Mercanti v The State of Western Australia
[2005] WASCA 254
•23 DECEMBER 2005
MERCANTI -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 254
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 254 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:73/2005 | 16 DECEMBER 2005 | |
| Coram: | MCLURE JA PULLIN JA MURRAY AJA | 23/12/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TROY DESMOND MERCANTI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Bail Second application to a Judge of the Supreme Court Whether changed circumstances Exceptional circumstances test Turns on own facts |
Legislation: | Bail Act 1982 (WA), s 13, s 14(2a), Sch 1 Pt C cl 1, cl 3, cl 3A Criminal Code (WA), s 143, s 294 Criminal Procedure Amendment Act 1993 (WA) Bail Amendment Act 1998 (WA) |
Case References: | Jemielita v The Queen (1994) 12 WAR 362 Lim v Gregson [1989] WAR 1 Musarri v The Queen [2001] WASC 200 Rauch v The State of Western Australia [2005] WASC 241 Stephens v The State of Western Australia [2005] WASCA 98 The State of Western Australia v Sturgeon [2005] WASC 256 WCVB v The Queen [1989] 1 WAR 279 Dabag v The State of Western Australia [2005] WASC 22 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MERCANTI -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 254 CORAM : MCLURE JA
- PULLIN JA
MURRAY AJA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MCKECHNIE J
Citation : MERCANTI - v - THE STATE OF WESTERN AUSTRALIA [2005] WASC 122
File No : MCS 11 of 2005
(Page 2)
Catchwords:
Bail - Second application to a Judge of the Supreme Court - Whether changed circumstances - Exceptional circumstances test - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 13, s 14(2a), Sch 1 Pt C cl 1, cl 3, cl 3A
Criminal Code (WA), s 143, s 294
Criminal Procedure Amendment Act 1993 (WA)
Bail Amendment Act 1998 (WA)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr R Richter QC
Respondent : Mr D Dempster
Solicitors:
Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Musarri v The Queen [2001] WASC 200
Rauch v The State of Western Australia [2005] WASC 241
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Sturgeon [2005] WASC 256
WCVB v The Queen [1989] 1 WAR 279
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Case(s) also cited:
Dabag v The State of Western Australia [2005] WASC 22
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1 MCLURE JA: The applicant seeks leave to appeal from the decision of McKechnie J dismissing his application for bail.
2 The applicant is charged with unlawfully wounding Nabil Dabag with intent to do grievous bodily harm contrary to s 294 of the Criminal Code (WA). He is also charged with attempting to pervert the course of justice contrary to s 143 of the Criminal Code. The offences relate to an incident at the Metro City Night Club in Northbridge in the early hours of 23 January 2005.
3 The applicant has been in custody since 28 January 2005. He has been refused bail on five occasions (28 January, 29 January, 4 February, 28 February and 10 June 2005). On the penultimate occasion, the decision was made by Blaxell J, a Judge of the Supreme Court. The applicant then made a further application for bail which was heard by McKechnie J. That application was governed by s 14(2a) of the Bail Act 1982 (WA). Section 14(2a) provides that where the jurisdiction of a Judge of the Supreme Court has been invoked once in relation to an offence or group of offences for which an accused is required to appear, it may not be further invoked by that accused in relation to that offence or group of offences unless the accused satisfies a Judge of the Supreme Court that -
(a) a new fact has been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
(b) he failed to adequately present his case for bail on that occasion.
4 The renewed application before McKechnie J was based upon alleged new facts and changed circumstances. McKechnie J dismissed the application on the basis that no jurisdictional fact had been established to allow him to reassess bail. Both parties assumed there is a right of appeal, with leave, to this Court. I assume that to be so.
