FEDERAL COURT OF AUSTRALIA

Clarke v The Queen [2000] FCA 518

PRACTICE AND PROCEDURE - application for leave to appeal from a refusal of bail by a judge of the Supreme Court of the Australian Capital Territory - whether substantial injustice would result if leave were refused - adequate and satisfactory alternative review scheme provided in Bail Act 1992 (ACT).

Bail Act 1992 (ACT), s 19, s 19(5)(a), s 19(5)(b), s 43

Dunstan v Director of Public Prosecutions (1999) 107 A Crim R 358 followed

Niemann v Electronic Industries Ltd [1978] VR 431 applied

PETER DANIELS CLARKE v THE QUEEN

A 20 of 2000

HIGGINS, FINN & WEINBERG JJ

CANBERRA

12 APRIL 2000

On appeal from a single judge of the Supreme Court of the Australian Capital Territory

THE COURT ORDERS THAT:

            1.         the application for leave to appeal be refused.

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

On appeal from a single judge of the Supreme Court of the Australian Capital Territory

REASONS FOR JUDGMENT

HIGGINS J

1                     The Court has come to a view, and I will ask Finn J to state that view and reasons for it.

FINN J

2                     First, the decision sought to be appealed from a refusal of bail by a judge of the Supreme Court of the Australian Capital Territory - is properly to be regarded in my view as an interlocutory one such that the leave of the Court is required.  In consequence I agree with the tentatively expressed opinions to that effect in the Dunstan case:  see Dunstan v Director of Public Prosecutions (1999) 107 A Crim R 358. 

3                     Secondly, I am of the view that the decision of the primary judge does raise issues, particularly of statutory construction, such that it could well warrant reconsideration by a Full Court.  To that extent, I am satisfied that the first of what I will refer to as the Niemann principles in relation to the grant of leave has been satisfied: see Niemann v Electronic Industries Ltd [1978] VR 431.  When it comes, however, to the second of the Niemann principles, I am not satisfied that substantial injustice would result if leave were refused, supposing the decision to be wrong.  The reason for that conclusion inheres in the legislative scheme of the Bail Act 1992 (ACT) ("the Act").  That legislation provides adequate and satisfactory vehicles both to call into question the refusal of bail, or else to allow for further applications to be made for bail, notwithstanding such refusal.

4                     I refer in particular to the review mechanism provided in s 43 of the Act, a mechanism which allows a review to be taken to the Supreme Court from a decision of a judge of the Supreme Court.  Ordinary experience of courts engaged in a review of the decision of a single judge of a Supreme Court would suggest that the review court would normally be constituted by a bench of three judges.  In a case such as the present one, that practice would be an appropriate one to follow if at all possible.

5                     Distinctly, there are the provisions of s 19 relating to a further application for bail, notwithstanding a prior refusal of bail.  I note in particular the concession made by the respondent that in this matter a further application for bail could be made as of right under the provisions of s 19(5)(a) of the Act.  Additionally, it may well be the case that, in the circumstances which now obtain, application could be made under s 19(5)(b).

6                     In any event a sufficient and adequate scheme is manifest in the Act allowing for the refusal of bail to be reviewed (s 43) or revisited (s 19), such that it is inappropriate save in truly exceptional cases that this Court should grant leave.

7                     The application for leave should be refused.

WEINBERG J

8                     I agree that leave should be refused for the reasons given by Finn J.

HIGGINS J

9                     I also am in agreement with those reasons in that decision and, as a result, the order of the Court is that the application for leave is refused.

Associate:

Dated:              19 April 2000