Barr (a pseudonym) v Director of Public Prosecutions (NSW)

[2018] NSWCA 47

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47

Hearing dates:

15 February 2018

Date of orders:

21 February 2018

Decision date:

15 March 2018

Before:

Leeming JA at [1];
McCallum J at [88];
N Adams J at [124]

Decision:

Summons dismissed

Catchwords:

CRIMINAL LAW — Bail — judicial review of bail decision — whether Court of Appeal has jurisdiction

 

JUDICIAL REVIEW — detention application under Bail Act 2013 (NSW) following guilty plea — alleged contravention of s 50(5) and s 74 of Bail Act — whether error of law on face of record — whether jurisdictional error — construction of s 16A of Bail Act

JURISDICTION — Court of Appeal — Supreme Court Act 1970 (NSW), s 17 and Third Schedule — whether exclusion of jurisdiction for criminal proceedings applies to challenges to bail decisions — discretionary refusal of jurisdiction in light of pending release application to Supreme Court

Legislation Cited:

Bail Act 2013 (NSW), ss 16, 16A, 16B, 17, 18, 19, 22A, 46, 49, 50, 66, 67, 71, 74, 75
Bail Regulation 2014 (NSW), r 17
Constitution (Cth), s 73
Costs in Criminal Cases Act 1967 (NSW), s 2
Crimes Act 1900 (NSW), ss 79, 81, 578A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Criminal Appeal Act 1912 (NSW), s 5F
Interpretation Act 1987 (NSW), ss 34, 35
Judiciary Act 1903 (Cth), s 78B
Supreme Court Act 1970 (NSW), ss 17, 48, 69, 101, Third Schedule

Cases Cited:

Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; [2012] FCAFC 65
Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190
Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
El-Zayet v R (2014) 88 NSWLR 556; [2014] NSWCCA 298
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; [1911] HCA 31
Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890
Hamze v R [2015] NSWCCA 104
Jure Maric v The Queen [1981] 2 NSWLR 100
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261
M v R [2015] NSWSC 138
McAndrew v Regina [2016] NSWCCA 58
M v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 247 CLR 240; [2012] HCA 33
Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
R v Ebrahimi [2015] NSWSC 335
R v Marcus [2016] NSWCCA 237
R v Nanai [2000] NSWCCA 204
R v S [2016] NSWCCA 189
R v Serratore (1995) 81 A Crim R 363
Shepherd v Bowen (1986) 4 NSWLR 475
South 32 t/as Westcliff Colliery v Ockers [2017] NSWCA 324
State of New South Wales v Donovan [2015] NSWSC 1254
State of New South Wales v Donovan [2015] NSWCA 280
Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172
W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370
Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129; [2017] HCA 54
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Texts Cited:

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co)

Category:

Principal judgment

Parties:

Barr (a pseudonym) (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
L J Rowan (Applicant)
C Webster SC (First Respondent)

  Solicitors:
Aaron Kernaghan (Applicant)
Office of the Director of Public Prosecutions (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2018/35547

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

29 January 2018

Before:

Judge Craigie SC

File Number(s):

2016/262782

HEADNOTE

[This headnote is not to be read as part of the judgment]

In August 2016, Barr (a pseudonym) was charged with sexual offences against a young boy dating from 1980 to 1981. He was granted conditional bail by the Local Court in December 2016, but after entering guilty pleas to six charges in the District Court on the day set down for his trial, 29 January 2018, the Crown made an oral detention application under s 50 of the Bail Act 2013 (NSW).

The application was heard before the primary judge approximately an hour later. As Barr had pleaded guilty to “show cause offences” within the meaning of Division 1A of the Bail Act, the primary judge acceded to the Crown’s detention application on the basis that Barr had failed to discharge the onus imposed by s 16A to show cause why his detention would be unjustified.

Barr brought a summons seeking judicial review purportedly invoking this Court’s supervisory jurisdiction for orders in the nature of certiorari quashing the orders entered by the primary judge. He also brought a de novo bail application to the Supreme Court under s 66 of the Bail Act, which was listed to be heard concurrently with the summons, to be determined by a single judge. At the hearing, however, Barr indicated that he wished to adjourn his fresh bail application to a later date.

Held, by majority, dismissing the summons:

1.  By Leeming JA, McCallum and N Adams JJ agreeing: The prohibition in s 74 of the Bail Act upon multiple release or detention applications being made to the same court does not apply where the first detention application was made to the Local Court and the second to the District Court: at [55]-[63], [90], [117], [126].

2.  By Leeming JA, N Adams J agreeing: This Court would not exercise its discretionary power to grant relief for jurisdictional error where a more efficient and convenient alternative remedy exists in the form of a de novo bail application to the Supreme Court: at [66]-[67], [72], [127].

Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; [2012] FCAFC 65, applied

3.  By Leeming JA and N Adams J: The question posed by s 50(5) of the Bail Act is not whether the accused person has been given reasonable notice of the detention application, but whether the court or authorised justice is satisfied that such notice has been given. The applicant failed to identify a sufficiently strong basis for this Court to infer that the primary judge failed to form the requisite state of satisfaction, rendering the case for jurisdictional error for breach of s 50(5) a weak one: at [70], [73], [128], [149]-[161].

Parisienne Basket Shoes Pty Ltd v White (1938) 59 CLR 369; [1938] HCA 7, considered

4.  By Leeming JA and N Adams J: In light of the discretionary reasons to decline to exercise jurisdiction, it is unnecessary to decide whether this Court has jurisdiction to review the primary judge’s bail determination: at [48], [65], [125].

5.  Consideration of the qualification to the Court of Appeal’s supervisory jurisdiction imposed by s 17(1) of the Supreme Court Act 1970 (NSW) where the proceeding is one of the criminal proceedings specified in the Third Schedule to the Act: at [31]-[41] (Leeming JA).

Shepherd v Bowen (1986) 4 NSWLR 475; W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370; El-Zayet v R (2014) 88 NSWLR 556; [2014] NSWCCA 298; Jure Maric v The Queen [1981] 2 NSWLR 100; R v Nanai [2000] NSWCCA 204, considered

6.  Consideration of the availability of review for jurisdictional error where an alternative right to a de novo hearing exists: at [41]-[47], [65] (Leeming JA), [125] (N Adams J).

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; South 32 t/as Westcliff Colliery v Ockers [2017] NSWCA 324; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890, considered

7.  By Leeming JA: The fact that a bail determination has previously been made does not relieve the bail authority hearing a fresh application of the duty to comply with the command in s 16A of the Bail Act that bail only be granted if the accused person shows cause why his or her detention is not justified: at [75].

8.  By Leeming JA and N Adams J: Where an accused is charged with a “show cause offence”, Divisions 1A and 2 of the Bail Act, headed “show cause requirement” and “unacceptable risk test – all offences” respectively, must both be satisfied for an accused to receive a grant of bail. The tests prescribed by the two divisions are distinct: at [76]-[86], [129]-[148].

Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83, considered and applied

M v R [2015] NSWSC 138, not followed

M v Director of Public Prosecutions (NSW) [2016] NSWCCA 314; Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172; Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227; R v Marcus [2016] NSWCCA 237; McAndrew v Regina [2016] NSWCCA 58; Hamze v R [2015] NSWCCA 104; R v S [2016] NSWCCA 189, considered

By McCallum J, dissenting:

9. Where an accused persuades the bail authority that there is no unacceptable risk in accordance with Division 2 of the Bail Act, it follows that the accused has discharged the onus imposed by Division 1A to show cause why his or her detention is not justified: at [95]-[105].

M v R [2015] NSWSC 138, followed and applied

Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83, considered

10. The purpose of the notice requirement in s 50(5) is to enable the recipient adequately to prepare to face the detention application. The content of the requirement is to be determined according to the circumstances of the case, and construed in light of the importance of the fundamental right to personal liberty before sentence is passed: at [91]-[92], [106].

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88; State of New South Wales v Donovan [2015] NSWSC 1254, applied

11.  The applicant was given approximately an hour’s notice of the application and no notice of the basis for it until after the commencement of the hearing. He was prejudiced in that he was unable to tender sufficient evidence of the medical concerns which formed the primary basis of his case on the show cause test. The primary judge could not have been satisfied that reasonable notice had been given: at [106]-[120].

12.  The prosecutor having correctly accepted that this Court has jurisdiction to review for jurisdictional error, the failure of the primary judge to satisfy himself that the applicant was given reasonable notice of the detention application is a jurisdictional error that should result in the quashing of the bail determination: at [121]-[123].

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied

Judgment

1. LEEMING JA: These are my reasons for participating in this Court’s order made on 21 February 2018 that the summons be dismissed.

Overview

2. By summons filed on 2 February 2018 and listed for expedited final hearing on 15 February 2018, the applicant seeks judicial review and orders in the nature of certiorari quashing orders made by the District Court of New South Wales on 29 January 2018 pursuant to s 50 of the Bail Act 2013 (NSW). Earlier that day, the applicant had entered pleas of guilty to six charges relating to sexual offending against a young boy throughout a period between March 1980 and July 1981. At the time, the applicant was aged 20 or 21 and coached a football team of boys aged around 11. The victim was a member of the team. The charges to which he has pleaded guilty are five indecent assaults contrary to (former) s 81 of the Crimes Act 1900 (NSW) and one charge of the offence then known as buggery contrary to (former) s 79 of the Crimes Act, for which the maximum penalty was 14 years imprisonment. By reason of s 578A of the Crimes Act, the applicant cannot be named because doing so would be likely to lead to the identification of his victim. “Barr” is a pseudonym.

3. The issues which were debated in the parties’ written and oral submissions are numerous. They fall into two classes. The first relates to this Court’s jurisdiction to hear and determine a challenge to an order made under the Bail Act. The second relates to the proper construction of the Bail Act, and in particular the circumstances when a subsequent application for an order may be made and the construction of s 16A. Neither class is free from complexity.

