Challita v The Queen

[1988] HCATrans 50

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

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for a stay

Application for bail

TOOHEY J

( In	Chambers)
Challita

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MARCH 1988, AT 10.14 AM

Copyright in the High Court of Australia

C3Tl/l/RB 1 22/3/88

MR G. JAMES, QC:  May it please, Your Honour, I appear for the

applicant with my learned friend, MR T. BUDDIN:

(instructed by J. Cooke, Legal Aid Commission of

New South Wales)

MR R.N. HOWIE, QC:  If it please the Court, I appear with my

learned friend, MR N.J. PARSONS, for the Director of

Prosecutions, the respondent. (instructed by Mr H. Hamilton,

for Director of Public Prosecutions)

HIS HONOUR: 

Yes, Mr James?

MR JAMES: 

Your Honour, I move on summons for a stay pending

the hearing of an application for special leave to

appeal from the judgment of Mr Justice Roden sitting

as the Supreme Court of New South Wales under the
BAIL ACT of New South Wales reviewing and revoking

the bail of the applicant granted pending the hearing
of an appe~l by that applicant in the Court of

Criminal Appeal in New South Wales.

I move on the affidavit of David Michael Swain

sworn 17 March 1988. That affidavit reads as
follows - - -

HIS HONOUR: Just before you go to the affidavit, Mr James,

you need an abridgemsnt of time, do you?

MR JAMES:  We do and we would seek that abridgement. I

understand that there is not contest on that matter.

HIS HONOUR: Well, I will deal with that first. Mr Howie, is

there any objection to an abridgement of time?

MR HOWIE:	No, not at all, Your Honour, no.
HIS HONOUR:	Very well. Well then, time will be abridged to

enable this application to be dealt with this

morning, Mr James.

MR JAMES:	May it please the Court. Turning to the affidavit,
Your Honour; that is the affidavit of David Michael Swain who deposes as follows: I am a solicitor employed by the Legal

Aid Commission of New South Wales - - -

HIS HONOUR:  Mr James, I will not ask you to read the affidavit.

I have read it, but by ~11 means take me to any parts

of it that you wish to.

MR JAMES: If Your Honour pleases. Your Honour, the short

history is that the applicant was convicted on

18 June 1987 by His Honour Judge Denton in the

District Court of New South Wales following a verdict

of guilty in relation to two counts in an indictment.

Those counts were a conspiracy to supply heroin and

the actual supply of heroin. He was sentenced to

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12 years imprisonment with a non-parole period of

7% years and has appealed to the Court of Criminal

Appeal.

Your Honour, the matter has now been mentioned

in the Court of Criminal Appeal, notwithstanding what

appears at page 2(d) and although no grounds of

appeal have yet been filed by the applicant or the

co-appellants I understand that lo September has been

set aside as a hearing date for the appeal.

Consequently paragraph (e) has been superseded by

events.

The opinion referred to in paragraph l(f) which

is annexed to the affidavit is a preliminary opinion

and does not purport to set out exhaustive grounds of

appeal. We have obtained, on application to ·-

His Honour Mr Justice Roden for a stay of his own orde~ the tenor of his judgment on that application.

Unfortunately, in New South Wales the court reporting

branch is under considerable strain because of the

volume of matters and on the day in question a casual

reporter was all that was available which meant

His Honour's judgment could not be typed in time for

this present application.

Working from the notes made by my junior during

the delivery of judgment by His Honour on that

application we have been able to prepare a judgment

in the sense that it sets out the tenor of what

His Honour had said and that has been made available

to my friend. Now, that may be of some assistance

to Your Honour as to the way in which His Honour

approached a stay. Might I hand to Your Honour

those notes of judgment?

(Continued on page 4)

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HIS HONOUR:  Mr Howie, is there any objection to my having

this material?

MR HOWIE:  No. In fact, my instructions are it accords with

HIS HONOUR:	Thank you.
MR JAMES:	I apologize for the typing errors, Your Honour -
prepared in some degree of haste.

Your Honour will see at the conclusion of that

judgment at the bottom of page 2 and on the top of

page 3 I was able to take His Honour, thanks to

the summing up being available and the counsel

briefed on the appeal having further opportunity

to look at the matter, to some additional matters

which might well found grounds of appeal such

that His Honour was of the view that it was a matter

that could properly be raised on a review application

by way of special or exceptional circumstances.

Your Honour, the material that appears in

paragraph 2 of the affidavit sets out the personal

and chronological material relevant to a bail

application itself and the most notable portion of

it appears at page 3 in paragraph 2(d):

The applicant has no prior criminal

record and has never previously failed

to appear in Court pursuant to a

grant of bail.

He was granted conditional bail two days after his

arrest and bail was continued ~lbeit with the

relaxation of conditions through until bail was

refused. when he was convicted on 18 June 1987.

