JD v Commissioner of Police, NSW Police Force

[2022] NSWSC 911

Supreme Court

New South Wales

Medium Neutral Citation:

JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911

Hearing dates:

5 July 2022

Decision date:

08 July 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)   Time to file the summons is extended to 14 February 2022;

(2)   The order made in the Children’s Court on 19 October 2021, that the plaintiff breached a condition of bail, is set aside;

(3)   Each party to pay its own costs.

Catchwords:

CRIME – Appeal and review – Application for leave to appeal from interlocutory decision of Local Court under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) – where sentencing decision and bail variation application listed on same day before a Children’s Court Magistrate – where Magistrate made finding of failure to comply with a bail condition following sentencing decision – whether Magistrate lacked jurisdiction to make a failure to comply finding because no substantive proceedings were pending or otherwise – meaning of “bail decision” in the Bail Act 2013 (NSW) – consideration of appropriate form of relief – alternatively, whether Magistrate applied incorrect standard of proof in making a failure to comply finding

Legislation Cited:

Bail Act 2013 (NSW), ss 4, 8, 15, 32, 51, 77, 77A, 78, 79

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 53(3)(b)

Supreme Court Act 1970 (NSW), ss 69, 75

Cases Cited:

Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198

Belan v Commissioner of Corrective Services [2020] NSWSC 1503

Director of Public Prosecutions (NSW) v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458

Gaudie v Local Court of New South Wales and Anor (2013) 235 A Crim R 98; [2013] NSWSC 1425

R v Hilton (1987) 7 NSWLR 745

Category:

Principal judgment

Parties:

JD (Plaintiff)
Commissioner of Police, NSW Police Force (First Defendant)
Children’s Court of NSW (Second Defendant)

Representation:

Counsel:
J Styles (sol) (Plaintiff)
R Coffey (First Defendant)
Submitting Appearance (Second Defendant)

Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd (Plaintiff)
New South Wales Police Force (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2022/48847

Publication restriction:

The name of the plaintiff has been anonymised to reflect the operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

 Decision under appeal 

Court or tribunal:

Children’s Court

Date of Decision:

19 October 2021

Before:

Magistrate E Wynhausen

File Number(s):

2021/181304

Judgment

1. HIS HONOUR: By a summons that was amended by a supplementary notice filed on 27 June 2022, the plaintiff seeks prerogative and declaratory relief in respect of an order made by Magistrate Wynhausen (“the Magistrate”) whilst sitting in the Children’s Court on 19 October 2021 that the plaintiff had failed to comply with a bail undertaking (“the breach determination”). The declaration sought is that the Magistrate lacked jurisdiction to make the breach determination and, in any event, applied an incorrect standard of proof. Alternatively, the plaintiff seeks leave to appeal on the same bases, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (“CARA”), from the Magistrate’s order. The application is not opposed by the first defendant, its preferred remedy being a declaration. The second defendant has filed a submitting appearance.

2. The supplementary notice named a third defendant, being a detective who was the informant of the charges for which the plaintiff had been granted bail. At the hearing of the application, leave was granted to the plaintiff to amend the supplementary notice to remove the third defendant.

3. The originating summons was filed out of time, necessitating an application by the plaintiff for an extension to the date for filing that is unopposed. At the hearing of the application, I retrospectively granted the plaintiff an extension of time in which to file.

4. The plaintiff was a 15 year old child at the time of the original proceedings. Accordingly, in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the plaintiff is not identified.

Background to the application

5. On 24 June 2021, while in custody at Sydney City Police Station, JD was served with a Court Attendance Notice that alleged single counts of larceny, robbery and using an offensive weapon to commit an indictable offence, as well as two counts of destroying or damaging property. All offences were said to have been committed the day before. On 8 July 2021, the plaintiff was granted conditional bail in relation to the counts. On 10 August 2021, he entered pleas of guilty to all counts before Magistrate Skinner. Her Honour ordered a background report and adjourned the matters to 19 October 2021 for sentence. Bail was continued.

6. On 8 October 2021, the plaintiff was apprehended and served by police with a document providing notice of an application by police for a variation of the plaintiff’s bail conditions (“the variation application”), following an alleged failure by the plaintiff to comply with a bail residence condition on the previous evening, that is, 7 October 2021. That matter was also listed for 19 October 2021.