4. Moreover, the issues in each class are related. It is common ground that irrespective of the status of the order made on 29 January, a further application may be made to the Supreme Court: s 66, and indeed such an application has been made and was listed for hearing concurrently with this summons, to be determined by a single judge. That application is to be heard and determined de novo and on the basis of the evidence or information provided: s 75. A further application may then be made to the Court of Criminal Appeal: s 67(1)(e). It is trite that the relief sought on the summons is discretionary, and one conventional reason for declining to grant relief is where an applicant has an alternative remedy. In Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63, this Court said at [51] that “it is a well-established principle that relief of the kind available under s 69 of the Supreme Court Act will not generally be granted if there is another equally effective and convenient remedy.” It was not submitted that that principle was in any way controversial.

5. Normally the comparison is with an appeal, which (depending upon its nature) may be equally effective and convenient. Here statute provides the applicant with a right to a de novo hearing, which right the applicant has indeed exercised.

6. Both proceedings were listed for hearing on 15 February 2018. The Court made arrangements for the release application to be heard by one of its members. The parties proceeded on the basis that the summons would be heard first. During the course of the hearing, the question of overlap of the issues on the summons and on the release application was raised by members of the Court, and, against the possibility that there might be or be perceived to be a difficulty, the parties were advised that the release application could be heard by one of the judges sitting in bails on that day. However, the applicant advised, through his counsel, that he wished to adjourn his release application. That has occurred, and leave has been granted to have it restored to the bails list on 3 days’ notice. (In fact, the matter appears to be listed on 19 March 2018.)

7. What has already been said provides a very powerful basis for declining to exercise jurisdiction to review the decision of the primary judge. The applicant has the right to a new hearing in the Supreme Court, which would be heard and determined more promptly than his summons can be.

8. Further, it was conceded that, insofar as the applicant’s challenge was based upon the construction of s 16A of the Bail Act, the challenge fell short of jurisdictional error. Argument proceeded on that basis (the correctness of the concession need not be considered for present purposes). The concession was significant, because the Director contended that this Court lacked jurisdiction to review the decision for mere error of law on the face of the record which fell short of jurisdictional error.

9. Still further, the argument as to jurisdiction was, as will be demonstrated below, in some respects incomplete (no criticism of the parties is thereby implied, having regard to the expedition which the proceedings have been accorded). That is a further reason tending in favour of declining to grant relief in the exercise of discretion.

10. All of that said, the foregoing matters would be viewed differently if the applicant had made out a strong case of a failure to accord procedural fairness. However, for the reasons which follow, the applicant has failed to make out any such case.

Procedural background

11. It is necessary to summarise how the applicant came to be on conditional liberty prior to 29 January 2018, because the gravamen of the application turns on the history of the prosecution prior to the applicant’s guilty plea.

12. A Court Attendance Notice was issued in August 2016, charging the applicant with the offence under s 79 and one offence under s 81. The Crown made a detention application on 13 December 2016, and on that day clarified by email that:

“The application filed earlier today in relation to the matter of xxx was not clear. The Crown is seeking the imposition of bail conditions not asking for the accused to be taken into custody.

I have amended my application accordingly (see attached).”

13. The attached application identified conditions sought to be imposed involving residence, weekly reporting, not approaching the complainant and surrendering the applicant’s passport. Bail was granted subject to those conditions by the Local Court on 21 December 2016.

14. The trial was listed for hearing in the District Court commencing Monday 29 January 2018. It seems that on that morning (precisely when is not clear from the materials) the applicant pleaded guilty.

15. The Crown then applied, orally, for a detention application. The applicant submitted that this was contrary to s 50(5) of the Bail Act, which provides that:

“A court or authorised justice is not to hear a detention application unless satisfied that the accused person has been given reasonable notice of the application by the prosecutor, subject to the regulations.”

16. This was raised before the primary judge, very briefly:

“It is a position your Honour where my friend has caught me somewhat by surprise this morning with the detention application, but put aside notice requirements and so forth. I am uncertain what my friend says is the unacceptable risk which presents today, that was any different to what it was yesterday or at any time.”

17. So far as can be seen from the transcript, no application was made for the application to be deferred. The transcript is not complete. In particular, what was said at the time the application was first foreshadowed (before English DCJ, so the Court has been told) has not been provided.

18. The application was heard before the primary judge later that day, before and after the luncheon adjournment. The Crown submitted that as the applicant had now pleaded guilty, “the circumstances are fundamentally different this morning than they were late last week when he was an accused”. The Crown then referred to the applicant previously having failed to appear in answer to other charges, leading to the issuing of apprehension warrants and ultimately extradition. The Crown also referred to the complexity of the sentencing process, having regard to the historical nature of the offending and the fact that the applicant has already served some time in prison in relation to similar offending against other victims at around the same time, but stated that “there is a strong likelihood that he will face a custodial sentence”. She concluded:

“[F]irstly, it’s a show cause in any event. And then secondly, if my friend is able to discharge that onus, then the issue becomes having regard to those two factors I’ve raised – the likelihood of appearance and the likelihood of a custodial sentence.”

19. The applicant’s submissions were longer than those of the Crown. Medical records (both relatively recent records, from October 2017, and historical records, from the time of the offending) were tendered. They were said to support the desirability of putting on further evidence which was not presently available. However, that appears to have been directed, at least in part, to a submission that, for the purposes of preparing for the sentence hearing, it was desirable for the applicant to remain on bail. Thus it was said:

“[W]here there is a likelihood or a possibility, probability of a custodial sentence, he will also need to be assessed in respect of adjustment to that treatment regime if required. That will require attendance upon his treatment practitioners for that assessment.”

20. It will be possible to proceed on the basis that although no application to adjourn the hearing of the detention application was made, submissions were made that it was desirable for the applicant to obtain further medical reports in answer to it.

21. In acceding to the detention application, the primary judge expressly placed no weight upon the fact that the applicant had had to be extradited. Instead he focussed on “the central requirement that it is now for the offender to show cause why he should remain at liberty”. His Honour continued:

“The fact of the matter is however this series of offences is dealt with, the offender faces the prospect, which is all but certain, of a further period of custody. To reason otherwise would be to contemplate a situation where concerns as to totality might result in an outcome where the fact of this offending against the present complainant required no further punishment. I must say frankly in relation to the most serious of the offences I cannot conceive of any situation where a sentencing judge – where a responsible judge – could sensibly come to that view. So the offender must know and expect that he faces a further period of imprisonment, albeit one that will be affected in its extent by any amelioration in passage of time and in some of the matters that may be raised in his favour.”

22. The primary judge mentioned, briefly, submissions to the effect that the applicant had been in steady employment and would be disadvantaged if he did not remain at liberty prior to his sentencing. His Honour did not regard those matters as discharging the onus upon him to show cause. It is clear that his Honour proceeded on the basis that he was required by s 16A of the Bail Act to refuse bail, and did not reach the stage of evaluating whether there was an unacceptable risk which could not be addressed by the imposition of conditions, in accordance with Division 2 of Part 3 of the Bail Act.

Procedural history in this Court

23. The applicant’s summons was filed on 2 February 2018. It seeks orders pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the orders made on 29 January 2018, that he be released from custody, and that the Crown’s detention application be remitted to the District Court. The summons identifies four “principal grounds”, all of which are said to amount to error of law on the face of the record. It contains some 12 paragraphs of what are said to be the errors of law, most of which relate to s 16A. The final paragraph of the summons contends that “As a consequence of the errors at law of the Judge at first instance, the Applicant was denied procedural fairness”.

24. Consistently with that limited challenge, no evidence was adduced save for the reasons of the primary judge (which, in accordance with s 69(4) of the Supreme Court Act are included in the record).

25. The summons was listed for hearing on 15 February. The applicant supplied written submissions in support on either 12 or 13 February. Those submissions made no reference to this Court’s jurisdiction, nor to any question of jurisdictional error. On 14 February, in advance of receiving any submissions from the Director, the Court directed the parties to s 17 and the Third Schedule of the Supreme Court Act and invited them to address the question of jurisdiction.

26. The Director responded with submissions which denied that this Court had jurisdiction for anything short of jurisdictional error. The Director accepted that a denial of procedural fairness would be jurisdictional error, but denied that an error construing the Bail Act by a court would be jurisdictional. The Director also maintained that the summons should be dismissed as a matter of discretion.

27. Correctly anticipating that the applicant’s challenge would extend to a case based on jurisdictional error, the Director supplied an affidavit which set out the procedural history, from which much of the foregoing has been derived.

28. The applicant served written submissions in reply, and on jurisdiction, shortly before midnight on 14 February. Claims of jurisdictional error were advanced, based on what was said to be the contraventions of ss 74 and 16A.

Jurisdiction

29. The threshold question is whether the Court of Appeal has jurisdiction to hear and determine the applicant’s summons. The “first duty” of a court is to determine whether it has jurisdiction: see Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31; Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [9].

30. It was not suggested that there was any authority squarely on point. The only decisions of this Court on the Bail Act 2013 (NSW) are Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 and Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261. The former was a referral of a detention application pending in the Common Law Division, not an application for judicial review, while the latter was a release application made in connection with an application for judicial review of a decision of the District Court exercising its appellate jurisdiction.

31. The applicant’s summons purports to invoke this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act. That jurisdiction is not unqualified. Section 17(1) of the Supreme Court Act provides:

“(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.”

32. Paragraphs (a), (a1) and (a2) of the Third Schedule are as follows:

“(a) Proceedings in the Court for the prosecution of offenders on indictment (“indictment” including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted,

(a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment (“indictment” including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court,

(a2) proceedings (whether in the Court or the District Court) under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 …”

33. There is a reason that s 17(1) contains two separate halves. The first half of s 17(1) reflected that provision as originally enacted. It was considered in Shepherd v Bowen (1986) 4 NSWLR 475, where it was said that the Supreme Court Act was subject to limitations upon its application in respect of its criminal jurisdiction. One example is that an appeal from a judgment or order of a Division of the Court exercising criminal jurisdiction does not lie to the Court of Appeal under s 101 of that Act. It was also said that the exclusion effected by s 17(1) applied “not merely to the trial of offenders on indictment but also to such interlocutory applications and orders as may be taken in the course of and as part of those proceedings”: at 479.

