CDirector of Public Prosecutions v Templin

[2013] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

CDPP v Templin [2013] QMC 4

PARTIES:

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(prosecution)

v

DEAN MICHAEL TEMPLIN

(defendant)

FILE NO/S:

MAG213279/12(2), MAG138607/12(7)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge – Application for bail

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

30 January 2013 (extempore)

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2013

MAGISTRATE:

Butler BJ (Judge) (Chief Magistrate)

ORDER:

Application to dismiss Bail application is refused.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – application for bail - committal proceedings completed in the Magistrates Court – whether Magistrates Court has jurisdiction to grant bail

Bail Act 1980(Qld) s 8(1)

Director of Public Prosecutions (Commonwealth) v Heagney, (1990) 19 NSWLR 651

COUNSEL:

L Manville for prosecution

AL Campbell (solicitor) for defendant

SOLICITORS:

Prosecution on own behalf

Legal Aid Queensland for defendant

1. An application has been made to this Court for bail to be granted to the defendant, Dean Michal Templin. Mr Templin appeared before the Brisbane Magistrates Court on 10 December 2012 charged with 108 indictable offences contrary to the Commonwealth Criminal Code and two indictable offences contrary to section 228D of the Queensland Criminal Code. On that day, he was committed for trial to the Supreme Court of Queensland to be heard on a date to be notified by the Director of Public Prosecutions. During the proceedings he was remanded into custody, there having been no application for bail.

1. The papers were transmitted by the Court to the Office of the Commonwealth Director of Public Prosecutions on 11 December 2012, or rather to the State DPP and they were on-forwarded to the Commonwealth Director of Public Prosecutions on 18 December 2012.

1. Counsel for the Commonwealth, Ms Manville, has indicated to the Court that in principle the respondent is not opposed to a grant of bail subject to appropriate conditions. However, the point is taken before me that this Court lacks jurisdiction to hear and determine the bail application at this point. The submissions on behalf of the respondent are that upon determination of the committal proceedings and the committal of the defendant for trial in a higher Court, the Magistrates Court's function will have expired. In short, it is argued that on the order to commit for trial and the intended order to remand the defendant into custody and the transmission of the depositions, the Magistrates Court became functus officio and no longer has the power to grant bail in respect of these matters.

1. It is submitted on behalf of the applicant that the Magistrates Court does indeed have power to grant bail and may do so under the provisions of section 8(1) of the Bail Act 1980.

1. That section, insofar as it is relevant, reads as follows:

"Power of Court as to bail: A Court, subject to this Act (a) may grant bail to a person held in custody on a charge of or in connection with an offence if" - and going to (iii) - "the Court has committed or remanded the person in the course of or in connection with a criminal proceeding to be held by that Court or another Court in relation to that offence; and (b) may enlarge, vary or revoke bail so granted."

1. It, in my experience, has been usual for bail applications to be brought to the Magistrates Court in that period between when committal has occurred and an indictment has been presented in a higher Court.

1. It is true that under section 10 subsection (1) of the Bail Act, the Supreme Court:

"may grant bail to a person held in custody on a charge of an offence or in connection with a criminal proceeding whether or not the person has appeared before the Supreme Court in or in connection there with."

1. There's no similar power residing in the District Court. It is submitted on behalf of the Commonwealth that as the Supreme Court has power to grant bail, in these circumstances the application should be made to that Court, not to the Magistrates Court.

1. Of course, while in the circumstances of this case the committal of the matter was to the Supreme Court, in many other matters committal will be to the District Court and the power to grant bail, if it's not residing in the Magistrates Court, would in those circumstances have to be exercised by the Supreme Court.

1. It seems to me that ultimately the question of whether the Magistrates Court has jurisdiction turns on the construction of paragraph (iii) of section 8 subsection (1)(a) of the Bail Act.

1. In support of its argument, the Commonwealth relies upon a decision of the New South Wales Supreme Court. His Honour Justice Smart in Director of Public Prosecutions (Commonwealth) v Heagney, (1990) 19 NSWLR 651 held that in New South Wales, the Magistrates Court lacked jurisdiction in circumstances similar to those before me to hear and grant bail.