On 29 September 1987,he then having been in custody between June and September, he applied for bail

to the Supreme Court of New South Wales and bail was

granted by Mr Justice Wood.	Annexed to the affidavit
and marked with the letter Bis a true copy of
His Honour's judgment.	Your Honour will see that

is a shnrt-form judgment in which His Honour had

dealt with a number of the applicants for bail who

were the appellants.

In essence, all His Honour says is:

I make it perfectly plain I am only

prepared to grant the application because of

the totally unacceptable dealys in transcripts

and consequent delays in bringing on of

appeals. One of the matters which that

affects is s 32B of the BAIL ACT in relation

to each applicant, and the community should

be aware that as a consequence of those
delays there may well be people who have to

be allowed bail when they may not otherwise be.

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And bail was granted on terms. Following the

grant of bail by His Honour Mr Justice Wood, the

BAIL ACT, which had been considered in REG V HILTON

(1986) 7 NSWLR 745 - the Court had made plain in

that decision that the common law requirement of
special or exceptional circumstances did not run,

of itself, in relation to bail pending appeal in

C3T3	New South Wales. Further, that court reaffirmed that there was no appeal, as such, in New South Wales to the Court of Appeal or to the Court of
Criminal Appeal in respect of a bail matter, that
having been laid down in such cases as HARROD,
JURE MAR.IC and - in particular JURE MARIC and
ARNOLD's case.

Your Honour, the legislature in May 1987

inserted at the end of section 30 of the BAIL ACT

the subsections set out at the bottom of page 4

in paragraph 10 of the affidavit. It is

paragraph 2(e)(l0). That was done, Your Honour,

by the BAIL (AMENDMENT) ACT 1987, No 43. Might I hand to Your Honour a photocopy of that Act. And I can hand up to Your Honour a copy of the BAIL ACT

in clean form which may make life a little easier on

the reading.

HIS HONOUR: Well, that section, Mr James, that is section 30,

was in force at all material times, was it?

MR JAMES:	Section 30 was an existing section, an extant
section at all times. It was amended by the
BAIL (AMENDMENT) ACT 1987, No 43, and that
section provided that the Court of Criminal Appeal had power to grant bail.
If I might digress to look at the scheme of the Act for a moment. The BAIL ACT of New South Wales
was a novel or, indeed, unique Act when introduced.
By section 62, all inherent powers or common law
powers to grant bail were abolished and the Act became, in effect, a code in New South Wales for the
granting of bail. Bail was defined by section 4(1)
to mean:

authorisation to be at liberty under this

Act, instead of in custody.

By section 6 the Act provided for a scheme whereby

bail could be granted for certain periods and -
criminal proceedings were, as it were, divided into

particular periods such as:

the period between his being charged with

the offence and his first appearance before

a court -

and by section 7 was provided a statutory right to

be released and to remain at liberty in respect of

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the offence once bail had been granted, subject

to the provisions of the Act. By section 9

there was a presumption in favour of bail for

certain offences and that is not applicable in the

case of this applicant. And the Act then went on

to provide for particular kinds of bail. In

Part III "POLICE BAIL", in Part IV "COURT BAIL".

Court Bail was dealt with by way of postulating

an application by the applicant for bail and

by section 22 there was no limit on the number

of applications that could be made. That Part,

that is to say, Part IV "COURT BAIL", was divided

into divisions referring to the various courts

to which bail or which may grant, on an

application, bail. And the scheme of the Act

was such that by section 28 the supreme c~urt had
the overriding jurisdiction in relation to bail.

Consequently, notwithstanding section 30, the

Court of Criminal Appeal, which one would normally

think would have the overriding supervisory

jurisdiction did not have, and indeed bail was

granted in New South Wales on application to a
single judge of the supreme court pending an

appeal to the Court of Criminal Appeal.

(Continued on page 7)

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MR JAMES (continuing): That becomes important, Your Honour,

because when section 30 was amended all that that

amendment did, so it was held in some subsequent

decisions, was to require special or exceptional

circumstances when the application was made to

the Court of Criminal Appeal. So if you applied

to the supreme court for bail pending an appeal
to the Court of Criminal Appeal you did not have

to show special or exceptional circumstances.

HIS HONOUR:  You mean you could take advantage of the criteria

in section 32?

MR JAMES:  You could take advantage of the section 32 criteria

in every court but you did not have to show special
or exceptional circumstances if you went under 28

instead of under 30. And you had, in effect, the

choice or, more practically, you had only one option

because the only person you could go to, the only person sitting, was a judge of the supreme court.

