Lyon v The Queen

[2001] WASCA 197

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   LYON -v- THE QUEEN [2001] WASCA 197

CORAM:   MALCOLM CJ

ANDERSON J
STEYTLER J

HEARD:   21 JUNE 2001

DELIVERED          :   21 JUNE 2001

FILE NO/S:   CCA 269 of 2000

BETWEEN:   JAMES LYON

Applicant

AND

THE QUEEN
Respondent

FILE NO/S              :CCA 270 of 2000

BETWEEN             :DARREN STUART SMITH

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Jurisdiction - Practice and procedure - Bail - Application for bail pending application for special leave to appeal to High Court - Court of Criminal Appeal has no jurisdiction

Legislation:

Bail Act 1982 (WA)

Bail Act 1978 (NSW) s 30AA

Result:

Applications refused

Representation:

CCA 269 of 2000

Counsel:

Applicant:     Mr M R Gunning

Respondent:     Ms J A Girdham

Solicitors:

Applicant:     Gunning

Respondent:     State Director of Public Prosecutions

CCA 270 of 2000

Counsel:

Applicant:     Mr L M Levy

Respondent:     Ms J A Girdham

Solicitors:

Applicant:     Laurie Levy

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Sinanovic v R (No 1) [2001] HCA 35

Case(s) also cited:

Nil

1. JUDGMENT OF THE COURT:  The Court has before it two applications for bail by the applicants.  The grant of bail is sought pending the determination of applications to the High Court for special leave to appeal against the decision of this Court in relation to appeals by the applicants against sentence.  The basis of the applications seem to be found in an obiter dictum of Kirby J of the High Court in par [7] in Sinanovic v R (No 1) [2001] HCA 35. Those remarks were made in the context of the Bail Act 1978 (NSW) which provides that in order to succeed in an application, the applicant has to satisfy the provisions of s 30AA of that Act, namely:

   "Notwithstanding anything in this Act, if:

   (a)an appeal is pending in the Court of Criminal Appeal against:

   (i)a conviction on indictment, or

   (ii)a sentence passed on conviction on indictment; or

   (b)an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in para (a),

   bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail."

2. The Bail Act 1982 (WA) makes no such provision. There is a definition of "court" in s 3 of the Act. That definition does not extend to the High Court of Australia. It follows that in the absence of any statutory provision in legislation such as the Criminal Code or the Supreme Court Act 1935 (WA), this Court has no jurisdiction in relation to the applications which have been made. As a consequence, they must be refused.