1. His Honour, at page 654, said this:

"While the point is not free from doubt, in my opinion, section 23(a) entitles a Magistrate to grant bail to an accused person: (1) where the hearing of the charge is pending by way of committal proceedings or summary hearing; or (2) as an incident of the act of committing an accused person for trial. The grant or refusal of bail is ancillary to the hearing of the charge by the Magistrate and his decision to commit for trial, as the case may be. The Magistrate does not have jurisdiction to grant bail independently of a current prosecution before him in respect of an alleged offence. Where a Magistrate has committed an accused for trial and dealt with bail, he has no further functions to perform."

1. His Honour came to that conclusion after considering the relevant provisions in the New South Wales Bail Act. Section 23 of the New South Wales Bail Act 1978 relevantly provides:

"A Magistrate or Justice may at any time, subject to sections 24 and 29(a) grant bail to a person brought or appearing before him accused of an offence."

1. Section 24 relevantly provided:

"(1) bail may, subject to this section and sections 42 and 50, not be granted to a person under section 23 by a Magistrate or Justice after the person has appeared before the District Court, Supreme Court or Court of Criminal Appeal following his committal for trial or sentence."

1. In that case, it was argued for the prosecution that there was a power in the Magistrates Court to grant bail and the limitation upon that power to be found in section 24 was at the point where the person appeared before the higher Court.

1. His Honour rejected that argument, taking the view that as there was a power for the Supreme Court to grant bail and having regard to the fact that the Magistrate's powers are otherwise ceased following committal, that the provisions in the Bail Act do not extend jurisdiction in the circumstances that apply.

1. I would, of course, follow his Honour's decision if I felt that the Queensland provision was sufficiently aligned with those in New South Wales as to apply his Honour's decision here.

1. However, my first task is to construe the Queensland legislation as it appears.

1. Section 8 provides that a Court:

"may grant bail where the Court has committed or remanded the person in the course of or in connection with a criminal proceeding to be held by that Court or another Court in relation to that offence."

1. The Magistrates Court has committed the person in relation to the offence upon which he seeks bail; the Magistrates Court has committed the person in connection with a criminal proceeding to be held by another Court in relation to that same offence. It seems to me that on the plain meaning of those words, this Court falls within the terms of the paragraph.

1. In construing the section, I also note that it extends a power to a Court falling under paragraph (a) to "enlarge, vary or revoke bail so granted."

1. It is argued by the Commonwealth that the Magistrates Court does have a power to grant bail at the point of committal of the person. However, it's submitted that the paragraph should be interpreted to be read to not extend that power beyond that point. That distinction does not arise, in my view, from a reading of the words of the section. A Magistrate, upon the completion of committal proceedings, will move to commit that person for trial in a higher Court. Only after the committal of the person will the Magistrate then turn to the question of the grant of bail.

1. On the argument advanced by the Commonwealth, the Magistrates Court would, one would think, become functus officio upon the order to commit for trial, but it was argued before me that the Magistrates Court would remain seized of the matter until the transmission of the depositions. It seems to me that it would be unusual to have to draw a distinction as to at what point the ability for the Magistrates Court to grant bail terminates. Would it be possible for the application to be enlivened at any point prior to the transmission of the depositions, for example?

1. I prefer in all the circumstances to approach the matter of the interpretation of section 8 of the Bail Act in as straightforward a way as possible. It seems to me that the Bail Act may be interpreted in this way: The Supreme Court always has power to make grants of bail under section 10 and it would have been possible for this application to be brought in that Court. That would be true of many other circumstances where applications for bail are brought in neither the Magistrates Court nor the District Court. It does not necessarily suggest that the lower Court lacks jurisdiction.

1. Reading section 8 in a straightforward manner, I am persuaded that section 8 subsection (1)(a)(iii) extends power to the Magistrates Court to grant bail in circumstances where that Court has committed the person to another Court in relation to the same offence. Of course, as a matter of practicality, the Magistrates Court would not exercise such a power once an indictment had been presented in a higher Court.

1. The Magistrates Court, it is conceded even on the argument before me by the Commonwealth, has power to grant bail at the termination of committal proceedings and under 8(1)(b) may enlarge, vary or revoke that bail at any later time, again presumably up until an indictment is presented in a higher Court. I find no practical reason, having regard to the interpretation I prefer, for taking the view that it would present any difficulty in application as between the various Court jurisdictions.

1. For all of those reasons, I am persuaded that this Court does have jurisdiction pursuant to section 8 of the Bail Act 1980 to hear and determine a bail application in these circumstances.