Background
5 The prosecution case is that on the morning of Sunday 23 January 2005 the applicant attended the nightclub. At approximately 1.30 am the applicant and the complainant went into a corridor area in the nightclub's basement. After a brief conversation between the two men they became involved in a violent altercation. During the altercation it is alleged that the complainant slashed the applicant with a knife. The scuffle was broken up by two men, said to be John Kizon and Marco Sorani. It is
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- alleged by the prosecution that Kizon and Sorani then took hold of the complainant and led him through a corridor. Shortly after the complainant was led away, the applicant is said to turn around and move in the direction that the complainant had gone. As he moved after the complainant, the applicant is seen to be apparently opening what is described as a "bum bag" around his waist and taking something out. The above events were recorded by the nightclub's surveillance cameras and relevant footage has been downloaded to a DVD.
6 It is the prosecution case that the applicant took a gun out of the bum bag and, at a time when the complainant was being held by Kizon and Sorani, he shot the complainant five times causing injuries to the complainant. The injuries were caused by two shots to each leg and one shot to the complainant's arm. The alleged shooting was not captured by the surveillance cameras.
7 Some minutes later Kizon is seen to return to the area of the initial altercation between the applicant and the complainant. Kizon is carrying a hand gun behind his back. It is alleged that Kizon gave the weapon to David Morris in an effort to prevent the police from locating it and using it in evidence against the applicant.
8 The applicant was taken to Royal Perth Hospital by ambulance. It is alleged that whilst in the casualty department of Royal Perth Hospital, with the assistance of a co-accused Paul Kenneth Martino, the applicant wiped his hands in an effort to remove gunshot residue. The wipes used to clean his hands were recovered by police. Upon analysis, one of the wipes is said to have revealed a particle of gunshot residue. Other particles of gunshot residue are said to have been located on the applicant's jeans and in the bum bag. The conduct of the applicant in allegedly attempting to remove the gunshot residue from his hands is the basis for the charge of attempting to pervert the course of justice. This charge was laid after Blaxell J refused the applicant's bail application. However, the facts on which the charge is based, or some of them, were in evidence before Blaxell J.
9 Before going to the decisions of Blaxell J and McKechnie J it is appropriate to provide some background as to the relevant legal principles.
10 Jurisdiction to grant bail is to be exercised subject to and in accordance with Pt III of the Bail Act and the further provisions in Pt B, Pt C and Pt D of Sch 1 to the Act (s 13). Part C contains the principles
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- governing the grant or refusal of bail. Pursuant to cl 1 of Pt C, and subject to cl 3A, the grant or refusal of bail to an accused is at the discretion of the judicial officer. That discretion must be exercised having regard to the questions specified in par (a) to par (g) of cl 1. The questions relevantly include:
(a) whether, if the accused is not kept in custody, he may –
(i) fail to appear in court in accordance with his bail undertaking;
(ii) commit an offence;
(iii) endanger the safety, welfare or property of any person; or
(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b) whether the accused needs to be held in custody for his own protection;
(c) whether the prosecutor has put forward grounds for opposing the grant of bail;
(d) …
(e) whether there is any condition which could reasonably be imposed under Pt D which would –
(i) sufficiently remove the possibility referred to in par (a) and par (d);
(ii) obviate the need referred to in par (b); or
(iii) remove the grounds for opposition referred to in par (c);
(f) …
(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
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- (a) the nature and seriousness of the offence or offences and the probable method of dealing with the accused for it or them, if he is convicted;
(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the accused;
(c) the history of any previous grants of bail to him; and
(d) the strength of the evidence against him.
12 The Bail Act was assented to in 1982 but was not proclaimed until 1989. The law as it stood prior to the commencement of the Bail Act was correctly stated by Nicholson J at first instance and approved on appeal by the Full Court in Lim v Gregson [1989] WAR 1 at 12. The relevant principles (referred to as common law principles) applicable to the grant of bail prior to conviction included the following. Prima facie, a person accused of a crime should be allowed his liberty before the hearing. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The onus is on the State to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. However, where an accused is charged with wilful murder or murder, bail will generally be refused except in rare cases where exceptional circumstances are shown to exist and the onus of showing such circumstances is on the applicant for bail and not the State.
