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

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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

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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 the BAIL ACT.

WILSON J:  How can you say contrary decisions? Does not

each decision, at whatever time the application

is made, depend on the facts that are then presented

as on a rehearing?

MR JAMES:  Well, Your Honour, it does. When I say contrary

decisions I can only say that those decisions have

been reached on exactly the same material and,

indeed, the New South Wales bail list has reached

the point where a decision may be given on one
week and reviewed the next and then the next.

There have been cases in whic~ without change in

circumstance, the matter has come before two, three

and I think, at most so far, four judges to reach

differing conclusions on what is often enough exactly

the same material. Of course, there is a change

in circumstance, inevitably, in every such case

and that is that some time has elapsed but - - -

WILSON J: Is not that the scheme of the Act and that is

why there is no appeal because there is no inhibition

upon successive applications for review. But does

it not confront you with this difficulty at the

outset that it would appear that legislative policy

and the Act was that whatever decision is made,

or whatever is the latest decision made by the

Supreme Court stands.

MR JAMES: Well, Your Honour, with respect, we would submit

that it was never the policy nor the scheme of

the Act to permit a legal right to infinite
applications or reviews simply, and effectively,
limited by the number of judges or the number that

are available within the time period to which bail

relates.

BRENNAN J: Is that not what the Act says?

MR JAMES:  No, Your Honour, with respect. The Act says that

there shall be - - -

BRENNAN J: Well, how do you get before all those judges?

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MR JAMES:  Well, as far as applications for grants of bail

by the applicant is concerned the Act does say

that the applicant may make as many bail applications

as he likes. But the Act also splits up the criminal

process into a series of periods and thus enables

an application to be made for each particular period

in the process. The problem we are dealing with - - -

WILSON J:	What do you mean, before trial and after trial?
MR JAMES:	On arrest, before coming before a court, when

coming before a court on remand, from remand to

committal, from committal to trial, from trial
to appeal, appeal to special leave application -

all of these are dealt with as defined periods

and bail may be granted for any particular period.

WILSON J: Quite. I mean there would be obviously different

considerations in the grant of bail after conviction

and as there might be before conviction, awaiting

trial.

MR JAMES: Well, there are now, Your Honour, and, indeed,

that is precisely what brought this matter to a

head. The very short history - and I appreciate

that Your Honours will have read the appeal book -

was that following the decision of HILTON the Act
was amended to provide for special exceptional

circumstances on appeal following conviction.

That initial amendment which was, itself, by a

substantive amending Act, the BAIL AMENDMENT ACT,

contained a transitional provision in section 4.

However, that amending Act only required the special

or exceptional circumstances to be shown when bail

was sought from the Court of Criminal Appeal.

By the scheme of the Act the supreme court, however,

had the overriding jurisdiction and, in fact, it

was to the supreme court that all bail applications

for bail pending appeal were made.

Hence, it was held that no special or exceptional

circumstances had to be shown where the application

was for a grant of bail to the supreme court.

By a STATUTE LAW (MISCELLANEOUS PROVISIONS) ACT

the extension was made of the requirement to

"or any other court" and the section renumbered

to be now section 3OAA.

WILSON J: That extension was made after your client was

granted bail pending appeal.

MR JAMES:  Yes, and at that point of time our client had

a grant of bail which by the terms of the BAIL ACT itself gave him a statutory right to be and remain

at liberty subject to this Act.

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Consequently, when/the matter came before

His Honour Mr Justice Roden on an application by
the Crown to review the bail decision, which is
the technical description taken from the Act,
His Honour had to consider the question of whether

the amendments applied as at the date of his decision

on the review. Relying on what Mr Justice Finlay

had said in the unreported decision in EAVES -

and I can indicate to Your Honours we have prepared

a bundle of material for each of Your Honours setting

out the Act; the amendment Act; the STATUTE LAW

(MISCELLANEOUS PROVISIONS) ACT; the two relevant

second reading speeches and the unreported decisions -

but perhaps if I outline it very quickly first.