34. The second half of s 17(1) was introduced in 1988, with retrospective effect from 18 December 1987, being the date on which s 5F of the Criminal Appeal Act 1912 (NSW) commenced. In W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [4], this Court stated that s 5F of the Criminal Appeal Act 1912 (NSW) was intended to provide a facility for appeals to the Court of Criminal Appeal against an “interlocutory judgment or order” in proceedings including proceedings on indictment in the District Court, a provision which was introduced by the Criminal Appeal (Amendment) Act 1987 (NSW). The Court continued at [4]: “The introduction of that facility in the Court of Criminal Appeal was accompanied by an exclusion of jurisdiction in this Court to deal with the same subject matter.” The Court said at [6] that, generally speaking, “if the jurisdiction of [the Court of Criminal Appeal] were engaged, the legislative intention to transfer such jurisdiction from this Court to the Court of Criminal Appeal should be respected.”

35. The legislative history of s 17(1) and the Third Schedule was considered in more detail in El-Zayet v R (2014) 88 NSWLR 556; [2014] NSWCCA 298 at [34]-[50], which concerned, in part, a challenge to refusal by the Supreme Court to issue a costs certificate under s 2(1)(a) of the Costs in Criminal Cases Act 1967 (NSW). Paragraph (i) of the Third Schedule specifies “proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act 1967”. The Court in El-Zayet concluded at [62] and [124] that the effect of the first half of s 17(1) “is that the Court of Appeal has no jurisdiction in respect of an interlocutory order made in the course of an application in the Supreme Court for costs under the Costs in Criminal Cases Act.” The Court did not need to determine the operation of the second half of s 17(1), which appears not to have been specifically argued.

36. There are two appellate decisions which are closely related to the question of jurisdiction. Both concern appeals from orders granting or refusing bail. It was held in Jure Maric v The Queen [1981] 2 NSWLR 100 at 103 that the grant or refusal of bail under the (former) Bail Act 1978 (NSW) by the Supreme Court fell within paragraph (a) of the Third Schedule, and was outside the scope of the appeal conferred by s 101. Street CJ and Reynolds JA gave separate reasons, with both of whom Samuels JA agreed. Both proceeded on the basis that no appeal had been possible, prior to the enactment of the Bail Act 1978, from a bail decision. Street CJ referred to the structure of the Bail Act which provided for an ability to review, and concluded that:

“The general tenor of the statute, in my view, makes it plain that the ultimate authority in respect of bail decisions in this State is to be exercised by the Supreme Court; as the rules presently stand, that means by a single judge of the Common Law Division”: at 102.

37. The Chief Justice then turned to the construction of ss 17 and 101, and said:

“For example, if a Supreme Court judge granted or refused bail in proceedings in the Supreme Court for the prosecution of an offender on indictment, there would be no appeal to the Court of Appeal as such proceedings are expressly excluded from the operation of the Supreme Court Act (including s 101) – see s 17(1) and Third Schedule, par (a)”: at 103.

38. Reynolds JA treated the main question as being one of construction of the (then relatively new) Bail Act 1978. He said that the Bail Act 1978 provided “an exhaustive code as to the extent to which a grant or refusal of bail may be called in question. It is superimposed upon the common law which it tacitly accepts which allows no appeal in such case...”. He added that s 101 did not have the effect of conferring a right of appeal by its own force.

39. At that time, paragraphs (a1) and (a2) had not been included in that Schedule. The effect of those paragraphs is to expand the class of criminal proceedings falling within the Schedule to include proceedings in the District Court. Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) is entitled “Procedure if accused person pleads guilty”.

40. On the other hand, the Court of Criminal Appeal held in R v Nanai [2000] NSWCCA 204 that s 5F of the Criminal Appeal Act 1912 (NSW) did not extend to an application for bail, including an application for the variation of bail, so that an appeal from such a decision was incompetent. Section 5F relevantly provides for an appeal “against an interlocutory judgment or order given or made in the proceeding”. Grove J, with whose judgment Greg James and Bell JJ agreed, relied on what had been said in R v Serratore (1995) 81 A Crim R 363 as to an application for bail not being “a proceeding by way of prosecution for a prescribed offence” within the meaning of the Telecommunications (Interception) Act 1979 (Cth).

41. Both Maric and Nanai were ex tempore decisions. There is nothing to suggest that the Court in Nanai was taken to Maric. Neither decision concerned judicial review, and both preceded the recognition by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 that the Supreme Court enjoys a constitutionally entrenched supervisory jurisdiction for jurisdictional error. Neither concerned applications under the Bail Act 2013.

42. Although it was common ground that this Court enjoyed jurisdiction at least insofar as jurisdictional error was raised, even that may not be free from argument.

43. A somewhat similar situation arose in South 32 t/as Westcliff Colliery v Ockers [2017] NSWCA 324, which concerned the compensation jurisdiction of the District Court, where it was said at [15]:

“At least arguably, the summons for judicial review is barred by s 142J(1)(c)(ii) or (iii). If that provision stood alone and there was no right to appeal to the Court of Appeal from an award of the District Court, then, notwithstanding the clear terms of s 142J(1)(c)(ii) and (iii), the Supreme Court would have a constitutionally entrenched jurisdiction to grant prerogative relief for jurisdictional error (Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [80], [99]-[100] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Because the issue was not the subject of argument, we prefer to express no view on whether s 142J(1)(c)(ii) or (iii) precludes the grant of prerogative relief, even in the case of jurisdictional error, because s 142N confers a right of appeal on a party aggrieved by an award in point of law or on a question as to the admission or rejection of evidence, subject in some limited cases, to a grant of leave. Such an appeal right means that decisions of the District Court in its compensation jurisdiction are not “islands of power immune from supervision and restraint” (Kirk v Industrial Relations Commission (NSW) at [99]). Assuming in the applicant’s favour that the primary judge’s decision to allow the respondent to reopen his case to adduce further medical evidence was amenable to judicial review if there were jurisdictional error, no such jurisdictional error is shown.” (Emphasis added.)

44. Of course, the alternative statutory right which might prevent the operation of the principle in Kirk in that case was a qualified right of appeal. On one view, the availability of a right of de novo hearing before a court higher in the curial hierarchy would be more efficacious to prevent District Court bail decisions from being “islands of power immune from supervision and restraint”. On the other hand, it may be that its de novo nature tells against that submission. I do not express a view on the point, which was not the subject of argument.

45. Further, to the extent that some superior court from which a further appeal to the High Court lies pursuant to s 73 of the Constitution must be available to exercise a supervisory jurisdiction, then it may be that the Court of Criminal Appeal would satisfy that requirement. I should not be taken to be expressing a view one way or the other on that question, save to note that it was, again, not the subject of submissions.

46. Those questions are important. On one view, they may engage s 78B of the Judiciary Act 1903 (Cth). If it is not necessary to do so, they should not be determined in the absence of full argument. They may be affected by the High Court’s decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, delivered the day before the summons was listed for hearing. The Director wished to be heard further on this, and was granted leave to supply written submissions by Sunday 18 February (the application was not opposed). The applicant supplied written submissions in response on that day. In granting such a constrained timetable, the Court was conscious of the subject matter of the litigation being the applicant’s liberty and s 71 of the Bail Act. That section requires a bail application to be dealt with as soon as reasonably practicable. Even if it does not apply directly to the summons seeking judicial review, the practical reality is that the applicant’s pending release application awaits the outcome of his summons.

47. Without doing full justice to the parties’ supplementary submissions, those of the Director relied upon what had been said in Probuild coupled with the structure of the Bail Act to contend that this Court’s jurisdiction was confined to review of jurisdictional error, a result which was unaffected by R v Nanai. Those of the applicant relied on R v Nanai to support the availability of review for error of law on the face of the record.

48. Whatever be the position, it is settled law that the jurisdiction sought to be invoked by the applicant is discretionary. The matters mentioned at the outset of these reasons, notably, the pending release application, powerfully point against the exercise of jurisdiction. For the reasons given below, it will be unnecessary to resolve the issues going to jurisdiction.

Alleged contravention of s 50(5)

49. As noted above, the applicant’s complaint about procedural fairness, as articulated in the summons, was consequential, insofar as it was said that earlier errors of law gave rise to a denial of procedural fairness. Consistently with this, no evidence was adduced to establish matters such as precisely when and how notice was first given of the Crown’s detention application, what evidence if any would have been sought to have been adduced in response, or indeed what different course would have been taken. These evidentiary gaps were referred to at the commencement of the hearing, when the applicant was tendering evidence in support of his case.

50. Following a short adjournment, the applicant applied for and was granted leave to amend the summons to include the following two matters:

“(2F) Failure to comply with s 50(5) Bail Act, denied the applicant an opportunity to seek and present evidence on the show cause issue as required,

(2G) Failure to comply with s 50(5) Bail Act, by articulating how the pleas of guilt affected a bail concern, denied the applicant an opportunity to address and present evidence relevant to whether ss 74(2) and 74(4) applied, and whether the basis for a detention application had been properly grounded.”

51. It will be seen that even as expanded, the challenge depended upon a failure to comply with s 50(5) of the Bail Act.

52. The applicant was also permitted to adduce testimonial evidence from his solicitor, who had been present on 29 January 2018. It is convenient to reproduce the entirety of his evidence:

“The Crown below asked and was granted an hour to prepare a detention application.

The Crown, during that hour, advised that the matter was to be heard before Judge Craigie SC.

To obtain the materials required to answer a detention application of the kind ultimately made required obtained report(s) from treating doctor or alternate, from hospital. That process can take between 7-10 days. Can be shorter” [sic].

53. No application to adduce oral evidence was made. Nor was any application made to cross-examine the solicitor.

54. To the extent that it is said that there was a denial of procedural fairness because of errors of law, as it is put in the final paragraph of the summons as filed, the ground does not add anything to the errors of law. This was not elaborated upon during the hearing, either orally or in writing.

55. To the extent that it is said in ground (2G) that the contravention of s 50(5) denied the applicant an opportunity to present evidence on the operation of s 74, the submission is wrong as a matter of law.