Following that coming to light in a number of decisions, the legislature again amended the

BAIL ACT and this time by the passing of a STATUTE

LAW (MISCELLANEOUS PROVISIONS) ACT which, by the

schedule~ dealt with the BAIL ACT and section 30

was amended by inserting after section 30(2) and

renumbering the sections;'or any other cour~~

And I can hand to Your Honour the STATUTE LAW

(MISCELLANEOUS PROVISIONS) ACT relevant portions.

And that is why the affidavit continues to

set out the legislative history which is otherwise
slightly complex. In this case that meant that

following the grant of bail by Mr Justice Wood a requirement was introduced into the Act that

special or exceptional circumstances be shown by

an applicant for bail. And on 24 February 1988,

after the second of the two amendments had come

into effect, an application for review of the

grant of bail by the Director of Public Prosecutions

was listed before His Honour Mr Justice Roden.

The Act had provided that the right to make

application to a review or for a review was limited

to the informant being a police officer, the accused

person and the Attorney-General. By the MISCELLANEOUS

ACTS PUBLIC PROSECUTIONS AMENDMENT ACT of 1986

that right was extended to the Director of Public

Prosecutions and His Honour, in reviewing the bail

on the application of the Director of Public

Prosecutions held that section30AA of the BAIL

ACT imposing the requirements now for special

or exceptional circumstances applied on such a

review, that such a review was a rehearing de novo

and that therefore the law to be applied was the

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then extant law incorporating section 3OAA and that the applicants had failed to show special

or exceptional circumstances. That is, the

applicants here, they were the respondents before

His Honour.

And we had, Your Honour, sent - faxed down

to the Court copies of His Honour's two

judgments.

HIS HONOUR:	Yes, I have read those.
MR JAMES:	And the application was made to His Honour to

stay that order to permit two questions to be

decided by this Court on a special leave application

and they are, firstly, that the nature of a review

application under the BAIL ACT was erroneously

determined -by His Honour and, secondly, that

His Honour erred in his construction of the BAIL

ACT incorporating the amendments such as to hold

that they had effect in relation to the bail already

granted to the applicant.

(Continued on page 9)

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HIS HONOUR:  Mr James, I take it no step has been taken to

challenge the decision of Mr Justice Roden within

the judicial structure of New South Wales?

MR JAMES:  No, Your Honour, it cannot be except by way of

an application by the applicant for review and,

indeed, what has happened in New South Wales in

a number of cases is that where one judge, constituting

the court, has granted bail an approach has been

made by way of review to another judge consitituting

the court to review that bail decision although

there have not been a material change in factual

circumstances to warrant the application. Indeed,

it has been held on a number of occasions in

New South Wales that the review right, as it were,

is untrammelled by any requirement that there should

be a material change in circumstances or some fraud

or concealment on the earlier application, or fresh

evidence, or anything of that order.

HIS HONOUR:  Presumably section 22 would permit your client

to return to the supreme court although, I take

it, you would say he would be met with the argument

that special or exceptional circumstances are required?

MR JAMES:  Yes. If Mr Justice Roden is right my client could

return to the supreme court under section 45

permitting my client to seek that another judge

review Mr Justice Roden's decision.

HIS HONOUR:	Why does he need to obtain a review?
MR JAMES:	He does not, Your Honour.

HIS HONOUR: He would take one of two courses; he ··could apply under section 22,

although section 22 does not, as it were, confer
a right, it simply removes the limitation, I should

say. Is section 45 the operative section?

MR JAMES:  No, section 45 gives a right to review. The right

to make application for bail to the supreme court

is to be found in section 28.

HIS HONOUR:	So both courses are open?
MR JAMES:	Both are open but the problem about both of those

courses is that as to the first, the right to make

application for bail, we would concede that if he

know makes application for bail he would be caught

by the amendments as they now stand.

HIS HONOUR:  Although you would argue that he was not caught

at the time of the hearing before Mr Justice Roden?

MR JAMES:  That is so. But, if Mr Justice Roden's decision

stands, then any application made by my client

for review as opposed to grant, would be caught

by Mr Justice Roden's decision and we would still

have to show special or exceptional circumstances.

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HIS HONOUR:  Although, in reviewing a decision, would

it not be open to the supreme court to take a different

view of the application of the statute law provisions?

MR JAMES:  Yes. Another judge could well take the view that

Mr Justice Roden was wrong in his view of the effect

of the amendments.

HIS HONOUR:  I suppose that prompts the question, then:

ought not your client to have exhausted that right

before seeking from this Court the order that he

seeks?

MR JAMES:  Your Honour, technically that would require us

to go to every judge of the Supreme Court of New

South Wales.

HIS HONOUR:	I was not suggesting that.
MR JAMES:	But could I indicate to Your Honour that

Mr Justice Roden is not alone in his view and might

I hand up to Your Honour Mr Justice Finlay's decision

in a matter of GLEN ANTHONY EAVES where His Honour

similarly reviews and revokes bail which was granted

one day prior to the second amendment coming into

effect.