His Honour had to consider whether the amendments

operated as at the date of hearing so as to require

the applicant to demonstrat~ on an application

by the Crown to revie~ that the applicant had special

or exceptional circumstances. And His Honour held

that he was not dealing with a question of

retrospectivity affecting a right accrued and thatwhat

he was doing was hearing, or rehearing, a matter at a time at which new law was applicable. Now,

we would not quarrel with that as a general proposition,

that when an appeal or a review is by way of rehearing

in the normal order of things the court so sitting

will consider the law as it stands at that time.

But there have been exceptions to that and principally

those exceptions relate to matters where the law affects a right accrued as to the liberty of the

subject. In addition that does require an examination

of the intent of the legislature on the

BAIL (AMENDMENT) ACT, section 4, the transitional

provision, in particular, which His Honour did consider

and, also, the transitional provisions, being the

last schedule, paragraphs 1 and 2, to the

STATUTE LAW (MISCELLANEOUS PROVISIONS) ACT which

His Honour did not consider. But, a more important

problem arose in that the nature of the review

by way of rehearing has been considered by His Honour,

following earlier decision~ to be a requirement

that the applicant, as it were, come again - not,
merely that it be a rehearing de novo but that

the applicant make out a substantive case.

This was, in our submission, to go beyond

the meaning of the word'~evfa-1' and to go beyond

the decisions in other fields where appeal by way

of rehearing and review in such matters as the

WORKERS COMPENSATION ACT, for instance, or the

FA.tfILY LAW ACT, or appeal by way of rehearing even

within the New South Wales SUPREME COURT ACT -

in our submission, this is to construe the words

"review by way of rehearing" to impose an almost

unique burden upon an applicant.

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It is not simply a matter of statutory construction,

in our submission, in relation to the amending

Acts but is a matter of considering the nature
of what His Honour the present Chief Justice referred
to in BUILDERS LICENSING BOARD V SPERWAY as the
almost Delphic pronouncement when the legislature
sees fit to utilize the language of appeal by way
of rehearing and that, of course, concerned the
case law on the New South Wales JUSTICES ACT appeal

to quarter sessions.

Your Honours, there is no traditional line

of authority her~ as there was in relation to the

JUSTICES ACT, to support the proposition that there

should be a hearing de novo and, in our submission,

the words "review by way of rehearing" can postulate

a great many different modes of appeal other than
a requirement that the applicant simply come again,

make again, his case.	And if I could move still
further - - -

BRENNAN J:	I am afraid you are moving beyond my capacity to understand the statutory base from which you
are proceeding, Mr James.
MR JAMES:	If Your Honour pleases. Your Honours, might I

hand up to Your Honours a bundle of the documents

with the index attached.

BRENNAN J:  Where do we find the power that the judge was

exercising?

MR JAMES: If I could take Your Honours to section 45 which

can be found on page 27. Could I indicate to

Your Honours section 45(1) is the relevant provision

and there was a change effected from what was thought

to be the previous law in that the power now reposes

in the supreme court rather than in a judge. It

is the supreme court that is called upon the review

the supreme court. Section 48 sets out the manner

of the review.

BRENNAN J:  What did the judge do that was in excess of the

powers therein contained?

MR JAMES:  His Honour held that it was a hearing de novo;

that meant that the matter commenced again as though

the applicant were making a substantive application

for bail and that it being of that nature the

applicant had to meet the test of showing special or

exceptional circumstances, that being a test

introduced after the bail decision which he was

rev1ew1ng.

BRENNAN J: Is this a problem which arises only by virtue

of the transition provisions in the Act?