53. Section 74 is in the following terms:

“74 Multiple release or detention applications to same court not permitted

(1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.

(2) A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application.

(3) For the purposes of this section, the grounds for a further release application are:

(a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) circumstances relevant to the grant of bail have changed since the previous application was made, or

(d) the person is a child and the previous application was made on a first appearance for the offence.

(4) For the purposes of this section, the grounds for a further detention application are:

(a) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(b) circumstances relevant to the grant of bail have changed since the previous application was made.

(5) In this section, court does not include an authorised justice.”

57. That section should be read with s 75, which provides that any bail application “is to be dealt with as a new hearing, and evidence or information may be given in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision.”

58. It will be seen that s 74(1) and (3) deal with release applications, while s 74(2) and (4) deal with detention applications. In both cases, there is a prohibition upon a court from hearing another application, whether made by the accused person or the prosecution, for the same offence, unless there are “grounds”. The grounds are specified in subsections (3) and (4) respectively.

59. The applicant submitted that s 74(2) applied, such that the primary judge was required to refuse to hear the Crown’s application on 29 January 2018. The submission was based on the fact that the Local Court had determined a bail application on 21 December 2016 in relation to the same offence, and that none of the grounds in subsection (4) had been made out. The difference between the two offences with which the applicant had been charged in 2016 and the six to which he pleaded guilty on 29 January 2018 may be put to one side, because on any view this ground is not made out.

60. Section 74 is only applicable when a subsequent release application or detention application is made to the same court. That is the natural meaning of s 74(2). The prohibitions imposed by s 74(1) and (2) upon hearing another application are directed to “a court that grants or dispenses with bail” or alternatively “that refuses bail for an offence.” The prohibition is not expressed to be directed to a different court.

61. Another way of putting this is to observe that in the facts of this case, the District Court had never granted or dispensed with bail for the offence to which the applicant pleaded guilty when the Crown brought its application on 29 January 2018. The District Court does not answer to the description of the court falling within the terms of s 74(2) to which the prohibition is directed.

62. That construction is confirmed expressly by the heading of the section, including the words “applications to same court not permitted”. The heading may be used to construe s 74: see Interpretation Act 1987 (NSW), ss 34 and 35.

63. Further, contrary to the applicant’s submissions, the extrinsic materials confirm that the section bears its ordinary meaning. The Attorney-General said in this second reading speech:

“Detention applications have been included in this provision because they are a new form of application, not provided for in the existing Act, and it is appropriate that a second or subsequent application to the same court not be heard unless grounds for the application are demonstrated”: Hansard, Legislative Assembly, 1 May 2013, p 19,844 (emphasis added).

64. The remaining question, raised by ground (2F), is whether there is shown to have been a non-compliance with s 50(5). Since writing the foregoing, I have had the advantage of reading McCallum J’s reasons in draft. Her Honour has concluded that ground (2F) is made out and that orders quashing the order of the District Court should issue, and in so doing has expressed views as to the construction and operation of the Bail Act. I respectfully remain of the view that the summons should be dismissed, and add the following in response.

65. The fact that the parties agree that there is jurisdiction to review for jurisdictional error does not relieve this Court from satisfying itself that it has jurisdiction: PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 at [16]. As I have sought to indicate, I regard that as no small issue. It strikes me as curious that this Court, whose jurisdiction is essentially civil, should have jurisdiction to review a decision under the Bail Act for jurisdictional error when that legislation provides for further applications by the accused person or the Crown to be made to the Supreme Court and to the Court of Criminal Appeal; this may turn on the proper construction of s 17 read with s 48(1)(a)(iv) of the Supreme Court Act. As presently advised, I see no reason to think that the Kirk limitation on legislative power requires the Court of Appeal (as opposed to the Supreme Court constituted by a judge in a Division or the Court of Criminal Appeal – from either of which an appeal lies by special leave to the High Court) to have jurisdiction. And the question whether the Kirk limitation on legislative power has been transgressed is one of substance, turning not only upon the legal operation of the statute but also on the practical ability of a court, through the application of the judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of power have been observed: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890 at [48]. I can see arguments in favour of the proposition that provision for applications to a superior court will suffice to remedy excess of jurisdiction by the District Court determining bail applications; I can also see contrary arguments. All of that said, it may well be that this Court has jurisdiction, but for my part I am reluctant to express a concluded view on that issue without further argument.

66. Let it be assumed that this Court has jurisdiction. This Court acceded to the parties’ request on 15 February 2018 to hear the summons first. Had the release application been heard first, it is highly probable that it would have been dealt with in less than an hour, and determined then and there. If the release application had been refused, it is difficult to see how the summons could have been other than moot. Likewise if the release application had been granted. A modern appellate instance, cited in M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) at pp 1032-3, of declining to quash a jurisdictionally flawed decision because a subsequent valid decision had produced the same adverse results may be seen in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; [2012] FCAFC 65: see at [98], [128]-[130] and [182]-[184]. I now regret acceding to both parties’ request to hear the summons first, which sits ill with the command in s 71 of the Bail Act that “a bail application is to be dealt with as soon as reasonably practicable”.

67. I would not accept that a decision of the Supreme Court, or of the Court of Criminal Appeal, on a release application, could not assist in elucidating the principles to be applied in lower courts and by police officers, where the large majority of bail applications in this State are heard and determined. Nor do I understand there to be evidence before this Court to suggest that intervention is required in order to stem the development of a practice of hearing detention applications in show cause matters without reasonable notice.

68. I turn to s 50(5), and note the following. Ground (2F) – even as reformulated with leave during the hearing – is founded in a contravention of s 50(5). It is not a complaint of a contravention of procedural fairness more generally.

69. It will be noted that (a) s 50(5) turns upon the court’s satisfaction that reasonable notice has been given, rather than the fact; (b) it is qualified by notice being “reasonable”, which will reflect a variety of circumstances depending on the case; and (c) is an obligation which is expressed to be “subject to the regulations”. The regulations make it clear that there is no obligation to make a detention application in writing, and indeed provide that “a court or authorised justice is not to decline to hear a detention application only on the basis that the detention application is not made in writing”: Bail Regulation 2014 (NSW), r 17(1A).

70. The issue posed by s 50(5) is not whether the accused person has been given reasonable notice of the prosecutor’s application, but whether the court or authorised justice is satisfied that such notice has been given. The fact that the prohibition is based on the presence of a state of mind, as opposed to a factual state of affairs, is far from unusual. It reflects the concerns to which Dixon J pointed in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391; [1938] HCA 7. It may be accepted that the state of satisfaction of the court or authorised justice is not beyond scrutiny on an application for judicial review. That remains so, even though there is no express statement in the transcript or the reasons that the primary judge was satisfied that reasonable notice had been given (which is unsurprising since s 50(5) was never drawn to his Honour’s attention). But the applicant faces a heavy burden to draw the inference that it was unreasonable for that state of satisfaction to have been held, especially in circumstances where the applicant was represented by experienced counsel, briefed in the trial which was to have commenced that day.

71. Next, let it be assumed that it was not reasonable for the primary judge to have been satisfied that reasonable notice had been given. May compliance with s 50(5) be waived, for example, by the accused person or his counsel proceeding to engage with the merits of the application? The principles are as stated in Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129; [2017] HCA 54 at [46], and it seems, at the least, open to conclude that compliance may be waived. There is then to my mind a further issue as to whether it was open to the applicant to tender evidence and make submissions directed to the detention application being dismissed on the merits, while at the same time maintaining that the application could not be heard because s 50(5) had not been complied with. This issue did not become patent before the primary judge because no complaint was made that s 50(5) was being contravened.

72. And the fact of the matter is that the applicant has been detained between 29 January 2018 following his guilty plea and the hearing of the summons. Insofar as his complaint is that reasonable notice had not been given on 29 January 2018, he had the right to a de novo determination of his release application in the Supreme Court, at which time it could not be said that there was any want of notice. That is to say, at least in respect of this ground, the de novo determination of the applicant’s release application is, in my view, an equally efficient and convenient alternative. Indeed, I would regard it as more efficient and convenient than the alternative, which is remitter to the District Court to redetermine the application at some later date with concomitant cost and delay.

73. It is not necessary to express a concluded view on the various subissues identified above which arise in ground (2F), and, since there is an issue as to this Court’s jurisdiction, I prefer not to so do. Were there a powerful case for the denial of procedural fairness, that would tell against withholding relief in the exercise of the Court’s discretion. For the reasons already given, I consider that there is no more than a weak case of contravention of the prohibition in s 50(5).

74. Finally, I turn to the Bail Act. It is not necessary to express a view on the matters raised by McCallum J in her judgment, including her respectful disagreement with what was held in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. I have considered whether it is appropriate to express a view on the questions of construction. Although they were the principal matters argued, I would not have done so save for the fact that her Honour has, and if I do not, questions may arise as to the status of this Court’s earlier decision. Indeed, in light of one of the submissions made on behalf of the applicant in relation to the effect of Tikomaimaleya, it seems desirable not to let the position pass without comment.

75. The applicant contended that s 16A had no application, in light of the fact that the Local Court had determined in 2016 that his detention was not justified. There is nothing in that point. Whether a previous bail decision has been made is neither here nor there, insofar as it does not relieve the bail authority which is hearing an application to comply with the command in s 16A. The question which then arises is how that command operates.

76. Division 1A, which comprises ss 16A and 16B, stands in contrast with Division 2, comprising ss 17-20A. The latter, which is headed “unacceptable risk test – all offences” applies to all bail decisions irrespective of their subject matter. The former applies only when a bail decision is made for a “show cause offence”.

77. It is plain that in the case of a show cause offence, Division 1A must be applied, and if cause is not shown, bail must be refused, and that is an end of the application. However, if cause has been shown, then the bail decision must be made in accordance with Division 2. Division 2 is notably prescriptive. It specifies, in s 17(2), four particular “bail concerns”, and it prescribes in s 18(1) a lengthy but exhaustive list of the matters which a bail authority must consider in assessing those bail concerns. There follow a series of provisions directed to determining whether there is an unacceptable risk, and the way in which bail conditions are to be imposed. Division 2A provides special rules for particular relatively minor offences, which give rise to a right to release, and particular serious offences, such as certain terrorism related offences in s 22A.

