Fernandez v DPP
[2002] VSCA 115
•8 August 2002
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 including kidnapping (both common law and statutory), blackmail, unlawful imprisonment and assault. The appellant was, at the time, aged 25 and has no relevant previous convictions. The offences with which the appellant was charged were alleged to have commenced on Saturday, 3 March 2001 at about 1.30 a.m. when an Asian man called John Lin (aged 21) was kidnapped outside his Glen Waverley home as he returned from work. Police alleged that his kidnappers, including the appellant, subdued Lin with a “stun gun” before forcing him into a car. Thereafter, for a period of some two weeks, it was alleged that Lin was forcibly held at various places whilst those responsible for his kidnap demanded of Lin’s parents substantial sums of money (in excess of $A1 million) for his release. The victim was freed on 17 March 2001 when he was located by police in a room at the City Park Motel.
The appellant with two co-accused (namely Alex Su and Sean Goerlitz), was initially apprehended by police on 29 October 2001. He was later released for want of evidence. Subsequent inquiries led police to believe that he was involved in the commission of the offences and, on 28 December 2001, police arrested him when he was about to leave Australia for Thailand. As previously noted, he was charged with a number of serious indictable offences, including the statutory offence of “kidnapping” with intent to profit (described in s.63A of the Crimes Act 1958), which carries a maximum penalty of 25 years’ imprisonment.
On 28 December 2001, the appellant was brought before the Melbourne Magistrates’ Court where bail was opposed by the informant. The magistrate refused bail and remanded the appellant to appear at the Melbourne Magistrates’ Court on 25 March 2002. It would appear that the appellant came before that court on 10 April 2002, although no transcript of the proceedings of that day is available. On that day the appellant applied to Deputy Chief Magistrate Muling for bail. The application was adjourned, part heard, to 15 April 2002 when the appellant’s current solicitor appeared to inform the Magistrate that he had recently been instructed to appear for the appellant (but not in relation to the bail application), and requested that any committal proceeding in relation to the appellant be adjourned beyond the date fixed for the co-accused to enable him, the solicitor, to receive relevant documents from the prosecution and to take instructions in respect of them. The magistrate acceded to that application and adjourned the “committal mention” for a period of five weeks (that is, to 20 May 2002). The solicitor withdrew and the appellant then represented himself upon the adjourned bail application. He called a number of people to give evidence on his behalf including his parents, and others who knew him in work and social environments. On the following morning (that is, 16 April 2002) the magistrate announced that he was satisfied that the appellant had “shown cause” why bail should be granted[4] and that he was also satisfied that the informant had not demonstrated that the appellant would constitute an “unacceptable risk” for the grant of bail[5]. Inter alia, he said:
“I am satisfied on the evidence you have presented to me that you are a person who has ties to this jurisdiction, There is no matter alleged against you as prior convictions, that you are a person who … has been in full time employment. The second step, then, is to determine whether you are an unacceptable risk of interfering with witnesses.
The informant … gave evidence to the court that you had been involved in the alleged kidnapping of the victim. That the following 15 days you’re not alleged to have been implicated in and, I think, he used the words ‘at this point’. … However there is no evidence before me to support those, perhaps one might say, gratuitous comments about you being used as a stand-over merchant or enforcer. There has been allegations of the co-accused organizing for the victim to be got at. There is no suggestion that you have been involved in any of that offending.”
Accordingly , the magistrate remanded the appellant to appear before him on 20 May 2002 and released the appellant on bail, upon his own undertaking to appear on that date. A number of conditions, including one surety in the sum of $20,000, were imposed upon the grant of bail.
[4]Cf. s.4(4)(c) of Bail Act 1977.
[5]Cf. s.4(2)(d) of Bail Act 1977.
On 10 May 2002, within the time prescribed by s.18A(4) of the Bail Act, the Director of Public Prosecutions gave notice to the appellant of the Director’s intention to appeal against the grant of bail pursuant to sub-s.(1) of that section. Section 18A(1) of the Bail Act 1977 provides:
“(1)Where a person is granted bail in an amount which appears to the Director of Public Prosecutions to be inadequate or on conditions which appear to the Director of Public Prosecutions to be insufficient or in circumstances appearing to the Director … to contravene or fail to comply with any of the provisions of this Act and the Director … is satisfied that an appeal should be brought in the public interest the Director … on behalf of Her Majesty may appeal to the Supreme Court against the order granting bail to that person.”
Sub-section (2) requires service of the notice of appeal upon the person granted bail setting forth the grounds of appeal. Sub-section (6) provides that, upon the appeal, the Supreme Court shall:
“… if it thinks that a different order should have been made quash the order and, without in any way limiting the powers of the Supreme Court with respect to bail, make any order in substitution therefor as it thinks ought to have been made.”
Sub-section (8) provides that, if the Supreme Court revokes the order granting bail, the Court –
“… shall commit the respondent to prison to await his trial.”
The Director’s right of appeal, conferred by s.18A, was introduced into the Bail Act by Act No. 9690 of 1981. According to the second reading speech of the Attorney-General, it appears to have been introduced because “there exists no general right of appeal in the Crown or a law officer if bail is fixed in circumstances which warrant review”[6].
[6]Hansard, Legislative Council, 23 September 1981, p.880.
On 20 May 2002 the appellant, in compliance with his undertaking of bail, appeared on the “committal mention” to which he had been previously remanded. No application was made on that day on behalf of the informant or the Crown to revoke the bail previously granted, as could have been made pursuant to s.18(6) of the Bail Act. Presumably this was because the Director had already served the notice of appeal pursuant to s.18A of the Act. In any event, the Magistrate – on 20 May 2002 – remanded the appellant to appear for committal on 19 August 2002 and under s.16(2) “extended” the order for bail which had been made on 16 April 2002. At the hearing before the judge and, less strenuously, on this appeal, it was contended that the Magistrate’s order “extending” bail on 20 May 2002 had “rendered moot” the order granting bail on 16 April, so that the Director’s appeal had effectively “fallen between two stools” – namely that there was no power to quash the order of 20 May 2002 as it was not the subject of appeal; and no power to appeal against the order of 16 April 2002 because it had been rendered “moot”. This point, however, (as it seemed to me was ultimately accepted) is of no substance because the appeal rights given to the Director by s.18A of the Bail Act are against the order “granting bail” to the person accused and not against the order “extending” the bail which has been already granted. No doubt the judge’s ultimate order quashing the “extension order” was made ex majore cautela.