13 In WCVB v The Queen [1989] 1 WAR 279, Ipp J held that the common law principles relating to bail for a person charged with murder also applied to other crimes that could be classified as "extremely serious" and these common law principles were consistent with, and continue to apply under the Bail Act.
14 In 1993, Pt C of Sch 1 of the Bail Act was amended to include cl 3A: Criminal Procedure Amendment Act 1993 (WA). The amendment took effect on 17 January 1994. Clause 3A provides for situations where an accused commits a serious offence (being an offence listed in Sch 2) while on bail or at liberty under an early release order for another serious offence. In those circumstances, a judicial officer must refuse bail unless he or she is satisfied that there are exceptional reasons why the accused should not be kept in custody and that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of Pt C. The offences listed in Sch 2 range from wilful murder to stealing a motor vehicle.
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15 As appears from the second reading speech, cl 3A was introduced because of the unacceptable frequency of offenders, particularly juvenile offenders, re-offending whilst on bail or parole.
16 On 28 December 1994 the Full Court handed down its judgment in Jemielita v The Queen (1994) 12 WAR 362. In that case the appellant was charged with the wilful murder of his wife. On 21 December 1994 a single judge (Anderson J) refused his application for bail. On appeal, Pidgeon J, with whom Owen and White JJ agreed, held that the statutory discretion under the Bail Act should be exercised in accordance with established common law principles. He said (at 367 - 368):
"In the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown. The principles which have been evolved when considering these factors under the earlier statutes are based on logic, experience and common sense and as alluded to by Anderson J, in the present case, are principles the community would expect in cases of this nature. I do not consider that there has been an intention in the Bail Act to exclude them. On the contrary, I consider that the omission of a reference to a right to have bail granted and emphasis on the discretion to grant it with power to consider all relevant questions and matters results in the requirement that the discretion be exercised in accordance with the established principles. It results in a right to bail in the sense outlined by Nicholson J in Lim v Gregson. I consider therefore that Ipp J was correct in WCVB v The Queen in saying that the Bail Act has not altered these earlier principles and I consider that the principles outlined in Lim v Gregson would continue to apply."
17 There is no relevant distinction between "special or unusual circumstances" and "exceptional circumstances": Lim v Gregson at 12.
18 For the sake of completeness, regard should be had to the legislative history of par (g) of cl 1 of Pt C. That paragraph was inserted in 1998 by the Bail Amendment Act 1998 (WA). The second reading speech is (unusually) revealing. It states:
"I now refer to the refusal of bail on grounds of seriousness of the alleged offence. Another important aspect of the Bill is that
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- it will make the granting of bail inappropriate where the alleged circumstances of the offence amount to a wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail."
Blaxell J's Reasons
19 Blaxell J concluded that the offence of unlawful wounding in the circumstances of this case were extremely serious so as to require the applicant to show exceptional circumstances to justify the grant of bail. In reaching his conclusion on seriousness, Blaxell J had regard to the maximum penalty for the offence (20 years) and the alleged circumstances (that the applicant was carrying a loaded firearm in a public nightclub and the nature and extent of the retaliation, in particular, shooting the complainant five times).
20 Blaxell J then went on to address the questions he was required to consider under cl 1 and cl 3 of Pt C of Sch 1 to the Bail Act. The seriousness of the offence and its circumstances have already been adverted to. He noted that the offence was so serious that the applicant would inevitably be sentenced to a substantial term of imprisonment if he was convicted. That is clearly so: see Stephens v The State of Western Australia [2005] WASCA 98.
21 In the hearing before Blaxell J, the State did not produce the video surveillance footage. Instead it relied on a detailed description of what the video surveillance showed which was contained in an affidavit of a police officer, Detective Sergeant Tunks. Detective Sergeant Tunks deposed that the video surveillance footage was not produced because of police concerns that it would impair the integrity of the ongoing investigation of the offences arising out of the incident. That concern related to both the welfare of potential witnesses and to ensure they were not intimidated.
