Flack v Director of Public Prosecutions

[2000] NSWSC 125

CITATION:	Flack v DPP & Anor [2000] NSWSC 125
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 10453 of 2000
HEARING DATE(S):	Monday 6 March 2000
JUDGMENT DATE:	9 March 2000
PARTIES :	Glen Roderick Flack(plaintiff) Director of Public Prosecutions (1st defendant) Michael Price (2nd defendant)
JUDGMENT OF:	Hidden J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Magistrate Michael Price

COUNSEL :	P Boulten (plaintiff) R Ellis (1st defendant)
SOLICITORS:	Watsons (plaintiff) Solicitor for Public Prosecutions (1st defendant) I.V. Knight, Crown Solicitor (2nd defendant)
CATCHWORDS:	CRIMINAL LAW - Bail - prosecution application to review bail granted to plaintiff - whether bail can be revoked pending the determination of the review - whether magistrate hearing review is disqualified from further hearing
LEGISLATION CITED:	Bail Act 1978 Justices Act 1902
CASES CITED:	Balic (No 2) (1994) 75 ACrimR 515
DECISION:	Revocation of bail quashed - matter remitted to Local Court to be heard by another magistrate

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J
Thursday 9 March 2000

10453 of 2000 Glen Roderick Flack v Director of Public Prosecutions & Anor

Reasons for judgment

1     HIS HONOUR: The plaintiff, Glen Roderick Flack, is awaiting committal proceedings in respect of a number of serious drug charges and firearms charges. Following his arrest on 20 September 1999, he made several unsuccessful applications for bail in the Local Court. On 3 December 1999 I heard a further application, which was also refused.

2 However, on 27 January 2000 the applicant sought a review of my decision, pursuant to s44(6) of the Bail Act, before Magistrate Lillian Horler. This application was based upon the conditions of his custody which, for reasons which need not be explored here, were unusually harsh and made it difficult for him to confer with his legal advisers and prepare his case. On the following day, Magistrate Lillian Horler granted him bail. The first defendant, the Director of Public Prosecutions, then sought a review of that bail decision, pursuant to s44(2) of the Act, contending that bail should again be refused. That application came on for hearing before the second defendant, another magistrate, who has entered a submitting appearance in this Court.

3     The proceedings commenced on 2 February 2000 and were adjourned, part-heard. The solicitor then representing the first defendant asked that bail be revoked in the meantime but his Worship declined to do so, saying that “it might be premature to revoke it mid-way through a hearing”. Accordingly, bail was continued. The hearing was resumed on 8 February and was again adjourned, part-heard. Again, the solicitor for the first defendant sought the revocation of bail but his Worship declined to do so for the same reason, and continued bail.

4     The matter was next before the Court on 18 February, when the prosecution case closed. The plaintiff was represented by Mr Boulten of counsel, who appeared in this Court, but on that occasion his instructing solicitor was unable to attend as he was ill. Mr Boulten intended to present evidence on his client’s behalf but was unwilling to do so in the absence of his instructing solicitor, who had been involved in the matter from the outset and was intimately acquainted with it. Accordingly, his Worship acceded to an application for a further adjournment. However, he effectively invited the solicitor for the first defendant to renew his application that bail be revoked in the meantime and, despite the spirited protest of Mr Boulten, he made that order. Mr Boulten then asked his Worship to disqualify himself from the further hearing of the review, on the basis that his revocation of bail at that stage gave at least the appearance of his having pre-judged the outcome. That application was refused.

5 In relation to the revocation of bail and his Worship’s refusal to disqualify himself, the plaintiff now seeks declaratory and other relief in this Court. Leave pursuant to s104(3) of the Justices Act is sought to appeal under Part 5 of that Act, and the summons also seeks an order in the nature of certiorari. No point has been taken on behalf of the first defendant about the form of relief claimed. It is accepted that, if the plaintiff makes good his arguments of substance, he is entitled to the declarations which he seeks and the remission of the matter to the Local Court to be dealt with accordingly.

6     I do not have all the material which was before his Worship. It appears that much of the evidence was directed to the circumstances of the plaintiff’s custody and the prospect of his being moved to an institution where conditions would be more favourable. However, there was also evidence touching upon the strength of the Crown case and the extent of any fear that, if granted bail, he would abscond. It seems that Mr Boulten intended to call evidence in the plaintiff’s case about his community ties: in particular, the situation of his family and his prospects of employment. In other words, the evidence in the review proceedings was not confined to the conditions of his custody but was intended to canvass all the matters which a court normally considers when making a bail determination.

7     His Worship’s reasons for revoking bail on 18 February are, with respect, not entirely clear. He noted he had before him the whole of the material relied upon by the first defendant. He referred to the “great number of bail determinations made over a significant period of time”. He concluded:

I balance out the application made by the Director of Public Prosecutions, the prosecuting authority, the material the Court has at this stage and without, to use the vernacular, closing the door on the totality of material which the Court will ultimately have to determine on the question of bail, it would be the view of this Court at this stage, given the reasons and the additional material this Court now has, that pending the next hearing that bail will be refused.