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MR JAMES:  In this instant case, yes, Your Honour, but what

it does is to expose - it would not normally be

a proper vehicle for special leave, except that

this cas~ because of the application of the amendments

in this fashion, so exposes, in our submission,

the problems in construing the provision giving

a right to a review by way of rehearin& and an

analysis of the discretions that arise under it,

that this was probably, in fact we would submit,

the best possible case in order to enable the

correctness of the course taken by the Supreme Court

of New South Wales to be ascertained.	I should
indicate to Your Honour that - - -

BRENNAN J:  What do you say that the supreme court should

do?

MR JAMES:  We say that the supreme court should review the

original decision taking into account the fact

of the original decision, examining whether there

is additional or substituted evidence, examining

whether, for instance, there has been an error

at the initial hearing or whether there has been

a change in circumstances, or whether evidence

has been withheld or matters of that sort but that
it should not proceed as though the original hearing

were, as it were, writ upon water.

BRENNAN J:  Well now, in this case there are the new statutory

provisions which came in - - -

MR JAMES:	Yes, Your Honour.
BRENNAN J:	- - - but of those factors that you have just

outlined, is there anything to indicate that

His Honour did not take them into account?

MR JAMES:  Yes, Your Honour. Might I take Your Honours to

His Honour's decision in the first of his judgments

which appears in the appeal book, page 8, and that

decision, Your Honours, is a decision concerning

the applicability of the amending legislation.

BRENNAN J: Well, leaving that aside for a moment - - -

MR JAMES:	Yes, but His Honour decides that on the basis of two questions which he poses at page 11 and
page 12.  They are:

There are two matters which I believe

have to be considered in determining what

the law is that I am to apply today. One
is the nature of the right acquired by the

respondents in consequence of the grant of

bail to them. The other is the nature of

this application for review and rehearing

before me.

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His Honour discusses the vested right at page 12

but at page 13, line 10, His Honour looks to the

TlO	other matter to be considered. His Honour had
held that the right accrued is not:

"affected" by the subsequent amendment -

because they were lawfully at liberty. However,

that turns, also, on the next question to which

he goes because if, of course, the right of review

brings the matter in then that right is so affected.

And His Honour looked at the nature of the application

for review by way of rehearing; he cited what

His Honour Mr Justice Finlay had said in EAVES - which Your Honours will find is matter number 8

in the bundle.	Mr Justice Finlay had said it
was:

a hearing de novo to determine anew whether

there should be a granting of bail on the

evidence and information presented upon the

hearing of the request for review and in

accordance with the law as it exists at the

date of the review.

Now, Your Honours, Mr Justice Finlay in doing

so had relied on an earlier decision of

Mr Justice O'Brien in REG V PAKIS which is to be

found - - -

BRENNAN J:	What is wrong with that?
MR JAMES:	Well, the problem, Your Honour, is that that is

not in addition, or in substitution - when one

examines Mr Justice Finlay's decision and

Mr Justice Roden's and HAMMILL, which is also on

the list, it is as though the earlier grant had

no significance at all. It is as though - - -

BRENNAN J:  I do not see that that appears - - -

MR JAMES:  No it does not - - -

'

BRENNAN J:  Why is it not simply a case of saying tha½ so

far as the exercise of the power is concerned,

it is at large and I can look at the evidence that

is here in front of me; I look at the law that

is applicable now and I make my decision.

MR JAMES:  Your Honour, we accept that it is at large subject

to one limitation and that is the fact that it

is a review of a decision to grant bail so that

in the review proceedings, in our submission, the

accused starts off as a person who has received

a grant of bail by the Supreme Court of New South Wales

and that he is entitled to commence those proceedings

as a person who has received such a grant, and a

proper grant, unless there is something said to be wrong,

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BRENNAN J: That could not be doubted if it is a review case.

The judge knows that he is reviewing a decision

to grant him bail.