HIS HONOUR:  You seem to me to be taking me into an area

which strictly speaking is the area of the application

for special leave.

MR JAMES:	That may be right, Your Honour.
HIS HONOUR:	I do not think it is appropriate for me to express

a view on this hearing as to the correctness or

otherwise of the view taken by Mr Justice Roden?

MR JAMES:  No. We would only seek, though, to put forward

that there is an arguable question and that there

is a strong probability, we would submit, that

the application for special leave would succeed. (Continued on page 11)

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MR JAMES (continuing):  The reason why we have raised that,

of course, are the matters referred to by

Mr Justice Brennan in JENNINGS V BURGUNDY ROYALE

and, looking at the various criteria for the

grant of a stay, we would submit that there is a

strong submission to be made that Mr Justice Roden

was wrong on both or either of the two matters we

raise. But both or either of the two matters we

raise raise matters of general importance, not
only in relation to the New South Wales BAIL ACT,

with what amounts to a situation of judges

constituting the Court overruling each other in

a novel fashion; indeed, in a fashion that would not

even be permissible in child custody matters, where there is always a right to rrake immediate application

to the Court, but a material change in circumstances

has always been the criteria for further intervention.

HIS HONOUR:  One difficulty that faces you here is that,

although in form the application is to set aside

or stay the order made by Mr Justice Roden, in truth

it is an application for bail.

MR JAMES:  With respect, Your Honour, it is an application

to preserve Mr Justice Wood's grant of bail. Now, in so far as it is or partakes of the nature of an application for bail, it only does so because the

Director has intervened, by way of review proceedings,

to have bail reviewed and revoked.

HIS HONOUR:  Yes, but having intervened, the situation is that

the earlier bail order has been reviewed and has been

revoked.

MR JAMES:  Yes, Your Honour, but what we are seeking to preserve

is the statutory right to be and remain at liberty

under section 7 of the BAIL ACT which, we submit, is

not properly affected by the amendments and nor could

it be by a mere application by the Director to review,

thus, as it were, if the decision such as PAKIS, on

which Mr Justice Nimmo and Mr Justice Roden rely, talking

about a hearing de novo, were correct, would

simply mean that by the mere lodgment of a piece

of paper, the applicant has to renew again the

already granted bail.

We say that that is exactly the sort of - perhaps

absurdity is too strong a word - but inconsistency,

which vJOUld indicate that· the statutory interpretation

process in New South Wales has gone wrong. The

difficulty is that the subject-matter of the litigation
is the right to be and remain at liberty since

Mr Justice Wood's bail determination. That would effectively be lost unless there were a stay of

Mr Justice Roden's order.

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HIS HONOUR:	But why do you say that? That simply is to select one of two results and fasten on to the
earlier result.
MR JAMES:	Because, Your Honour, section 7 does give us that

statutory right. Section(l):

When -

(a) bail is granted to an accused person

in respect of an offence;

(b) he enters into the bail undertaking; and

(c) if a bail condition or bail conditions

are imposed, it or they are entered into,

he is subject to this Act, entitled to be

released (if in custody) and to remain at

liberty .in respect of the offence, until he

is required to appear.

Now, the subject of;this Act is the only qualification

to that right. The amendments, it would be contended -

or, as Hr Justice Roden held - had effect such as to

qualify that right in a way which we submit is
contrary to the normal canons of interpretation and,

indeed, particularly contrary to the INTERPRETATION ACT of

1987, New South Wales, section 30 which includes now

amendments with repeals as not affecting:

Any right, provilege, obligation or liability
acquired, accrued o.r incurred under the Act

of statutory rule;

the old equivalent of section 8 of the ACTS INTERPRETATION

ACT - - -

HIS HONOUR:  But in relying upon that provision, you are again taking me into an area which is more properly

the function of the court before whom the application

for special leave comes.

(Continued on page 13)

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MR JAMES:  I am merely seeking to do that, Your Honour, in

answer to what Your Honour had put, that this is, in

substance, a bail application. In our respectful

submission, it is not. It shares that in the bail application in a lot of ways because the end result

would be that we would be returned to the bail that

we were on, but we are not seeking a grant of bail by

this Court. We are merely seeking that the order

adversely affecting our bail be stayed.

HIS HONOUR:  I thought you were. I thought that was what

your application - - -

MR JAMES:  Prayer 3 is alternative to 2, Your Honour.

In the summons prayer 3 is alternative to prayer 2.

HIS HONOUR:	What you are seeking by way of stay is a stay of the order of the decision made by Mr Justice Roden
refusing bail?

MR JAMES:	Yes, that is so.
HIS HONOUR:	Now, if that was stayed - in a sense, that is a

slightly unorthodox concept, I suppose.

