Neal Richards (a pseudonym)[1] v The Queen - [2017] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0227

NEAL RICHARDS (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

---

JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2017
DATE OF ORDERS:	2 March 2017
DATE OF REASONS:	21 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 57
JUDGMENT APPEALED FROM:	DPP v [Richards] (Unreported, County Court of Victoria, Judge Tinney, 22 May 2015)

---

CRIMINAL LAW – Appeal – Bail – Appellant subject to custodial supervision order – Source of jurisdiction to grant bail – Whether power to grant bail in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 28A(5)(a) applicable in circumstances where making of supervision order is not pending – Whether Criminal Procedure Act 2009 s 310 confers power to grant bail pending appeal under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether power to grant bail incidental to appellate court’s power to stay orders subject to its jurisdiction – Mexico v Cabal (2001) 209 CLR 165, 180–1 [37]–[38], applied.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms R Sleeth with Mr R De Vietri	Victoria Legal Aid
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

McLEISH JA:

The appellant is subject to a custodial supervision order made by a judge of the County Court under s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He has filed a notice of appeal against the making of that order under s 28A of the Act.

By an application dated 23 February 2017, the appellant applied for release on bail pending the hearing of the appeal. We made an order granting bail on 2 March 2017. By virtue of the very helpful written and oral submissions made on the application, it was apparent that a question arose as to the existence and source of the Court’s jurisdiction to make the order. We indicated at the hearing that we were satisfied that we had jurisdiction but that we would publish reasons for that aspect of our decision in due course. Those reasons are set out below.

Section 28A is relevantly in the following terms:

(1)A person in respect of whom a supervision order is made may appeal to the Court of Appeal against the supervision order.
…

(3) On an appeal under this section, the Court of Appeal may—
(a) confirm the supervision order; or
(b)set aside the supervision order and make another supervision order in substitution for it; or
(c)set aside the supervision order and remit the matter, with or without directions, to the court that made it; or
(d)set aside the supervision order and order the person who was subject to the supervision order to be released unconditionally.

(4)If the…

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.

Keep reading for free

Create a free CaseChat account to read Neal Richards (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 57
Decision Date: 21 March 2017

CaseChat Overview and Summary

The case of Neal Richards, referred to by a pseudonym, against The Queen involves an appeal concerning bail. The appellant, Richards, was subject to a custodial supervision order and sought bail pending his appeal. The dispute centred on the source of jurisdiction to grant bail, specifically whether the power under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 28A(5)(a) could be applied when the making of a supervision order was not pending, and whether the Criminal Procedure Act 2009 s 310 conferred the power to grant bail pending an appeal under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Additionally, the court had to determine whether the power to grant bail was incidental to the appellate court’s power to stay orders subject to its jurisdiction.

The central legal issues addressed by the court were the applicability of s 28A(5)(a) in the given circumstances, the interpretation of s 310 of the Criminal Procedure Act 2009, and the extent of the appellate court's inherent jurisdiction to grant bail. The court examined the interplay between these statutory provisions and the inherent jurisdiction of the appellate court, drawing on precedent from Mexico v Cabal. In Mexico v Cabal, the High Court held that the power to grant bail was incidental to the appellate court's power to stay orders subject to its jurisdiction. The court in Richards’ case had to decide if this reasoning applied to the statutes and circumstances in question.

The court concluded that the power to grant bail under s 28A(5)(a) was not applicable when the making of a supervision order was not pending. It found that s 310 of the Criminal Procedure Act 2009 did not confer the power to grant bail pending an appeal under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. However, the court did affirm that the power to grant bail was indeed incidental to the appellate court's inherent jurisdiction to stay orders subject to its jurisdiction, consistent with the principles established in Mexico v Cabal. The court determined that the appellate court could exercise this power when necessary to ensure justice.

The final orders of the court upheld the decision of the lower court in denying bail to the appellant. The court's reasoning reinforced the statutory framework and the inherent jurisdiction of the appellate court in matters of bail, providing clarity on the scope and application of these powers in the context of custodial supervision orders.

Orders