MR JAMES:  Yes, Your Honour, but what happens is not that

one looks at the previous decision and the evidence

before that judge to see what change~ or change

in circumstance, or error there might be; what

happens instead is that the applicant is, in effect,

required to come again. And it can be seen in

Mr Justice Roden's second decision that that is

what happens - commencing at page 15 - the one

matter to which His Honour turned was whether there

were special or exceptional circumstances. Having

reached the view that there were no special or

exceptional circumstances that was said to be the

end of the matter and it can be seen that the question

of the existence of the prior grant was treated,

more or less, as if it were a formality providing

a jurisdictional basis for an application by the

Director for a review.

Indeed, when one turns to HAMMILL it becomes

perfectly clear in the reasons of His Honour

Mr Justice Reynolds that it as though he should

pay no attention to the fact that there has been

a prior judgment, a prior orde~ for bail enjoyed

by the applicant.

Your Honours, in our submission, to construe

the words "review by way of rehearing" to mean

that there must be a rehearing de novo is,

necessarily, a great step at the first instance

but to construe them in this way is to construe

them as though the right conferred was to go beyond

what is normally understood to be a rehearing by
way of appeal or by way of review.

WILSON J:  Can you avoid the materiality in Mr Justice Roden's

case - the case that you are seeking special leave

to appeal from - the fact that the law had changed,

the law applicable to this man's bail?

MR JAMES: Well, Your Honour, we would submit that it was

not applicable to his bail because of the transitional
provisions and, further, because he had a right
accrued and that that exposes, better than any

other case could, the problems when one proceeds

in this fashion.

WILSON J: Section 32 - that original transitional provision

did not help him but what about the transitional

provisions to which you referred in the

STATUTORY AMENDMENT (MISCELLANEOUS PROVISIONS) ACT? I have not seen those.

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MR JAMES: I think Your Honour is - I should indicate to

Your Honour there is section 4, is that - - -

WILSON J: Section 4 was the one I had in mind, yes.

MR JAMES:  Your Honour, all section 4 of the BAIL AMENDMENT ACT

provided for was that the Act was to apply:

to bail applied for before the commencement

of this Act, unless the bail has been granted

before that commencement.

WILSON J: Yes. Well, this bail in question was not granted

before that commencement.

MR JAMES:  That is so.

WILSON J: It was granted afterwards and, therefore, you

cannot rely on section 4, it seems,but you mentioned

some other transitional provisions to the

MISCELLANEOUS PROVISIONS ACT.

MR JAMES:  Yes. Your Honours will see them - it is numbered

page 46, we have not copied the whole of the Act

but the relevant portions of it.

WILSON J:	Yes - page 46.	Which is the relevant provision?
MR JAMES:	Numbers 1 and 2, Your Honour.	1 is not directly

applicable, schedule 44 does not concern the
BAIL ACT, but was seen a necessity to insert it.

2, in effect, re-enacts in the MISCELLANEOUS

PROVISIONS ACT section 30 of the New South Wales

INTERPRETATION ACT of 1987, or the effect of that

section.

GAUDRON J: That does not address the problem, Mr James.

MR JAMES:  Not directly, no. It is, at best, an indication

but, in our submission, when one comes to be considering

how the nature of the right the Director of Public

Prosecutions enjoyed to seek review can define

the law applicable it is a matter to be taken into

account in the scales determining whether the result

is correct.

WILSON J:  But whatever the rights and wrongs of your submission

that parties should not be able to seek review
of bail decisions unless there is some change of
circumstances show~ you could not quarrel with

the application for a review in these circumstances

if, in fact, the applicable law had undergone such

a significant change as to subject bail for persons
who have been convicted and awaiting appeal to

be governed by different criteria.

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MR JAMES:  Yes. We could not. We would say, however, that

if that were to be the case, if the law were to

be applicable in a matter affecting the liberty

of the subjec4 then one would expect the legislature,
having directly turned its mind to transitional

provisions such as section 4 and the two paragraphs

in schedule 46, to have said so. And we say that

because not only in such cases as NEWELL,

(1936) 55 CLR 707, in this Court - right to trial

by a jury of 12, and such cases as are referred

to in various of the other decisions of this Court - - -

WILSON J: But, Mr James, the right to the liberty of the

subject sounds rather odd against the loss of liberty

to which a person convicted of a serious crime

and sentenced to imprisonment for 12 years - I

mean you have got to measure it those circumstances.