It is staying a negative thing. What does that do?

It simply keeps that order in suspense and inoperative

until this Court has dealt with the application for

special leave.

MR JAMES:  And we still have Mr Justice Wood's bail and we are

entitled to be released on it under section 7.

Your Honour, it is a matter of some urgency. The

urgency becomes considerably less, of course, if the stay is granted, but otherwise this man is serving a period of confinement which does not count towards his

sentence and I raise that because Mr Justice Brennan

in CHAMBERLAIN -the relevant passages

in CHAMBERLAIN (No 1) have been cited in various

other decisions- proceeded on an examination of general

principle appropriate to the Northern Territory.

The New South Wales CRIMINAL	APPEAL ACT, by
section 18(3) provides that:

The time during which an appellant,

pending the determination of his appeal,

is at liberty on bail, and (subject to any

directions which the court may give to the

contrary on any appeal), the time during

which an appellant, if in custody, is

specially treated as an appellant under

this section, shall not count as part

of any term of imprisonment or penal

servitude under his sentence.

And the consequential provision is that the sentence

is to run from the date that the appeal is determined.

Now, the court in New South Wales, almost as a matter

of course where the Crown does not object, does make

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such an order. There have been cases in which the

Court has refused an order in whole or in part where

the appeal is patently unarguable, but the technicality

of it is that it is not the jury verdict that is being

in any way denigrated by this application, as it was

suggested would happen in CHAMBERLAIN, because of

this statute in New South Wales and because, of course,
the confinement to prison arises from the conviction
and the sentence rather than the jury verdict.

In our submission, the New South Wales position is very different to CHAMBERLAIN.

I raise that, Your Honour, not because I am making

a grant of bail, and I am straying out of my field

again, but because we are seeking the staying of the

order and we say that the subject-matter of the

litigation, that is the efficacy of Mr Justice Wood's

bail decision, will be destroyed without the

intervention of this Court.	Your Honour, that really
is the argument on the stay application.	Unless

there is any matter arising from what Mr Justice Roden

had said, or any matter to which I can take Your Honour

concerning the merits of the appeal, the substantive

appeal, that is really what we would seek to put on

the basis that the stay should be granted, but there

is one last matter I should mention, and that is that

there does not appear to be any contention that the

man is unlikely to attend his appeal, except as arises

from the fact that he has been convicted and sentenced

to a lengthy term of imprisonment. Nothing more

directly personal or active in his case seems to have

effect here. Unless I can assist Your Honour further

they are the submissions we -

HIS HONOUR:  Just one question which I have already asked you,

Mr James, and I do not doubt that you have answered,

but I am not sure that I appreciate precisely the

position in so far as an appeal, or the possibility

of an appeal to the Court of Criminal Appeal from the

decision of Mr Justice Roden is concerned.

You say no appeal lies. (Continued on page 15)

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MR JAMES: 

No, there is no appeal anywhere under the Act and nor can the Court of Criminal Appeal review

the decision of any court on a bail decision except

its own and that is provided - - -

HIS HONOUR: 

But is the decision of Mr Justice Roden not

susceptible of review under some more general
provision than the provisions of the BAIL ACT?

MR JAMES: 

No, the only way to review Mr Justice Roden's

decision is to go to another supreme court judge

under the BAIL ACT asking for a review in that

fashion. Indeed, Your Honour, it went so far

that in a previous decision of HAMMII.1.,we
attempted to convene a banco court of Supreme

court judges to review a single judge's decision

and that is unfortunately not available because

of our SUPREME COURT ACT. There is no avenue

except to go back to another judge, sitting as

the Supreme Court of New South Wales and the theory seems to be,subject to some limitation being read into the Act on the number of review

applications, that a director of public

prosecutions and an accused may happily continue

until they exhaust either their funds or the

entire supreme court.

HIS HONOUR: Yes,_than you. Mr Howie?

MR HOWIE:	Does Your Honour wish re to address the special leave matter? We
vJOU.ld concede, if it is needed to be done, that it is a bona fide
application.  We would not, however, concede that
it has particular merit, the special leave
application for these reasons: firstly, we now
have a hearing date which might,of course, change
any consideration in relation to a bail determination or review. There is now a change of circumstance to some degree so that a review by another supreme court judge may have or not a different
end result. At the time in which these justices were considering the matter there was no date
as to when an appeal might be heard and there is
a change of circumstance.

