. Various explanations or hypotheses in relation to the explosion which took place at Fyshwick were suggested and the appellant pointed to the fact that, whatever may have been the truth of it, nobody was injured.  It seems to have been assumed by the Full Court that the packages were very dangerous.  This was very much in issue before the court below.

64                  The material before the Chief Justice very much altered the issue for bail purposes.  It is no doubt true, as the Chief Justice said, that these were essentially jury matters, and it is also true that, as Mr Robertson for the DPP submitted to us, explanations could have been tailored to suit the prosecution brief when it was received.  However, they inevitably, it seems to me, involved objective facts and circumstances which should have been part of the prosecution case on bail (as well as the trial), as to the precise nature of the alleged explosives and devices which were in fact contained in the packages which were intercepted and did not explode, and as to the degree of danger involved in sending them through the post.

65                  There were two statements by Dennis John Sweeney, who describes himself as a qualified police bomb technician, one dated 16 December 1998 and the other dated 4 February 1999.  Mr Dunstan has made much of the differences between, and the deficiencies of, these statements.  Having read them, it seems to me that at best they give very general opinions without being tied back to the type of analysis one would expect of the actual devices and chemicals in the packages seized.  Mr Robertson for the DPP accepted that this was so.  Indeed, on 1 April 1999, the DPP wrote to the solicitors for the appellant in the following terms:

I refer to the CSI [Case Status Inquiry] hearing of the above matter in the ACT Magistrates Court on 30 March 1999 and note that the hearing has been adjourned until 19 April 1999.

The majority of the brief has now been provided to your office with the exception of the ballistics reports in relation to the explosive devices and the remaining reports from the scientific branch in relation to fingerprints and DNA sampling.

These reports will be provided prior to the next CSI hearing.

66                  This was no doubt the point sought to be made by counsel for the appellant before the Full Court when he pointed to the absence of a report from explosives experts who examined the devices found.  Despite the DPP’s letter of 1 April, that deficiency was not remedied at the committal, and had not been remedied by the time of the hearing before the Chief Justice.  Indeed, we were told by counsel for the DPP that no such report is yet to hand, although one is anticipated.  Having in mind the provisions of s 19(6) of the Act, he was asked by the Court whether he was in a position to give any reliable information as to the contents of such a report.  Counsel said he was not in a position to do this.

67                  It is worth recalling what was put by counsel for the appellant at the bail hearing before Higgins J on 19 March 1999 as to these very matters:

As at 22 February the prosecuting authorities, as is apparent from the transcript, still had no meaningful report in relation to the supposed exploding devices. 

They had been sent off to Victoria for analysis there by some experts attached to the Army.  The defence have no idea whether they be exploding devices, fizzing devices, smoking devices or what sort of devices and, on cross-examination of Officer Crozier in the lower court, it became fairly apparent that the explosion, as it was originally described, at the Canberra Mail Centre may not have been an explosion of any great moment.  Now, I raise that because, if that be the case, and if there is some real debate some three months down the track about whether these things be explosive and how explosive they might be, it goes to the question of the seriousness of the original offences.

I am not in a position to say more than that, but one has to be a little, perhaps, sceptical where three months after the event there is still not a report to indicate with any great certainty just how explosive these things were said to be. 

68                  The significance that I attach to these matters is not so much the difficulty which the prosecution may have at trial in proving the offences (although this is by no means irrelevant), it is rather because it becomes difficult to reject at this stage the case of the appellant as to the lack of danger in what was done.  This, in turn, is critical to the question of safety to the public which formed the basis of the decision of the Full Court, and so the Chief Justice.  For the purposes of a bail review, or a bail application, the DPP could have produced a reliable account of the evidence which a properly qualified witness would give, without the formality of a final statement in completely admissible form.  The absence of any such material before his Honour was, in my opinion, quite remarkable, given that the actual packages were virtually all retrieved and that the point had obviously been raised before both Chief Magistrate Cahill and Higgins J.  The failure to have such material served since, and the inability of counsel for the DPP to vouch for the substance of what might be expected does nothing to alleviate concern as to this point.  Notwithstanding the deficiencies of presentation by a litigant in person before the Chief Justice, it was clear from the attack made by the appellant upon the statements of Mr Sweeney, together with his own case that evidence of the actual danger of the packages was a material matter for the purposes of bail. 