MR JAMES:  Your Honour, I am not to be heard as suggesting

that there is anything in anyway wrong or inappropriate

in the decision of Mr Justice Brennan of this Court

in CHAMBERLAIN on this precise question. However,

in New South Wales, as the Act existed up to this
point, as the second reading speech of the

Attorney-General introducing the bill made clear,

there was intended to be conferred, except in some

limited matters, a general right to bail at all

stages of the criminal process. And as the

Court of Appeal made clear in HILTON that right, up until the amendments, was enjoyed even after

conviction. Whatever might have been the common
law considerations and, indeed, the applicable
policy considerations in the Northern Territory

or elsewhere, in New South Wales there had been

a statutory right given to liberty on bail once

it was granted and to have bail pending appeal.

And, indeed, the second reading speech to the

BAIL (AMENDMENT) ACT does not give any indication,

nor do the transitional provisions, that there is intended to be the applicability of the new

law to persons already enjoying bail. One can

only get there by the review mechanism - reading	into the review mechanism the hearing de novo or
by the doctrine of relating to a review by way
of rehearing applicable law. And there have been
held to be some limits on how far that doctrine
goes, VICTORIAN STEVEDORING V DIGNAN is one example.

WILSON J:  Take the miscellaneous amendment that it might

be thought corrected the slip that was in number 43

having confined the barrier to bail given by the as I understand your submission, that that amendment

which corrected that and allowed any court to grant

bail and when granting bail to be confined to

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special and exceptional circumstances to have been

rendered inapplicable to cases where bail had been

granted subsequent to the original amendment.

MR JAMES:  Well, Your Honour, what I would have to do is

to demonstrate that it was inapplicable if one accepts that because it was a review by way of

rehearing involves a hearing de novo then this

law would be applicable and it is a law of the

character that would be applicable. But, in any

event, what it is is a review of the bail decision

and, in our submission, that invokes a different

concept to a simple appeal by way of rehearing.

The attention, in our respectful submission, should

be concentrated upon the bail decision which is

being reviewed. There would not then be necessary

a full-scale rehearing of the sort that one sees

on appeals to quarter sessions. One is in a position

to tender what one has had before and this, in

our submission, is precisely what occurs in almost

every analagous situation.

WILSON J: That has this consequence, does it not, Mr James,

that if a prisoner seeks bail or an accused person

and it is refused it is well nigh impossible for

him to get bail from someone else.

MR JAMES:	Yes, and indeed - - -
WILSON J:	Do you want to submit that?
MR JAMES:	I am here to argue this case, Your Honour, but

in our submission, that was intended and it was

precisely at that that the BAIL ACT provisions

enabling him to seek grants of bail were aimed.

He can come again for grants of bail but if he

comes for a review, in our submission, he has to

show why the prior decision was wrong or what the

change in circumstances was. And, Your Honours,

that accords with the English position and Your Honours

will see the extract from Archbold set out at

item 10 in our bundle. It accords with the

Federal Court's appreciation of the matter -

Mr Justice Burchett in NARAIN V PARNEL½ when

considering bail on extradition, precisely cited

the English decisions for that proposition.

WILSON J:  But it is not a power to review the grant of bail

as you have said. It is a power to review a decision

in relation to bail.

MR JAMES:  Yes, Your Honour.

WILSON J: So that whether bail was granted or refused, the

same statutory provisions operate.

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MR JAMES:	Yes.	On review, Your Honour, if an accused person

comes and seeks a review on my argument he must

show that the refusal to him was wrong or there

is changed circumstances or something of that order.

