Liristis v Director of Public Prosecutions (NSW)

[2015] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261
Hearing dates:	24 August 2015
Decision date:	24 August 2015
Before:	R A Hulme J
Decision:	Matter referred to the Common Law Division of the Supreme Court
Catchwords:	BAIL – jurisdiction of the Court of Appeal to hear and determine application for bail – where judicial review proceedings pending in Court of Appeal – whether judicial review proceedings are ‘proceedings on an appeal against conviction and sentence’ in s 5(1)(d) Bail Act – jurisdiction established – preferable that bail matters be heard by the Common Law Division of Supreme Court – matter referred to Common Law Division
Legislation Cited:	Bail Act 1978 (NSW) (repealed) Bail Act 2013 (NSW) ss 4(1), 5(1)(d), 61, 67 Supreme Court Act 1970 (NSW) ss 44, 46, 51(4), 69C
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258 Whan v McConaghy (1984) 153 CLR 631
Category:	Principal judgment
Parties:	Tony Liristis Director of Public Prosecutions (NSW)
Representation:	Counsel: Applicant in person Mr D Kell (Crown)   Solicitors: Office of the Director of Public Prosecutions
File Number(s):	2015/69532

Judgment

1. HIS HONOUR: An application for bail has been made by Mr Tony Liristis to the Court of Appeal in relation to two matters.

2. The matter which has the Court file number of 2015/69532 relates to a summons filed on 6 March 2015 seeking judicial review of a decision made in the District Court on 12 December 2014 dismissing an appeal from the Local Court against conviction and sentence. The conviction was for an offence of larceny as a bailee. The sentence was one of imprisonment for 20 months with a non-parole period of 15 months.

3. The applicant had bail pending the hearing of that appeal. Upon determination of the appeal the original sentence of the Local Court was confirmed and it was specified to date from 27 June 2014. The non-parole period expires on 26 September 2015 when the applicant will be entitled to release on parole, subject to his custodial situation otherwise.

4. In respect of the judicial review proceedings, the applicant seeks a stay as well as bail, but by virtue of s 69C of the Supreme Court Act 1970 (NSW), if there is a grant of bail, a stay of the conviction and sentence follows automatically.

5. The second matter has the Court file references 2014/190130 and 2015/234460 and relates to a matter which is listed for trial in the District Court at Sydney on 31 August 2015. The indictment alleges nine offences, six in the nature of sexual assaults and three in the nature of using a listening device to record a private conversation. The applicant was arrested in relation to those matters on 26 June 2014. He was bail refused from that point.

6. The applications have been made on the one bail release application, which is directed to the Court of Appeal where the judicial review matter is pending.

7. There is a real question about whether there is jurisdiction to hear and determine a bail application in a case in which judicial review is sought in respect of the determination of a conviction and sentence appeal by the District Court. It depends upon the construction of the term "proceedings on an appeal against conviction and sentence" in s 5(1)(d) of the Bail Act 2013 (NSW). Can that term accommodate this type of judicial review proceedings? If it can then, subject to a matter I will mention directly, the Court of Appeal would have jurisdiction because "proceedings for the offence are pending in the Court": s 61 of the Bail Act.

8. There are then two issues to consider. First, in relation to the judicial review proceedings, the Court of Appeal is not mentioned in the definition of "court" in s 4(1) of the Bail Act. Secondly, the sexual assault matter it is not pending in the Court of Appeal. The Supreme Court has jurisdiction to deal with the bail application and the Court of Appeal is able to exercise the powers of the Supreme Court: s 44 of the Supreme Court Act.

9. As to the first issue, although I am not entirely convinced, in the overall circumstances of this case I am prepared for pragmatic reasons to accept that the judicial review proceedings are within the concept of "proceedings on an appeal against conviction or sentence" in s 5(1)(d) of the Bail Act. The Director did not challenge the proposition, at least for the purpose of this case. Whan v McConaghy (1984) 153 CLR 631, albeit dealing with a different statutory regime (the Bail Act 1978 (NSW) (repealed)) tends to support such a broad interpretation.

10. As to the second issue, I am satisfied that the Court of Appeal, exercising the powers of the Supreme Court (s 44 of the Supreme Court Act has jurisdiction to hear and determine the application in respect of the sexual assault matter. It is a power that may be exercised by a single judge of the Court: s 46 of the Supreme Court Act.

11. Having reached the point of accepting the jurisdiction of the Court of Appeal to hear and determine the bail application in respect of both matters, there is a further issue. It is, in my view, preferable that bail matters are dealt with by the Common Law Division of the Supreme Court: generally see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. One reason for that, in a case such as the present, is that it would then be clear that if a party was dissatisfied to the point of wanting to make a further application the appropriate forum would be the Court of Criminal Appeal: s 67 of the Bail Act.

12. Accordingly, I will refer the application for bail in respect of both matters to the Common Law Division of the Court pursuant to s 51(4) of the Supreme Court Act. (See Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258.)

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Decision last updated: 09 September 2015