78. In contrast, there is nothing express in s 16A on what is to be demonstrated in order to “show cause why his or her detention is not justified”. The application of Division 1A was considered by McCallum J in M v R [2015] NSWSC 138, concluding at [16], on which the applicant relied:

“But the Court should not approach the show cause requirement, in my view, on the ground that an applicant must go further in order to show cause why his or her detention is not justified or bears any higher onus than to persuade the Court that there is no unacceptable risk having regard to the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A.”

79. This Court also considered Division 1A in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. After reproducing that paragraph of McCallum J’s reasons, their Honours said at [24]-[26]:

“24   We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.

25 It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment.

26 The present case provides an example of why it is important to bear in mind the two-stage approach Parliament has prescribed in relation to bail applications concerned with offences of the type listed in s 16B in that here there is a matter that is relevant to the show cause test that is not available to be considered in relation to the unacceptable risk test. The jury's verdict of guilty is not within any of the matters listed in s 18; yet it is plainly germane to the question whether cause can be shown that his continuing detention is unjustified, since the presumption of innocence, which operated in his favour before the jury returned its verdict, has been rebutted by that verdict.”

80. The applicant relied on [24] as an endorsement of McCallum J’s reasoning in M v R. It was said, “As I understand what then flows from para 24 in Tikomaimaleya, nothing takes away from that proposition [scil, in M v R] of how s 16A should be constructed in terms of the purpose of s 16A.”

81. True it is that there is a qualified endorsement in [24] of Tikomaimaleya of what was said in M v R. However, this Court in Tikomaimaleya was at pains to say not merely that the show cause requirement in Division 1A was distinct from the unacceptable risk test in Division 2, but also that the determination by a bail authority as to whether cause had been shown was to be determined by consideration of all the evidence (rather than the matters confined by s 18) and against a different criterion. I regard the Court in Tikomaimaleya to have held, by way of contrast with what had been said at [16] in M v R, that there would be occasions when a person who would be granted bail because he or she satisfied the unacceptable risk test, would fail to obtain bail because he or she could not show cause why his or her detention was not “justified”.

82. A basic principle of the Australian legal system is that a person’s liberty should not be curtailed without proper process. A person, even a person who has pleaded guilty to a serious criminal offence, is entitled only to be denied his or her liberty pursuant to a sentence imposed in accordance with law, insofar as the imprisonment is part of the punishment imposed upon him or her following conviction. There is force in the submission that the denial of liberty following a detention application should occur for the purposes of the Bail Act and not for the purposes of imposing punishment.

83. But Division 1A and s 16A must perform some function. The mandatory language, the legislative history and the extrinsic materials all speak to Division 1A imposing a separate and additional test upon a class of accused persons. There is no way in which s 16A may be construed other than requiring that a class of persons, namely, those who are the subject of a bail decision for a show cause offence, must themselves demonstrate some cause why they should be permitted to remain at liberty.

80. Test the matter this way. Suppose a person is charged with, or has pleaded guilty to, a show cause offence, and the Crown brings a detention application. Notwithstanding the basic principle of the Australian legal system, it is clear that if the person advances nothing by way of evidence or submission, he or she may fail to discharge the onus placed upon him or her by s 16A.

81. That simple (and probably unrealistic) example avoids the difficulty inherent in the word “justified” in s 16A. That word is conspicuously open-textured. Some content may be given by considering how it will be applied. The legislation proceeds on the basis that the power is to be exercised by a “bail authority”, being a police officer (who will ordinarily hold rank of sergeant or higher), an authorised justice or a court. If the bail authority is a police officer, and bail is refused, then the accused person is to be brought before a court or authorised justice as soon as practicable to be dealt with according to law: s 46(1). It follows that it may be assumed that all bail authorities will be persons familiar with the basic principles of the Australian legal system, and that save for a very limited time after the refusal of bail by a police officer, the determination will be that of a court.

82. Courts may be expected to give great weight to the absence of any bail concerns in determining whether an accused person discharges the onus of showing that his or her detention is not justified. It may well be that very little would be required in such a case to conclude that the accused person’s detention is not justified. But even so the legislation leaves it to the wide discretion of the court to make that assessment. The fact that it is a court, rather than an officer of the Executive government, is significant. It appears that the Legislature has taken a difficult and contentious issue – the detention of persons accused of serious offences (including those who have pleaded guilty) in advance of the imposition of sentence – and in substance left it to courts to determine when that must occur, mandating only that it is for the accused person to show cause why his or her detention is not justified. Save to say that the text and structure of the statute confirms what was held in Tikomaimaleya, namely that there will be times when a court is entitled to conclude that an accused person who poses no relevant risk may nevertheless fail to discharge the onus placed on him or her by s 16A, I do not think it appropriate to place a gloss on the statute.

Orders

87. For those reasons, I considered that the summons should be dismissed. Costs were not sought in the summons or in either party’s written or oral submissions.

88. McCALLUM J: I dissented from the Court’s order dismissing the summons, for the following reasons.

89. While the question of jurisdiction must necessarily be determined first, it will be easier to explain my conclusion on that question at the end of this judgment.

90. As Leeming JA has noted, the issues debated in submissions were numerous. The determinative question, in my respectful opinion, is whether the District Court had authority to hear the prosecutor’s detention application immediately. I agree that s 74 of the Bail Act 2013 (NSW) did not apply, for the reasons stated by Leeming JA. The focus of my consideration has been the provisions of s 50(5) and the content of the requirement for the prosecutor to give “reasonable notice” of a detention application.

91. The fact that a detention application can be made orally is not the end of that inquiry. The purpose of a notice requirement is to enable the recipient to know the application he is to face and to have time to prepare to face that application. The assessment as to what is “reasonable notice” in any individual case must of course have regard to the requirement under s 71 of the Act that bail applications (which include detention applications) be dealt with as soon as reasonably practicable. However, the content of the requirement for notice will also be informed by a consideration of the circumstances of the individual application including, in the case of a show cause offence, the vexed question of the content of the onus imposed on an accused person under s 16A.

92. Before considering those issues, it is pertinent to recall a matter of fundamental principle. While it is not uncommon in the criminal justice system to speak in terms of whether an applicant is entitled to bail, a more disciplined approach is to inquire whether there is authority to detain a person. The right to personal liberty is “the most fundamental and important of all common law rights”. It is one which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ. That principle appropriately guides the construction of legislation that authorises the continuing detention of offenders after the conclusion of a sentence of imprisonment: State of New South Wales v Donovan [2015] NSWSC 1254; upheld in State of New South Wales v Donovan [2015] NSWCA 280. It should equally guide the construction of legislation that governs the detention of accused persons before sentence is passed.

93. A plea of guilty or finding of guilt renders a person liable to be sentenced (whether immediately or at some point in the future) but does not, of itself, authorise his detention, even where the imposition of a custodial sentence appears inevitable. To state the obvious, punitive detention must be proportionate to the offending and can begin only upon the commencement of a sentence duly imposed in accordance with the careful regime of the Crimes (Sentencing Procedure) Act 1999 (NSW). Before the commencement of a sentence of imprisonment, there is no authority to detain an offender for the purposes of sentencing stated in s 3A of that Act or by way of pre-emption of the sentence likely to be imposed. During the period between conviction and sentence, authority to detain a convicted person (if any) must be found in the provisions of the Bail Act.

94. Subject to what follows, it may be said with some confidence that the concern of the Bail Act is to authorise the detention of accused persons for the purpose of obviating particular kinds of risk pending the conclusion of the criminal proceedings. One issue sought to be raised by the present application is whether the position is otherwise (that is, whether the Bail Act authorises the detention of accused persons for any different purpose) in the case of “show cause” offences.

95. The Act identifies four particular kinds of “bail concern” (listed in s 17(2) of the Act), namely, that if released on bail, an accused person will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. For offences other than “show cause” offences, the bail authority is required to assess any such concern having regard to the matters specified in s 18, which must include consideration of the bail conditions that could reasonably be imposed to address any relevant concern. If, having undertaken that assessment, the bail authority is satisfied that there is an unacceptable risk of a relevant kind in the event that the accused is released, bail must be refused. If there is no unacceptable risk, bail must be granted.

96. The position is more complex in the case of a “show cause” offence. Section 16A provides that a person charged with such an offence must show cause why his or her detention is “not justified”, failing which bail must be refused. Whether detention is “justified” is a large question calling for a broad evaluative judgment. The Act gives no guidance as to the content of that task, or the considerations that should be brought to bear, beyond what may be gleaned from the circumstance that triggers the show cause requirement, which is the fact of having been charged with a show cause offence.

97. The offences which are “show cause” offences are listed in s 16B. The list includes offences defined by reference to penalty (those punishable by imprisonment for life); offences with a defining characteristic suggestive of an inherent risk of extreme harm (such as child sexual assault, violent sexual assault, serious violence and offences involving drugs or firearms) and offences where the defining characteristic relates to the individual accused (offences committed while on bail, parole or other conditional liberty). To the extent that the show cause offences reveal a common theme, it is that they are serious offences which, if in fact committed, have (or, but for good fortune, could have had) very harmful consequences or which indicate a dangerous tendency. The Act thus appears to make an assumption that a person charged with a show cause offence is inherently more likely to pose a risk of the kind identified or that, in the case of such a person, the consequences if any such risk materialised would be more dire. As I would construe the Act, the show cause requirement was intended to confer the onus and opportunity to displace that assumption.

98. The Act expressly contemplates that the court might refuse bail for failure to show cause without first complying with the obligation that otherwise arises to assess any bail concerns in accordance with division 2 of Part 3 of the Act: s 17(4). However, for my part, I find it difficult to conceive how a person’s detention could be “justified” (prior to the imposition of sentence) if he or she posed none of the risks identified in the Act. While s 17(4) authorises the bail authority to take a different approach in the case of show cause offences (because it removes the mandatory assessment of bail concerns), in my view an accused person would show cause why his or her detention was not justified if he or she persuaded the bail authority that there was no unacceptable risk.