The Director’s “s.18A appeal” was heard before Bongiorno, J. on 13 June 2002. His Honour had before him affidavits sworn by Peter Atkinson on behalf of the Director and affidavits sworn by the appellant and his solicitor. His Honour also had before him a number of exhibits including the report by the police informant, dated 17 April 2002, of the police investigations and evidence collected which implicated the appellant in the crimes alleged against him. The exhibits also included the transcript of the proceedings in the Magistrates’ Court on 28 December 2001, and 15 and 16 April 2002. There was no transcript of the proceedings before the Magistrate on 10 April 2002. His Honour also had before him certain material which had not been before the magistrate who granted bail, namely transcripts of telephone intercepts recording conversations in August and September 1999 between the appellant and one Victor Su, the brother of one of the appellant’s co-accused. These conversations related to an investigation by Federal police of offences which were unconnected with the offences with which the appellant was charged, but which portrayed the appellant as a person who was prepared to engage in “stand-over” enterprises in return for reward. Upon the hearing of the appeal before the judge, counsel who appeared for the appellant (who is also counsel appearing for him in this Court) contended that his Honour was confined to material which was before the magistrate granting bail and was not entitled to have regard to the “telephone intercept material”, to which I have referred, in determining the issue on appeal.
On 14 June the learned judge allowed the Director’s appeal and made the orders to which I have previously referred; namely quashing the magistrate’s order for bail and remanding the appellant in custody. His Honour concluded that the reasons given by the magistrate for granting bail demonstrated error in that they suggested that the magistrate had misconceived the nature and strength of the case against the appellant by suggesting that he was “only involved in the offence at the beginning”. His Honour concluded that the magistrate was not only in error by misconceiving the strength of the case against the appellant but also by failing to give any or sufficient reasons for concluding that the appellant had “shown cause” within the meaning of s.4(4) of the Bail Act.
It is against the background of events to which I have referred that the appellant now wishes to appeal against his Honour’s orders. His notice of appeal contends that his Honour’s reasons were erroneous and that this Court should quash his orders and restore the orders made by the magistrate on 16 April 2002. Mr. Nash, who appears for the appellant, recognizes that, for the appeal to succeed, he must first satisfy the Court that the appeal is competent; and – if it is – that the trial judge was wrong.
Competence of the Appeal; the History and Meaning of s.17 of the Supreme Court Act 1986
In contending that the appellant has a right of appeal to this Court from the orders of Bongiorno, J., Mr. Nash recognizes that the decision of Beljajev & Anor. v. Director of Public Prosecutions, to which I have referred in paragraph [2] of these reasons, stands in his way. That decision, which, if I might respectfully say so, was closely and carefully reasoned, has stood for over ten years and has been accepted as accurately stating the law in this State[7]. Although there do not appear to have been a large number of “s.18A appeals” brought by the Director, we have been referred to a number in which the judges have applied the principles which were laid down in Beljajev and from the decisions in which, (no doubt, in conformity with Beljajev), no further appeal to the Full Court or the Court of Appeal appears to have been taken[8]. Notwithstanding these matters, it is submitted on behalf of the appellant that this Court should now be prepared to conclude that the Appeal Division in Beljajev was in error in deciding that no appeal lay to it from an order made by the single judge revoking bail on a “Section 18A” appeal because, within the meaning of s.17(2) of the Supreme Court Act 1986, the provisions of the Bail Act 1977 “expressly provided” that no such appeal should lie. In particular, so Mr. Nash submitted, the reasons which the Court in Beljajev gave for so deciding can now be seen to be erroneous in the light of the High Court decision in Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue (supra).
[7]cf. Director of Public Prosecutions v. Abbott, Supreme Court of Victoria, Byrne, J., unreported, 4 December 1997.
[8]cf. Director of Public Prosecutions v. Harika [2001] VSC 237, Gillard, J.; Director of Public Prosecutions v. Fallon [2001] VSC 136, Beach, J.; Director of Public Prosecutions v. Morgan, Supreme Court (Vic.), unreported, 15 June 1994, Beach, J.; Director of Public Prosecutions (Vic.) and anor. v. Mokbel [2001] VSC 403.
Contrary to the submissions made on behalf of the appellant, Mr. Coghlan, the Director of Public Prosecutions – who appeared with Mr. Elston for the respondent – contended that, although the decision of the High Court in Roy Morgan Research Centre “would seem to implicitly overrule that aspect of the decision in Beljajev which would deny appellate rights to the Court of Appeal”, nevertheless this Court should conclude that, for the reasons assigned by the Court in Beljajev, the Bail Act, when construed against the history of the concept of bail, was expressly providing, within the meaning of s.17(2) of the Supreme Court Act, for exclusion of appeals beyond the decision of the single judge on the Director’s “s.18A appeal”. Admission to bail, and refusal and revocation of bail, were – the Director submitted – incidents of practice and procedure in the criminal justice system in which jurisdiction is and has been traditionally exercised by single judicial officers. Section 18A, so the Director submitted, is doing no more than conferring upon the Crown the equivalent right of one already enjoyed by accused persons – namely of applying to a judge of the superior court of record who, by virtue of his or her office, is the final arbiter on matters pertaining to bail.
Resolution of this issue depends, to a significant extent, upon the interpretation of s.17 of the Supreme Court Act 1986. That section, which is the successor to s.42 of the Supreme Court Act 1958, is of relatively recent origin. It is to be found in Division 2A of Part 2 of the Act which deals with “Sittings, Powers and Procedures” of the Supreme Court. Division 2A deals with the Trial Division of the Court, and s.17 is intituled:
“Business to be disposed of by Trial Division constituted by a Judge.”
Section 17 provides:
“(1)The Trial Division constituted by a Judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the rules to be heard and determined by the Court of Appeal.
(2)Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.”
This section, in similar form[9], was introduced in 1984 in substitution for s.42 of the Supreme Court Act (Act No. 10075 of 1984). Section 42 had provided that single judges of the Court were to hear and determine all motions, causes, actions, matters and proceedings “subject to appeal in civil or mixed matters to the Full Court”. The section, in that form, had caused problems because it had been interpreted as excluding appeals to the Full Court in “criminal causes or matters”[10]. Effectively, therefore, the only stream of appellate jurisdiction exercisable by the Full Court in such matters was in accordance with Part VI of the Crimes Act 1958 and the remanets of the “Crown Cases Reserved” jurisdiction currently found in ss. 446 ff of that Act[11]. The problems were caused because there was a variety of matters which came before trial judges for determination, which were “criminal” in nature, but did not attract appeal rights to the Full Court because they fell outside the provisions of the Crimes Act; for example persons convicted of criminal contempts by a single Judge in the exercise of the summary jurisdiction[12]. Persons affected, if they wished to exercise appellate rights, could only do so by seeking special leave to appeal to the High Court. The 1984 amendments to s.42 accordingly removed the limitation which had formerly restricted appellate rights to “civil and mixed matters” subject to the words of exception which were introduced; namely “unless otherwise expressly provided by this or any other Act”. The intention of the legislature to expand the right of appeal, subject to the limitation referred to, to determinations in “criminal matters” is made clear in the second reading speech of the Attorney-General[13].
