O'Connell v Silson
[2025] VMC 16
•8 October 2025
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. R11527022
| SEAN O’CONNELL | Applicant |
| v | |
| LISA SILSON | Respondent |
| and | |
| ATTORNEY-GENERAL FOR VICTORIA | Intervenor |
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MAGISTRATE: | Magistrate M H Thomas |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 September 2025 |
DATE OF DECISION: | 8 October 2025 |
CASE MAY BE CITED AS: | O’Connell v Silson |
MEDIUM NEUTRAL CITATION: | [2025] VMC 16 |
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CRIMINAL LAW – Extradition – Murder – s 83 and s 88 Service and Execution of Process Act 1992 (Cth) – s 13 Bail Act 1977 (Vic) – Jurisdiction of the Magistrates’ Court of Victoria.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Sarala Fitzgerald | Victoria Police |
| For the Respondent | Felicity Gerry KC, with Joanna Davidson, and Louis Andrews | Women’s Legal Service Victoria |
| For the Intervenor | Sarah Keating | Victorian Government Solicitor’s Office |
RULING
HIS HONOUR:
Background
On the 21st July 2025 the Deniliquin Local Court issued a number of warrants for the arrest of Ms Silson. Relevantly, one of those warrants was in relation to the crime of murder.
Ms Silson was subsequently arrested in Victoria pursuant to the NSW warrant and brought before this Court under section 83 of the Service and Execution of Process Act (hereinafter SEPA).
The issue to be determined
Ms Silson has sought that this Court exercise the power under s83(8)(a) SEPA and remand her on bail to NSW.
At the original hearing of this matter I expressed a preliminary view that this Court, when determining how to proceed under s83(8) SEPA was (by virtue of s88 SEPA), bound by s13(2) of the Bail Act and accordingly could not order Ms Silson be remanded on bail.
At the conclusion of the hearing on the 19th September 2025 I indicated that I had formed the view that this preliminary view was in fact incorrect. Rather, I have formed the view that s88(1) SEPA does not pick up s13 of the Bail Act as s88(1) adopts State laws with respect to the decision whether to grant bail under s83(8)(a) (such as thresholds and relevant considerations) and does not extend to adopt State laws restricting a Court’s jurisdiction to grant bail under those State laws. The following are my reasons in coming to this conclusion.
Relevant Legislation
Section 83 of the SEPA is entitled “Procedure after apprehension”.
Section 83(8) of the SEPA relevantly provides as follows:
“….if the warrant or a copy of the warrant is produced, the magistrate must order:
(a) that the person be remanded on bail…..;or
(b) that the person be taken in custody or as otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant
Section 88 of the SEPA is entitled “Law applicable to grant etc. of bail”.
It relevantly provides as follows:
(1)Despite subsection 68(1) of the Judiciary Act 1903, the law of a state with respect to the granting of bail applies in relation to a power under this Division to grant bail to:
(a) a person apprehended in that State
as if the person had been apprehended under, or by the authority of, a law of that State.
(2)The law of a State with respect to bail and matters related to bail (including enforcement of bail) applies in relation to a person who has been remanded on bail in that State under this Division as if the person has been remanded on bail to appear before a court of that State.
Other relevant provisions of s83 SEPA include the following:
(11) The magistrate may suspend an order under paragraph 8(b) for a specified period
(12) On suspending the order, the magistrate must order the person be remanded:
(a) on bail; or
(14) For the purposes of a proceeding under this section:
(a) the magistrate may adjourn the proceeding and remand the person on bail, or in such custody as the magistrate specifies for the adjournment
Section 84 SEPA dealing with persons under restraint also sets out that a magistrate may bail a person in various circumstances.
Section 13(2) of the Bail Act states as follows:
Only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.
Position and relevant submissions of the parties
The submissions made on behalf of Ms Silson
On behalf of Ms Silson the submission was made that the provision in Section 88(1) of the SEPA to the effect that State law applied “with respect to the granting of bail” did not pick up provisions which would have the effect of removing the power of a Magistrate to grant bail. Thus, it was said s13(2) of the Bail Act did not apply to prevent the grant of bail under s83(8)(a) SEPA where the extradition warrant related to a charge of murder.
It was further pointed out that the power to grant bail in the context of an extradition warrant arises under the SEPA itself, noting that the text of s88(1) SEPA itself refers to “a power under this Division to grant bail” and the power to grant bail was set down in various circumstances in both s83 and s84 SEPA.