99. I expressed these views shortly after the introduction of the show cause requirement, in M v R [2015] NSWSC 138 at [8]. That decision was considered soon afterwards by this Court in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 (Beazley P, R A Hulme and Adamson JJ). In that case, the offender had been found guilty by a jury of a show cause offence. A sentence of imprisonment was considered inevitable but the trial judge granted bail pending sentence to allow the offender to “get his affairs in order” (Court of Appeal judgment at [32]). The prosecutor made a detention application which came before Button J sitting in the Bail List of the Common Law Division. For reasons not disclosed in the judgment of the Court of Appeal, his Honour referred the application to this Court. The Court accepted the referral, while holding (at [13]) that the practice of referring bail applications from the Supreme Court to the Court of Appeal should have ceased and has “no place” under the Bail Act 2013.

100. After considering my judgment in M v R (in which I expressed the views set out above), the Court said at [24]:

“We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.”

101. With respect, the second proposition may state the matter in reverse. The resolution of the show cause requirement in favour of the accused person cannot resolve the unacceptable risk test in his or her favour as well; s 19(3) expressly provides otherwise. However, for the reasons already explained, I consider that the exclusion of any unacceptable risk would satisfy the show cause requirement. Further, I would respectfully disagree with the view expressed in the judgment at [26] that the jury’s verdict was not a matter to which regard could be had in assessing risk. Section 18(1)(c) requires the Court, in assessing any bail concerns, to have regard to the strength of the prosecution case. An admission or verdict of guilt allows the bail authority to proceed on the premise that the strength of the case is unarguable (although that is only one of the relevant factors in assessing risk).

102. The Court of Appeal granted the prosecutor’s detention application on the basis that the respondent had failed to show cause “in circumstances where he has been found guilty of a most serious offence and concedes that he will receive a full-time custodial sentence”: at [35]. While I understand that the onus was on the respondent to show cause why his detention was not justified, the decision implicitly holds that, regardless of risk, the respondent’s detention was justified by that combination of facts. For the reasons stated in M v R and in this judgment, I respectfully disagree. I do not accept that an admission or finding of guilt of a serious offence coupled with the certainty of a custodial sentence of itself justifies a person’s detention during the period before sentence is passed. Of course, that combination of facts might point strongly to a relevant risk (most probably, the risk of failure to appear) but that is a separate question, as made plain by s 19(3) of the Act.

103. Justice Leeming has remarked that the word “justified” in s 16A is “conspicuously open-textured”. By that expression, I understand his Honour to mean that the section deliberately imposes an onus the content of which is left to be developed by bail authorities. His Honour suggests in that context that some content may be given to the show cause test by the fact that all bail authorities will be persons familiar with the basic principles of the Australian legal system. But, outside the express provisions of the Bail Act, there is no principle in the Australian legal system that authorises the detention of a person because he has been charged with a “show cause” offence. None of the authorities that have considered that test has identified any principled basis, apart from the obviation of risk, on which pre-sentence detention may be regarded as being “justified” or “not justified”. That is why I construe s 16A in the manner I have explained. I am bound to accept that, in principle, the two tests should “not be conflated” but I do not understand the content of the first test, if it is not concerned with obviating risk. None of the authorities has provided a satisfactory answer to that question.

104. However, as this is a dissenting judgment, the present application must be determined in accordance with the approach established in Tikomaimaleya, which holds that pre-sentence detention might be justified (more accurately, not shown to be not justified) for reasons unrelated to the purpose of foreclosing unacceptable risk.

105. The complexity of this issue is compounded by the fact that, since Tikomaimaleya, courts have not consistently taken the approach taken in that case. It must nonetheless be accepted that it is at least open to a bail authority to take the approach taken in Tikomaimaleya. Justice Leeming has endorsed that approach at [86] above, holding that there will be times when a court is entitled to conclude that an accused person who poses no relevant risk may nevertheless fail to discharge the onus placed on him or her by s 16A. On that approach, the Bail Act creates the curious and probably unique situation that, in the case of show cause offences, the making of a detention application by a prosecutor places an onus on an accused person to satisfy a broad evaluative test of uncertain content, failing which bail must be revoked.

106. It is hardly surprising that parliament conceded an entitlement to reasonable notice of such an application. Section 50(5) prohibits the court from hearing a detention application unless satisfied that the person who faces that conundrum has been given “reasonable notice” of the application by the prosecutor. It is trite to say that the content of that requirement will vary depending upon the circumstances of the case. It will have both a temporal and a substantive component. There may be cases in which it is permissible to proceed to hear an oral detention application instantly. However, the fact that an application can be made orally does not remove the requirement for the court to be satisfied that reasonable notice has been given.

107. Ground (2F) contends that there was a failure to comply with that requirement.

108. I respectfully disagree that the evidence to support that ground is inadequate or that this is a weak case. The evidence is that the detention application was foreshadowed orally after the applicant was arraigned; that the prosecutor then sought and was granted an hour to prepare the application; that, during that hour, she advised the applicant’s lawyers that the matter was to be heard before Craigie DCJ SC and that the hearing began before lunch. The offender was accordingly given something in the order of an hour’s notice of the application before it was heard and no notice (before the hearing began) of the basis for the application.

109. It is clear the applicant was expecting that, at some point, the prosecutor would identify any relevant bail concerns and was not expecting to be required to do more than to address those bail concerns. At the outset of the hearing, the applicant’s counsel addressed the Court at some length as to the relevant chronology (including the fact that the offences were committed over 35 years ago and that bail had not previously been opposed), concluding by saying:

“It’s a position your Honour where my friend has caught me somewhat by surprise this morning with the detention application, but put aside notice requirements and so forth. I am uncertain what my friend says is the unacceptable risk which presents today, that was any different to what it was yesterday or at any time.”

110. Counsel’s expectation in that respect may have been inconsistent with the approach approved in Tikomaimaleya, but that is not to the point. Part of the purpose of a notice requirement is to afford time to identify the applicable legal principles.

111. The judge proceeded to hear the application immediately, without calling on the prosecutor to address those concerns (that the application had taken counsel by surprise and that there had been no identification of any relevant bail concerns). Only then did the prosecutor identify the basis for the application, noting that the offence was a show cause offence and submitting that, as the applicant had entered a plea of guilty to that offence (count 6 on the indictment), “he now must show cause”. The application was argued on that assumption. It may be noted that the show cause requirement is expressed to apply where a bail authority is making “a bail decision for a show cause offence”. The term “bail decision” (defined in s 8 of the Act) does not include a decision to revoke bail. However, the significance of those provisions was not explored and it is appropriate to determine the present application on the same assumption.

112. In the curious context of the show cause provisions, the fact that the basis for the application was so limited heightened the importance of the requirement for reasonable notice. It meant that the show cause requirement, on which the applicant bore the onus on about an hour’s notice, was at large. It is clear that the applicant had not come to court expecting to have to satisfy an onus of proof against such a broad, undifferentiated test.

113. It is also clear that the applicant was in fact prejudiced by the absence of notice. The case sought to be put was based primarily on the offender’s medical condition. That appears to have been put in two ways, as indicating both a current need for treatment and a need to obtain further reports for the purpose of the sentencing proceedings. The only material tendered by the offender was a collection of reports obtained in 1981 which had been served in anticipation of the substantive hearing. Separately, the applicant’s counsel said she was instructed that the offender had been hospitalised during the arraignment process and had undergone a surgical procedure. She sought in that context to rely on a medical certificate which was not in her possession but which she believed was on the court file, saying that a further report would have to be obtained. The judge responded:

“Ms Rowan, I’m sure if that was important enough, you would have tendered some evidence.”

114. The limited notice given of the application meant she had had no opportunity to do any such thing. In submissions in reply, the prosecutor noted the inadequacy of the medical evidence, submitting:

“it doesn’t get to the show cause threshold. It is very scant and most of it from the bar table, with respect. I accept that your Honour has on file two medical reports, albeit very scant material before your Honour on which to oppose the show cause--”

115. The judge responded:

“Well you very generously call it two medical reports. I think it is one indication a report is coming, a warning…And one fairly scant indication that some sort of investigation was carried out.”

116. That exchange provides the clearest illustration of the need for reasonable notice when a detention application is based not on any disciplined consideration of particular bail concerns but on the show cause requirement as a test at large.

117. There was nothing to prohibit the prosecutor from changing her position on the question of bail or indeed from pointing to the show cause requirement without proceeding to specify any particular bail concerns. For the reasons Leeming JA has stated, the applicant’s argument that such an approach was precluded by s 74 was misconceived. However, the fact that the prosecutor had not previously sought detention of the applicant and had confined the earlier detention application to seeking the imposition of relatively lenient bail conditions meant that, for over 13 months, it was in effect conceded by the prosecutor that the applicant’s detention was not justified.

118. In my respectful opinion, the judge could not have been satisfied that reasonable notice had been given. The detention application was made orally, following a lengthy period during which bail on lenient conditions had not been opposed; it was based primarily on the statutory requirement to show cause and the fact that the applicant had now pleaded guilty; having regard to the uncertainty surrounding the show cause test, the basis for the application was by no means obvious and was not articulated until after the judge had commenced hearing the application; and it is clear that the application in fact took the applicant by surprise and that he was caught without medical evidence to support the medical grounds he sought to rely upon to discharge the onus to show cause.

119. The fact that counsel for the applicant did not seek further time after the limited basis for the application was articulated is not to the point. The purpose of requiring reasonable notice to be given is to allow time to prepare so that lawyers can take instructions, reflect upon the applicable law and gather evidence. The Act requires the court to be satisfied as to the reasonableness of the notice given before proceeding to hear the application. In the present case, the judge could not have been satisfied of that matter. In reaching that conclusion, I mean no criticism of the judge. As noted by Leeming JA, s 50(5) was not drawn to his Honour’s attention. However, in my respectful opinion, absent satisfaction that reasonable notice had been given, his Honour had no authority to proceed to hear the application instanter.

