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Supreme Court 26 May 2000

Regina v Duncan

[2000] NSWSC 891

Public order & justice offences
CONTEMPT APPEAL BAIL COMMON LAW PRESERVED

Citation: Regina v Duncan [2000] NSWSC 891
Court: Supreme Court of New South Wales (Common Law Division)
Date: 26 May 2000
Judge(s): O'Keefe J

Background

The applicant had been called as a witness in a murder trial arising from a violent altercation between motorcycle club members at a Sydney cafe in November 1997. Three people were killed and another seriously injured. The applicant's then de facto partner was convicted of murder and sentenced to a minimum of 28.5 years' imprisonment.

During the murder trial, the applicant deliberately and persistently refused to answer relevant questions put to her by both the trial judge and the Crown Prosecutor. She offered inconsistent explanations for her refusal and was found not to have been frank with the court. She expressed no remorse and tendered no apology, either at the time of sentencing or at the bail application.

On 2 March 2000 the applicant was convicted of contempt of court. On 23 May 2000, Dowd J sentenced her to two months' imprisonment. She applied for bail pending an appeal against that sentence.

  • Whether the Bail Act 1978 (NSW) or the common law governed bail applications arising from contempt after sentence had been imposed.
  • Whether s 32 of the Bail Act (which prescribes the considerations a court may take into account in bail determinations) applied to contempt bail applications.
  • Whether s 30AA of the Bail Act (which restricts bail after conviction on indictment pending appeal) applied, or had any analogous relevance, to contempt proceedings.
  • Whether, applying the relevant legal framework, bail should be granted in this case.

Decision

O'Keefe J held that the common law governed the bail application, rather than the Bail Act exclusively. Section 62 of the Bail Act abolishes any non-statutory power to grant bail for accused persons in criminal proceedings, but s 64 expressly preserves the court's powers in relation to contempt. The effect of s 64 is to preserve the common law bail powers for contempt and to superimpose the Bail Act provisions upon them to the extent that no contrary intention appears.

The court concluded that s 32 of the Bail Act, which directs the court to have regard to specified matters "only", was inconsistent with the broader discretion retained under the common law and therefore did not govern contempt bail applications. The common law discretion operates by reference to considerations in their totality, not by reference to the defined sub-categories in s 32. O'Keefe J left open the possibility that matters listed in s 32 might nonetheless be considered by analogy under the common law discretion.

Although s 30AA (which imposes a "special or exceptional circumstances" threshold for bail pending appeal after conviction on indictment) had no direct application, O'Keefe J treated it as a statutory reflection of the broader common law disinclination to grant bail after conviction and sentence. The court held that the seriousness of the contempt, the absence of remorse or explanation, the deliberate and calculated nature of the conduct, and the appropriateness of the custodial sentence all weighed against bail. The applicant's health concerns (migraine and depression) were assessed and found to be treatable in custody, and the prospect that a short sentence might be served before the appeal was heard was regarded as a consequence of a lenient sentence rather than a ground for bail.

O'Keefe J also noted that Dowd J, though empowered to do so, had not granted bail at the time of sentencing, and that it would be inappropriate in a case of this kind to depart from that position. Bail was refused.

Orders Made

  • Bail refused.
  • Registry directed to expedite the hearing of the applicant's appeal.

Key Takeaways

  • Section 64 of the Bail Act 1978 preserves the common law power to grant bail in contempt proceedings and sits alongside, rather than being displaced by, the general Bail Act regime.
  • The "having regard only to" language in s 32 of the Bail Act is incompatible with the breadth of the common law discretion applicable to contempt bail, meaning s 32 does not directly govern such applications.
  • Section 30AA does not apply to contempt proceedings (which do not involve conviction on indictment), but it reflects a common law disinclination to grant bail after conviction and sentence that does carry analogous weight.
  • Refusing bail, the Supreme Court identified that the seriousness of the contempt, the deliberate nature of the conduct, the absence of remorse, and the appropriateness of the sentence imposed are all relevant considerations under the common law framework.
  • Where a sentencing judge has declined to grant bail at the time of sentencing, that decision carries weight in any subsequent application to the same court.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 30AA, 32, 62, 64

Cases:
- Smith v The Queen (1991-1992) 25 NSWLR 1