Iongi v The The Queen - [2022] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: IONGI v R [2022] NSWCCA 42
Hearing dates: 14 February 2022
Date of orders: 2 March 2022
Decision date: 02 March 2022
Before: Macfarlan JA at [1]
Bellew J at [2]
Dhanji J at [3]
Decision:
Application dismissed for want of jurisdiction.

Catchwords:
BAIL – release application – bail refused in Local and Supreme Court for original charges – bail refused in Local Court for new charges – whether this Court has jurisdiction to hear release application with respect to new charges – construction of Bail Act 2013 – bail and bail decisions are specific to offences – no bail decision has been made by the Supreme Court – no jurisdiction to hear application – no view expressed as to merits

Legislation Cited:
Bail Act 2013 (NSW)
Criminal Code (Cth)

Cases Cited:
Director of Public Prosecutions(Cth) v Saadieh [2021] NSWCCA 232
Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
Mashayekhi v R [2021] NSWCCA 55
Noufl v Director of Public Prosecutions (NSW) (2018) 274 A Crim R 519; [2018] NSWSC 1238
Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153

Category: Principal judgment
Parties: Otenili Iongi (Applicant)
Director of Public Prosecutions (Cth) (Respondent)
Representation:
Counsel:
M Tedeschi AM QC with D Bhutani (Applicant)
D Jordan with N Evans (Respondent)
Solicitors:
Miers Legal (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2022/0013694
Publication restriction: Nil

Judgment

MACFARLAN JA: I agree with Dhanji J
BELLEW J: I agree with Dhanji J
DHANJI J: The applicant has applied to this Court for his release on bail pursuant to s 49(1) of the Bail Act 2013 (NSW) (“the Act”). Subject to this Court having jurisdiction in the particular case, the Act allows for a de novo application to be made: Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232 at [2], [11].

Jurisdiction

The parties proceeded on an assumption that this Court had jurisdiction to hear the application. Subsequent to the hearing of the matter, the Court raised with the parties a question as to whether that assumption was sound. Submissions were subsequently received from the Crown, with which the applicant joined, accepting this Court does not have jurisdiction. To understand why this is so, it is necessary to set out a brief outline of the history of the matter before turning to a consideration of the Act.

The history of the matter

The following history sets out relevant matters for the purpose of the present issue. The applicant was arrested on 7 June 2016. He has been in custody, having been refused bail, since that time. On his arrest he was charged with the following offences (the original charges):

Seq

Offence

Offence Date

Act/Section

Penalty

1

Direct activities to aid / risk aiding a criminal organisation

30 July 2020 to

7 June 2021

Section 390.6(1)

Criminal Code (Cth)

Imprisonment for 10 years

2

Deal in proceeds of crime, money worth $1…

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 Iongi v The The Queen

Details

AGLC: Iongi v The The Queen [2022] NSWCCA 42
Case: [2022] NSWCCA 42
Decision Date: 02 March 2022

CaseChat Overview and Summary

The matter before the Court involved a defendant who had been refused bail by both the Local and Supreme Courts in relation to charges for which bail had initially been granted. Subsequently, the defendant was charged with additional offences, and the Local Court also refused bail in respect of these new charges. The defendant then sought an order from this Court for his release on bail in relation to the new charges. The central issue for the Court was whether it had the authority to entertain an application for bail concerning the new charges, given the prior refusals by the Local and Supreme Courts.

The Court examined the relevant provisions of the Bail Act 2013, which suggest that bail and bail decisions are specific to the offences in question. It was noted that while the Supreme Court had made a bail decision in respect of the original charges, no such decision had been made concerning the new charges. The Court held that since no bail decision had been made by the Supreme Court regarding the new charges, it did not have jurisdiction to hear the application for bail in relation to those charges. The Court did not express any view on the merits of the application, focusing solely on its jurisdictional constraints.

Having determined that it lacked jurisdiction to hear the application for bail in respect of the new charges, the Court dismissed the application. The decision underscored the importance of jurisdictional boundaries and the specificity of bail decisions to the charges at hand. The Court's ruling clarified that, in the absence of a bail decision by the Supreme Court for the new charges, the application could not be entertained by this Court.

Orders