120. For those reasons, I consider that ground (2F) is made out.

121. As noted by Leeming JA at [42], it was common ground that this Court enjoyed jurisdiction at least insofar as jurisdictional error was raised. His Honour has suggested, without deciding, that that proposition may not be free from argument. As the prosecutor expressly accepted that, if jurisdictional error were established, the Court would have jurisdiction in accordance with the principles stated in Kirk, I consider it appropriate to proceed on that basis. I appreciate that the Court cannot acquire jurisdiction by consent but I regard the prosecutor’s concession as uncontroversial in this case. Neither of the decisions discussed by Leeming JA concerned personal liberty. In my respectful opinion, stemming the development of a practice of hearing detention applications in show cause matters without reasonable notice falls squarely within this Court’s superintendent duty. I am not persuaded that the existence of an entitlement to make a release application in the Bail List of the Supreme Court is “equally effective and convenient”. If detention applications are being heard without authority, that should be corrected. The success of a later release application would not have that effect.

122. Equally, I do not regard the fact that the applicant has already filed a release application as a powerful basis for declining to exercise jurisdiction to review the decision of the primary judge. With respect, that is an approach which implicitly favours detention over liberty. One might equally point to the fact that, as acknowledged in these reasons, the prosecutor has an entitlement to renew her oral detention application in the District Court on relatively short notice. A decision to revoke bail having been made without authority in circumstances where no particular bail concerns have been identified, in my view it should be quashed.

123. For those reasons, I would have granted the relief sought.

124. N ADAMS J: On Wednesday, 21 February 2018, the Court made orders that the summons be dismissed. These are my reasons for joining in the making of those orders.

125. First, I have proceeded on the basis that this Court had jurisdiction to grant the relief sought, at least insofar as jurisdictional error is concerned. Senior counsel for the respondent expressly accepted that to be the case following the decision of the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. Despite proceeding on this basis, I am of the view that there is something to be said for Leeming JA’s observations at [42]-[44], that the fact that the Bail Act 2013 (NSW) permits for de novo release applications to the Supreme Court and again to the Court of Criminal Appeal may be sufficient to prevent District Court judges who are determining bail applications from being “islands of power immune from supervision and restraint”: Kirk at [99]. However, given my ultimate conclusion regarding the discretionary factors weighing against the grant of relief in this matter, and the fact that a number of matters going to the question of jurisdiction were not fully explored at the urgent hearing of this matter, I do not propose to express any firm view regarding the Court’s jurisdiction in this regard.

126. Second, I agree with both Leeming JA and McCallum J that the first of the two asserted jurisdictional errors, ground 2G, was not established. Section 74 of the Bail Act 2013 (NSW) did not apply to the detention matter for the reasons stated by Leeming JA.

127. Third, I agree with Leeming JA that factors weighing against the exercise of the discretionary power sought to be exercised in this matter include the fact that the applicant had a release application under s 49(1) of the Bail Act listed in the Common Law Division at the same time as the hearing of this summons. The applicant elected to have this summons heard first. As Leeming JA has observed at [66], although both parties requested that this summons be heard before the release application, that approach sits uneasily with s 71 of the Bail Act, which provides that a bail application is to be dealt with “as soon as reasonably practicable”.

128. A further discretionary factor militating against the grant of the relief sought in this matter was that the evidence in support of ground 2F, alleging non-compliance with s 50(5) of the Bail Act, disclosed only a weak case of jurisdictional error in any event for the reasons given by Leeming JA at [68]-[73]. I make some additional observations as to why I agree with Leeming JA on this issue below at [149]-[161].

129. As both Leeming JA and McCallum J have observed, a considerable time was spent at the hearing in this Court on the question of whether the primary judge erred in his application of the show cause test in s 16A(1) of the Bail Act. It was conceded by counsel for the applicant that, if such error was established, it would amount to an error of law on the face of the record rather than jurisdictional error. In light of this concession and the approach I have taken to the question of jurisdiction, I do not propose to consider the grounds asserting that the primary judge erred in his application of that test. However, given that McCallum J has expressed some concern as to the scope of that test in the context of her Honour’s determination of ground 2F, I feel it necessary to make some brief observations concerning s 16A(1) of the Bail Act although in doing so I am mindful of the fact that my observations are strictly obiter.

130. Whereas I accept her Honour’s recitation of the general principles regarding the liberty of an individual, the relevant question is one of the construction of s 16A of the Bail Act.

131. The Bail Act expressly contemplates a two-stage test in the determination of bail applications, whether they be release applications under s 49 or detention applications under s 50. Part 3 of the Bail Act concerns the making of bail applications. Division 1A concerns the “show cause requirement” and Division 2 concerns the test of “unacceptable risk”. That a two stage approach is required is clear from “Flow Chart 1” in s 16 of the Bail Act. It directs that, if the accused person has not “shown cause” as to why his or her detention is not justified, bail is to be refused, and alternatively, if the accused person has shown cause, the unacceptable risk test is to then be considered, in accordance with “Flow Chart 2”. Some of the relevant sections are as follows:

132. Section 16A of the Bail Act is in Division 1A and provides that:

“(1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences).

(3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.”

133. Section 17 of the Bail Act is in Division 2 and provides that:

“(1) A bail authority must, before making a bail decision, assess any bail concerns.

(2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

(3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.

(4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).” (Emphasis added.)

134. Section 18(1) sets out the factors a bail authority is to have regard to when assessing bail concerns. Section 19 provides that

“(1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.

(2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

(3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.

(4) Bail cannot be refused for an offence for which there is a right to release under Division 2A.” (Emphasis added.)

135. It can be seen that there are clear textual and contextual bases for concluding that the show cause test and the unacceptable risk test are two separate tests. I adopt what Leeming JA has observed in this regard at [76]-[86].

136. I accept that, upon its enactment, there was some uncertainty as to the scope of the show cause test: see the observations of McCallum J in M v R [2015] NSWSC 138 at [8] and the observations of Beech-Jones J in R v Ebrahimi [2015] NSWSC 335 at [10].

137. The question of the interplay between the show cause test and the unacceptable risk test was clarified by this Court in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 (“DPP v Tikomaimaleya”). The relevant passages from the decision of the Court (Beazley P, RA Hulme and Adamson JJ) are extracted in the reasons of Leeming JA at [79] and I do not repeat them here. Significantly, this Court held that discharging the show cause onus is not a matter of merely discharging the unacceptable risk test.

138. Since DPP v Tikomaimaleya, the Court of Criminal Appeal has heard a number of de novo bail applications (both for release and detention) in which principles pertaining to the show cause test have been considered. These principles were summarised by Button J in M v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 at [51]–[56] (a decision which is presently not publicly available pending the conclusion of a trial) as follows:

“First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.

Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].

Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.

Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.”

139. Consistent with these principles, in Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172, the Court of Criminal Appeal was satisfied that the applicant had discharged the show cause test on the basis of hardship to his family. The court then turned to consider the question of unacceptable risk and granted bail. In Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227, on the other hand, although the Court of Criminal Appeal was satisfied that the applicant had discharged the show cause test on the basis of hardship to his family, bail was refused because of the unacceptable risks associated with his release.

140. In R v Marcus [2016] NSWCCA 237, the Director of Public Prosecutions (“DPP”) brought a detention application under s 50(1) of the Bail Act. The respondent relied upon three matters to satisfy the show cause requirement. First, he relied upon the “principle of restraint” which was said to apply when the Court of Criminal Appeal considered a detention application following a successful release application before a single judge of the Supreme Court. The Court (Hoeben CJ at CL with whom RA Hulme and Wilson JJ agreed) held at [30] that this submission was wrong and must be rejected. The second matter relied upon by the respondent was the likelihood of a significant delay before trial and the third matter was that it was a weak Crown case. The Court found that the delay was not “preventable or excessive and [was] reasonable in the circumstances.” It further held that it was not a weak Crown case. On that basis, the onus was not discharged. The Court went on to observe that, even if cause had been shown, there were unacceptable risks associated with the release of the respondent to bail, that being, the commission of a serious offence, of putting the community at risk and of interfering with the complainant.

141. In McAndrew v Regina [2016] NSWCCA 58, the Court of Criminal Appeal (Hoeben CJ at CL, Harrison and Schmidt JJ) observed the following in relation to the show cause test in s 16A(1) of the Bail Act:

“The Bail Act quite understandably does not contain an exhaustive or inclusive definition of what an applicant needs to establish in order to show cause why his or her continued incarceration is not justified. The cases offer several examples. In Kangas v R [2015] NSWSC 1294, McCallum J considered that an opportunity to enter residential rehabilitation was relevant to a show cause requirement. In R v Boyd [2015] NSWSC 1065, Hamill J considered that a combination of factors could operate to satisfy the show cause requirement including, in that case, the prospect of a very lengthy period on remand before the trial was likely. In R v Mawad [2015] NSWSC 1237, Hamill J considered the fact that the applicant had children with severe disabilities in need of special care (hearing impairment and autism spectrum disorder) was sufficient in combination with other matters to satisfy the show cause requirement in that case. In R v McCormack [2015] NSWCCA 221, this Court considered that the accused had shown cause in circumstances where it was by no means certain that he would be sentenced to full time custody, being a man of 65 years of age with no prior history of violent offending and with issues with his health.”

142. The show cause test was also considered by the Court of Criminal Appeal in Hamze v R [2015] NSWCCA 104 and R v S [2016] NSWCCA 189. In those cases, the Court had regard to a number of factors, including risk, when considering the show cause test. In Hamze v R, the Court (Bathurst CJ, Simpson and RA Hulme JJ) referred to the relevant test in DPP v Tikomaimaleya and then went on to note (at [31]–[34]) that the Crown case was a viable one and that delay was of some concern but that “the offences are extremely serious in their nature and a significant custodial sentence may be expected to follow if the applicant is convicted.” The Court then went on to note that, “speaking generally”, the likely imposition of a significant custodial sentence provides risk. The Court then looked to the applicant’s poor compliance with bail in the past and noted the “real concern” was compliance with bail. It was then said that it was “difficult” to give any weight to an assertion from the bar table “that the explanation for his past transgressions was a drug addiction which has now been addressed”. The Court then stated at [35]:

“Having regard to all of these circumstances, sufficient cause has not been shown on the balance of probabilities (s 32) to establish that the applicant’s further detention is not justified.” (Emphasis added.)