Psychiatric evidence

69                  The other principal element is the propensity of the appellant to repeat conduct in one way or another which would give rise to a significant risk of injury.  To a large extent, this issue has turned upon the assessment by various Courts of the psychiatric evidence.  The initial application for bail before the Chief Magistrate was supported by a report by Dr Hugh Veness, a consultant psychiatrist, of 8 January 1999, following a consultation at the Belconnen Remand Centre on 4 January 1999.  Dr Veness gave oral evidence before the Chief Magistrate.   I have not seen the report or a transcript of the evidence of Dr Veness before the Magistrate but it is clear enough, from the summaries of it that I have seen, that his opinion was that the behaviour in question, if it occurred, was the result of depression which could be kept under control by appropriate medication, and that there was no reason to believe that a person of Mr Dunstan’s character would not take medication.  He had had only the one consultation at that stage and had not discussed the alleged occurrences themselves with the appellant.  The prosecution apparently tendered a report from a Dr Cullen, who initially made a tentative diagnosis of a delusional disorder with which Dr Veness did not agree.  Higgins J, in his judgment, said that Dr Cullen had expressed the view, in additional material put before him, that his prior tentative diagnosis should not be taken as an expression of the view that such a condition existed, but was merely a possibility.  It appears from the judgment of Higgins J that the Chief Magistrate was concerned about the possibility of a condition of the type referred to by Dr Cullen underlying the depression, and that this had been influential in his refusal of bail. 

70                  Higgins J pointed out that no evidence had been led to counter the evidence of Dr Veness.  Dr Veness had been called (albeit by telephone) before his Honour.  He adhered to his earlier opinions.  In the course of re-examination, the witness had said that he had been in Court at the Magistrate’s hearing, had heard the police officer give an outline of the Crown case, and that in formulating the opinions he had given in Court on that day he had assumed that the substance of the allegations was accurate.  The last consultation he had had was on 13 January.  In answer to a question in cross-examination, the witness agreed that if there were a significant rebuff in relation to the appellant’s cause or his sense of grievance that sort of situation could rouse some angry feelings again.  Before Higgins J the Crown relied upon the fact that the treating doctor, one Dr Tym, was not called.  Counsel for the applicant put that the reference to the angry feelings recurring under a rebuff was an incomplete understanding of the evidence by the doctor who, on the whole, had said that provided the depression remained under control there was no reason to believe that there would be any repeat of the alleged behaviour.   It was significant that on oath the doctor said that he was prepared to take on the responsibility of alerting authorities if the appellant did not attend an appointment, alerting authorities if he did not (as far as the doctor could ascertain) take his medication and alerting authorities if he formed the view that the appellant had become a danger to other people in any way. 

71                  His Honour accepted Dr Veness.  The bail conditions imposed by Higgins J included:

11.              I shall consult twice weekly with Dr Veness and take such medication and accept such treatment as directed by Dr Veness.

It is common ground that the appellant complied with this condition and with the other onerous conditions imposed by Higgins J during his period of bail.

72                  What the Full Court said about this aspect of the matter is set out in paragraphs 24, 27 and 28 of the Judgment, and I do not reproduce them.  Their Honours regarded Dr Veness’ view as hampered by his inability to discuss the alleged offences with the defendant.  They said further:

Dr Veness’ view that the defendant is unlikely to be a danger to himself or to others is dependent upon the continued control of his depression which Dr Veness regarded as an essential ingredient in the psychopathology which, he assumed, led to the commission of the offences.  That condition is chronic.  We accept the opinion of Dr Veness that medication is likely to control the depression, but neither Dr Veness nor anybody else is able to give sufficient assurance the defendant will continue to take the medication, or that the defendant’s sense of grievance will not be exacerbated by stressful events at any time in the future even if the defendant were to continue to be on bail in the community.  Such stressful events may occur at any time unexpectedly, particularly as the commencement of the committal proceedings draws close.  They may be difficult for others to detect.

73                  During the hearing before the Chief Justice, after the appellant had been invited to go into the witness box to be cross-examined, he said:

I guess – just before moving on to the cross-examination, your Honour, Dr Veness did advise me that he is available to give evidence by phone if that was felt necessary.