7. The details of the offence indicated on the variation application were as follows:

“Bail Act 2013, section 77(1)(c)

Variation application notice after breach etc

between 07/10/2021 and 08/10/2021 at Oakhurst.

did fail to comply with a bail condition.”

8. Section 77(1)(c) of the Bail Act 2013 (NSW) (“the Act”) is in the following terms:

“77   Police officers may take actions to enforce bail requirements

(1) Unless section 77A applies, a police officer who believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition, may—

…

(c)   issue a notice to the person (an application notice) that requires the person to appear before a court or authorised justice, or

…”

Section 77A was not relevant to the matter.

9. Section 78 sets out the options available to a relevant bail authority in relation to a variation application:

“78   Powers of bail authorities

(1)   A relevant bail authority before which an accused person is brought or appears may, if satisfied that the person has failed or was about to fail to comply with a bail acknowledgment or a bail condition—

(a)   release the person on the person’s original bail, or

(b)   vary the bail decision that applies to the person.

Note—

The power to vary a bail decision includes a power to revoke the bail decision and substitute a new bail decision—section 4 (3) (a).

(2)   (Repealed)

(3)   Part 3 applies to the exercise by the bail authority of its functions under this section.

(4)   However, a bail authority may revoke or refuse bail under this section even if the offence is an offence for which there is a right of release under Part 3. An offence ceases to be an offence for which there is a right to release if bail is revoked or refused under this section.

(5)   This section does not give an authorised justice power to vary enforcement conditions or impose new enforcement conditions. However, an enforcement condition imposed by a court may be reimposed by an authorised justice.

(6)   In this section, a relevant bail authority means—

(a)   an authorised justice, or

(b)   the Local Court, or

(c)   a court before which the person is required to appear by his or her bail acknowledgment.”

The term “Local Court” is defined in s 4 of the Act to include the Children’s Court exercising jurisdiction under the Children (Criminal Proceedings) Act 1987 (NSW).

10. The term “variation application” is defined in s 4 by reference to s 51 of the Act, which relevantly provides as follows:

“51   Interested person may make variation application

(1)   An interested person may apply to a court or authorised justice for a variation of bail conditions.

(2)   An application under this section is a variation application.

(3)   Each of the following persons is an interested person—

…

(b)   the prosecutor in proceedings for the offence,

…

(4)   A court or authorised justice may, after hearing the variation application—

(a)   refuse the application, or

(b)   vary the bail decision the subject of the application.

….”

11. On 19 October 2021, the plaintiff, who was then in custody, appeared at his sentence hearing together with his solicitor via an audio-visual link. The police prosecutor appeared in person. At the commencement of proceedings, the police prosecutor alerted the Magistrate to the variation application:

“I appreciate your Honour this matter is listed for sentence and the young person is now in custody but I would ask the Court to find or consider the breach and I would ask the Court to find that the breach is established.”

12. The plaintiff’s solicitor resisted that application, submitting that since the matters for which the plaintiff was granted bail would be finalised that day, the variation application was irrelevant. The police prosecutor agreed that the matter would be finalised that day and accepted that bail therefore could not be varied, but submitted that, nevertheless, the Court:

“… must make a determination in relation to the breach … The Court often relies on the young person’s pattern of behaviour in terms of compliance with bail.”

The Magistrate responded that she would deal with the sentence matters first.

13. When the Magistrate returned to the application immediately after handing down sentences for the five offences, she inquired what the breach was, to which the police prosecutor responded that it was “Residence your Honour”. No further information and no evidence was offered by the police prosecutor in relation to the alleged failure to comply. The Magistrate asked the plaintiff’s solicitor if the breach was contested, to which she replied, relying on s 8(2) of the Act:

“Your Honour I just say that now that the matter is finalised the Court does not have jurisdiction to deal with this matter in any other way [than] dismissing [it], for want of jurisdiction.”

14. The police prosecutor disputed that there was an absence of jurisdiction, without elaboration. The transcript of proceedings records the following subsequent exchange:

“HER HONOUR: … notwithstanding that that matter is now finalised I am going to deal with this matter, all right? So is there an admission with respect to the breach of not being at the location he was meant to be on bail?

