Challita v The Queen - [1988] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No S30 of 1988
B e t w e e n -
JOSEPH CHALLITA

Applicant

and
THE DIRECTOR OF PUBLIC
PROSECUTIONS

Respondent

Application for special leave
to appec3.l

WILSON J
BRENNAN J GAUDRON J

Challita
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 22 APRIL 1988, AT 2.43 PM
Copyright in the High Court of Australia

SlTl0/1/PLC 1 22/4/88

MR G.R. JAMES, QC: May it please the Court, in that matter
I appear for the applicant with my learned friend,
MR T. BUDDIN. (instructed by J. Cooke, Legal Aid
Comm1ss1on,New South Wales)

MR P. HOWIE, QC: I appear with my learned friend, MR P. POWER,
Your Honour, for the respondent Director of
Public Prosecutions. (instructed by H. Hamilton,
Solicitor for Public Prosecutions)

WILSON J: Yes, Mr James.

MR JAMES: Your Honours, this matter presents to the Court
in a somewhat unusual way and - - -

WILSON J: Very unusual.
MR JAMES: - - - we come to the Court in reliance upon, firstly,
section 35A(a)(i) and (ii) and (a)(ii), Your Honours,
deals with the necessity for a final decision of
this Court as the final appellate court:
to resolve differences of opinion between
different court~ or within the one cour 4 as
to the state of the law -

and, also, we rely on (b):
whether the interests of the administration
of justice -

and in this case~
either generally or in the particular case,
require consideration by the High Court of judgment to which the application relates.

Your Honours, there is no intermediate Court of
Appeal to which this matter can go and, therefore,
we seek to rely on the provisions of section 39(2)(c)

which provides that this Court:
may grant special leave to appeal to the
High Court from any decision of any Court
or Judge of a State notwithstanding that the
law of the State may prohibit any appeal from
such Court or Judge.
There is, in fact, no direct prohibition on appeal
in New South Wales from a bail order and such an
order is a judgment or order within the meaning
of section 4 under the JUDICIARY ACT and it does
fall within this Court's jurisdiction on an application
for special leave but as far as the New South Wales

SlTl0/2/AC 2 22/4/88
Challita
Court of Appeal is concerned matters relating to
bail have been held to be criminal proceedings
and hence, by the SUPREME COURT ACT, barred from

the jurisdiction of the Court of Appeal. The Court
of Criminal Appeal has itself held that it has
no power except to grant bail or review its own
grant of bail because of the BAIL ACT itself. Thus
New South Wales is left with single judges sitting,
each as the Supreme Court of New South Wale~ reaching
contrary conclusions in matters brought before
them whether by way of renewed grant by an applicant
or by way of review pursuant to sections 45 and 48
of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Challita v The Queen

Details

AGLC: Challita v The Queen [1988] HCATrans 75
Case: [1988] HCATrans 75
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal by the Director of Public Prosecutions against a decision concerning bail. The applicant sought special leave under s 35A(a)(i) and (ii) of the Judiciary Act, arguing that the case was necessary to resolve differences of opinion within the courts regarding the state of the law and that the interests of the administration of justice required consideration by the High Court. The applicant also relied on s 39(2)(c) of the Judiciary Act, which allows the High Court to grant special leave to appeal from any court or judge of a State, notwithstanding any prohibition on appeal under State law.

The central legal issue was the absence of a clear appellate pathway for bail decisions in New South Wales, leading to inconsistent outcomes. The applicant explained that the New South Wales Court of Appeal had held bail matters to be criminal proceedings, thus barring them from its jurisdiction. The Court of Criminal Appeal, constrained by the Bail Act, had limited powers regarding bail. Consequently, bail decisions were being made by single judges of the Supreme Court of New South Wales, who were reaching differing conclusions on similar material, even without significant changes in circumstances. This created a situation where successive applications for review could result in contradictory decisions, undermining legal certainty.

The applicant contended that the legislative scheme did not intend to permit a legal right to infinite review of bail decisions, particularly when such reviews yielded inconsistent judgments on substantially the same material. The court acknowledged the unusual nature of the application and the difficulties presented by the lack of a definitive appellate mechanism for bail matters in New South Wales, which resulted in a lack of uniformity in legal outcomes. The court was being asked to intervene due to these perceived inconsistencies and the absence of an intermediate appellate court to resolve them.

Orders