In regard to the construction of the words “with respect to the granting of bail” it was submitted, that while these words are capable of having a very wide import this does not mean they must be given a wide meaning. Rather, it is submitted, the phrase is protean and its particular meaning “must be ascertained by reference to the nature and purpose of the provision in issue and the context in which it appears”.[1]
[1]Paragraphs 9 and 10 of submissions dated the 15th September 2025.
That read in the context of the provisions of s83 and s84 and having regard to the purpose of the SEPA, the words in s88(1) SEPA must be interpreted in a manner that the provision is not inconsistent with the giving of power to the Magistrates Court to grant bail under the SEPA.
Thus, it was submitted, one should conclude that the words “with respect to the granting of bail” in s88(1) mean with respect to the thresholds and criteria with respect to the decision whether bail ought to be granted. As was stated in the written submissions on behalf of Ms Silson:
“The purpose of s88 is to adopt frameworks to guide the making of decisions about the granting of bail. It is not a provision concerned with jurisdiction.”
This submission was reinforced with reference to the relevant Law Reform Commission report and the explanatory memorandum with respect to the Bill.
Finally, it was submitted that this Court was not bound by the decision of Rose v Chief Commissioner of Police to conclude that by virtue of the interplay between s88(1) SEPA and s13 Bail Act a person could not be extradited on bail in relation to a charge of murder.
The submissions made on behalf of the Applicant
The Applicant submits that the words “with respect to the grant of bail” is a phrase with a wide meaning that should not be read down. The Applicant points out that the phrase is a “phrase capable of having a very wide import”.
The Applicant submits that s13 of the Bail Act is a law with “respect to the grant of bail” as it confines the Courts that may grant bail where a person is accused of murder.
The Applicant further notes that the Law Reform Commission considered it was appropriate that local bail laws apply “including their constraints”.
Most significantly the Applicant relies on the decision of Hedigan J in Rose v Chief Commissioner of Police 2000 VSC 281 and argues the following:
(a) That the decision supports the proposition when exercising the power under s83 SEPA in relation to extradition for murder the Magistrates Court has no power to grant bail
(b) That the Court is not bound by the decision as the statements made by Hedigan J in relation to the application of s13 Bail Act were not part of the ratio decidendi.
(c) Nevertheless, the Court should give significant regard to those comments and what is said to be the reasoning process behind it;
The submissions made on behalf of the Attorney-General (Victoria)
As I apprehend it, the position on behalf of the Attorney-General is that s83(8) of the SEPA confers a power on the Magistrates Court to grant or refuse bail independently of the power to grant bail under s12 of the Bail Act.
As the power to grant bail arises under the SEPA and not the Bail Act, the jurisdiction of the Magistrates Court is not subject to jurisdictional limitations arising under the Bail Act (ie s13 Bail Act).
Rather, s88(1) of the SEPA simply picks up the statutory criteria in the Bail Act with respect to the decision whether or not to grant bail. The submission on behalf of the Attorney-General focuses on the words in S88(1) which refers to the law of a State with respect to the granting of bail. It is submitted that these words demonstrate that “only the statutory criteria under State law are picked up and applied by section 88, so as to guide the grant or refusal of bail”.
A distinction is drawn on behalf of the Attorney-General between the jurisdiction to grant bail (which is said to be outside the ambit of s88(1)) and the criteria for the grant of bail (which is said to fall within its ambit). Accordingly, any restriction in relation to the power or jurisdiction to grant bail under the State Act would not be picked up.
Finally, it was contended that Rose does not stand for the proposition that s88(1) SEPA picked up s13 Bail Act rather that this was simply an assumption made by the parties in that case so as to determine, if that was the case, whether the Magistrates Court had jurisdiction to order extradition.
Analysis
The decision in Rose v Chief Commissioner of Police
It is necessary to determine as a preliminary question whether this Court is bound by the statements of Hedigan J in relation to the interplay between s88(1) SEPA and s13 Bail Act and, if not bound, should nevertheless consider and apply those comments in determining the question before it.
In Rose v Chief Commissioner of Police [2000] VSC 281 Hedigan J heard a review under s83 of the SEPA in relation to an order that Mr Rose be extradited for murder.
In that case His Honour considered two issues. Relevantly one of the issues which fell to be determined was whether the Magistrates Court had jurisdiction under s83 SEPA in relation to an extradition on murder.
