R v Brown
[2018] ACTSC 116
•27 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Brown |
Citation: | [2018] ACTSC 116 |
Hearing Dates: | 20 April 2018; 27 April 2018 |
DecisionDate: | 27 April 2018 |
ReasonsDate: | 04 May 2018 |
Before: | Loukas-Karlsson J |
Decision: | The application for bail be dismissed. |
Catchwords: | CRIMINAL LAW – BAIL – Jurisdiction of Supreme Court to hear a bail application – Whether prior bail hearing was a bail review pursuant to s 42A of the Bail Act 1992 (ACT) - Court has no jurisdiction to hear the application |
Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 20, 20A, 20B, 22, 42A, 43A |
Cases Cited: | In the matter of an Application for Bail by Luke Marsh [2013] ACTSC 16 In the matter of an Application for Bail by Roman Eiginson [2014] ACTSC 234 In the matter of an Application for Bail by Shane William Sebbens [2014] ACTSC 281 |
Parties: | Rhys Liam Brown (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr H Jorgensen (Applicant) Ms M Kent / Ms S Naidu (Respondent) |
| Solicitors LegalAid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCC 78 of 2018 |
Loukas-Karlsson J:
Introduction
By way of an application and supporting affidavit dated 13 April 2018, the applicant, Rhys Brown seeks that bail be granted pursuant to section 43A of the Bail Act 1992 (ACT) (Bail Act).
The applicant was arrested on 31 July 2017, and charged with one count of forcible confinement, one count of minor theft, and one count of common assault. The Applicant was remanded in custody on 1 August 2017. The applicant was in breach of his Supreme Court Bail at the time of his arrest.
Since the applicant’s arrest, he has been sentenced in the Supreme Court by Penfold J to a term of imprisonment with respect to offences arising in 2012. That term of imprisonment was completed on 15 March 2018.
On 8 August 2017, in a hearing before Magistrate Boss, the charge of forcible confinement was withdrawn, and an additional charge of choke/suffocate was laid against him.
The family violence charges were listed for hearing before the Magistrates Court on 11 December 2017. On that day, the accused was charged with attempting to pervert the course of justice between 4 August 2017 and 11 October 2017. The matter was adjourned, and all of the proceedings will be heard together on 8 May 2018.
The applicant is facing separate charges arising out of an incident at the Alexander Maconochie Centre on 10 December 2017, namely one count of assault and one count of possessing a prohibited thing.
The applicant has no proceedings currently before the Supreme Court. The matters he was charged with on 31 July 2017 are before the Magistrates Court.
Application for grant of bail
The applicant’s supporting affidavit submitted that the applicant has been refused bail on the following occasions since 31 July 2017:
· On 2 August 2017, bail was refused by Chief Magistrate Walker due to lack of special or exceptional circumstances under s 9D of the Bail Act;
· On 8 August 2017, bail was refused by Magistrate Boss due to lack of special or exceptional circumstances under s 9D of the Bail Act;
· On 18 August 2017, the accused applied for bail before Magistrate Boss. Her Honour again refused to grant bail due to the lack of special or exceptional circumstances under s 9D of the Bail Act; and
· On 16 March 2018, a bail hearing was heard before Magistrate Fryer. Her Honour was satisfied that special or exceptional circumstances existed but refused bail on consideration of the relevant criteria pursuant to s 22 of the Bail Act.
On that basis, the applicant sought a grant of bail pursuant to s 43A of the Bail Act.
This matter was first heard on 20 April 2018. When it was clear that parties were not ad idem on the question of jurisdiction, I adjourned the matter to 27 April 2018. I asked that the parties seek further information which would clarify whether the hearing for bail on 16 March 2018 before Magistrate Fryer was a bail application or a bail review. On 27 April 2018, I heard further submissions on jurisdiction.
The Bail Act
The relevant provisions of the Bail Act are as follows:
20 Power in relation to bail—Magistrates Court
(1)The Magistrates Court has power to make a bail order in relation to an accused person only if a proceeding for an offence with which the person is charged—
(a) is, or is about to be brought, before the Magistrates Court; or
(b) is before the Supreme Court, and the following apply:
(i) the Magistrates Court or the Supreme Court has granted bail to the person in the proceeding;
(ii) the person is in custody because the person has been arrested under section 56A (Arrest without warrant of person on bail) and has not been brought before the Supreme Court in relation to the reason for the arrest;
(iii) the day on which the application for bail is made is not a Supreme Court sitting day, and is a day on which a magistrate is sitting in relation to another proceeding before the Magistrates Court.