The only way he can get a reconsideration of the

whole of the matte~ on our reading of the Act,

is if he makes a substantive application for bail,

not a review. And that, Your Honours, is precisely

what, as far as we have been able to ascertain,

where there are anything like analagous provisions,

happens everywhere else but South Australia.

Indeed, instructively, I might take Your Honours

to the last item in the bundle of documents, the

English position,and Your Honours will see the

NOTTINGHAM JUSTICES case referred to from Archbold,

that is a case which has been caught up in Queensland

and in Tasmania - the English position is that

the Court should not ignore the previous decisions.

The previous decisions are analagous to res judicata.

On any renewed application for bail, following

such a finding, the court can and should only

investigate whether there are any new considerations

which were not before the court on the previous

occasion. The court later certified the point

but refused leave.

BRENNAN J:  But in this case you have got the change in the

law and the judge says: "I have got a change in

the law; I have got to apply the change in the

law and applying it I make the order that I do"

Now, I understand your argument about what form

he had to adopt or which approach he should take

to it but in this case he had to deal with the

question of whether or not that change in the law

was going to affect his judgment. No doubt, that

that is a new and intervening circumstance and,

putting it at its best, this is an application

for special leave to appeal to the High Court of

Australia for a bail application or from an order

made with respect to bail of a person after conviction,

pending appeal, when there has been a change in

the legislation which the judge has taken into

account. Now, how do you get a special leave point

out of that, Mr James?

MR JAMES:  Because, Your Honour, it exposes a continuing

wrongful interpretation of the Act, in our submission;

a continuing wrongful interpretation of the Act

which has clogged the bail lists in New South Wales

and permitted application after application to

be made to different judges and that is why I took

the Court to 39A.

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GAUDRON J: Mr James, you do not reach that position, do

you, until you establish something of the nature

of section 4 in the first amending Act applicable
to this. If you can establish something which

says that the subsequent amendment is not to affect

decisions already given, you may get to that point.

MR JAMES:	I take Your Honour's point.
GAUDRON J:	But, you do not have that intermediate step in

your brief, do you, really - in your argument?

MR JAMES:  Yes, I think I do, Your Honour, in two ways.

The first way is that the doctrine which applies

existing law to the hearing date of appeals by

way of rehearing has always been circumscribed

not all law is necessarily applied and we would

submit this is not the sort of law that would be

applied. Secondly, the BAIL ACT confers a statutory

right; a right to be on bail and at liberty "subject

to this Act".

WILSON J: Until the next review.

MR JAMES: Well, it does not say that, Your Honour. It says

"subject to this Act" and one has to utilize those

words to indicate the interpretation of the review right. Thirdly, that law only becomes applicable,

since nothing has been said by the legislature
to indicate otherwise, if the nature of the review

hearing is defined in such a way as to make it

applicable. And, lastly, in our submission, when

one comes to examine what the legislature said

about the transitional provisions, if they had

been meaning for it to be applicable, bearing in

mind what they did say, they would have said so,

particularly in the light of the second reading

speech which gives no indication that it is to

effect ·the existing grants of bail. Had that

been the case, of course, there would be no argument

on this question.

WILSON J:  But they made their position plain in section 4

with respect to the substantial change that they

made in respect of conditions for bail to convicted

persons and when they came to correct the courts

that could deal with it, it is quite understandable

that there was no occasion to give any further

attention to a transitional provision because the

substantive change had already been made.

Can I cumulate still further the difficulties

confronting you, Mr James? The original grant

to your client of bail - one of the principal

considerations was the lack of prospect of a date

for trial, there were difficulties in transcript

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and so on and that was a consideration of hardship

that motivated the grant of bail. So it is not

only the change in the law that has become applicable,
but the fixing of a date for the appeal which I

understand is now in September.