The legal argument in that case was if the Magistrates Court could not exercise the power under s83(8)(a) SEPA by virtue of S13 Bail Act being picked up by s88(1) SEPA, whether the Magistrates Court thereby was precluded from exercising jurisdiction to order extradition.
The argument was predicated on the assumption that s13 Bail Act was in fact picked up by s88(1) SEPA. It appears there were no submissions made in relation to whether this was in fact the case.
It was agreed by all the parties in the present matter that the ratio decidendi of the decision did not include any determination that in fact s13 of the Bail Act was picked up by s88(1) of the SEPA. It was however submitted on behalf of the informant that this Court should follow the obiter comments made in the decision in the determination of that question.
Some of the relevant passages of Rose are as follows:
15. “…It is common ground that the effect of s13 of that Act is that, in the case of a charge of murder, only the Supreme Court, or a judge of it, and the magistrate committing for trial for murder, have the power to grant bail for murder….”
“..Thus the contention was advanced that, having regard to the provisions of s83 of the Service and Execution of Process Act, the magistrate once he determines that the warrant is valid, must order that the person be taken into custody or released on bail (s83(8). I observe that the magistrate has a choice and may select either option.” (emphasis added)16. “The submission in effect if this – that the consequence of the limitation in the Victorian Bail Act as to what court or judicial officer has power to grant bail on a murder charge is that, the extradition magistrate not having the power to admit to bail, the Magistrates Court has no power to order extradition…”
17. “It does not appear to have been in dispute that the magistrate at Moe dad not a committing Magistrate and could not lawfully have granted bail by reason of s13 of the Bail Act….There can be no doubt that the Commonwealth Act was intended to operate in all States and Territories and, as s88 indicates, to permit State laws as to bail to have effect. But that effect surely must have been intended to relate to the grant or refusal of bail, and not to impugn the jurisdiction to consider and determine extradition….The effect in my view, of s13 is merely to produce the self evident effect, namely that the power to grant bail is denied, not the jurisdiction to order extradition. (emphasis added)
18. However, the consequence, in my view, is that the Magistrates Court is not stripped thereby of jurisdiction to order extradition, but only of the power to grant bail. (emphasis added)
It is clear that it was not a necessary part of the process of reasoning to determine that the Magistrates Court was so deprived of power. This was merely assumed as part of the argument.
Having regard to the foregoing, the concession on behalf of the informant is rightly made. Rose stands for the proposition that any restriction on the Magistrates Court’s power to grant bail does to prevent it from ordering extradition. It does not stand as binding authority that s88(1) SEPA picks up s13 Bail Act so as to deprive the Magistrates Court of exercising the power under s83(8)(a) SEPA.
Thus, at its height, the obiter in Rose is to the effect that it can safely be assumed for the purposes of argument that s13 Bail Act would be picked up by s88(1) SEPA such that the power to grant bail in relation to murder (unless at the time of committal) is denied.
Given the cogency of the submissions before me I do not consider it in fact can be so safely assumed.
Statutory construction of the phrase “with respect to” in the context of Section 88(1) SEPA
The process of statutory construction
In the decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the plurality stated as follows:
69. 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. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos Dixon CJ pointed out 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". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71.Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume. Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (Citations omitted)
Construing the meaning of s88(1) SEPA
In order to properly determine the parameters of the operation of s88(1) it is necessary to consider the operation of s83 SEPA (and also s84 SEPA).
It was the agreed position between the parties that in exercising the power under section 83(8) of the SEPA the Magistrates Court was exercising a distinct power of bail rather than exercising a power under s4 of the Bail Act.
As noted in the submissions on behalf of the Attorney-General s88(1) refers to “…a power under this Division to grant bail”. This, it is said, and I accept, demonstrates that the power to grant bail under s83(8) arises independently under the SEPA and not derivatively from a State Bail law.
Accordingly, any restriction upon the Magistrates exercise of that power arises by, and only by, the mechanism of the application of State laws through s88(1) of the SEPA.
I am fortified in the position that the exercise of the power under section 83 SEPA is distinct from the exercise of the power to grant bail generally (and accordingly different considerations may apply) given the reasons of Hollingworth J in Formica [2020] VSC 719
As stated by Her Honour:
13. The bail applications were argued below as if the magistrate was considering trial bail, rather than extradition bail.
