R v Dacich

HIS HONOUR: On 23 October 2019, the Court, as presently constituted issued short reasons, with full reasons to follow, in relation to the grant of bail for the applicant. Those short reasons were issued ex tempore and were in the following terms:

Thereafter, the Court set out the conditions of bail, which, for present purposes, it is unnecessary to repeat, but those conditions are recorded and entered on the applicant’s record of proceedings, available to the Court, practitioners, police officers and other persons with access to Justice Link.

In the course of the proceedings for bail, the Crown, initially, objected to the grant of bail on the basis that the Court had no jurisdiction to grant bail under the Bail Act 2013 (NSW) (hereinafter “the Act”). The relevant provisions of the Act are ss 61 and 66 of the Act, which are in the following terms:

An applicant for bail and proceedings for the grant of bail are, for the purposes of the Evidence Act 1995 (NSW), defined as criminal proceedings. Otherwise, unless defined for specific purposes, historically and for present purposes, hearings for a bail application and the grant of bail are seen as civil proceedings and civil orders. Prior to the promulgation of the Act, the grant of bail by this Court was covered by the terms of the Bail Act 1978 (NSW) (hereinafter “the 1978 Act”).

The 1978 Act, by operation s 45 of the 1978 Act, allowed the Supreme Court to grant bail in a review of any decision of any authorised officer, magistrate or approved justice, or of the District Court and a number of other courts, except the Court of Criminal Appeal. The Court of Criminal Appeal could review any decision made by that court in relation to bail (s 46 of the 1978 Act).

Further, pursuant to s 30 of the 1978 Act, the Court of Criminal Appeal could grant bail in accordance with the 1978 Act, in relation to any appeal pending in the Court of Criminal Appeal or where that Court had ordered a new trial and the new trial had not commenced. Otherwise, pursuant to the terms of s 28 of the 1978 Act, the Supreme Court could grant bail to any person accused of any offence, whether or not he or she appeared before the Supreme Court in connection with that offence.

A provision, of the kind contained in s 28 of the 1978 Act, is not contained as part of the Act. As a consequence, there are a number of obvious gaps, if the Act were intended to be a code specifying the jurisdiction of the courts to grant bail and preventing the Supreme Court from granting bail in any other circumstances.

The first such gap occurs when a person, who has otherwise been refused bail and seeks a release application before the Supreme Court of New South Wales, is charged with a further offence for which bail has neither been refused nor granted. That offence, if the Act is a code, could not be the subject of the grant of bail together with the other offences to be dealt with by the Court.

Further, where an appeal is pending in the Court of Criminal Appeal, from another court, the Court cannot grant bail, unless the Court of Criminal Appeal is the Supreme Court for the purposes of the Act. There are good reasons why the Court of Criminal Appeal may well be the Supreme Court at least for the purposes of exercising the powers and jurisdiction of the Court of Criminal Appeal, but is unnecessary for the Court, as presently constituted, to deal with that issue: see R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) (2010) NSWLR 143; [2010] NSWCCA 195; AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72.

A court may hear a bail application for an offence, if there is an appeal pending in that court or an appeal from that court, provided, in the latter case, there has not been an appearance in the appeal court prior to the hearing for bail: s 62 of the Act.

The provisions of s 66 of the Act have been recited above. The powers conferred on the Court of Criminal Appeal, by s 67 of the Act are limited to circumstances where the Court has ordered a new trial, which has not yet commenced, or for committal proceedings to be continued (s 8A the Criminal Appeal Act 1912 (NSW)); or the Court of Criminal Appeal has directed a stay of execution of a conviction that remains in force; or an appeal from the Court of Criminal Appeal is pending in the High Court; or from a bail decision of the Land and Environment Court or the Supreme Court.

Interestingly, s 68 of the Act refers to and expressly limits the power of the Local Court or an authorised justice to hear a bail application that is pending in the Supreme Court in certain circumstances and s 69 of the Act limits the powers of the Local Court, the District Court and the Land and Environment Court to hear a bail application for an offence where a bail decision has been made by the Supreme Court or the Court of Criminal Appeal. There is no provision of the Act that expressly limits the power of the Supreme Court.

Further to the foregoing, the criteria for the grant of bail are contained within Pt 3 of the Act and include those provisions that require an applicant to show cause; the prescription of bail concerns; the matters to be considered as part of the assessment of bail; the conditions that may be imposed; et cetera. Further again, s 22, which is contained within Pt 3 of the Act, requires a court not to grant bail or dispense with bail where an offence for which an appeal is pending in the Court of Criminal Appeal against a conviction on indictment or a sentence imposed on conviction on indictment or an offence on appeal from the Court of Criminal Appeal is pending in the High Court, unless the applicant establishes that special or exceptional circumstances exist that justify the bail decision.

Part 3 of the Act commences with s 15 which expressly provides that bail decisions are “to be made in accordance with this Part”. The jurisdiction of the courts is contained in Pt 5 and Pt 6 of the Act; and not in Pt 3 of the Act. Thus, there is no express provision, similar to that contained in s 15 of the Act, or in the provisions restricting the powers of the Local Court and District Court, which applies to restrict the powers of the Supreme Court otherwise provided.