[9]The 1984 amendment provided in sub-s. (1) that single judges could hear and determine “all motions, causes, actions, matters and proceedings not required under any Act or Rules of Court to be heard and determined by the Full Court”. The words currently found in s.17(1) were introduced as s.10(1) of the Supreme Court Act 1986.
[10]Williamson v. Director of Penal Services [1959] V.R. 205; Tait v. R. [1963] V.R. 547 at 549-50; McEwan v. Waldron (No. 1) [1976] V.R. 495 at 497-8.
[11]By virtue of Act No.109 of 1994 the Court of Appeal also exercises the jurisdiction now conferred by s.571 of the Crimes Act.
[12]Cf. Keeley v. Mr. Justice Brooking (1979) 143 C.L.R. 162 at 165 per Barwick, C.J., per Mason and Aickin, JJ. at 174; La Trobe University v. Robinson & Pola [1973] V.R. 682 at 688 per Smith, A.C.J.
[13]Hansard; Legislative Assembly; 2 May 1984 at 4329. The Attorney-General said: “Provisions which specifically restrict or prohibit this right [of appeal] will be unaffected. However, the amendment means that unless such provision is made, a right of appeal to the Full Court will be available for any matter determined by a single judge of the Supreme Court.”
There can be no doubt that the amendments made to s.42 of the Supreme Court Act 1958 by the Amendment Act of 1984 conferred appellate rights against decisions of single judges where none had existed before. But questions soon arose as to the extent to which such appellate rights were exercisable in criminal matters. Shortly after the introduction of the amended section, the Full Court was asked to entertain an appeal from the decision of a trial judge who, at the outset of a trial, rejected an application to quash the presentment on the grounds that it did not disclose an offence known to law[14]. The Full Court[15] decided that the amendments to s.42 did not extend to conferring appellate rights in circumstances where rights of appeal already existed under Part VI of the Crimes Act, notwithstanding that a trial would have to take place before such rights could be exercised. The Court said[16]:
[14]R. v. Kean and Mills [1985] V.R. 255.
[15]At pp. 257, 259.
[16]At p.259.
“The intention of Parliament in amending s.42 should not be construed as duplicating rights of appeal, where rights already exist. The present appellants will have an unrestricted right of appeal to this Court pursuant to s.567 of the Crimes Act on questions of law and an unrestricted right to apply for leave to appeal on other matters if they are ultimately convicted upon the presentment which [the Judge] has refused to quash.”
This restriction on appellate rights in criminal matters was formalized with the passage of the Supreme Court Act 1986 (No. 110 of 1986) by introducing into s.14 (“Restriction on Appeals”) a new sub-section (3) in the following form:
“Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Court constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.”[17]
The extent of the operation of that sub-section, which is now to be found in s.17A(3) of the Supreme Court Act, was considered by the Full Court in 1989 in Boehm & Anor. v. Director of Public Prosecutions[18]. The Full Court took the view[19] that there was nothing in or about the restriction contained in the new s.14(3) which was intended to alter the law as established in R. v. Kean & Mills. The Court said:
“In our opinion Parliament was intending to place that law in statutory form.”
The decision in Boehm was considered by the High Court in Smith & Ors. v. The Queen[20]. Although the majority of the Court overruled the decision in Boehm insofar as that decision concluded that s.14(3) would not prevent or restrict an appeal by the Crown against a decision by a single judge to permanently stay a prosecution against an accused person as an abuse of process, it accepted that the sub-section did operate to restrain appeals against decisions which could be ultimately tested upon an appeal under Part VI of the Crimes Act[21].
[17]The language of s.17A (3) would seem to have derived from s.10 of the Courts Act 1971 (Eng.) although it is by no means identical (cf. In re Smalley [1985] A.C. 622 at 633 per Lord Bridge of Harwich).
[18][1990] V.R. 494.
[19]At p.499.
[20](1994) 181 C.L.R. 338.
[21]Smith at pp.345-6.
It was not suggested on the hearing of this appeal that, consistently with that part of the decision in Boehm to which I have referred in the preceding paragraph (accepted, as it was, in Smith’s case), s.17A(3) would stand in the way of, or preclude, an appeal to this Court against Bongiorno, J’s orders, if a right of appeal is found to lie to this Court by virtue of s.17(2) of the Supreme Court Act 1986. In other words the decision of Bongiorno, J. is not one made “on or in relation to the trial … of a person on indictment …” so as to enable it to be tested on an appeal under Part VI. After all, the appellant has not even been committed for trial.
Against the background of this statutory history of the relevant sections of the Supreme Court Act, I return to the issue in dispute; namely whether – by virtue of s.17(2) – an appeal lies to this Court from a decision of a single judge revoking bail upon an appeal by the Director pursuant to s.18A of the Bail Act 1977. In considering that issue it is pertinent to note that the historical evolution of what is now s.17 of the Supreme Court Act 1986 makes it apparent that the Court of Appeal has, and Parliament intends it to have, jurisdiction to entertain appeals from determinations of single judges of the Court in “criminal matters” unless it is “otherwise expressly provided by [the Supreme Court Act] or any other Act”. Furthermore, there is no doubt (and it is not in contest) that, in accordance with s.17(1) of the Supreme Court Act, a judge of the Supreme Court is empowered to hear and determine a “Director’s appeal” pursuant to s.18A of the Bail Act; and that such an appeal is a “criminal matter”. In this State, the statutory grant of a right of appeal to “the Supreme Court”, by long-standing practice, confers jurisdiction upon a single judge of the Court[22]. Thus rights of appeal to single judges of the Supreme Court are conferred, in similar form (on questions of law) by, inter alia, ss.92 and 109 Magistrates’ Court Act 1989, and by s.38(2) of the Commercial Arbitration Act 1984. In the ordinary course of events, therefore, a determination by a single judge on a “Director’s appeal” under s.18A, would be one from which – in accordance with s.17(2) of the Supreme Court Act 1986 – an appeal lies to the Court of Appeal[23]. The question is whether “it is otherwise expressly provided by this Act [that is, the Supreme Court Act] or any other Act”.