[The plaintiff’s solicitor]: Your Honour I feel that I am being asked to admit to breaches in circumstances where there’s no jurisdiction.

HER HONOUR: NOT ADMITTED, ESTABLISHED ON A PRIMA FACIE BASIS, THAT IS THE END OF THIS MATTER.”

15. The Court Record confirms that “Breach of bail is established”.

The application

16. The plaintiff seeks orders in the following terms:

“1   A declaration that the Magistrate had no power to make a bail decision relating to a failure to comply with bail following the conclusion of the substantive proceedings and in the absence of pending proceeding.

2   A declaration that the Magistrate applied the wrong test in making a bail decision at a prima facie standard where the statutory test was on the balance of probabilities.

3   To the extent necessary, the decision of the Magistrate below be quashed (in judicial review proceedings) or

4   Alternatively, and to the extent necessary, the decision of the Magistrate below be set aside (in appeal proceedings).

…

6. Leave be granted to appeal an interlocutory decision pursuant to s 53 Crimes (Appeal and Review) Act 2001.

…”

17. The plaintiff advances two grounds.

Ground 1: The Magistrate below fell into jurisdictional error by making a bail decision regarding a failure to comply with a condition of bail, after the substantive charge proceedings had concluded, and no further proceedings were pending before a Court, when she was prohibited from doing so by s 8(2) Bail Act 2013

18. Section 8 of the Act relevantly provides as follows:

“8   Bail decisions that can be made

(1)   The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an offence—

(a)   a decision to release the person without bail for the offence,

(b)   a decision to dispense with bail for the offence,

(c)   a decision to grant bail for the offence (with or without the imposition of bail conditions),

(d)   a decision to refuse bail for the offence.

Note—

Part 3 sets out how a bail decision is to be made by a bail authority.

(2)   A bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings for the offence are pending before a court.

….”

19. The plaintiff submitted that, pursuant to s 8(2) of the Act, once the matters for which the plaintiff had been granted bail were finalised, which occurred when the sentences were handed down, the Magistrate ceased to have jurisdiction to determine whether the plaintiff had failed to comply with his bail. This was because the only relevance of this determination was as the basis of the variation application, which could not be heard; the grant of bail had ceased.

20. The first defendant conceded that the Magistrate lacked jurisdiction to make the breach determination.

Ground 2: The Magistrate below fell into jurisdictional error by making a bail decision about a failure to comply with a condition of bail by applying a prima facie standard, where the standard to be applied in bail determinations is on balance pursuant to s 32 Bail Act 2013, and in so doing fundamentally misconceived the exercise of her jurisdiction

21. Section 32 of the Act provides:

“32   Matters to be decided on balance of probabilities

(1)   Any matter that must be decided by a bail authority in exercising a function in relation to bail is to be decided on the balance of probabilities.

(2)   This section does not apply to proceedings for an offence in relation to bail.”

22. The plaintiff submitted that it was “a clear error” by the Magistrate to apply, as the standard of proof in making the breach determination, whether there was a prima facie case, rather than the balance of probabilities, pursuant to s 32(1).

23. The first defendant conceded that, on the face of the transcript, the Magistrate applied an incorrect standard of proof but submitted that perhaps the Magistrate did apply the correct standard of proof. The first defendant conceded that the correct standard was the balance of probabilities but suggested that due to the pressure of the Court’s workload the Magistrate simply misstated it.

Consideration

24. The essence of the first ground of the application is that the Magistrate’s order fell outside the jurisdictional boundary of the Court, which entails consideration of the meaning of the relevant provisions of the Act in accordance with relevant principles of statutory interpretation.

25. In Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198, the Court said:

“134   The relevant principles of statutory construction are well-established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky), the ‘primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’, with the meaning of the provision to be ‘determined by reference to the language of the instrument viewed as a whole’. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. They also emphasised at [71] that a court must strive to give meaning to every word of a provision.

135   In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the majority emphasised that the ‘language which has actually been employed in the text of legislation is the surest guide to legislative intention’, but that the ‘meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy’: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44], the majority emphasised that the ‘purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction’.