His Honour responded:

Yes, all right.  Thank you.

74                  Nobody returned to that topic.  The appellant, who was representing himself, says that he was exhausted and distracted by his cross-examination and that which followed.  The matter was not raised either by his Honour or the DPP.  The omission to pursue that matter was unfortunate.  By that date Dr Veness had had a number of consultations with the appellant and, with the agreement of his former treating psychiatrist, had taken over care of the case.  He thus had a far better opportunity of assessing the appellant than he had at the time of his earlier evidence.  He had been able by then to discuss in detail with Mr Dunstan the events and actions that had led to the charges.

75                  His Honour gave no separate consideration to the psychiatric evidence in his reasons beyond finding that the situation as perceived by the Full Court remained the same.  I can understand the practical reasons which led to the shorthand approach to bail in this case.  I also appreciate that there are limits to the amount of time and attention that a busy court can devote to bail applications.  However, the Act does require compliance with s 8(2) and s 22 at the time of the application to the tribunal considering bail.  In my view, there was no adequate compliance in this case.  

Further evidence

76                  In the proceedings before this Court, the appellant sought to rely upon a report of Dr Veness of 22 June 1999.  This was not opposed by the DPP, although in submissions later  Mr Robertson put that it had not been subject to any testing.  He did not dispute that it could be reasonably inferred that the views Dr Veness expressed on 22 June would have been views that he would have expressed if called on 2 June before the Chief Justice.  No application was made to cross-examine Dr Veness, or to tender any evidence in reply.

77                  The report is cogent, indeed powerful, support for the grant of bail.  The opening paragraph of the report is as follows:

I have already given evidence in previous proceedings in support of bail application proceedings regarding the abovenamed.  I was not called to give evidence at the Supreme Court sitting where his bail, under strict conditions, was revoked.  I provide this report in the interests of justice without partiality or inducement of any kind, including monetary payment for it.

Dr Veness expresses his opinion as follows:

I remain firmly of the view that Mr Dunstan does not pose an unacceptable risk in regards to violence towards himself, the public or the individuals to whom the offending packages were addressed, under the conditions of bail set by Justice Higgins.

He undertook and set out a risk assessment in accordance with what he said was established medical opinion, the result of which supported his opinion.

78                  In my opinion, this evidence, if called before the Chief Justice, should have been entitled to anxious consideration and may well have been decisive, particularly if the Full Court decision were ignored.  Even if it were not, the fact that the opinion was current, and the very much greater qualification of the witness to express his opinion compared to his position at the time of his previous evidence, would have required a complete reconsideration of the issue. 

79                  Given the cogency of the evidence, and the circumstances under which it was not called before the Chief Justice, I see nothing in the decision of the High Court in CDJ v VAJ (1998) 72 ALJR 1548 which would limit the use of this evidence in the proceedings before us.  The arguments presented by the DPP both at the initial hearing and in supplementary submissions do little to detract from the effect of evidence in the absence of any evidence in reply.  

Conclusions

80                  In my opinion, the judgment below cannot stand for the following reasons:

1.                  His Honour mistook the nature of the application which he had before him.

2.                  The principal basis for the decision below was the decision of the Full Court which was not authorised by the statute.  If the exercise of the jurisdiction by Higgins J had miscarried then the DPP should have sought to correct the miscarriage by seeking leave to appeal to this Court. I should say that I can see no basis for suggesting that his discretion did miscarry.

3.                  Even if his Honour had been entitled to give the weight that he did to the judgment of the Full Court, his Honour was wrong in not perceiving that there had been a significant change in the factual substratum which needed to be examined in relation to risk to the public since that judgment, and this meant that his discretion miscarried.

4.                  The decision below failed to give proper weight to s 8(2) and s 55 of the Act.

5.                   We now know that there is cogent psychiatric evidence which, in view of the lapse of time and other circumstances since the original psychiatric assessment, requires to be considered.

81                  I have come to these conclusions conscious that most of these points were not taken distinctly, and in some cases not at all, by the appellant before his Honour or before us.  To my mind, the nature of the points together with the circumstance that they affect the liberty of an unrepresented accused obliges this Court to take them into account.  