22.It must also be remembered that these cases are concerned with whether or not bail should be granted pending extradition to Queensland and the applicants’ first appearance before the Queensland court. It is not the function of this court (or the magistrate below) to decide whether bail should be granted until trial; that will be for the Queensland court to decide on any bail application made in that court.
The words “the law of a State with respect to the granting of bail”
It was argued on behalf of the informant that the words “with respect to” can have a wide meaning and extend such that it simply requires a “relevance or connection with the identified subject”.
However, as noted in the submissions made on behalf of Ms Silson words such as “in respect of” (which in my view is synonymous with the expression “with respect to”):
“…are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend on their statutory context and purpose”[2]
[2]R v Khazaal (2012) 246 CLR 601 at [31] per French CJ
Contrary to the submissions made on behalf of the informant, one should not assume that the phrase necessarily connotes any law with a connection to the identified subject namely the “granting of bail”. In my view such an approach places too great an emphasis on the literal words at the expense of the context of those words and the purpose of the legislation.
I accept the submission made on behalf of Ms Silson and echoed on behalf of the Attorney-General that there is nothing in either the text of s88(1) nor the the context or purpose of the SEPA that suggests that State laws relating to the jurisdiction of the Magistrates Court to grant bail under the exercise of the power to grant bail under the Bail Act (as opposed to under the SEPA) should be picked up by the words “with respect to the granting of bail”.
I agree that the text of s83(4),(8),(12) and (14) together with S84(5) and (6) unambiguously give the power to grant bail to the Magistrates Court under and pursuant to the SEPA in various defined circumstances. The power is clear and independent and is not derived from any power to grant bail under a State Act. To put it another way, the power and jurisdiction arising under those sections exist without recourse to power or jurisdiction derived from the Bail Act through the mechanism of s88(1).
Further, pursuant to the words of s88(1) SEPA the adoption of the State law is predicated on the precondition that the Magistrates Court is exercising power to grant bail under the SEPA:
“…the law of a State with respect to the granting of bail applies in relation to a power under this Division to grant bail.”
For s88(1) to operate the Magistrates Court must already be exercising the jurisdiction whether to order extradition on bail under the SEPA. Thus, State provisions which would have the effect of removing the jurisdiction or power to grant bail under the SEPA are not incorporated by the terms of s88(1).
Placing the words in Section 88(1) in the context of other provisions of the Act it is important to note that Section 88(1) refers to “the law of a State with respect to the granting of bail” whilst Section 88(2) refers to “the law of a State with respect to bail and matters related to bail” a much wider concept.
It appears therefore that there are 3 distinct notions contained in s88 SEPA ranging in width from narrowest to widest:
(a) the law of a State with respect to the granting of bail (s88(1))
(b) The law of a State with respect to bail (s88(2))
(c) a law of a State in relation to matters related to bail (s88(2))
It is important to note that the latter two notions only apply where bail has been granted under the SEPA. However, the use of wider expressions in s88(2) suggests the expression in s88(1) should be given a narrower rather than wider meaning. As noted in Project Blue Sky “a court construing a statutory provision must strive to give meaning to every word of the provision”. The words in s88(1) “with respect to the granting of bail” thus cannot simply be synonymous with being in “respect to bail”.
In my view this distinction supports the position submitted on behalf of the Attorney General. Had Parliament intended a wider application in relation to s88(1) it would have referred to “a law with respect to bail” rather than the more limited “a law with respect to the granting of bail”.
The question is what then follows from the conclusion that the phrase “with respect to the granting of bail” must carry a more restricted meaning than “a law with respect to bail”.
Considered in isolation I accept it would be open to conclude that the phrase “with respect to the granting of bail” could cover not only any tests to be satisfied, or criteria to be considered, in determining whether bail is to be granted but also what pre-conditions must exist before bail may be granted.
But the phrase is not to be considered in isolation. Rather, the text of the provision must be considered in the legislative context. Read contextually the picking of State laws with respect to the granting of bail is predicated on the assumption that the Magistrates Court in fact has power to grant bail. As stated in the section: “the law of a State with respect to the granting of bail applies in relation to a power under this Division to grant bail”. The submission of the informant treats the words relating to the exercise of a power as if they were the equivalent to whether there is a power.
The interpretation urged on behalf of the informant appears contradictory, in that it is a precondition to the adoption of the State bail law under s88(1) that there is in fact a power to grant bail being exercised under the SEPA.