136   However, as was emphasised in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (SZTAL), the text cannot be considered without regard to its context and purpose. The majority stated the principle in the following terms at [14]:

‘[14]   The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’

See also Gageler J at [35]-[39]; Interpretation Act 1987 (NSW) s 33.”

26. The plaintiff’s submission incorporates the proposition that the breach determination constituted a “bail decision” for the purposes of s 8(2) of the Act. The term “bail decision” is defined in s 4 by reference to s 8. A determination of whether a person has failed to comply with a bail condition is not one of the four types of decisions that are listed in s 8(1) and is substantively different from them, or a decision to affirm or vary a bail decision. All six of those decisions are concerned with an evaluative determination of the merits of an application for a grant or refusal of bail. Section 15(2) of the Act obliges a court to apply Pt 5 of the Act to the making of a decision to affirm or vary a bail decision after hearing a bail application (which, as noted, is defined to include a variation application), in the same way as it applies to the making of a bail decision. A determination of an alleged failure to comply with a bail condition involves essentially a question of fact as to whether the person complied with the relevant condition on a particular occasion or occasions.

27. I conclude that the sense in which the term “bail decision” is used in s 8(2) is confined to the four types of bail decisions that are listed in s 8(1) and, by extension, to a variation application, but it does not include the discrete determination of whether a person has failed to comply with a bail condition.

28. The plaintiff’s alleged failure to comply with the residence condition was only a matter for the Court’s consideration because it was the pleaded basis for the variation application. However, the police prosecutor invited the Magistrate to determine the breach allegation in isolation without proceeding to hear the variation application, effectively conceding that the conclusion of the criminal proceedings had removed any question of bail, rendering the variation application irrelevant. The Magistrate acceded to this submission by making a determination of the alleged breach but not of the variation application. Curiously, the variation application was not dismissed or otherwise formally dealt with.

26. The question thus devolves to whether the Magistrate had jurisdiction to determine the alleged failure to comply with a bail condition absent a variation application. The Act differentiates between a failure to appear in court as opposed to a failure to comply with any other bail condition. Section 79(1) of the Act provides that a failure to appear before a court in accordance with a bail acknowledgment without a reasonable excuse is an offence. Consequently, as a discrete criminal offence, it may be determined after the resolution of the charges for which the applicant was granted bail.

27. The Act does not render a breach of any other type of bail condition an offence or expressly provide that a breach of such a condition may be determined after the charges have been finalised. The only remedy following proof of a breach of a condition, other than to appear in court, is in response to a variation application, to make an order in accordance with ss 78(1)(a) or (b) of the Act which is set out at [9] above, namely, to either release the person on their original bail or vary it, noting that the power to vary includes a power to revoke the grant of bail.

28. The logical rejoinder is whether a court has an implied power to make such a determination in the absence of an express statutory provision that excludes such an exercise. In Belan v Commissioner of Corrective Services [2020] NSWSC 1503, Johnson J noted that in R v Hilton (1987) 7 NSWLR 745, Street CJ, at 751A-B, observed that the Bail Act1978 (NSW), which was the predecessor to the Act, constituted “a comprehensive and exclusive code” with respect to bail. Johnson J, at [116], determined that the Act provides “a detailed, but not exhaustive, statement of powers concerning bail”. That case concerned a question of whether a court, following conviction, could refuse bail of its own volition, in the absence of a bail detention application. His Honour, at [117], found that there is:

“… an implied power, not otherwise excluded expressly by the Bail Act 2013, for the Judge following verdict to determine whether an offender ought be remanded in custody pending a sentencing hearing. I am not persuaded that such a power does not exist in the District Court in the circumstances of an appeal from the Local Court.”

32. Although the Act is not an exhaustive code in relation to bail, in my view, there is not an appropriate foundation for the existence of an implied power for a court to determine an alleged breach of a bail condition, absent a variation application; the terms of the Act provide and constrain the Court’s jurisdictional limits in respect of such determinations. The existence of an implied power permitting a determination in the absence of a variation application would be contrary to the scheme of the Act that is implicit in the statutory remedies available to the Court in s 78(1) of the Act, in relation to a failure to comply with a condition other than the obligation to appear in court.