This issue has arisen on earlier occasions. The jurisdictional objections initially raised by the Crown on this application related to the proposition that the application for prerogative relief, taken in the Court of Appeal, was not “a bail application for an offence” where “proceedings for the offence are pending in the court” and therefore this Court could not grant bail pursuant to the terms of s 61 of the Act. There are two subsidiary questions arising from such an objection.

The first is whether application for orders in the nature of certiorari are proceedings of a substantive kind for the offence? Secondly, is the Court of Appeal, for the purposes of the Act, the Court?

The answer to the second aspect is relatively uncontroversial. The Supreme Court Act 1970 (NSW), s 25, provides that the Court, defined as the Supreme Court of New South Wales, shall be composed, inter alia, of “Judges of Appeal, Judges and associate Judges as the Governor may from time to time appoint”. Further, s 38 of the Supreme Court Act divides the Court, for the more convenient despatch of business into: the Court of Appeal; and the Common Law Division; and the Equity Division. As a consequence of those two provisions, the Court of Appeal is part of the Supreme Court of New South Wales.

The first issue is a little more difficult. An analysis should commence with the provisions of s 69C of the Supreme Court Act. Section 69C of the Supreme Court Act provides that the execution of a sentence imposed as a consequence of a conviction or any order (other than an apprehended violence order) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is stayed pending judicial review in the Court under s 69 of the Supreme Court Act.

The foregoing provision does not apply to a person who is in custody when the proceedings seeking judicial review are commenced. However, s 69(3) of the Supreme Court Act, which exempts a person in custody from the automatic staying of a conviction or sentence, also provides for an exception where the claimant is entitled to be released on bail. It is in the following terms:

The provisions of s 69(3) of the Supreme Court Act seem to accept that a claimant, who is the subject of a sentence imposed as a consequence of a conviction and is in custody, pending an application for judicial review under s 69 of the Supreme Court Act, is capable of being released on bail under the Act or have their bail dispensed with.

Yet, the Act has no provision specifying any court with the power to grant such bail or dispense with such bail unless the proceeding under s 69 of the Supreme Court Act is a proceeding to which s 61 of the Act applies. Section 69(3) of the Supreme Court Act is not the grant of jurisdiction. It is an acknowledgement that jurisdiction exists elsewhere.

It would seem that the legislature had in mind that the provisions of the Act applied in such a way that a person, in custody, who has applied for orders in the nature of prerogative relief against a sentence that has been imposed or a conviction recorded may make application for bail and be granted bail under the Act or have bail dispensed with under the Act. To whom would such a bail application be made?

It would seem, on an analysis of the Act that the appropriate court to deal with such an application is this Court and that the legislature has taken the view that an application for orders in the nature of prerogative relief against a conviction or sentence imposed on conviction brings the application for orders in the nature of prerogative relief within the terms of s 61 of the Act. In circumstances where, as already stated, the Court of Appeal is part of the Supreme Court, there is then proceedings pending in the Supreme Court and the Supreme Court may grant (or refuse) bail.

Ultimately, on the basis of the provision in s 69(2) and s 69(3) of the Supreme Court Act, the Crown conceded that its initial objection should not be made and withdrew the objection to jurisdiction. It should be borne in mind that proceedings under s 69 of the Supreme Court Act are not universally heard and determined by the Court of Appeal, but all such applications in relation to proceedings in the District Court are matters, pursuant to s 48 of the Supreme Court Act, assigned from the outset to the Court of Appeal.

The only other basis upon which this Court may have jurisdiction is within its inherent power. As earlier stated, there is no express limitation on the powers of the Supreme Court to grant bail.

While it is clear that the provisions of Pt 3, being the criteria for the grant or refusal of bail or the necessity to obtain special circumstances et cetera, are intended to be a code. That is expressly stated in s 15 of the Act. No other provision dealing with the jurisdiction of the Court makes for any such construction.

Indeed, given that the legislature has expressly provided for Pt 3 to be a code and not so provided for those parts that deal with the jurisdiction of the Court, the proper construction of the Act is that the provisions granting jurisdiction are not intended to be a code. As to the inherent power of the Court to deal with the grant of bail, one must refer, given that bail is generally a civil proceeding, to the provisions of s 23 of the Supreme Court Act, which provides that the court has all jurisdiction necessary for the administration of justice. Necessary in that context should be construed in the same manner as the High Court construed it in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19.

The inherent jurisdiction of the Courts of Westminster included a jurisdiction to grant bail. This issue was dealt with by the Court, as presently constituted, in R v Michael Jefferys (Supreme Court (NSW), Rothman J, 17 December 2014, unrep). During the course of that application the Court made the following comments, albeit ex tempore:

Nevertheless, there is a difference of opinion amongst the judges of the Court as to the inherent nature of the jurisdiction and whether it subsists. I adhere to the view expressed earlier, for the reasons otherwise given in the earlier reasons for judgment and in the reasons for judgment now issued.

For the reasons above, I took the view that the concession by the Crown as to the jurisdiction of the Court to grant bail was the correct one and, notwithstanding that the Court cannot rely on consent for its jurisdiction, took the view that bail could be granted and granted bail on very strict conditions.