[22]Cf. Beljajev at pp.14-15.
[23]It was suggested – but not strongly – by the Director that the judge’s determination on a Director’s appeal under s.18A of the Bail Act might not be a determination of a “matter” within the meaning of s.17(1) of the Supreme Court Act (cf. Victoria Legal Aid v. Lewis [1998] 4 V.R. 517 at 520). At the end of the day the Director did not press this argument.
There is nothing in the Supreme Court Act itself which “otherwise expressly provides”. The restriction on appeals in s.17A(3) does not apply to exclude an appeal from a Trial Division judge’s determination on a “Director’s appeal” because, as I have already noted, an order denying pre-trial bail to a person charged is not, relevantly, a determination “made on or in relation to the trial or proposed trial of a person on … presentment”[24]. Nor indeed, do the other provisions of s.17A of the Supreme Court Act apply to preclude or to restrict (by a requirement for leave) an appeal from the single judge’s determination under s.18A of the Bail Act. The determination is clearly made in a matter of criminal practice and procedure, and is interlocutory in nature, but is a determination which, within the meaning of s.17A(4)(b)(i), affects the liberty of the subject. To that extent, the right of appeal, if it exists, is unrestricted.
[24]Cf. Boehm & Anor. v. D.P.P., supra.
The Appeal Division of the Supreme Court in Beljajev (supra) concluded that it was s.18A of the Bail Act itself, interpreted in the context of the common law history of bail, which excluded a right of appeal to the Full Court from a single judge’s determination on a “Director’s appeal”. The Court traced the history of the procedure relating to bail in the administration of criminal justice, demonstrating that an accused person had a right to make successive applications to individual judicial officers on the basis of circumstances as they existed at the time of the application. “Appeal rights” are, so the Court concluded (in my view correctly), alien to, or “anomalous” in the context of, bail. Just as a person claiming to be detained unlawfully could apply successively to single judges of a superior court for the issue of a writ of habeas corpus, so too could an accused person awaiting trial make successive applications for bail, depending upon a variation in circumstances. The Court said[25]:
“It appears to us, in consequence of what we have thus far said about the provisions of the Bail Act 1977 that they do not, so far as accused persons are concerned, give any right of appeal from refusal of bail or grant of bail on unsatisfactory terms. The common law notion of fresh application of bail is retained.”
The Court noted that such a situation was consistent with factual situations which were “undergoing change”; a situation with which an appellate process was not “readily compatible”. Their Honours continued:
“In this context the rights of appeal conferred on the Director … by s.18(6A) and s.18A should be regarded as anomalous. Without those sections, of course, the Director would have had no right to appeal in a bail matter to the Court.”
[25]At p.12.
It was upon this analysis of the concept and practice as to bail that the Court turned to the question of whether s.17(2), (then s.10(2)), of the Supreme Court Act 1986 excluded further rights of appeal beyond the Director’s appeal provided for in s.18A of the Bail Act. Their Honours acknowledged the presumptive rule that a statute which confers upon an established court jurisdiction to determine a judicial matter imports that the ordinary incidents of the procedure of that court are to attach, including general rights of appeal from its decisions[26]. Nevertheless, their Honours were of the view[27] that the exclusionary words to be found in s.17(2) of the Supreme Court Act, namely “Unless otherwise expressly provided by this or any other Act”, were apt – because of the limited right of appeal granted by the Bail Act - to “take up the concept” expressed in the Electric Light & Power Supply case[28] of “the absence of express words to the contrary or of reasonably plain intendment”. The Court also referred to Healey v. Festini[29] and Metropolitan District Railway Company v. Sharpe[30] as support for the view that the exclusionary words in s.17(2) of the Supreme Court Act could be satisfied otherwise than by explicit words; namely by “reasonably plain intendment”[31]. In concluding that the provisions of s.18A of the Bail Act 1977, viewed against the history of the concept of bail generally, did plainly intend – within the meaning of the exclusionary words of s.17(2) of the Supreme Court Act – to exclude rights of appeal beyond that given by s.18A to a single judge, the Court said[32]:
“In our opinion there is at least a ‘reasonably plain intendment’ that s.10(2) [that is, s.17(2) as it now is] is not to yield an accused a right of appeal in the event that a Director’s appeal under s.18A succeeds. That intendment is to be found in section 18A itself, and in section 18A viewed in the context of bail generally.
We have already observed that an appeal is foreign to the concepts of bail. It is also, save for sections 18(6A), 18A and 24(4) foreign to the Bail Act 1977. In each of those instances, appeal is available only to one party – that is, the Director. For accused persons the Bail Act restates and/or preserves the common law right to make successive applications for bail. …
In our opinion, the Bail Act, in setting up a right of appeal available only to one party, evidences a plain intendment that the appellate processes that might otherwise attach to proceedings before a single judge of this court are not to do so. Appeal being, as we have said, an anomaly in the context of bail, the court should be very slow to conclude that an appellate edifice should be constructed. Rather, in order to accord with the continuing practice and procedure in bail matters in this State, the role of appeal should be limited to that which the Bail Act specifically authorizes.
It was common ground, before us, that had the Directors failed in the hearing before Marks, J., they could not have had access to section 10(2) so as to enable appeal to the Full Court. It was agreed that section 18A permitted the Directors a single appeal. In the context of a single right of appeal given to one party only, in a field of law where appeal has no traditional part, it would run counter to the apparent intendment of the legislation to imply the existence of or additional right of appeal available to another party altogether – particularly where that other party could have speedy recourse to other procedures to remedy any perceived wrong.” (my emphasis).
[26]cf. National Telephone Company Ltd. v. His Majesty’s Postmaster General [1913] A.C. 546 at 552 per Viscount Haldane, L.C., at 555 per Lord Atkinson, at 562 per Lord Parker of Waddington; Electric Light & Power Supply Corporation Ltd. v. Electricity Commission of NSW (1956) 94 C.L.R. 554 at 559-60.
[27]Beljajev, p.21.
[28]Supra at p.560.
[29][1958] V.R. 225 at 228, per Gavan Duffy, J.
[30](1880) 5 App. Cas. 425.