33. It follows that her Honour erred by purporting to determine that a breach of bail was established, since the five matters for which the plaintiff had been granted bail had been finally determined and there is no jurisdiction or power to determine a failure to comply with a condition, other than an obligation to appear in court, in isolation. Accordingly, the first ground is made out, albeit on a different basis to that pleaded,

34. Theoretically, the Magistrate could have entertained the variation application at the outset of the sentence hearing, had it not been common ground that it would be finalised that day. In that circumstance, there was no point in doing so.

35. I turn to consideration of the second ground. Having regard to the portion of the transcript excerpted at [14] above, I note that the Magistrate invited the plaintiff’s solicitor to indicate whether he admitted the alleged breach. I infer from the Magistrate’s response that her Honour proceeded on the basis that the plaintiff did not admit the breach and, in the terms of s 78(1) of the Act was “satisfied that the person has failed … to comply with a … bail condition”, in so doing applying a test of whether there was a prima facie case as the relevant standard of proof.

36. As I noted earlier in this judgment, there was no evidence of the alleged breach before the Court, which prompts a concern as to how there could be any evidentiary foundation for a finding that her Honour was satisfied of the breach in the absence of an admission. In any event, the sole basis that is relied upon by the plaintiff for the second ground is that the standard of proof that was applied by the Magistrate was contrary to that required by s 32(1) of the Act. Since the alleged breach of residence condition was not a proceeding for an offence, the relevant standard of proof was the balance of probabilities. The second ground is also made out.

The appropriate form of relief

37. The plaintiff seeks either prerogative and declaratory relief under ss 69 and 75 of the Supreme Court Act 1970 (NSW), or alternatively, that leave be granted for the plaintiff to appeal the breach determination and it be set aside pursuant to s 53(3)(b) of CARA. The plaintiff is agnostic as to which remedy is deployed, whereas the first defendant has expressed a slight preference for declaratory relief.

38. The Court will ordinarily decline to exercise its jurisdiction to grant relief under ss 69 and 75 of the Supreme Court Act where a statutory appeal is available: see Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 per Johnson J at [306] and authorities noted therein. A consideration is whether there is a doubt as to the availability of a statutory avenue of appeal: Director of Public Prosecutions (NSW) v O’Conner (2006) 181 A Crim R 294; [2006] NSWSC 458 at [45]

39. I turn to whether the terms of s 53(3)(b) of CARA are satisfied as to the availability of an appeal pursuant to that provision. As to whether the breach determination is an interlocutory order, I note that a bail decision, by its nature, is interlocutory, since orders concerning bail are made pending the final determination of the criminal proceedings. The order was made against the plaintiff. The term “Local Court” is defined at s 3 of CARA to include a Children’s Court. The charges were dealt with summarily. I am satisfied that the two grounds of appeal involve questions of law alone. In view of the clear merit of the application, a grant of leave is appropriate.

40. Accordingly, leave is granted to the plaintiff, jurisdictional error is established and the appeal is upheld.

41. The plaintiff’s criminal history, or bail report as it is formally known, presently includes the Magistrate’s determination that the plaintiff breached a bail condition. The first defendant submitted that, rather than it being removed, it would be appropriate for the police records branch to amend it so that it records the application followed by the result “without jurisdiction”. I agree that is an appropriate form of correction, since a bail report records all applications and charges regardless of the result. An order to that effect is unnecessary.

42. Finally, I note that the Magistrate’s determination was made at the end of a busy day in the Children’s Court. Both parties and the Magistrate were doubtless performing their respective duties under considerable stress and time pressures. I also note that the police prosecutor’s justification, as expressed in shorthand form in his response extracted at [12] above, was that if the plaintiff had failed to comply with a bail condition without a reasonable excuse, that matter should be recorded. That explanation has some force. However, for the reasons I have expressed, the manner in which it was sought to be done is outside the jurisdictional ambit of the Act.

Costs

43. The plaintiff does not seek an order for costs, in view of him being “an impecunious young person represented by publicly funded lawyers against a public agency”.

Orders

44. I make the following orders:

1. Time to file the summons is extended to 14 February 2022;

2. The order made in the Children’s Court on 19 October 2021, that the plaintiff breached a condition of bail, is set aside;

3. Each party to pay its own costs.

**********

Decision last updated: 08 July 2022