(2) In this section:
Supreme Court sitting day means a day other than a Saturday, a Sunday or a public holiday.
20A Repeat application for bail—Magistrates Court
(1) This section applies to an application for bail (other than a bail review application) by an accused person in a proceeding if—
(a) the proceeding is one in which the Magistrates Court has power to make a bail order under section 20 (1)(a); and
(b) the accused person has made 2 applications in the Magistrates Court for bail in the proceeding.
(2)The court may only consider a third or subsequent application for bail by the person in the proceeding if the court is satisfied—
(a)that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or
(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.
20B Power in relation to bail—Supreme Court
The Supreme Court has power to make a bail order in relation to an accused person only if —
(a) a proceeding for an offence with which the person is charged is before the Supreme Court; or
(b)if the proceeding is not before the Supreme Court—section 43 (Power of Supreme Court to review—decision of authorised officer) or section 43A (Power of Supreme Court to review—decision of Magistrates Court or Supreme Court) apply.
…
42A Power of Magistrates Court to review—decision of Magistrates Court
The Magistrates Court may, on application under this division,
review any decision of the court (however constituted) in relation to
bail for an accused person, only if—
(a) the court has power to make a bail order under section 20 (1) (a) (Power in relation to bail—Magistrates Court); and
(b) the court is satisfied that the applicant has shown—
(i) a change in circumstances relevant to the granting of bail since the court’s decision; or
(ii) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision; and
(c) for an application made by the accused person—the person has made 2 applications for bail in the Magistrates Court in the proceeding to which the bail relates.
43A Power of Supreme Court to review—decision of Magistrates Court or Supreme Court
(1)This section applies if a decision in relation to bail for an accused person has been made by—
(a) the Magistrates Court in accordance with section 42A (Power of Magistrates Court to review—decision of Magistrates Court); or
(b) the Supreme Court.
(2) The Supreme Court may, on application under this division, review the decision of the court, only if the court is satisfied that the applicant has shown—
(a) a change in circumstances relevant to the granting of bail since the court’s decision; or
(b) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.
The jurisdiction granted by the Bail Act to the Supreme Court in relation to applicants facing charges in the Magistrates Court was summarised as follows by Burns J in In the Matter of an Application for Bail by Serena Holmes [2011] ACTSC 187 (Holmes) at [10]:
The combined effect of ss 20B, 42A and 43A of the Act is that this Court has no jurisdiction to make a bail order with respect to an accused facing charges in the Magistratres Court until two applications for bail have been made in the Magistrates Court, and an application for review of a bail decision has also been made in that Court.
Submissions
Applicant
The applicant submitted that the bail hearing on 16 March 2018 was a bail review, rather than a bail application. Therefore, the Court could be satisfied that it had jurisdiction to hear the application dated 13 April 2018.
The applicant submitted that the Court on a number of occasions had found that it had jurisdiction in similar circumstances: Holmes; In the matter of an Application for Bail by Shane William Sebbens [2014] ACTSC 281 (Sebbens); In the matter of an Application for Bail by Roman Eiginson [2014] ACTSC 234 (Eiginson); In the matter of an Application for Bail by Luke Marsh [2013] ACTSC 16 (Marsh).
The applicant was unable to point to anything in the transcript or bench sheets from the Magistrates Court that would assist in identifying the decision as a review rather than an application.
The applicant submitted that the Bail Act should be interpreted “liberally” consistent with the decision in Marsh at [20]:
The apparently high threshold that s 43A(2) requires may need to be carefully construed in the light of the right to liberty set out in s 18 of the Human Rights Act 2004 (ACT). See, for example, Re an application for bail by Rodrigues [2008] ACTSC 50 at [20]. As I said in R v Kristiansen [2008] ACTSC 83 at [20], this requires “a liberal interpretation” to be given to this requirement. This shows the problem of the complexity of this legislation, where genuine issues of jurisdiction have to be decided, sometimes without the necessary material — such as a transcript of the Magistrates Court proceedings — to be able to make a proper decision.