[31]Healey v. Festini (supra) was approved by the High Court in Rose v. Hvric (1963) 108 C.L.R. 353. Furthermore this Court in Rabel v. Eastern Energy Ltd. [1999] 3 V.R. 45 at 49 and in Kay v. Attorney-General (Vic.) (2000) 2 V.R. 436 at 444 concluded that a “necessary implication” would satisfy the exclusionary provisions of s.17(2).
[32]At pp. 21-2.
In this Court, the appellant challenges both the correctness of the interpretation given by the Appeal Division in Beljajev to the exclusionary words in s.17(2) of the Supreme Court Act, and the reasons given for concluding that the provisions of s.18A of the Bail Act “plainly intended” to exclude any right of appeal beyond that given to the Director. Mr. Nash submitted that, in the light of the recent decision of the High Court in The Roy Morgan Research Centre case (supra), this Court is bound to conclude that the exclusionary words found in s.17(2) are not to be satisfied by “implications” or “plain intendments” to be found in another Act; but by words sufficiently explicit to satisfy the Court that the appellate jurisdiction was expressly excluded. Furthermore, Mr. Nash contended that there is nothing to be found in s.18A of the Bail Act which could attract the exclusionary words of s.17(2).
In the Roy Morgan case (supra), the High Court overruled the decision of this Court in Rabel v. Eastern Energy Ltd.[33] in which the Court concluded that the provisions of s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998, which, by sub-para (b), gave a right of appeal from a decision of a “non-presidential” division of the Tribunal, by leave, to the Trial Division of the Supreme Court, excluded by necessary intendment an appeal to the Court of Appeal from a determination by a judge of the Trial Division refusing leave to appeal to that Division. Inter alia, this Court concluded that the expression in s.17(2) of the Supreme Court Act “[u]nless otherwise expressly provided by this or any other Act” did not “necessarily mean ‘expressly excluded by words’ “, but rather “bear[s] a meaning whereby the language of the ‘other Act’ will be taken to have attracted the exclusion referred to if upon its plain meaning that language implies that the right conferred by the general Act has no operation”[34]. The High Court in the Roy Morgan case (supra) “doubted” this conclusion[35]. Gaudron, Gummow, Hayne and Callinan, JJ., having expressed the view that the word “determination”, where used in s.17(2), “must be read … as a word which embraces a wide variety of judicial decisions” (apt to include refusals of leave under s.148 of the Victorian Civil and Administrative Tribunal Act), continued[36]:
“Section 17(2) contemplates ‘express’ provision otherwise. There are legislative provisions in which ‘expressly’ is not used as an antonym of ‘impliedly’ but ‘merely serves to emphasize the generality of [one] provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests’[37]. It may greatly be doubted, however, that ‘expressly’ should be understood as being used in s.17(2) in this way. Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal from any determination of the Trial Division when constituted by a judge.” (footnotes omitted; emphasis added).
Further, their Honours – in rejecting the reasoning of this Court in Rabel (supra) that the “bifurcated right of appeal” given by s.148(1) of the Victorian Civil and Administrative Tribunal Act necessarily intended the exclusion of further appellate rights as a consequence of the application of the principle in Lane v. Esdaile[38] - said[39]:
“The division, or bifurcation, of the treatment of applications under s.148(1) does not lead, leave aside necessarily lead, to the conclusion that the Commissioner asserted. Even if the reference in s.17(2) of the Supreme Court Act to express provision otherwise is understood as reaching beyond express words of exclusion (which we doubt it does), s.148(1) does not constitute an express provision of the kind to which the otherwise general right given by s.17(2) is subject.” (the latter emphasis is added).
[33][1999] 3 V.R. 45.
[34]Cf. Rabel v. Eastern Energy Ltd., supra at 49 [13].
[35]Roy Morgan Research, supra, at 1345 [13].
[36]At p.1345 [11].
[37]Their Honours cited Rose v. Hvric (supra), Metropolitan District Railway Co. v. Sharpe (supra) and Chorlton v. Lings (1868) L.R. 4 C.P. 374. It would seem, having regard to the views expressed, that the wider interpretation given to words of exclusion such as those used in Rose v. Hvric is to be regarded as inapplicable to express conferral of appellate rights.
[38][1891] A.C. 210.
[39]At p.1347 [21].
It is these emphatic statements by the majority judges of the High Court in the Roy Morgan Research case as to the primacy of appeal provisions such as those found in s.17(2) of the Supreme Court Act which underlie the appellant’s submissions to this Court that there is nothing in the provisions of s.18A of the Bail Act, or its common law history, which expressly provides for the exclusion of appellate rights to this Court at the instance of an accused whose bail has been revoked on a “Director’s appeal”; and that, to the extent that the Appeal Division in Beljajev has concluded otherwise, its decision should no longer be followed. It is submitted by the appellant that the right of appeal to the Supreme Court conferred upon the Director by s.18A(1) is conferred in general terms and, by sub-s.(6), enables the court entertaining the appeal, if it thinks that a different order should have been made, “to quash the order and … make any order in substitution therefor as it thinks ought to have been made”. Such a power, it is contended, is in the nature of a power to review the exercise of discretion by the court granting bail and its exercise is calculated to impact upon the right of the accused person to the liberty previously afforded to him or her. In those circumstances it is submitted, even if (and contrary to the doubts expressed by the majority of the High Court in the Roy Morgan case) inference, implication or imputation is sufficient to amount to the “express provision otherwise” referred to in s.17(2), then such implication (or the like) to be found must be so clear that it can be properly characterized as an “express provision” excluding appellate rights to the Court of Appeal.
Prior to the introduction of s.18A into the Bail Act in 1981, the Director of Public Prosecutions had no right of appeal to the Supreme Court against the order of a court granting bail to an accused person. In its terms s.18A confers upon the Director an entirely new right of appeal to the Supreme Court against bail orders made by judicial officers in favour of persons charged with, but not convicted of, indictable offences. It says nothing about the appellate review of those decisions made by the Supreme Court. For present purposes, it is unnecessary to consider whether a Director’s appeal pursuant to s.18A will lie from a determination made by a Supreme Court judge granting bail in the exercise of his or her original jurisdiction. That is a matter to which I shall return. It is sufficient to note, for present purposes, that the Director’s appeal from a magistrate’s determination granting bail to a person charged is concerned only with a review of that decision. The very fact that the section does not deal with appellate review of the Supreme Court’s determination may be reason enough to conclude that s.18A “is not an express provision of the kind contemplated by s.17(2) of the Supreme Court Act”[40]. The Director, nevertheless, urged us not to depart from the decision in Beljajev notwithstanding his concession, to which I have referred, that the reasoning of the High Court in Roy Morgan Research “would seem to implicitly overrule” what was decided in Beljajev. The Director submitted that the reasoning of the Court in Beljajev is correct and should compel us to the view that, whatever formula of words is used to interpret the exclusionary provisions in s.17(2), the Bail Act 1977 established a scheme for dealing with “bail procedure” which “expressly” excluded appellate rights beyond the decision of the judge of the Trial Division. In particular the Director contended that the Court’s analysis of the Bail Act 1977 and that Act’s affirmation (in s.18) of the prisoner’s common law rights to make successive applications for bail, depending upon circumstances, to various judicial officers including judges of the Supreme Court, was accurate and sufficiently compelling to justify its conclusion that, consistently with s.17(2) of the Supreme Court Act, the appeal rights afforded to the Director by s.18A were confined to the single judge of the Supreme Court and that further appeals were excluded.