Secondly, on the two grounds that the

application for special leave is being put, on the

first ground, that is, the question of whether the

statute - the amending statute applied, we would

say there is no special leave in this case because

Mr Justice Wood granted bail only - for the only

reason he granted bail to the applicant was that the delay before which an appeal would be heard

and Mr Justice Roden, when delivering judgment in

this matter in the first judgment, decided that

in fact that was one of the special circumstances

that could be taken into consideration when

15

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determining under the new legislation as to whether or

not there were special circumstances existing.	So
that the two factors, as it were, or that one

factor, were considered by each of the justices in

the question of whether or not the bail should

be granted by His Honour Mr Justice Wood who

said it was the only factor upon which he could

grant bail and by Mr Justice Roden as a special

circumstance. Mr Justice Roden, of course, refused

bail, but he obviously came to a different view

of that then from Mr Justice Wood, which we say

he is entitled to do.

So to that extent,therefore, we would say

that the change of legislation in this particular

case- in these particular facts is a little bit of

a red herring. On the more general point of the

mechanism for review, Your Honour, the case of

PAKIS which is reported, has been in existence since

1981. There seems to be no determination by

any other justice of New South Wales of a differing

view of the review mechanisms and therefore it is
not a case where there is some conflict between

various justices which needs to be resolved by

a court. All justices of the Supreme Court seem

to be of the same view and PAKIS has been in

existence in 1981 without any leave to appeal being

sought. Your Honours, we would throw some doubt

on the fact as to· whether there is a special leave point in this case. As to the stay, we would draw

Your Honour's attention to a case of KELLEHER V GOVERNOR

OF GOULBURN TRAINING CENTRE,(198~ 61 ALJR.

Your Honour, if Your Honour has a look at that

matter, even on the headnote there:

Where the subject matter of litigation

is the liability of the applicant to

remain in custody until his trial -

if one inserts the word "appeal" for 'trial'.', we would

suggest that it is exactly the same as this case:	granting bail would as much destroy as
preserve the subject matter.

His Honour goes into the substance of the reasons in the last paragraph:

It suffices to say that there is no jurisdiction to grant bail in the present

case save the inherent jurisdiction

of the Court which may be exercised to

preserve the subject matter of litigation.

The stay here is in exact~y the same pace, it comes from

the inherent jurisdiction of this Court to preserve

the subject-matter of the litigation:

16

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The subject matter of the litigation here is the liability of the applicant to

remain in custody pending his trial.

And we would say "appeal".

Granting bail would as much destroy as

preserve that subject matter.

(Continued on page 18)

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MR HOWIE (continuing):  Your Honour, there is a statement

to the same effect in CLARKSON, again a decision

of Mr Justice Brennan.	I will give you a copy
in a minute.

HIS HONOUR: We have that also, thank you.

MR HOWIE:  You have that also, Your Honour. Your Honour,

there, at page 287 of 69 ALR, right in the middle

at about 30:

Even if the purported appeal had been validly instituted, 0 70, r32(3) is a rule intended

to deal with the very exceptional case where

it is appropriate to grant bail for the purpose

of preserving the substance of the right to

appeal or to seek special leave to appeal

in a criminal matter. This not such a case.

This application, if granted, would lead to

the making of an order for bail that would

give the applicant the very relief which he

was refused by the order which he seeks to

canvass on appeal.

And we say that is exactly the same situation

here; what is being canvassed is Mr Justice Roden's

decision. To grant bail, or to grant a stay of that

would be to,. in effect, grant h:i.m bail and deprive

that of its validity.

HIS HONOUR: Mr James would say, Mr Howie, that in truth

the application is not one seeking bail but one

seeking a stay of the order made refusing bail.

MR HOWIE:  Yes, but, Your Honour, the application for bail

and the application for stay are exactly the same.

They both derive from the inherent jurisdiction

of the Cnurt; they both are there to derive to, as it were, to preserve the matter which is the

heart of the litigation.	We say her~ by the stay
of Mr Justice Roden's second judgment, it in effect gz-ants him bail by preserving - by bringing	into effect Justice Woods and destroys the whole
basis of the litigation which is here and that
is the question of his entitlement to be at bail
pending the determination of his appeal to the Court of Criminal Appeal. That is the substance of the litigation; to grant him bail deprives it of its substance just as much as, in effect, to
not stay and refuse him bail. It is a two-edged
sword, it is a double coi~ to some extent,because either way tends to interfere with the litigation
before the Court. And, Your Honour, we would say
that in the principles which have been expounded
in CHAMBERLAIN in relation to bail, where there
has been a conviction, the Court here should not

C3T10/l/AC	18	22/3/88
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stay Mr Justice Roden's, that the effect of that is in accordance with the general common law and

the general views about bail from convictions to the Court of Criminal Appeal and it would be, in fact, to bring about the same basis as existed

at common law and His Honour Mr Justice Brennan

talked about in CHAMBERLAIN.

Your Honour, they are the only matters I

really want to put to you on the stay. It is,

with respect, a fairly straightforward matter.

