JD v Commissioner of Police, NSW Police Force

1. [1]

   HIS HONOUR: By a summons that was amended by a supplementary notice filed on 27 June 2022, the plaintiff seeks prerogative and declaratory relief in respect of an order made by Magistrate Wynhausen (“the Magistrate”) whilst sitting in the Children’s Court on 19 October 2021 that the plaintiff had failed to comply with a bail undertaking (“the breach determination”). The declaration sought is that the Magistrate lacked jurisdiction to make the breach determination and, in any event, applied an incorrect standard of proof. Alternatively, the plaintiff seeks leave to appeal on the same bases, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (“CARA”), from the Magistrate’s order. The application is not opposed by the first defendant, its preferred remedy being a declaration. The second defendant has filed a submitting appearance.

2. [2]

   The supplementary notice named a third defendant, being a detective who was the informant of the charges for which the plaintiff had been granted bail. At the hearing of the application, leave was granted to the plaintiff to amend the supplementary notice to remove the third defendant.

3. [3]

   The originating summons was filed out of time, necessitating an application by the plaintiff for an extension to the date for filing that is unopposed. At the hearing of the application, I retrospectively granted the plaintiff an extension of time in which to file.

4. [4]

   The plaintiff was a 15 year old child at the time of the original proceedings. Accordingly, in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the plaintiff is not identified.

Background to the application

1. [5]

   On 24 June 2021, while in custody at Sydney City Police Station, JD was served with a Court Attendance Notice that alleged single counts of larceny, robbery and using an offensive weapon to commit an indictable offence, as well as two counts of destroying or damaging property. All offences were said to have been committed the day before. On 8 July 2021, the plaintiff was granted conditional bail in relation to the counts. On 10 August 2021, he entered pleas of guilty to all counts before Magistrate Skinner. Her Honour ordered a background report and adjourned the matters to 19 October 2021 for sentence. Bail was continued.

2. [6]

   On 8 October 2021, the plaintiff was apprehended and served by police with a document providing notice of an application by police for a variation of the plaintiff’s bail conditions (“the variation application”), following an alleged failure by the plaintiff to comply with a bail residence condition on the previous evening, that is, 7 October 2021. That matter was also listed for 19 October 2021.

3. [7]

   The details of the offence indicated on the variation application were as follows:

4. [8]

   Section 77(1)(c) of the Bail Act 2013 (NSW) (“the Act”) is in the following terms:

5. [9]

   Section 78 sets out the options available to a relevant bail authority in relation to a variation application:

6. [10]

   The term “variation application” is defined in s 4 by reference to s 51 of the Act, which relevantly provides as follows:

7. [11]

   On 19 October 2021, the plaintiff, who was then in custody, appeared at his sentence hearing together with his solicitor via an audio-visual link. The police prosecutor appeared in person. At the commencement of proceedings, the police prosecutor alerted the Magistrate to the variation application:

8. [12]

   The plaintiff’s solicitor resisted that application, submitting that since the matters for which the plaintiff was granted bail would be finalised that day, the variation application was irrelevant. The police prosecutor agreed that the matter would be finalised that day and accepted that bail therefore could not be varied, but submitted that, nevertheless, the Court:

9. [13]

   When the Magistrate returned to the application immediately after handing down sentences for the five offences, she inquired what the breach was, to which the police prosecutor responded that it was “Residence your Honour”. No further information and no evidence was offered by the police prosecutor in relation to the alleged failure to comply. The Magistrate asked the plaintiff’s solicitor if the breach was contested, to which she replied, relying on s 8(2) of the Act:

10. [14]

    The police prosecutor disputed that there was an absence of jurisdiction, without elaboration. The transcript of proceedings records the following subsequent exchange:

11. [15]

    The Court Record confirms that “Breach of bail is established”.

The application

1. [16]

   The plaintiff seeks orders in the following terms:

2. [17]

   The plaintiff advances two grounds.

3. [18]

   Section 8 of the Act relevantly provides as follows:

4. [19]

   The plaintiff submitted that, pursuant to s 8(2) of the Act, once the matters for which the plaintiff had been granted bail were finalised, which occurred when the sentences were handed down, the Magistrate ceased to have jurisdiction to determine whether the plaintiff had failed to comply with his bail. This was because the only relevance of this determination was as the basis of the variation application, which could not be heard; the grant of bail had ceased.

5. [20]

   The first defendant conceded that the Magistrate lacked jurisdiction to make the breach determination.