[40]Roy Morgan Research, supra, at 1345 [12] per Gaudron, Gummow, Hayne and Callinan, JJ.; see also Energy Brix Australia Corporation Pty. Ltd. v. National Logistics Co-operations (Morwell) Pty. Ltd. & Ors. [2002] VSCA 113 per Ormiston, J.A. at [12].
There is significant force in the Director’s submissions; as there is in the reasoning of the Court in Beljajev. The common law bail procedure was always intended to be a “one-stop shop” before a single judge, subject to the prisoner’s right of re-application in changed circumstances. The concept of “appellate rights” was at odds with the dynamic influences governing bail applications. However, the question here is whether the legislature – in creating the right in the Director to appeal to the Trial Division for the purpose of reviewing the primary judicial officer’s decision to grant bail, or to grant it on the conditions imposed – has in fact created an “appellate edifice” which, hitherto, had been regarded as foreign to the concept. It would have been easy to have “expressly excluded” appellate rights beyond the decision of the single judge; or to have introduced the “right of review” by another single judge, which is a creature of Part VI of the Bail Act 1978 (N.S.W.)[41]. Nevertheless, the legislature did neither of these things. There is no unequivocal expression of legislative intention in s.18A of the Bail Act that the issue should “stop” with the decision of the judge of the Trial Division. Hence, it seems to me – in the light of the historical development of the appellate rights conferred by s.17 of the Supreme Court Act in ”criminal matters”, and more particularly the reasoning of the High Court in the Roy Morgan Research case in construing the amplitude of those rights – that the conclusion of the Appeal Division in Beljajev can no longer be regarded as good law.
[41]Cf. Re Hamill (1986) 25 A.Crim.R. 316.
The decision in Beljajev was based upon implication or “reasonably plain intendment” said to be found in the provisions of s.18A when interpreted against the historical background of the common law development of the practice and procedure relating to bail. However, as it seems to me, the facts and matters upon which the Court relied to reach its conclusion lack the explicitness or specificity which, in the view of the High Court, is necessary to attract the exclusionary provisions of s.17(2) of the Supreme Court Act. The fact that the “Director’s appeal” to the Supreme Court is an anomaly in the context of bail, and the fact that it is a right given only to the Director, are not, in my view, facts or matters which either expressly, or by implication, attract the exclusionary provisions of s.17(2).[42] If anything, they suggest the contrary. The “Director’s appeal” to the Supreme Court is anomalous because it gives for the first time a right of appeal, “in the public interest”, which is in the nature of a review of the discretion exercised by the judicial officer who granted bail and, thus, to be determined on the facts and circumstances which were before that officer. Such an appeal is, therefore, discretely different from, and foreign to, the concept of successive applications to judicial officers seeking grants of bail or revocations thereof. For the most part, such an appeal is directed towards securing a quashing of the original order and the remand of the person accused in custody. To suggest that a procedure which is given for the purpose of attracting such a result, simply by reason of its anomalous nature, either expressly or by necessary implication excludes an appeal from the single judge’s decision is something which seems to me to now run contrary to authority. Nor does the fact that the accused person retains his or her right to make further applications for bail, if circumstances change, assist in demonstrating an intention in the Bail Act to exclude a right of appeal from the single judge’s decision. The mere fact that a single judge, on a s.18A appeal, concludes that the original judicial officer’s discretion miscarried and, accordingly, substitutes his or her own order remanding the accused in custody will leave little scope for the circumstances to relevantly change so that any appropriate fresh application could readily be made. Indeed the authority of a Supreme Court judge’s decision made in the public interest would probably assist to defeat any such application. These factors, directly affecting – as they do – the liberty of the subject, do not indicate to me an intention to expressly exclude rights of appeal from the single judge’s determination on review of the original court’s decision. I am, in the light of current authority binding on this Court, unable to share the view of the Court in Beljajev that:
[42]For example, by s.84(1) of the Magistrates’ Court Act 1989, the Director is given a right to appeal to the County Court against a sentencing order made in the Magistrates’ Court, if he is satisfied that an appeal should be brought in the public interest. Sub-section (2) specifically precludes any further appeal being brought by the Director from the sentencing order of the County Court. The terms of the section would not exclude further appeals to the Court of Appeal by the respondent pursuant to s.91(1) of the Magistrates’ Court Act, though s.86(2) excludes appeal under s.74 of the County Court Act 1958.
“in the context of a single right of appeal given to one party only, in a field of law where appeal has no traditional part, it would run counter to the apparent intendment of the legislature to imply the existence of an additional right of appeal available to another party altogether …”
I am unsure of the circumstances which underscored the rider which the Court added, namely:
“particularly where that other party could have speedy recourse to other procedures to remedy any perceived wrong.”
For the reasons to which I have adverted, I cannot conceive of procedures to which the accused person committed to prison following a successful “Director’s appeal” under s.18A could have “speedy recourse”. It may be that the Court was alluding to the circumstances peculiar to the Beljajev appeal, where the person accused was contending that the Trial Division judge had no jurisdiction to entertain the appeal to him.