22 Although the affidavit is not before this Court, Blaxell J details the substance of Detective Sergeant Tunks' description of the events shown on the video surveillance footage from the nightclub. Blaxell J concluded on the materials before him that there was strong circumstantial evidence
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- linking the applicant with the shooting and a very strong case that he intended to cause grievous bodily harm. He continued:
"In my view, in the circumstances as alleged, there is little scope for the issue of self-defence to arise. This is because after the applicant was slashed by the knife, it is alleged that the complainant was seized hold of by two other men and taken away from where the wounding of the applicant had occurred. At that point in time, the complainant was no longer a threat to the applicant. The applicant is then said to have followed and shot the complainant five times. Those circumstances should obviously be characterised as retaliation rather than self-defence if, in fact, the offence occurred in the manner alleged."
24 He concluded that there was some risk of flight given the serious nature of the charge, the strength of the prosecution case and the likely outcome if there was a conviction but concluded the risk could be met by appropriate conditions if that was the only matter of concern. It was not. Blaxell J continued:
"37 More significantly, there are grounds to infer that there is a risk of interference with witnesses, as well as obstruction of the continuing police investigation. That interference arises from the fact that there have already been alleged attempts to pervert the course of justice with the removal of the firearm and the cleaning up of the crime scene. It is also relevant that the facts of at least two of the applicants' prior offences show that he has no fear of the police and that he has hindered them on a previous occasion.
38 The investigation is at a very sensitive stage in that police are still to locate witnesses who are seen to be present on video. Obviously, it is important that they should not be hindered in that aspect of their investigation.
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- 39 Finally, I accept the prosecution's submission that there is a risk of retaliatory violence between the gangs of which the applicant and the complainant are members and in that regard I take account of the material in pars 12 to 15 inclusive of Detective Sergeant Tunks' affidavit. The likely venue for such violence would be the night club areas of Perth and that would pose a risk to the safety not only of the applicant and the complainant, but also to other members of the nightclubbing public. Based on the materials before me, I consider that there would be an increased risk of further violence if the applicant was to be released.
40 I am also of the view that the alleged wrongdoing by the applicant verges on being of such a serious nature that that in itself makes the grant of bail inappropriate. That is particularly so when one has regard to the strength of the prosecution case. Be that as it may, the materials before me do not show any exceptional circumstances why bail should be granted and for those reasons the application will be refused."
Grounds of appeal and changed circumstances
25 The applicant relies on two grounds of appeal. Firstly, it is contended that McKechnie J erred in finding that the applicant had not established any jurisdictional fact enabling him to undertake a reconsideration of the applicant's bail. He says there are new facts, new circumstances or changed circumstances that either individually or in combination enliven the Court's jurisdiction. They are the disclosure of the full prosecution brief to the applicant including the surveillance footage of the incident, a statement of a nightclub employee who was present at the scene at the time of the incident and the completion of the police investigation into the matter.
26 Secondly, it is contended that McKechnie J erred in finding that:
"none of the matters raised by the [applicant] demonstrated a material change in circumstances capable of amounting in themselves to changed facts or circumstances that could be categorised as exceptional circumstances or exceptional reasons when the [applicant] was not required to demonstrate that exceptional circumstances existed before being granted bail."
(Page 12)
27 As explained at the hearing, this ground is to the effect that McKechnie J determined whether there was a material change in facts or circumstances by reference to whether they could be categorised as exceptional circumstances thereby entitling the applicant to challenge the correctness of the conclusion that the exceptional circumstances test applied.
28 The parties accepted that the new or changed facts or circumstances must be a material change in relevant facts or circumstances. In order to enliven jurisdiction, the matters referred to in s 14(2a)(a) must be matters that would have been likely, if known to the judge who previously refused bail, to alter the balance in favour of the grant of bail: Musarri v The Queen [2001] WASC 200 at [10] – [12] per White AUJ.