The applicant submitted a liberal interpretation should be adopted as to whether the hearing on 16 March 2018 was an application or a review, particularly given that the listing on 16 March 2018 was not of the applicant’s own volition but made by Magistrate Morrison. The applicant submitted that Magistrate Morrison’s order, “List it for bail”, could be interpreted either as a bail application or a bail review, and that in those circumstances, it ought to be interpreted as beneficially as possible to the applicant.
The applicant conceded that there were a “few hurdles” for the applicant to overcome before an order for bail could be made.
Respondent
The respondent submitted that the Court did not have jurisdiction to make an order for bail as the provisions of s 20B of the Bail Act had not been met by the applicant.
The respondent submitted that there was no reference on the bench sheets or the transcript of proceedings from 16 March 2018 to s 42A of the Bail Act, or to the phrase bail review. The respondent submitted that those proceedings were for a bail application pursuant to s 20A of the Bail Act.
The respondent submitted that Sebbens could be distinguished from this matter. In Sebbens, Refshauge J had found a clear reference to bail review on the Magistrates Court bench sheets. The respondent submitted that in contrast, in this matter there was nothing on the transcripts or bench sheets from 16 March 2018 indicating a bail review.
The respondent referred to Refshauge J’s judgment in Sebbens at [14] as supporting those submissions:
Applicants should be aware that the issue is not one that can be ignored and that it will not be sufficient merely to point to three occasions where the Magistrates Court has considered the issue of bail where it cannot be shown that the third occasion is a review under 42A and not merely a third application under 20A.
The respondent submitted that the statutory language of the Bail Act is clear and that there was no issue of interpretation in this case.
Consideration
The decisions relied upon by the applicant can be distinguished from the applicants case. In Sebbens, Refshauge J, on his own investigation, found the word ‘review’ on the Magistrate’s bench sheet, which assisted in his Honour’s finding as to jurisdiction. I had before me the transcript of proceedings on 16 March 2018, and the relevant bench sheet. There is nothing related to ‘review’, or anything which indicates a review, on those documents.
In Marsh, the parties informed Refshauge J that a “review had been conducted”. Although his Honour commented at [10] that this was “a troubling matter, for the issue is not one merely of passing interest”, he was satisfied that the parties being agreed was sufficient to allow his Honour to proceed with the application. No such agreement between parties existed in the matter before me.
In Holmes, Burns J was satisfied that an assurance by the applicant’s counsel that a previous bail hearing was a bail review was sufficient on the question of jurisdiction. Such an assurance could not be provided in the applicant’s case.
In Eiginson, Refshauge J was satisfied that the Court had jurisdiction to hear the application because the learned Magistrate in prior bail proceedings had referred to s 42A. The learned Magistrate in the bail hearing on 16 March 2018 in the case before me made no reference to s 42A.
I do not accept the applicant’s submission that the bail hearing on 16 March 2018 was a bail review pursuant to s 42A. There is nothing in the transcript or bench sheet from 16 March 2018 which indicates it was a bail review. The applicant specifically refers to the proceeding on 16 March 2018 as a “bail application” on pages 2, 3 and 5 of the transcript of proceedings.
I find that the hearing on 16 March 2018 was an application for bail, and not a bail review pursuant to s 42A of the Bail Act.
No liberal interpretation of the Bail Act can assist the applicant in such a case. To do so would be to ignore the clear statutory language regarding this Court’s jurisdiction.
On 27 April 2018, I found that I did not have jurisdiction to hear the application dated 13 April 2018, and I dismissed the application.
In such circumstances, it is worth repeating the words of advice to practitioners on this area of law provided by Burns J in Holmes at [10]:
…It is therefore imperative that practitioners take care to identify to the Magistrates Court the nature of any application concerning bail made to that Court. Magistrates should also take care to enter onto the bench sheet, as the record of the court, the legal nature of the application.
Order
On 27 April 2018, I ordered that:
1.The application for bail be dismissed.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 4 May 2018 |
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