8     The matter was again before his Worship on 29 February, by which time the proceedings in this Court had been instituted. The plaintiff’s solicitor informed his Worship that, for that reason, he did not propose to present evidence in the review proceedings. His Worship recorded that bail had been refused on 18 February “on the basis of the history of the matter, the reasons consistently set out in the form 8 since the inception of the matter, and of course the Supreme Court bail decision and the additional evidence which has been tested or cross-examined”. Bail was again refused, and the matter was further adjourned to await the decision of this Court.

Jurisdiction

9     Before me, Mr Boulten submitted that the learned magistrate had no jurisdiction to revoke bail before the proceedings for review had been completed. The power conferred by the Bail Act to grant bail includes the power to refuse it: s14. The periods during which bail might be granted are set out in s6. They include:

(c) the period of any adjournment or adjournments including:
(i) any adjournment or adjournments during the course of a trial; and
(ii) any period deemed by section 16 to be the period of an adjournment;

10 It is unnecessary to set out the remainder of s6 or s16 of the Act. It is sufficient to say that they refer to periods between steps in the proceedings in respect of which bail is sought. Neither section refers in terms to proceedings for the review of bail under Part 6 of the Act itself. Mr Ellis of counsel, who appeared for the first defendant, pointed out that the expression “adjournment” in s6(c) is unqualified, and he submitted that it embraced the adjournment of the hearing of an application for review. However, in my view, the reference to “adjournment or adjournments” in that paragraph should be read ejusdem generis with the other paragraphs in s6 and with s16. While the notion of an adjournment is afforded an extended meaning, the paragraph relates to steps in the proceedings in respect of which bail is sought. It has no application to proceedings for the review of bail.

11 Accordingly, the present review hearing should be distinguished from the proceedings before the Local Court in relation to the informations laid against the plaintiff. Those proceedings are governed by Division 1 of Part 4 of the Justices Act, dealing with indictable offences. As it happens, in this case the conduct of the committal proceedings, including pending applications by the plaintiff and his alleged co-offenders under s48E of the Justices Act, is in the hands of a different magistrate. Section 33 of that Act confers a general power to adjourn the hearing of informations such as these, and s30(2) and s41(1A) deal with adjournments in certain specific situations. It is those provisions which are embraced by s6(c) of the Bail Act and, clearly, they have no application to proceedings for the review of bail.

12     I consider that such an interpretation of the legislative scheme accords with the dictates of justice and good sense. If a bail determination is the subject of review, it ought to remain in force until the process of review is complete. In many cases that process would be concluded on the day the application for review is first listed, and the problem encountered in this case would not arise. However, the bail determination should not be subject to premature reversal or modification simply because the review proceedings cannot be so promptly disposed of. This is not to deny that there may be cases where, while review proceedings are in train, further events occur or new evidence comes to light bearing on the question of bail. In that event, bail might be reviewed upon a different basis or a fresh bail determination might be called for. It is not suggested that this is such a case.

13     Accordingly, I am satisfied that his Worship had no jurisdiction to revoke the plaintiff’s bail on 18 February, or again to refuse it on 29 February, because the review proceedings had not been completed. To this day Magistrate Horler’s bail determination remains in force. For the same reason, it is doubtful that it was necessary for his Worship to order that bail be continued on the first two occasions when this matter was before him.

Disqualification

14     As I have said, having revoked bail on 18 February, his Worship refused an application that he disqualify himself from the further hearing of the matter. In my view, that application was well founded. It is true, as Mr Ellis pointed out, that by then his Worship was better informed about the case than he had been on the two previous occasions, as the prosecution had led all its evidence. It is also true that his Worship said that he was not “closing the door on the totality of material” which he would ultimately have to consider. The fact remains that he had yet to receive the plaintiff's’ evidence. Nothing had occurred between 8 February, when bail was continued for the second time, and 18 February, when it was revoked, to warrant the urgent review of bail on some different basis or a fresh bail determination.

15     As I observed earlier, on this occasion it was his Worship who prompted the prosecution application for the revocation of bail. There is another matter which is not without significance. Before Mr Boulten had completed his submissions in response to the prosecution application, he asked for a short adjournment while he conferred with his instructing solicitor by telephone. His Worship granted that adjournment, but varied the plaintiff’s bail so as to confine him to the floor of the Downing Centre where the matter was being heard.

16     In all those circumstances, a fair minded member of the public could reasonably conclude that his Worship had prejudged the outcome of the proceedings for review. Of course, actual bias is not suggested. The relevant principles were expounded by Cole JA in Balic (No 2) (1994) 75 ACrim R 515 at 520. That also was a case involving a bail determination, although the circumstances there were different from the present case. I am satisfied that his Worship should disqualify himself from the further hearing of the matter.

Declarations and Orders

17     I make the following declarations:

(a) the second defendant had no jurisdiction to revoke the plaintiff’s bail prior to the completion of the proceedings for review;

(b) the second defendant is disqualified from the further hearing of those proceedings.

18     The second defendant’s orders of 18 February and 29 February 2000 refusing the plaintiff bail are quashed. The proceedings are remitted to the Local Court to be dealt with according to law by another magistrate. Pending the conclusion of the proceedings, the plaintiff is to be released from custody forthwith and is subject to Magistrate Horler’s bail determination of 28 January 2000.

19     If necessary, I shall hear the parties on costs.

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Last Modified: 09/25/2000