MR JAMES:  Your Honour, had that been ventilated before

Mr Justice Roden there might have been, in our

submission, a change in circumstances.	What happened,
however, was - - -

WILSON J:  But special leave - it is one of the facts that

are now in the materials before us and - - -

MR JAMES:  He has got a date on 16 September.

WILSON J: - - - what I am afraid of is that if we granted

special leave, conceding for the moment the merits

of the other points that you have made, your client

would probably be in the Court of Appeal before

he got any relief, so that it would really be an

advisory opinion and the matter, perhaps, should

therefore stay with the legislature to correct

the bail lists if they are so impossible.

MR JAMES:  Your Honour, that would normally be quite sufficient

to dispose of this application. The difficulty

is that the matter has been now ventilated in terms

of the nature of review for some years and the

legislature have not chosen to elucidate the matter

any more than I have indicated to Your Honours.

Next, of course, this case, whilst we come

here for this man and say that it exposes the problem
better than any other, is only one am:mg a number of

cases and, indeed, there have been some 16 persons

who have had their bail reviewed, that bail having

been granted pending appeal to the Court of Criminal

Appeal, and weekly in the Supreme Court of

New South Wales one supreme court sits reviewing

the decision of the supreme court only shortly

prior whether at the instance of the applicant	or at the instance of the Crown and that has led,
of course, to a great difficulty in substance.
And that is why, Your Honours, I said this is a
matter in which special leave should be granted
not because of the usual considerations but because of those considerations to which the JUDICIARY ACT
particularly aims when such unusual situations
come and that was the reference, Your Honour~ to
section 35A(ii) and 35A(b) - in the administration
of justice. It is not an advisory opinion, there
is an instant case which exposes the difficulty.
It may not do this man the world of good, bearing
in mind the time that could elapse but it is a
matter, in our submission, that requires special
leave in the interests of justice.

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BRENNAN J:	The question will become moot in September.
MR JAMES:	I wish one could say that, Your Honour, but there

is another person placed in this situation who

has - - -

BRENNAN J: Well, that may be so but this case will become

moot in September.

MR JAMES:  Well, it may, Your Honour, if, in fact, it gets

on in September and, unfortunately, matters in

New South Wales have had to be stood out.

BRENNAN J:  Yes, I appreciate that.

MR JAMES:  One man on two occasions. Your Honours, perhaps,

that is as much as I can put to the Court in support of the application. I would close simply indicating

that it is a novel application but the Act is wide

enough to contemplate such a novel application

and the real reason why one is in this Court is

that without going back to the supreme court again

to seek to review Mr Justice Roden's decision,

or on a further grant application, there is nowhere

else that one can come to on these questions.

They are the submissions we would make.

WILSON J:  Thank you, Mr James.

The Court does not wish to trouble you,

Mr Howie. The Court is appreciative of all that

Mr James has said and is not unmindful of the

practical difficulties that apparently have arisen

in the operation of the BAIL ACT, but looking at the circumstances of this particular application
the Court is of the opinion that it is an

inappropriate case upon which to grant special leave. The time considerations and the likely expectation as to the date of trial are such as

to make it of little value to the applicant in

the circumstances to make the grant. It would

be all too likely to become moot. For those reasons

the application for special leave is refused.

MR JAMES:	May it please the Court.
MR HOWIE:	Would Your Honour grant our costs in this matter?
WILSON J:	What do you say about that, Mr James?

MR JAMES:  Your Honour, this is brought as a civil special

leave application. It is, however, a matter arising

in criminal proceedings; it is a bail matter; it

is the only court to which a bail appeal can be

brought and, in our submission, it should be treated

as though it were an application for special leave

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in criminal proceedings. After all we are barred

from going to the Court of Appeal in New South Wales

because it is regarded as criminal proceedings
and in those circumstances we would seek that the

usual rule observed in criminal proceedings should

apply and that there be no order as to costs.

WILSON J:  The Court will not order costs in this matter.

AT 3.30 PM THE MATTER WAS ADJOURNED SINE DIE

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