Leave

82                  I prefer to leave for another day the question whether an order of the Supreme Court   granting, refusing or reviewing the grant or refusal of bail under of the Act is interlocutory within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

83                  The submissions for the DPP relied upon the general principles considered in cases such as Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246.  The only authority which directly considered the nature of a bail application for these purposes, Green v Lynch (1983) 70 FLR 206, held that the order was final not interlocutory.  The failure to follow this decision by the South Australian Supreme Court in Gray v Sweatman (1987) 45 SASR 517, at least arguably, was not on this point.  We have not heard any substantive argument from Mr Dunstan and there has been no opportunity for the Court to have more than a cursory look at the authorities. 

84                  Whilst the temporary nature of bail, to which I have already referred, the power to enlarge, vary or revoke in s 19(1), the power to bring an unlimited number of applications for bail on the part of the accused (subject to s 19(4), (5)), and the fact that bail is in a general sense ancillary to the criminal process, all point to the order being interlocutory.  On the other hand, bail is now a creature of statute in the Australian Capital Territory and an application for bail is made pursuant to the relevant statute.  It is not a step in the proceeding in quite the same way that the issue of a subpoena to a stranger might be in civil proceedings (cf Brouwer v Titan (1997) 73 FCR 241, 149 ALR 50).  It might be described as a self-contained application.  Although my present view is that an order granting or refusing bail is interlocutory, there is a contrary argument which requires more mature consideration on my part.  We have not had the benefit of any substantial oral argument from Mr Dunstan on this point, and I have come to the conclusion that, if leave is required, it should be granted.

85                  It is only an exceptional case which would warrant the grant of leave to appeal from a bail decision.  The temporary nature of bail, the discretionary nature of the decision, and the close connection between bail and the criminal process in the Territory all point to the need for considerable restraint by this Court.  In my opinion, the points which arise in the present case involve questions of principle and construction of the Act extending beyond this case and of considerable importance.  The necessity to examine the decision of the Full Court in itself would warrant the grant of leave.  Indeed, reference of the issue to a Full Court reinforces the point.  I would grant leave to appeal and allow the appeal.

86                  By way of completeness, it should be noted that the appellant did not address any substantive oral argument to us in support of his grounds of appeal relating to the rejection of evidence.  I would not grant leave to appeal on those grounds, on the basis that they raise no point of importance, and are of little substance.  

Relief

87                  Having determined that the order below cannot stand, the question arises as to what should be done. There must be proper consideration of the appellant’s case for bail, either by this Court or by returning the matter to the Supreme Court for that purpose.

88                  The matter would normally be returned to the Supreme Court.  There is much to be said against that course in the present case.  The trial is fixed to commence on 19 July.  Preparation will be difficult enough for both parties without the considerable distraction of a further bail hearing.  It will be necessary to find a judge to give it urgent attention, as if the appellant is entitled to bail, each day that goes by prior to the hearing is very important to him, to his case and to his family. Each of the other judges has sat on bail in this case.  They all, no doubt, have existing commitments.  Once the trial commences, the trial judge will assume control over bail no matter what order is made now.  If circumstances alter in the meantime, the DPP can apply for revocation of bail pursuant to s 19 of the Act.  We have before us the material which was before the Judge at first instance, plus the additional evidence from Dr Veness.

89                  On the other hand, I am most reluctant to involve this Court in a discretionary decision which is, par excellence, the province of the Supreme Court which has control of criminal proceedings within the Territory.  The Act requires a balancing process.  It cannot be said that the evidence here compels either a grant or a refusal of bail.  The grant of leave, and the setting aside of the order below, are exceptional.  To go further would be a large step.

90                  In one sense, there is a choice between giving primacy to justice to the individual on the one hand, compared with preserving the appropriate relationship between courts in the overall administration of justice on the other.  With considerable hesitation, I have come to the view that allowing the appeal has sufficiently vindicated the former and that to go further risks compromising the latter.  I would return the matter to the Supreme Court.

91                  As I will be a minority on this aspect of the matter, it is appropriate that I consider the question of bail for myself.  I have done this, and I have considered the draft reasons of Whitlam and Madgwick JJ for granting bail.  I favour the grant of bail on the conditions proposed by their Honours.  I am not satisfied that having regard to the matters referred to in s 22 I would be justified in refusing bail, broadly for the reasons outlined by their Honours.

Associate:

Dated:              7 July 1999