I do not know, unless Your Honour wishes me to address anything in particular, I could - - -

HIS HONOUR:  Just one matter, Mr Howie. To get your confirmation,

or otherwise, of the proposition put forward by

Mr James that there is no right of appeal from

the decision of Mr Justice Roden to the Court of

Criminal Appeal~

MR HOWIE: Yes, that is right, Your Honour. If I might just

mention it and that is the question of the time to count, that is whether the time that he is in custody will count; there is nothing before this	say one other matter and my learned friend did read out from the COURT OF CRIMINAL APPEAL ACT
that he is being specially treated and, therefore,
could lose his, or not get an order from the Court,
gaining him time - there is nothing to show that
he is being specially treated as an appellant and,
therefore, that his time in custody is in jeopardy.

Thank you, Your Honour.

HIS HONOUR:  Mr James, do you say anything by way of reply?

(Continued on page 20)

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MR JAMES:	In relation to that, we could, if the Director really wishes us to do so, subpoena the papers
to see if they are marked with the customary
stamp, "appellant" but, Your Honour, the section
is fairly clear.  The arguments put before
Your Honour,leaving aside the question of whether
the obtaining of a date is such a material change in circumstances as would enable the Director to obtain a review of bail in any event, the correctness of PAKIS was advanced to Your Honour .

Your Honour, that decision firstly did not

a magistrate. It has been adopted

concern the Supreme court reviewing the supreme court. decision of

because of some general words in it as being an

expression of the true meaning of the exercise

of a power of review by way of rehearing. As to

that, at page 136, last paragraph of the 1981

3 Australian Criminal Reports' judgment indicates

where His Honour falls into error in his finding

. that a review means, in effect, a de novo hearing.

His Honour simply says:

It seems to me that this is clear enough

from the totality of sub-s.(3) which, in
addition to providing that the review shall

be "by way of rehearing", further provides

that 'evidence or information in addition

to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review". This, I think, makes it clear

that this review is not an examination of

the question whether the magistrate in some way erred in the exercise of the discretion vested in her but is a re-examination of the

question whether and on what conditions, if

any, bail should be granted and the

re-examination is upon such evidence or

information as is before this Court for that

purpose. It is, effectively, a hearing de
novo.

Your Honour, what His Honour has done is to

postulate two concepts, the first being the

HOUSE V REG appeal on discretion and the second

being a complete de novo hearing. There is no reason
or argument advanced in that judgment for the

preference of those two over the other many meanings

that could be attached to rehearing and, of course,

more importantly, His Honour confines his examination

to one subsection. When one looks at the part
relating to review it relates to review of decisions

and the variation of decisions and, if it is a hearing

de novo, then that material in the Act is wasted.

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Your Honour, as to what was put in terms of

the destruction of the rights, as it were, that
the accused should remain in gaol, Your Honour,

what is to happen if this man, having got a grant

of bail, having had it reviewed, is acquitted on

his appeal? And, it is a balancing process when

one comes to a stay but, in that regard, the

liberty of the subject whose time in custody is

not by virtue of the statutes to be counted

towards his sentence and who has a grant of bail

is to be weighed against the right of the Director

of Public Prosecutions to attack his right to be

at liberty by virtue of such a review provision as

this where the case seeks to have the nature of a

review provision and the applicable law considered

for the first time in an appellate court.	They
are the submissions we make, Your Honour.

HIS HONOUR:  Yes, thank yo11, Mr JamPs.

(Continued on page 22)

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HIS HONOUR: 

On 18 June 1987 the applicant was convicted in the District Court of New South Wales following

the verdict of a jury finding him guilty of both

counts in an indictment charging him with

conspiracy to supply and supplying heroin.

On 7 August 1987 he was sentenced to 12 years

imprisonment with a non-parole period of 7½ years.
The applicant has appealed against conviction to the

Court of Criminal Appeal. His appeal, I am told,

is listed for hearing on 16 September 1988.

The applicant was arrested on 9 April 1984 and,

broadly speaking, was on bail until the conclusion

of his trial on 18 June 1987. On 29 September 1987

Wood J. granted the applicant conditional bail

largely, it would seem, because of likely delay

in the hearing of his appeal. The uncertainty then

surrounding the hearing date of the appeal has been

resolved by information given to the Court this

morning.

On 24 February this year Roden J. heard an

application by the Crown to review the decision

granting bail. His Honour refused bail and revoked the bail then existing. On 17 March an application

was made to His Honour to stay his own order on

the review application while an application for

special leave was made to this Court. His Honour

refused that application.

The applicant has lodged with this Court an

application for special leave to appeal from the
judgment of Roden J. refusing bail. There is, of
course, no application for special leave to appeal

from the conviction, that being a matter to be

urged before the Court of Criminal Appeal.

