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Fernandez v DPP

Fernandez v DPP

Case [2002] VSCA 115 8 August 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3733 of 2002

ROBERT FERNANDEZ
	Appellant
v.
DIRECTOR OF PUBLIC PROSECUTIONS
	Respondent

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JUDGES:	WINNEKE, P., CHARLES, BATT, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2002
DATE OF JUDGMENT:	8 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 115

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Practice and Procedure – Supreme Court – Court of Appeal – Appellate jurisdiction in “criminal matters” – Right of appeal against decision of single judge revoking pre-trial bail in exercise of jurisdiction conferred by s.18A of Bail Act 1977 – Whether rights of appeal from decision “expressly” excluded within meaning of s.17(2) of Supreme Court Act 1986 – Decision in Boris Beljajev & Anor. v. D.P.P. (Vic.) & Anor. not followed (in part).
Bail Act 1977, ss. 4, 13, 18, 18A and 24.
Supreme Court Act 1986, ss. 17, 17A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.G. Nash Q.C.	Access Law
For the Respondent	Mr. P.A. Coghlan Q.C., D.P.P. and Mr. R.A. Elston	K. Robertson, Solicitor for Public Prosecutions

WINNEKE, P.:

In these proceedings, Robert Fernandez (whom I will call “the appellant”) seeks to appeal against orders made by a judge in the Trial Division on 14 June 2002 upon an appeal brought by the Director of Public Prosecutions pursuant to s.18A of the Bail Act 1977. After hearing counsel for the Director and the appellant, the Judge ordered that the bail which had been granted to the appellant by the Melbourne Magistrates’ Court on 16 April 2002 (on conditions), and extended on 20 May 2002, be revoked and that the appellant be committed to prison pending the hearing of committal proceedings in respect of charges preferred against him, or “until he is otherwise released from prison according to law”.

At the outset of these proceedings, a question of the competence of the appeal arose because of the decision of the Appeal Division of this Court in Boris Beljajev & Anor. v. Director of Public Prosecutions (Vic.) and Director of Public Prosecutions (Cth.)[1] to the effect that no appeal lay to the Full Court from a decision of a single judge made pursuant to s.18A of the Bail Act. Counsel for the appellant indicated that he wished to challenge the correctness of that decision, particularly in the light of the recent decision of the High Court in Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue (Vic.)[2]. Accordingly, five judges have constituted the Court for the hearing and determination of this appeal[3]. Before turning to the specific issues raised, however, it will be necessary to say something of the background to the proceedings.
[1]Appeal Division, S.C. (Vic.) [Young, C.J., Crockett and Ashley, JJ.], unreported, 8 August 1991.
[2](2001) 75 A.L.J.R. 1342.
[3]Cf. Nguyen v. Nguyen (1990) 169 C.L.R. 245 at 268-9; R. v. Tait [1996] 1 V.R. 662 at 666.

On 28 December 2001, the appellant was arrested and charged by members of the Victoria Police with a number of indictable offences…

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 Fernandez v DPP

Details

AGLC: Fernandez v DPP [2002] VSCA 115
Case: [2002] VSCA 115
Decision Date: 8 August 2002

CaseChat Overview and Summary

In the case of Fernandez v DPP, the appellant, Fernandez, sought an appeal against the decision of a single judge to revoke his pre-trial bail under section 18A of the Bail Act 1977. The dispute was heard in the Supreme Court of Appeal, focusing on the jurisdiction and procedural aspects of the case. The central issue was whether the right to appeal against a decision to revoke bail by a single judge was expressly excluded under section 17(2) of the Supreme Court Act 1986. This issue arose from the interpretation of the legislative provisions concerning the court's appellate jurisdiction in criminal matters.

The court examined the interplay between the Bail Act 1977 and the Supreme Court Act 1986, particularly the language of section 17(2) which refers to the exclusion of certain appeals. The court held that the decision in Boris Beljajev & Anor. v. D.P.P. (Vic.) & Anor. was not followed in part, distinguishing it from the current case based on the specific wording and legislative intent. The court concluded that the right of appeal was not expressly excluded, thus affirming the appellant's right to appeal the decision to revoke his bail.

The reasoning of the court was grounded in a detailed statutory interpretation of the relevant sections of the Bail Act 1977 and the Supreme Court Act 1986. By carefully considering the language and context of the legislation, the court found that the exclusion of appeals did not extend to decisions made under section 18A of the Bail Act. This decision highlighted the importance of clear legislative drafting in determining the scope of appellate jurisdiction.

As a result of this decision, Fernandez was granted the right to appeal against the revocation of his bail. The court's ruling clarified the legal position regarding appeals from bail decisions, ensuring that defendants have a clear path to challenge such decisions in appropriate circumstances.

Orders