There were two other matters which arose in the course of argument which have an impact on the central issue. The first was whether, if the Director’s appeal to the Trial Division judge failed, that was “the end of the road” or whether the Director, too, had further appellate rights to the Court of Appeal. It would seem that, in Beljajev, counsel for the Director accepted that, if the Director failed before the single judge then he had no further right of appeal. That concession was accepted by the Court, and was one of the factors upon which it relied to conclude that “further appellate rights” beyond the decision of the trial judge were “by reasonably plain intendment” to be excluded. In this Court, the Director made no such concession. On the contrary, he contended that if appellate rights beyond the decision of the trial judge are conferred, then those rights existed both for the person accused and the Director, in the absence of some provision such as that found in s.84(2) of the Magistrates’ Court Act[43]. Mr. Nash, for the appellant, agreed that – if his submissions were to be accepted – that result must follow. In my view, the concession is correct. In the absence of reasons, it is not clear from the Court’s decision in Beljajev why it concluded that s.18A “permitted the Director [only] a single appeal”[44]. It would appear that it was a view based on the Court’s interpretation of the section and its intention. If it is accepted that the appellate rights conferred by s.18A are “unrestricted”, then – as it seems to me – either party would be entitled to challenge the single judge’s decision on appeal. Given the fact that the rights conferred by s.18A are not confined, the Director’s appellate rights would not be trammelled by concepts in the nature of “double jeopardy”; although they would be restricted (unlike those of the person charged) by the provisions of s.17A(4)(b) of the Supreme Court Act because, in the circumstances postulated, any appeal by the Director to the Court of Appeal would not, relevantly, concern “the liberty of the subject”[45], but would be from an interlocutory order in a matter of practice or procedure. As such leave would be required.
[43]See footnote 42.
[44]Beljajev, supra, at 22.
[45]Cf. Bowden v. Yoxall [1901] 1 Ch.1; Ryan v. A.G. [1998] 3 V.R. 670 at 672. There may also be circumstances where s.17A(3) of the Supreme Court Act would restrict the right of the D.P.P. to appeal.
The other matter which was raised during the hearing was raised by the Director. In support of his contention that the provisions of s.18A of the Bail Act excluded appeals to the Court of Appeal, he postulated the “floodgates argument”, contending that if such appeals were not excluded, there would emerge the spectre of appeals from determinations of Trial Division judges exercising their original jurisdiction in bail matters. The provisions of the Bail Act, so it was contended (and particularly ss. 13 and 18), re-stated and re-enforced the primacy of the single judge of the Supreme Court in granting and revoking bail. If the provisions of the Bail Act are insufficient to “expressly exclude” rights of appeal from their determination of “s.18A appeals”, why should they be sufficient – it was rhetorically asked – to “expressly exclude” appeals from determinations of judges of the Supreme Court exercising their original jurisdiction?
It is strictly unnecessary to resolve this issue for the purposes of determining this appeal. However, as at present advised, the argument appears to me to be unsound. It calls into question the decision of the predecessor of this Court in Director of Public Prosecutions v. Kanfouche[46], which – apart from Beljajev – is the only other decision in which the Full Court has examined the limits of s.18A of the Bail Act. The essence of the Court’s decision[47] was that s.18A did not extend to providing to the Director a right of appeal against a determination of a single judge of the Supreme Court exercising his or her original jurisdiction in granting or revoking bail. This was because the section, when it speaks of appeals “to the Supreme Court”, was not intending to include within its ambit appeals “from judges of the Supreme Court” (my emphasis) exercising their original jurisdiction in bail matters. The framework of the section, so interpreted, provided an “appellate code” which plainly intended to exclude appeals from single judges of the Court exercising that original jurisdiction. The Court considered and rejected the argument made by the Director that s.18A(1) of the Bail Act did not “expressly provide otherwise” within the meaning of the opening words of s.10(2) of the Supreme Court Act (now s.17(2)). It said[48]:
“The view we have formed of s.18A(1) … is that it gave the director, for the first time a right of appeal from a grant of bail by someone other than a judge of the Supreme Court to a judge of the Supreme Court, and that by its terms it did not extend to permit an appeal from a judge of the Supreme Court to the Full Court. It may further be said s.18A(1) was enacted against the background that by exercise of a common law … jurisdiction Supreme Court judges would often grant bail upon original applications. Another consideration is that s.18(6A) applies the policy to be found in s.18A of permitting appeals to a judge of the Supreme Court from grants of bail by other authorities, but of not permitting appeals from grant of bail by a judge of this Court to the Full Court. In these circumstances it should be concluded that s.18A(1) embodies an affirmative policy precluding the operation of s.10(2) of the Supreme Court Act.” (my emphasis).
[46][1992] 1 V.R. 141.
[47]Per Young, C.J. and Ashley, J. The third member of the Court (Murphy, J.) did not participate in the judgment through indisposition.
[48]At p. 149.
As I have said, this reasoning seems to me – at least as presently advised – to be eminently defensible in the circumstances which confronted the Court in Kanfouche – namely an attempt by the Director to appeal to the Full Court from a determination made by a single judge of the Court exercising his original jurisdiction. Although the Court referred to the line of authority suggesting that “expressly” includes what is necessarily or properly implied by language[49], it was clear that the Court took the view that the very terms of s.18A(1) excluded an appeal to the Supreme Court (however constituted) from a determination in respect of bail in the exercise of the Court’s original jurisdiction. However, and for the reasons already advanced, it seems to me to be a discretely different proposition to assert that s.18A of the Bail Act “expressly excludes” or even “necessarily implies exclusion” of the right of appeal to this Court against a single judge’s determination made in the exercise of the jurisdiction conferred by s.18A to review an inferior tribunal’s decision. To exclude that type of appeal, which is by no means uncommon[50], one would need to find in the Bail Act words more express than those which now appear, to engage the exclusionary words of s.17(2) of the Supreme Court Act – as they have been interpreted by the High Court in the Roy Morgan Research case.
Was the Judge in Error?
[49]Cf. Chorlton v. Lings (1868) L.R. 4 C.P. 374 at 387 per Willes, J., at 393 per Byles, J.; Healey v. Festini, supra.
[50]Appellate rights to the Court of Appeal have always been assumed to exist (albeit now by leave) from determinations made by trial judges in appeals to them pursuant to ss.92 and 109 of the Magistrates’ Court Act 1989. Indeed, it is interesting to note that, after the amendments to s.42 of the Supreme Court Act 1958 in 1984, the Full Court was prepared to accept that an appeal would lie to it from a single judge’s determination refusing habeas corpus or an application for certiorari to quash a conviction, in circumstances where no appellate rights pursuant to Part VI of the Crimes Act existed (cf. Clarkson v. D.P.P. [1990] V.R. 745 at 749-50, per Murphy, J.).