143. In R v S [2016] NSWCCA 189, the Court (Macfarlan JA, Hall and Bellew JJ) granted a detention application in relation to a show cause offence. The Court noted that it is “well settled” that an accused may rely upon a series of circumstances to show cause why her detention is not justified. The Court was not satisfied that cause had been shown in that matter for a number of reasons. Those reasons included: a strong Crown case involving serious alleged offending; the fact that the applicant was on conditional liberty for both periods of alleged offending; the absence of any evidence from her father, with whom she is presently residing pursuant to her current bail conditions; that she presently had very little access to her child (two hours a month) and had been “less than diligent” in complying with requirements which would have ensured access to her child; and that the applicant had mental health problems and no “mental health plan”. The Court noted that it was “not able to be satisfied that the respondent is serious about addressing these issues, or that they are being given the appropriate degree of attention.” The Court then concluded at [70]:

“In all of these circumstances, the observations in Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190 at [22] are apt:

‘… there is nothing particularly special or unusual in what the respondent has put before the court. Age, lack of criminal antecedents, ties to the community and strong family support do not amount to showing cause. This is particularly so when one has regard to the seriousness of the offence with which the respondent has been charged and the apparent strength of the Crown case.’”

144. I note that, in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227, Beech-Jones J (with whom Gleeson JA agreed, Adams J in dissent as to the result) stated in relation to the decision in Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190:

“… I do not understand Brooks to be stating that “age, lack of criminal antecedents, ties to the community and strong family support” could never amount to showing cause, only that they did not amount to cause in that case. Again if Brookes did state that then I disagree for the same reason. Each case must turn on its own circumstances. A test posited in terms as to whether detention is “justified” or not necessarily defies any judicial attempt to circumscribe the circumstances in which it can be met.”

145. I have been unable to find any decisions of the Court of Criminal Appeal in which the show cause onus had been discharged on the basis that the court was satisfied there were no unacceptable risks associated with the release of the applicant.

146. In setting out the bases of the Court’s findings in the above matters, I do not mean to suggest that the results in those decisions have any precedential value, only the principles derived from them. As Beech-Jones J observed in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35], the observations of RA Hulme J in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] that single judge decisions concerning bail applications “do not often lay down anything of precedential value for ‘bail authorities’” apply equally to the decisions of the Court of Criminal Appeal. What these and other decisions concerning s 16A of the Bail Act show is that there is now a considerable body of case law concerning the show cause test in s 16A of the Bail Act.

147. Although it is to be accepted, as this Court held in DPP v Tikomaimaleya, that the same factors can be relevant to both tests, that does not mean that those factors are relevant to the same issue at the two separate stages of the application. For example, a weak Crown case might be relevant to the show cause test as it might not be justified to detain a person for a lengthy period of time if they may not be convicted. That same factor may again be relevant to the question of the risk of flight: a person facing a strong crown case would, as a general rule, be a greater flight risk than a person facing a weak case. Similarly, if a person has a poor record of failing to attend court or committing offences on bail that will no doubt mean that it will be difficult for him or her to establish that their detention is unjustified but, in the event that, in combination with other factors, they could discharge the onus, that same factor would give rise to bail concerns of committing serious offences and failing to appear that might amount to unacceptable risks should he or she be released.

148. Section 16A confers a wide discretion on a bail authority with regard to the show cause test and the width of that discretion has been confirmed in the cases I have referred to above. To observe that the discretion is wide is not to accept that it is uncertain. What is clear, it seems to me, is that the show cause test cannot be met solely by an accused person persuading the bail authority, on the balance of probabilities, that there are no unacceptable risks associated with release. I am respectfully unable to agree with McCallum J’s observations to the contrary.

149. Finally, I wish to add some further observations as to why I agree with Leeming JA that the evidence in support of ground 2F was weak. This is a further discretionary feature militating against the grant of the relief sought.

150. Section 50(5) of the Bail Act provides that:

“A court or authorised justice is not to hear a detention application unless satisfied that the accused person has been given reasonable notice of the application by the prosecutor, subject to the regulations.”

151. Ground 2F relies upon non-compliance with s 50(5). I agree with McCallum J that the question of “reasonable notice” in s 50(5) will turn on the circumstances of each individual application. The issue is whether the applicant has established that the primary judge was not or could not have been satisfied that reasonable notice was given in the particular circumstances of this case. Those circumstances were as follows.

152. In August 2016, Future Court Attendance Notices were issued to the applicant charging him with sexual assaults of an eleven-year-old boy said to have occurred in 1981. One of the charges was the offence of buggery, contrary to s 79 of the Crimes Act 1900 (NSW) (that offence is now repealed). That is an offence listed in s 16B(1)(b)(i) of the Bail Act, which meant that s 16A(1) of the Bail Act applied. The Local Court was thus required to refuse bail unless the applicant showed cause as to why his detention was not justified.

153. The respondent did not ultimately oppose bail when a detention application was made in the Local Court on 13 December 2016. Rather, the applicant was granted conditional bail by consent. Implicit in that position taken by the respondent at the early stages of the proceedings was an acceptance both that the applicant had shown cause why his detention was not justified (s 16A(1) of the Bail Act) and that there were no unacceptable risks associated with his release on bail (s 19(1) of the Bail Act). Although there is no evidence before the Court as to the basis upon which the DPP was satisfied that cause had been shown, it would be consistent with the established principles concerning the show cause test in s 16A(1) of the Bail Act to which I have referred above, that some of those factors may have been: the considerable delay since the offences occurred; the further delay before the matter could be finalised; the uncertainty of a conviction given the effluxion of time since the alleged offences; and the prospect that the period of custody on remand might exceed any term of imprisonment imposed. This last factor may well have been a relevant factor in the present case, given that the applicant had already been sentenced for a number of sexual assaults on other children at around the same time and the principle of totality loomed large in any sentencing exercise.

154. On 29 January 2018, the applicant’s trial was listed for hearing at the Campbelltown District Court. On that date, the applicant entered pleas of guilty to six offences: one count of buggery contrary to s 79 of the Crimes Act and five counts of indecent assault contrary to s 81 of the Crimes Act (that section is now repealed). One of the five counts of indecent assault involved an allegation of fellatio. Thus, two out of the six counts to which the applicant pleaded guilty came within s 16B(1)(b)(i) of the Bail Act. The evidence before this Court is that, the first time that the Crown Prosecutor was made aware that the matter would be a plea rather than a trial, was at court that day. Once she was so informed, she sought some short time to make a detention application under s 50(1) of the Bail Act. That application was foreshadowed before Judge English.

155. The evidence before this Court was that, as soon as the Crown Prosecutor was made aware of the change in circumstances, namely a plea of guilty, an indication was made that there would be a detention application. The timing of the application could only mean one thing: whatever had been the position of the DPP whilst the charges were being defended, that position no longer applied and the DPP now sought the detention of the applicant until his sentence.

156. As Leeming JA has observed, the transcript of what occurred before Judge English was not before this Court. That is regrettable. It is not clear precisely what the Crown Prosecutor and trial counsel for the applicant stated on the record about the foreshadowed application. What is clear, however, is that no application for any adjournment was made by the applicant. Rather, the matter was stood down for a period of an hour in order for the Crown Prosecutor to prepare for that application.

157. Although the notice of the application was oral rather than in writing, there is no obligation for the notice to be in writing. In fact, as Leeming JA has already observed, r 17(1A) of the Bail Regulation 2014 (NSW) expressly provides that “[a] court or authorised justice is not to decline to hear a detention application only on the basis that the detention application is not made in writing.”

158. The detention application commenced at about 12:30pm before Craigie DCJ and continued after the luncheon adjournment. As both Leeming JA and McCallum J have observed, counsel for the applicant stated in her submissions before Craigie DCJ that the detention application had taken her by surprise that morning. The transcript discloses that the applicant made no application for any adjournment before Craigie DCJ. Nor was any submission made to the primary judge that reasonable notice had not been given within the terms of s 50(5) of the Bail Act. The transcript also shows that the applicant’s trial counsel made detailed submissions and that the detention application was based on the pleas of guilty entered that morning.

159. The reasons of the primary judge reveal that the plea of guilty was a significant matter taken into account by his Honour as was the inevitability of a sentence of imprisonment.

160. A plea of guilty is a relevant factor to both the show cause test and the unacceptable risk test for a number of reasons. It is relevant to the show cause test because the presumption of innocence no longer applies. It can no longer be said that there is a weak Crown case. It is no longer the case that there might be a plea of guilty to less serious charges. It can no longer be suggested that there will be delay until the matter is finalised. Significantly, for the present case, it can no longer be said that any period spent in custody on remand would necessarily exceed any sentence imposed. If cause has been shown as to why detention until sentence is not justified then the fact of the plea of guilty can be relevant to the question of unacceptable risk, for example, the bail concern that the offender may fail to appear at his sentence hearing. To have regard to the significance of the plea of guilty in all of these respects is not to find that the plea of guilty itself automatically authorises detention but it is a highly relevant factor nonetheless.

161. The above summary comprises the circumstances in which the question of whether the primary judge fell into jurisdictional error in his consideration of whether reasonable notice of the detention application is to be determined. It is in the context of these circumstances that I concluded that the evidence in support of ground 2F was weak, at best.

Amendments

15 March 2018 - Coversheet - case name corrected

15 March 2018 - Headnote - case name corrected.

15 March 2018 - Headnote - formatting corrected.

19 March 2018 - [71] final sentence, repeated "was made" omitted.

[83] "subject to" changed to "subject of".

[131] fifth sentence, added "not" before "justified", changed "that bail" to "bail".

[134] first sentence "sets out of the" changed to "sets out the".

[136] "Beech Jones J" changed to "Beech-Jones J".

Decision last updated: 19 March 2018