6. [21]

   Section 32 of the Act provides:

7. [22]

   The plaintiff submitted that it was “a clear error” by the Magistrate to apply, as the standard of proof in making the breach determination, whether there was a prima facie case, rather than the balance of probabilities, pursuant to s 32(1).

8. [23]

   The first defendant conceded that, on the face of the transcript, the Magistrate applied an incorrect standard of proof but submitted that perhaps the Magistrate did apply the correct standard of proof. The first defendant conceded that the correct standard was the balance of probabilities but suggested that due to the pressure of the Court’s workload the Magistrate simply misstated it.

Consideration

1. [24]

   The essence of the first ground of the application is that the Magistrate’s order fell outside the jurisdictional boundary of the Court, which entails consideration of the meaning of the relevant provisions of the Act in accordance with relevant principles of statutory interpretation.

2. [25]

   In Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198, the Court said:

3. [26]

   The plaintiff’s submission incorporates the proposition that the breach determination constituted a “bail decision” for the purposes of s 8(2) of the Act. The term “bail decision” is defined in s 4 by reference to s 8. A determination of whether a person has failed to comply with a bail condition is not one of the four types of decisions that are listed in s 8(1) and is substantively different from them, or a decision to affirm or vary a bail decision. All six of those decisions are concerned with an evaluative determination of the merits of an application for a grant or refusal of bail. Section 15(2) of the Act obliges a court to apply Pt 5 of the Act to the making of a decision to affirm or vary a bail decision after hearing a bail application (which, as noted, is defined to include a variation application), in the same way as it applies to the making of a bail decision. A determination of an alleged failure to comply with a bail condition involves essentially a question of fact as to whether the person complied with the relevant condition on a particular occasion or occasions.

4. [27]

   I conclude that the sense in which the term “bail decision” is used in s 8(2) is confined to the four types of bail decisions that are listed in s 8(1) and, by extension, to a variation application, but it does not include the discrete determination of whether a person has failed to comply with a bail condition.

5. [28]

   The plaintiff’s alleged failure to comply with the residence condition was only a matter for the Court’s consideration because it was the pleaded basis for the variation application. However, the police prosecutor invited the Magistrate to determine the breach allegation in isolation without proceeding to hear the variation application, effectively conceding that the conclusion of the criminal proceedings had removed any question of bail, rendering the variation application irrelevant. The Magistrate acceded to this submission by making a determination of the alleged breach but not of the variation application. Curiously, the variation application was not dismissed or otherwise formally dealt with.

6. [29]

   The question thus devolves to whether the Magistrate had jurisdiction to determine the alleged failure to comply with a bail condition absent a variation application. The Act differentiates between a failure to appear in court as opposed to a failure to comply with any other bail condition. Section 79(1) of the Act provides that a failure to appear before a court in accordance with a bail acknowledgment without a reasonable excuse is an offence. Consequently, as a discrete criminal offence, it may be determined after the resolution of the charges for which the applicant was granted bail.

7. [30]

   The Act does not render a breach of any other type of bail condition an offence or expressly provide that a breach of such a condition may be determined after the charges have been finalised. The only remedy following proof of a breach of a condition, other than to appear in court, is in response to a variation application, to make an order in accordance with ss 78(1)(a) or (b) of the Act which is set out at [9] above, namely, to either release the person on their original bail or vary it, noting that the power to vary includes a power to revoke the grant of bail.

8. [31]

   The logical rejoinder is whether a court has an implied power to make such a determination in the absence of an express statutory provision that excludes such an exercise. In Belan v Commissioner of Corrective Services [2020] NSWSC 1503, Johnson J noted that in R v Hilton (1987) 7 NSWLR 745, Street CJ, at 751A-B, observed that the Bail Act 1978 (NSW), which was the predecessor to the Act, constituted “a comprehensive and exclusive code” with respect to bail. Johnson J, at [116], determined that the Act provides “a detailed, but not exhaustive, statement of powers concerning bail”. That case concerned a question of whether a court, following conviction, could refuse bail of its own volition, in the absence of a bail detention application. His Honour, at [117], found that there is:

9. [32]

   Although the Act is not an exhaustive code in relation to bail, in my view, there is not an appropriate foundation for the existence of an implied power for a court to determine an alleged breach of a bail condition, absent a variation application; the terms of the Act provide and constrain the Court’s jurisdictional limits in respect of such determinations. The existence of an implied power permitting a determination in the absence of a variation application would be contrary to the scheme of the Act that is implicit in the statutory remedies available to the Court in s 78(1) of the Act, in relation to a failure to comply with a condition other than the obligation to appear in court.