The matter before me this morning is a sunnnons

to stay the decision of Roden J. pending hearing

of the application for special leave to appeal

against that decision and for a grant of bail pending

the hearing of the application·. for special leave.

It seems to me that the principles applicable,

whether I view this as, in truth, an application

for a stay or an application for bail, are the same.

T12	The application is unusual in several respects.	As
already mentioned, the conviction itself is not

under attack in this Court. The decision of Roden J.,

it is said, is not susceptible of challenge in the

Court of Criminal Appeal though it is open to the

applicant to apply again for bail or to seek a

review before another judge of the order made by

Roden J.: see BAIL ACT 1978 (N.S.W.) ss. 22, 45.

The difficulty from the applicant's point of

view, it is said, is that if either step is taken

C3Tl3/l/PLC	22	22/3/88
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at least if the step is taken to seek bail afresh

as opposed to seeking a review - the requirement of

"special or exceptional circumstances", now

appearing ins 30 of the BAIL ACT, will apply.

The question to come before this Court on the application for special leave is whether or not

that requirement existed in relation to the hearing

before Roden J.

The matter before the Court this morning turns upon whether I should exercise what is acknowledged

to be the inherent jurisdiction of the Court to
stay the order of Roden J. or to grant bail pending
the hearing of the application for special leave to

appeal.

The jurisdiction, it is apprent from a number

of authorities - and I cite HAYES V THE QUEEN is a jurisdiction exercised by this Court to
(1974) 48 ALJR 455; CHAMBERLAIN V THE QUEEN [No lJ
(1983) 153 CLR 514; STEVENSON V THE QUEEN (1984)
58 ALJR 422; RE CLARKSON (1985) 60 ALJR 677;
69 ALR 286; and KELLEHER V GOVERNOR GOULBURN

preserve the subject-matter of the litigation.

Whether the matter is seen as one involving a stay

or as one seeking a grant of bail, it still turns

upon the inherent jurisdiction of the Court and

the principle that has been established in a number

of authorities, including those to which I have

referred, that the jurisdiction is exercised only

in exceptional cases and is exercised to preserve

the subject-matter of the litigation. Mr James QC

submits that the subject-matter of the litigation

is the entitlement of the applicant to remain at

applicant, as matters now stand, to remain in prison

liberty pending the hearing of his appeal.

Tl3 until the hearing of his appeal.

If I can borrow a passage from the judgment

of Brennan J. in KELLEHER at p 279 (726 of ALR):

It suffices to say that there is no

jurisdiction to grant bail in the
present case save the inherent

jurisdiction of the Court which may

be exercised to preserve the subject
matter of litigation. The subject
matter of the litigation here is the

liability of the applicant to remain

in custody pending his trial.

In my view I must approach the matter by reference to

is not at liberty until the hearing of his

the order that has been made by the Supreme Court of applicant

C3Tl4/l/PLC	23	22/3/88
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appeal. No exceptional circumstances have been

demonstrated and in saying that I have regard to

what Mr James has said regarding the absence of

any criminal record on the part of the applicant. enunciated in so many cases as to the exceptional

circumstances in which this Court either grants

bail or makes an order which has the effect of

granting bail, I must refuse the application.

I would add this - the application for

special leave to appeal to this Court should be

heard relatively quickly and the matter may arise

for consideration by the Court on the hearing of

that application. But I am not persuaded that there

is anything in the material before me to depart
from the ordinary principles exercisable in these

cases. The summons is therefore dismissed.

(Continued on page 25)

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MR JAMES:	May it please the Court. Your Honour, might we
have leave today to approach the Registrar with a
view to seeking expedition of an application for
special leave?

HIS HONOUR:  Yes, Mr James. I understand - you will have to

take this subject to anything that is said by

Registry - that there is a reasonable prospect
of this application for special leave being heard

at the end of April.

MR JAMES: If Your Honour pleases.

MR HOWIE:	Would Your Honour deal with an order for costs in
relation to this matter?

HIS HONOUR:- It is not usual, is it, Mr Howie?

MR HOWIE:  Not generally in criminal matters. It is in civil

matters, and this is a civil matter and if it goes to -

in an application for special leave, if leave

is refused, an order for costs would be made in

respect of this matter. This is a separate

application from the special leave and it may be

that it is a separate matter for the question of

costs in relation to this particular determination.

HIS HONOUR:	What do you say, Mr James?
MR JAMES:	My friend wishes to both approbate and reprobate,
Your Honour.  He has succeeded in an argument that
this is analogous to a strictly criminal proceeding, to wit, a grant of bail, and wishes at the same time to take advantage of a civil rule that is not applicable in this Court to special leave or bail applications in criminal matters. In my submission, it is not a proper matter for costs.

HIS HONOUR: There will be no order for costs.

AT 11.14 AM THE MATTER WAS ADJOURNED SINE DIE

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