Commonwealth Director of Public Prosecutions v Groves [2012] QCA 122

SUPREME COURT OF QUEENSLAND CITATION: Commonwealth Director of Public Prosecutions v Groves [2012] QCA 122 PARTIES: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (applicant) v EDMUND STUART GROVES (respondent) FILE NO/S: Appeal No 4182 of 2012 SC No 3574 of 2012 DIVISION: Court of Appeal PROCEEDING: Application for Stay of Execution ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 11 May 2012 DELIVERED AT: Brisbane HEARING DATE: 11 May 2012 JUDGES: Holmes JA ORDER: The application is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where the applicant applied for a stay of an order made by the primary judge – where the order varied the conditions of the respondent’s bail on one count of aiding another in the commission of an offence under s 184(2)(b) Corporations Act 2001 – where the effect of the variation deleted conditions requiring the holding of the respondent’s Canadian passport by the Australian Securities and Investments Commission – where the conditions were altered by insertion of a requirement for the respondent to provide an undertaking not to depart Australia without providing the applicant with seven days notice, along with other conditions – whether the primary judge erred in granting the order varying the conditions of bail of the respondent Bail Act 1980 (Qld), s 8, s 11, s 16 Corporations Act 2001 (Cth), s 184(2)(b) COUNSEL: M J Copley SC for the applicant P J Davis SC for the respondent -- 1 of 5 -- 2 SOLICITORS: Director of Public Prosecutions (Commonwealth) for the applicant Johnson Winter & Slattery for the respondent HOLMES JA: The Commonwealth Director of Public Prosecutions applies for a stay of an order made by Justice Peter Lyons, varying the conditions of the respondent's bail on one count of aiding another in the commission of an offence under s 184(2)(b) of the Corporations Act 2001. The effect of the variation was to delete conditions under which the respondent's Canadian passport was retained by the Australian Securities and Investments Commission, he was required to surrender any current passport and was precluded from applying for any other, and was not to leave Australia. Instead, conditions were inserted requiring him to give an undertaking not to depart Australia without giving the applicant seven days notice, to return to Australia when required by the applicant, to give details of any change of his itinerary and not to leave the country for more than three weeks at a time without consent. The respondent gave as his reasons for wishing to obtain his passport that he wanted to renew it; that he wanted to travel to a Nevada property he owned in order to ready it for sale; that he wanted to negotiate with respective buyers of an investment unit in Canada, in which he had an interest; and that he wanted to travel on a business trip with another person who had offered him a consulting opportunity. The applicant opposed the variation on the bases that none of those reasons was substantial, that the respondent was not an Australian citizen, that his only real property -- 2 of 5 -- 3 asset in Australia was a basketball stadium which was the subject of legal proceedings, and that the respondent had an American bank account which he had not disclosed. In addition, it was said, there was some prospect of another charge of misappropriation under the Criminal Code being brought against the respondent, the respondent having requested that the laying of any charge be deferred until after his trial, which is expected to take place in November. The applicant contended that the respondent was a flight risk and that the proposed substitute conditions provided no guarantee of his return. In his reasons, the learned judge described the issue in the application as "the risk of flight". He outlined the various bases I have mentioned for the applicant's opposition to the application. He noted that there was no suggestion that the respondent's identified reasons for wishing to travel overseas were not genuine, although, he said, they might be said not to be compelling, and he observed that the respondent had demonstrated strong connections with the local jurisdiction, where his wife and children resided. He noted, too, the respondent’s compliance to date with bail conditions. His Honour concluded that although there was a risk that the respondent, if permitted to travel overseas, might not return, the evidence was sufficient to warrant the variation of the conditions sought. The applicant here says that it will lose the benefit of a successful appeal should the respondent leave the country and not return. That is plainly a real prospect. Another consideration is that an appeal can be brought on relatively quickly, within a fortnight or so. A more significant consideration than that aspect of convenience, though, is whether the appeal is arguable on substantial grounds. The applicant contends that the primary judge applied the wrong test in deciding to vary the conditions. Section 9 of the Bail Act 1980 requires a Court to vary bail subject to the -- 3 of 5 -- 4 Act. Section 11 requires that bail conditions not be made more onerous than necessary, having regard to the nature of the offence, the circumstances of the defendant and the public interest. The primary judge, it is argued, erred because he described the issue as "the risk of flight". Risk was relevant only to the grant of bail, not variation, and the allusion to it suggested a misunderstanding of which section of the Bail Act was relevant. The judge had failed to consider whether the conditions were more onerous than was necessary. Although he had referred to the fact that the respondent’s reasons for needing his passport were not compelling, he had not treated that as a factor going to onerousness or otherwise. In circumstances where the primary judge had not been taken to the correct test and had not articulated it, there was an inference that he had not applied it sufficient to amount to an arguable ground of appeal. The second ground on which it is said the appeal is arguable is that the decision to vary bail was not reasonable, having regard to the respondent's assets and bank account in North America, and the fact that he would be travelling on a Canadian passport. That is particularly so, it is said, in a context in which the primary judge had described the reasons for travel as not compelling. As to the first matter, it does not seem to me that anything has been identified in his Honour's reasons which would lead one to suppose that he was doing anything other than considering the onerousness of the existing conditions and whether they were necessary. The nature of the offence was a given, as was the public interest in having the respondent in the jurisdiction when the time came to stand his trial. The judge adverted to the second of those in identifying the arguments against the variation of bail. -- 4 of 5 -- 5 His Honour's statement about the issue being the risk of flight does not suggest any confusion with the provisions of s 16. To the contrary, it was entirely to the point in the context of the bail variation. Given that the variation sought was directed to allowing the respondent to retrieve his passport and leave the country, the question of whether the variation should be allowed inevitably turned on whether the existing conditions were rendered necessary by the risk of flight. In that context, the judge raised the fact that the reasons for travel might not be regarded as compelling, but also observed that they were nonetheless genuine. I do not think there is a viable argument that the learned primary judge was under any misapprehension about the correct test. As to his Honour's exercise of discretion, the applicant has not identified any consideration which his Honour took into account wrongly or overlooked. Instead, it is submitted that, given the respondent was a Canadian citizen with assets overseas and his Honour had described the reasons for travel as not compelling, the variation of conditions was outside a reasonable exercise of discretion. But there were other factors which his Honour weighed, principally the strength of the respondent’s ties to the jurisdiction. What occurred appears to have been an unremarkable balancing exercise. The result might have been different had the exercise been undertaken by another judge, but that is not to say it was erroneous, let alone that it was outside the bounds of a reasonable exercise of discretion. Given the absence on anything put to me today, at least, of any clearly arguable point, I do not think that a stay would properly be granted. The application is refused. -- 5 of 5 --