10. [33]

    It follows that her Honour erred by purporting to determine that a breach of bail was established, since the five matters for which the plaintiff had been granted bail had been finally determined and there is no jurisdiction or power to determine a failure to comply with a condition, other than an obligation to appear in court, in isolation. Accordingly, the first ground is made out, albeit on a different basis to that pleaded,

11. [34]

    Theoretically, the Magistrate could have entertained the variation application at the outset of the sentence hearing, had it not been common ground that it would be finalised that day. In that circumstance, there was no point in doing so.

12. [35]

    I turn to consideration of the second ground. Having regard to the portion of the transcript excerpted at [14] above, I note that the Magistrate invited the plaintiff’s solicitor to indicate whether he admitted the alleged breach. I infer from the Magistrate’s response that her Honour proceeded on the basis that the plaintiff did not admit the breach and, in the terms of s 78(1) of the Act was “satisfied that the person has failed … to comply with a … bail condition”, in so doing applying a test of whether there was a prima facie case as the relevant standard of proof.

13. [36]

    As I noted earlier in this judgment, there was no evidence of the alleged breach before the Court, which prompts a concern as to how there could be any evidentiary foundation for a finding that her Honour was satisfied of the breach in the absence of an admission. In any event, the sole basis that is relied upon by the plaintiff for the second ground is that the standard of proof that was applied by the Magistrate was contrary to that required by s 32(1) of the Act. Since the alleged breach of residence condition was not a proceeding for an offence, the relevant standard of proof was the balance of probabilities. The second ground is also made out.

The appropriate form of relief

1. [37]

   The plaintiff seeks either prerogative and declaratory relief under ss 69 and 75 of the Supreme Court Act 1970 (NSW), or alternatively, that leave be granted for the plaintiff to appeal the breach determination and it be set aside pursuant to s 53(3)(b) of CARA. The plaintiff is agnostic as to which remedy is deployed, whereas the first defendant has expressed a slight preference for declaratory relief.

2. [38]

   The Court will ordinarily decline to exercise its jurisdiction to grant relief under ss 69 and 75 of the Supreme Court Act where a statutory appeal is available: see Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 per Johnson J at [306] and authorities noted therein. A consideration is whether there is a doubt as to the availability of a statutory avenue of appeal: Director of Public Prosecutions (NSW) v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458 at [45]

3. [39]

   I turn to whether the terms of s 53(3)(b) of CARA are satisfied as to the availability of an appeal pursuant to that provision. As to whether the breach determination is an interlocutory order, I note that a bail decision, by its nature, is interlocutory, since orders concerning bail are made pending the final determination of the criminal proceedings. The order was made against the plaintiff. The term “Local Court” is defined at s 3 of CARA to include a Children’s Court. The charges were dealt with summarily. I am satisfied that the two grounds of appeal involve questions of law alone. In view of the clear merit of the application, a grant of leave is appropriate.

4. [40]

   Accordingly, leave is granted to the plaintiff, jurisdictional error is established and the appeal is upheld.

5. [41]

   The plaintiff’s criminal history, or bail report as it is formally known, presently includes the Magistrate’s determination that the plaintiff breached a bail condition. The first defendant submitted that, rather than it being removed, it would be appropriate for the police records branch to amend it so that it records the application followed by the result “without jurisdiction”. I agree that is an appropriate form of correction, since a bail report records all applications and charges regardless of the result. An order to that effect is unnecessary.

6. [42]

   Finally, I note that the Magistrate’s determination was made at the end of a busy day in the Children’s Court. Both parties and the Magistrate were doubtless performing their respective duties under considerable stress and time pressures. I also note that the police prosecutor’s justification, as expressed in shorthand form in his response extracted at [12] above, was that if the plaintiff had failed to comply with a bail condition without a reasonable excuse, that matter should be recorded. That explanation has some force. However, for the reasons I have expressed, the manner in which it was sought to be done is outside the jurisdictional ambit of the Act.

Costs

1. [43]

   The plaintiff does not seek an order for costs, in view of him being “an impecunious young person represented by publicly funded lawyers against a public agency”.

Orders

1. [44]

   I make the following orders:

   1. (1)

      Time to file the summons is extended to 14 February 2022;

   2. (2)

      The order made in the Children’s Court on 19 October 2021, that the plaintiff breached a condition of bail, is set aside;

   3. (3)

      Each party to pay its own costs.