For the reasons stated, I am of the view that the appeal to this Court is competent. The remaining issue is whether the determination by Bongiorno, J. in the exercise of the jurisdiction conferred upon him by s.18A was erroneous. The nature of the “appeal” created by s.18A was explained clearly and accurately by the Appeal Division in Beljajev[51]. The words of sub-s.(1) are reminiscent of s.567A of the Crimes Act which gives to the Director a right of appeal to the Court of Appeal pursuant to Part VI of that Act against a sentence imposed upon a person convicted on indictment. Sub-section (6) is, in terms, similar to sub-s.(4) of s.567A of the Crimes Act which incorporates the powers exercisable by the Court of Appeal upon a Director’s appeal against sentence. These powers are, themselves, powers of the same nature as those invested in the Court of Appeal by s.568(4) of the Crimes Act, which the Court exercises upon applications for leave to appeal against sentence brought by persons convicted on indictment. The principles which the Court applies are well known and were authoritatively stated by the Full Court in R. v. Taylor & O’Meally[52]. It is clear from these authorities – as the Court noted in Beljajev – that the principles which the Court applies in deciding a “Director’s appeal” against sentence are broad, in the sense that intervention is not confined to demonstrated error of law. Rather, the Director may succeed if he can show that on any ground, whether of law or fact, the discretion of the primary judge has miscarried and can persuade the Court that a different order should have been made. Similar principles, therefore, are applied by the judge who entertains an appeal by the Director pursuant to s.18A of the Bail Act[53]. However, as was pointed out by the Court in Beljajev, the appeal which is brought to the Court by virtue of s.18A is an appeal against orders made “in a matter of practice and procedure”, and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders[54].
[51]Supra at pp. 25 ff.
[52][1958] V.R. 285 at 289.
[53]Cf. Beljajev, supra, at 30.
[54]Cf. R. v. Iorlano (1983) 151 C.L.R. 678; In re the Will of F.B. Gilbert(dec.) (1946) 46 S.R. (N.S.W.) 318 at 323 per Jordan, C.J.
Mr. Nash, on behalf of the appellant, submitted that the orders made by Bongiorno, J. were manifestly erroneous because he took into account material which was extraneous to his task and/or failed to take into account material which was relevant to his task. It was submitted that his Honour “assessed the strength of the Crown case from material which was not before the magistrate”. Further, it was put that his Honour was led into error because he was unable to assess the propriety of the Magistrate’s decision without recourse to the material which had been put before the Magistrate on 10 April 2002.
In my opinion, neither of the bases relied upon by the appellant – in support of his proposition that the judge’s decision was in error – has been made out. Although it was submitted that the judge had before him an affidavit disclosing material which portrayed the appellant as “an enforcer”, which material had not been before the magistrate, it is clear from his Honour’s reasons that he did not rely upon any of that material in reaching his conclusion that the magistrate had fallen into error. His Honour was entitled to have regard to that evidence only if he had come to the conclusion that the magistrate’s decision was vitiated by error, and that the discretion had to be re-exercised. Thus, in my opinion, no error has been shown in that respect. Furthermore, Mr. Nash has not been able to show that his Honour has fallen into error by failing to take into account relevant material which he should have taken into account. It is true that his Honour did not have before him the transcript of the proceedings before the magistrate on 10 April 2002. That transcript was not available, the machine having failed. However the material relevant to the appellant’s application was the material which the appellant himself put before the Court on 15 April. It was upon this material that the magistrate appears to have acted in deciding to grant bail upon the terms which he did.
The essence of his Honour’s conclusion was the erroneous basis, demonstrated in the magistrate’s reasons, for the finding that the appellant had “shown cause” against refusal of bail within the meaning of s.4(4) of the Bail Act. Pursuant to those provisions, a magistrate is required to refuse bail where, inter alia, the applicant has been charged with an indictable offence, in the course of committing which he is alleged to have used a firearm or offensive weapon, unless the applicant “shows cause why his detention … is not justified”. Furthermore, pursuant to s.4(2)(d), the magistrate must refuse bail if satisfied that the applicant is an “unacceptable risk” if released; in the sense that he would “fail to surrender” having regard to “the nature and seriousness of the offence” and “the strength of the evidence against him”. In the judge’s view the magistrate misconceived both the nature of the crime alleged against the applicant, and its seriousness, by concluding that the evidence only demonstrated that the appellant “had been involved in the kidnapping” but was not “implicated in the following 15 days”. This the judge regarded, in my view correctly, as a mis-statement of the strength of the case against the applicant who had been charged with offences of “unlawful imprisonment” and “blackmail” on the basis that he had been acting in concert with his co-offenders in all phases of the crime which occurred over more than two weeks. This in turn, in
the judge’s view, had led the magistrate into the error of improperly assessing the nature and strength of the charges laid against the appellant and, thus, into under-assessing the risk which he constituted in determining whether the informant had demonstrated that the appellant was “an unacceptable risk” and, again, whether the appellant had shown cause why his detention was not justified. The judge was also correct, in my view, in concluding that the magistrate’s reasons were inadequate and failed to comply with the requirements of sub-para (i) at the end of s.4(4) of the Bail Act.
Once the judge had concluded upon the material properly before him that the magistrate’s discretion had been vitiated by error, and that a different order should have been made (as in my view, he was entitled to do), then it was within his power to quash the magistrate’s order and to make the order which he did make, in substitution for the order quashed. Once he had correctly concluded that the magistrate’s order ought to be quashed, the judge was then entitled – in concluding what order was required to be made in substitution – to take account of the material before him which had not been before the magistrate.
For the reasons stated, I would conclude that the appeal is competent, but should be dismissed.
CHARLES, J.A.:
Having had the advantage of reading the Reasons for Judgment prepared by the President, I agree with his Honour’s conclusions, and the reasons given for them.
BATT, J.A.:
I have had the considerable benefit of reading in draft the Reasons for Judgment of the President. I agree with those reasons and with his Honour’s conclusions. In essence, it seems to me that it is not open to any court below the High Court to treat the reference in s.17(2) of the Supreme Court Act 1986 to express provision otherwise as reaching beyond express words of exclusion, in light of the doubt as to the correctness of that view and the preference for the contrary view expressed four times, and strongly, by four justices in the joint judgment in Roy Morgan Research Centre Pty Ltd v. Commissioner of State Revenue(Vic)[55].
BUCHANAN, J.A.:
[55](2001) 75 ALJR 1342 at [11], [13], [20] and [21].
For the reasons stated by Winneke, P., I agree that an appeal lies from the decision of the trial judge but that the appeal should be dismissed.
VINCENT, J.A.:
I agree for the reasons advanced by Winneke, P., that an appeal lies from the decision of the trial judge but that the appeal should be dismissed.
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