Whether jurisdiction enlivened
29 Blaxell J did not have the advantage of viewing the DVD containing digitized images of the video surveillance footage of the incident. McKechnie J did. He found that the description of the incident by Detective Sergeant Tunks was accurate. That finding is not challenged. The DVD was not produced to this Court, however, still copies of the digitized images were in evidence.
30 The applicant contends that the surveillance footage on the DVD and the witness statement of the nightclub employee significantly weakens the prosecution's assertion before Blaxell J that self-defence can be negatived beyond reasonable doubt.
31 In the context of considering the question whether the applicant intended to cause grievous bodily harm, Blaxell J said that the only reasonable inference was that the complainant was being held by Kizon and Sorani (referred to as the applicant's two associates) at the time of being shot. He draws this inference based on the placement of the wounds and that it was unlikely the complainant would have cooperated and held himself still while being shot. However, Blaxell J does not expressly rely on that inference when considering the scope for self-defence. In that regard, he relies on Detective Sergeant Tunks' description of the video surveillance footage.
32 The nightclub employee says in his statement that he could see Kizon's back and his arms by his side just before hearing the gun shots.
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33 On the subject of self-defence, McKechnie J noted that the surveillance footage showed Kizon and Sorani taking the complainant down the passageway. McKechnie J continues at [16]:
"The applicant's actions are capable of being seen as retaliatory or motivated by revenge rather than self-defence because at the stage when the applicant proceeds down the passageway, his attacker, Dabag has been removed by Kizon and Cerrone [Sorani]. Dabag no longer poses any immediate threat to the applicant."
34 It is in that context that McKechnie J's reasons at [18] have to be read. He said:
"… Blaxell J drew as the only reasonable inference that the complainant was being held by the applicant's two associates at the time of being shot. I would not draw that inference. However this is not a new fact or circumstance. Moreover, whether or not the inference is drawn does not negate the overall finding of a strong prosecution case."
35 It is clear from these paragraphs that the new material did not cause McKechnie J to disagree with Blaxell J's assessment of the strength of the prosecution case insofar as it relates to self-defence. Moreover, McKechnie J refers to other evidence which he says has strengthened the prosecution case including the particle of gunshot residue found on the wipes and on the pair of black jeans together with the actions of the applicant and his visit to the hospital.
The applicant has not demonstrated that there has been any material change in the strength of the prosecution case in the applicant's favour.
36 The other alleged material change in circumstance is the completion of the police investigation into the matter. Blaxell J at [37] (set out earlier) referred to the risk of interference with witnesses as well as obstruction of the continuing police investigation. They are clearly independent matters. Interference with witnesses can occur notwithstanding the completion of the investigation. Blaxell J also found that there was a risk of retaliatory violence between the gangs of which the applicant and the complainant are members. Both continuing risks, considered individually or in combination, are very weighty considerations against the grant of bail.
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37 The fact that the police investigation has concluded does not materially alter the continuing risks identified by Blaxell J and does not constitute a material change for the purposes of s 14(2a) of the Bail Act. I would dismiss ground 1.
Exceptional circumstances
38 The applicant contends that the offences with which he has been charged are not of such a nature as to require him to demonstrate exceptional circumstances. As I understand it, the applicant contends that, as a matter of fact, the offences are of insufficient seriousness to require him to demonstrate exceptional circumstances. He does not contend that the exceptional circumstances test is inconsistent with the Bail Act or that the test is confined to charges of murder. That is, the submissions did not go so far as to challenge the correctness of the proposition endorsed in Jemielita, namely that the common law principle requiring an accused in limited circumstances to show exceptional circumstances applies under the Bail Act.