Purpose
Having regard to the Law Reform Commission Service and Execution of Process – Report No 40 I am satisfied that it was specifically intended that a magistrate have a clear power under the SEPA to order extradition on bail in order to ensure flexibility to address all different circumstances that may arise.
In relation to the operation of s88(1) I have had regard to the following passage from the Law Reform Commission report:
“Given the appropriateness of a flexible approach to that question, an issue that arises is whether, as at present, the choice as to the proper order in the circumstances should be unguided in any way, or whether the relevant officers should be directed to have attention to the principles of a particular law concerning the circumstances where non-custodial remand is appropriate.”
In my view it is clear from the above passage that s88(1) was intended to pick up State law as a guide to the decision making process as to whether extradition should be on bail (previously unguided) rather than limit that power.
In rejecting the adoption of separate Federal guidelines for the grant of bail on extradition the Commission noted the following:
“There is no general federal law on the subject of bail or the criteria which should guide a court’s decision whether to remand in custody or on bail pending continuation of the proceedings against the person.”
….
“The commission has come to the view that it is not necessary to establish federal procedure in this regard. Such provisions would be necessary if the laws of some or all of the States and Territories did not provide an opportunity for persons to obtain non-custodial remand on the adjournment of proceedings against them.”
These extracts make it clear that in no way was it intended that s88(1) would pick up State law such that it would deprive the magistrate of the power to extradite on bail. Indeed, the provisions make clear that were that the case seperate federal bail laws may need to be promulgated.
While it was intended that State laws be adopted including their constraints it is clear that this is a reference to laws guiding the determination of whether to grant bail (such as provisions requiring applicant’s for bail to establish good cause for their release) rather than laws trammelling the power/jurisdiction to consider the question.
Further, I accept that explanatory memorandum supports the position that s88(1) was not intended to pick up States laws to restrict the jurisdiction/power to grant bail under the SEPA as opposed to guide the exercise of that power. The explanatory memorandum in relation to s88 provides as follows:
“…provides that the law of a State with respect to the granting of bail applies in relation to the exercise of powers to grant bail…” (Emphasis added)
I am satisfied that to conclude that the words of s88(1) was intended to confine the jurisdiction under s83 or s84 of the SEPA would be contrary to the purpose of the legislation.
Further Considerations
It is also important to consider the ramifications of adopting a wider interpretation of the phrase “the law of a State with respect to the granting of bail”. In one sense that phrase could encapsulate many provisions of the Bail Act. As was pointed out by Ms Keating on behalf of the Victorian Attorney-General, the interpretation sought on behalf of the informant does not provide any criteria for why s13 Bail Act would be incorporated under that phrase and other provisions would not. For instance s18A Bail Act provides for an Appellate procedure for the DPP to appeal the grant of bail to the Supreme Court which in salient respects is inconsistent with the review process set out in s86 of the SEPA.
On behalf of the informant it was submitted that:
“It creates no absurdity that the practical result of that interaction is that bail decisions for the most serious charge of murder are required to be made in the State where the offence was allegedly committed.”
It should however be borne in mind, as pointed out in Formica, that the exercise of the power under s83(8)(a) of the SEPA is only concerned with whether bail should be granted pending extradition to the first appearance before the interstate court. It is not the function of the court considering s83(8)(a) or (b) to decide whether bail should be granted until trial, that will be for the interstate Court to decide. Once a person is extradited from Victoria there is no role for the Victorian courts to play.
Further, it is important to bear in mind that s13 of the Bail Act does not preclude the grant of bail by the Magistrates Court under s4 of the Bail Act in all circumstances. Rather, in relation to the grant of bail until trial it limits the power of the Court to do so to except where it is committing for trial. Thus, to apply s13 to restrict the exercise of the power to grant bail under the SEPA it is necessary to apply part of s13 of the Bail Act while ignoring the words “….or a court committing a person for trial…” because such words are impossible of application to an exercise of power under s83 SEPA. This supports the position that s88(1) does not unequivocally “pick up” s13.
Conclusion
For the reasons articulated I conclude that when considering whether to exercise the power under section 83(8)(a) or (b) SEPA, section 88(1) of the SEPA does not apply s13 of the Bail Act as it is not in the relevant sense a law with respect to the granting of bail. Thereby, the Magistrates Court is not precluded from exercising the power under s83(8)(a) of the SEPA in relation to an interstate charge of murder.
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