Burke v Marshall

[1991] TASSC 168

Serial No B54/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Burke v Marshall [1991] TASSC 168; B54/1991

PARTIES:  BURKE, Kenneth John
  v
  MARSHALL, Robert James

FILE NO:  LCA 9/1990
DELIVERED ON:  3 October 1991
JUDGMENT OF:  Slicer J
CATCHWORDS:

Justices Act 1959—Sections 35(5) and 64—Bail—Conditions.

Judgment Number:  B54/1991
Number of paragraphs:  19

Serial No B54/1991
File No CLA 9/1990

KENNETH JOHN BURKE v ROBERT JAMES MARSHALL

REASONS FOR JUDGMENT  SLICER J

3 October 1991

1. The applicant was convicted of an offence contrary to s35(7) of the Justices Act 1959 ("the Act") in that he breached a condition of bail imposed consequent upon the making of an order under s64 of the Act. It had been a condition of the grant of bail made on 19 June 1991 that the applicant not approach directly or indirectly nor communicate with or seek to communicate with Michael John Allan or another named person. On the hearing of the complaint, it was an agreed fact that on 20 July 1991 police found the applicant riding a motor cycle, with Michael Allan a pillion passenger.

1. On the hearing of the motion to review the applicant submitted that because the order for bail was made pursuant to s64 of the Act, there was no power given to the magistrate to impose conditions pursuant to s35(5) of the Act.

1. The contention is based on a strict interpretation being given to the wording of s35(5) which states:

"Where a justice is empowered by this Act to admit a person to bail, he may make any of the orders that he is authorised to make by the foregoing provisions of this section."

1. It was argued that because of the wording, it limits the application of the power to a situation "where a defendant is brought before a justice pursuant to s34A" as set out in s35(1). Thus the power could only be exercised at the time of the first appearance, or at most, at a time before the entry of plea.

1. I reject that contention.

1. Section 62 of the Act requires justices to commit a person for trial in the Supreme Court in circumstances where s62(a) or (b) applies. It is mandatory. It further empowers the committing justices to remand the person in custody or admit such person to bail. Once the order for commitment is made, the power of the committing justices or magistrate is derived from s64. That power may be exercised by the justice who signed the warrant of commitment or a magistrate. I take that to mean that a magistrate (who did not sign the warrant of commitment) may grant bail.

1. Thus ss62 and 64 are to be read together.

1. To do otherwise would be to produce the result that bail could be given by justices to a person charged with murder or treason if they were exercising powers under s62, but were prohibited from so doing if they were purporting to act under s64. That reading would run contrary to s67 of the Act.

1. Sections 62 and 64 are contained within Division 2 of Part VII of the Act. It is a part which defines the procedures which must be followed with respect to indictable offences.

1. A similar scheme is applicable to crimes triable summarily under Part VIII where a power similar to a grant of bail in accordance with s63 of the Act is provided by virtue of s72B(3)(a) of the Act.

1. Part IX deals with proceedings in cases of simple offences. Section 74B(1)(b) of that part permits the court to admit the defendant to bail in cases where the hearing of the complaint is adjourned.

1. On the basis of the logic required by the applicant's motion to review, a magistrate in granting bail on an adjournment of a hearing in relation to a simple offence could not impose any of the conditions permitted by way of s35(5). But that would run counter to the requirements of s35(3)(a).

1. This application of jurisdiction is explained in the judgment of Cox J in Levy v Strickland [1983] Tas SR 9 where, at pp12–13, he said:

   "In both cases, although the respective magistrates exercised powers under s35 of the Act, they were not in fact in the situation which that section primarily contemplates, that is to say they were not dealing with defendants 'brought before a justice pursuant to s34A'. That had already occurred at Queenstown, but each magistrate dealing with the matter pursuant to s74B and therefore having the power (inter alia) to admit to bail was exercising the power to make any of the orders a justice is authorised by s35 to make, by virtue of s35(5).

   .....

   The Justices Act 1959 lays down a procedure for justices and magistrates when dealing with a wide range of offences. The jurisdiction of courts of petty sessions embraces the preliminary stages of proceedings for indictable offences and such courts have power to admit to bail persons charged with very serious crimes (other than treason, murder or a capital offence – see s67). Likewise they have powers which may affect the liberty of those charged with but not convicted of a range of simple offences, from those punishable by imprisonment for up to three years (s72B) ..."

   and at p14:

   "The above powers may be exercised by a justice or magistrate whenever he is empowered by the Act to grant bail (subs.(5)). Whether one calls such orders 'ancillary orders' or 'conditions of bail', they do carry with them certain incidents.

   ...

   The powers under subs(2) and (3) may be exercised on a variety of occasions for the granting of bail on adjournment (eg ss50B, 58 and 74B). A remand in custody or the grant of bail, with or without such ancillary orders or conditions, is not the only option open to a court of petty sessions dealing with a simple offence."

1. Section 35 is contained within Part VI of the Act entitled "General Procedure". As such, it governs the form and procedures to be followed whenever a relevant provision of the Act is invoked. It has application to Parts VII, VIII and IX which contain the enabling or jurisdictional powers.

1. Sections 29, 30 and 31 apply irrespective of whether or not the matter will be eventually determined in accordance with Part VIII. A person charged with an indictable offence shall be dealt with by way of a complaint commenced in accordance with s27. Upon arrest that person is required to be brought before a justice in accordance with s34A, and if the justice is satisfied that there is alleged an act or omission that would constitute an offence, then by virtue of s34A(2)(b) "... he shall, except in a case to which section 67 applies, proceed as provided by section 35."

1. Section 34A gives the justice jurisdiction except where the person is over the age of 17 and is charged with treason or murder. At the stage the person is brought before the justice he is then dealt with in accordance with the provisions of s35, irrespective of whether the offence be simple or indictable. That jurisdiction remains until the final order is made pursuant to s64. It is only at that time that the jurisdiction ceases. See Barnes v McKenna [1983] Tas SR 214, at p217:

"Once an order for bail has been made, irrespective of the nature of the conditions to which it is subject, there is no further statutory basis upon which the court of petty sessions can lawfully exercise jurisdiction. The making of the order for the commitment of the defendant for trial or for sentence (s63 of the Act) has the effect, when he is admitted to bail, of ousting such jurisdiction.

Section 64 is a separate provision, which has limited application and only in the cases to which it specifically refers. However, if the justice who signed the warrant for the commitment of the defendant, or a magistrate, makes an order under s64 there is no longer any jurisdiction vested in a court of petty sessions subsequently to vary the terms or conditions of the order.

Section 35(5) of the Act is not disconsonant with the interpretation of the relevant provisions of the Act which I consider is correct. Counsel for both parties were in agreement that the subsection is applicable to orders for bail made under either s35 of the Act or any relevant provisions of the Act relating to indictable offences – that is, ss62, 63 and 64."

1. It follows that s35 has an operation in relation to the whole of the Act, and that s35(5) is not to be construed as having the limited application sought by the applicant.

1. For the above reasons, I hold that grounds 1 and 2 of the motion to review fail. At the commencement of the hearing of the motion, counsel for the applicant withdrew grounds 3 and 4.

1. Accordingly the motion to review will be dismissed.