39 However, there is a preliminary hurdle for the applicant to overcome. This is not an appeal from Blaxell J's decision but an appeal from McKechnie J's finding of no jurisdiction. Senior Counsel for the applicant contends that the correctness of the conclusion that the applicant is required to demonstrate exceptional circumstances arises from McKechnie J's decision because his analysis of whether there had been a material change in circumstances was governed, or at least affected, by that requirement. Reliance is placed on [20] and [21] of McKechnie J's reasons. In [20] he quotes [40] of Blaxell J's reasons (set out earlier) and continues:
"21 The other matters advanced before Blaxell J remain. One exception is that the investigation has been completed. I do not regard that fact as evidencing a material change in circumstances. It is not my role to sit on appeal in any way from the decision of Blaxell J as to those matters. Clearly he was of the view that the seriousness of the offence itself, coupled with the strength of the prosecution case, made the grant of bail inappropriate. No jurisdictional fact has been established to allow me to reassess bail."
40 In my respectful view, that is an incomplete statement of Blaxell J's reasons for refusing bail. Blaxell J, as he was obliged to do, asked himself the questions in cl 1 (and cl 3) of Pt C and although he concluded that the
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- flight risk could be managed by conditions, he found there were real risks of interference with witnesses and gang-related retaliatory violence.
41 Paragraphs 20 and 21 of the judgment do not support the applicant's contention that McKechnie J's determination as to the materiality of the new facts and circumstances relied on by the applicant was in any way affected by Blaxell J's conclusion that the applicant had to show exceptional circumstances. The strength of the case against the applicant is primarily relevant to the risk of the applicant failing to appear in Court in accordance with his bail undertaking. In that regard, Blaxell J concluded that the flight risk could be met with appropriate conditions. Accordingly, any reduction in the strength of the case would have no material effect on the result. The second matter relied on relates to the risk of the applicant obstructing continuing police investigations. However, that and the other risks identified by Blaxell J, being the risk of interference with witnesses and of retaliatory gang violence are themselves weighty factors under cl 1(a)(ii), (iii), (v) and (b) of Pt C against the grant of bail. Indeed, each of those factors provided positive support for the refusal of bail and demonstrate that the outcome did not depend upon automatic inferences arising solely from the seriousness of the offence or a failure of the applicant to discharge any onus. Thus, the determination that there had been no material change of circumstances was unaffected by the application of the exceptional circumstances test. In any event, I see no error in Blaxell J's reasons or conclusion that the charge of unlawful wounding in the alleged circumstances is extremely serious for the purposes of the common law principle.
42 McKechnie J in [20] and [21] is simply foreshadowing the view stated later in Rauch v The State of Western Australia [2005] WASC 241 that he doubted the correctness of WCVB v The Queen. In particular, he doubted whether the Bail Act cast an onus on an applicant charged with murder or any other serious offence to show exceptional circumstances before the grant of bail, relying in part on cl 3A of Pt C for that conclusion. McKechnie J did not refer to the Full Court decision of Jemielita, which was decided after cl 3A was inserted. In The State of Western Australia v Sturgeon [2005] WASC 256 EM Heenan J provides a reconciliation of the common law principles, the Full Court decision in Jemielita and the Bail Act. However, this is not the occasion for determining or indeed commenting on the different views expressed in these decisions because it is not necessary for the determination of the application. Any reconsideration of Jemielita will require the Court to consider, inter alia, whether the Bail Act is a comprehensive code, whether any presumptions apply (including whether there is a prima facie
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- right to bail) and matters relating to onus. All of these issues are canvassed in the 1979 Report on Bail of the Law Reform Commission of Western Australia on which the Bail Act is based. None of them were explored before us. I would dismiss ground 2.
43 For these reasons, I would grant leave to appeal but dismiss the appeal.
44 PULLIN JA: I have read the draft reasons prepared by McLure JA. I agree with those reasons and have nothing to add.
45 MURRAY AJA: I agree that the appeal should be dismissed, for the reasons given by McLure JA. The questions at issue are of a limited nature, being concerned with the jurisdiction to reopen the question of bail before McKechnie J. I can detect no error by his Honour in respect of that question and, therefore, the case requires no re-examination of the authorities as to the consideration of bail in a case such as this.
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