R v Charles
[2017] ACTCA 35
•18 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Charles |
Citation: | [2017] ACTCA 35 |
Hearing Date: | 10 November 2016 |
DecisionDate: | 18 August 2017 |
Before: | Penfold, Elkaim and North JJ |
Decision: | (i) The appeal is dismissed. (ii) The Court notes that notwithstanding the absence of relevance to the respondent, the Declarations made by Refshauge J on 22 July 2016 reflect a correct interpretation of s 56A of the Bail Act1992 (ACT). |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCDEURE – Appeal from Supreme Court – Crown appeal – interpretation of s 56A of the Bail Act 1992 (ACT) |
Legislation Cited: | Bail Act 1992 (ACT), ss 6, 8, 8A, 9, 9A, 9B, 9C, 9D, 9F, 19, 33, 49(1), 56A Crimes (Child Sex Offenders) Act2005 (ACT), s 54 |
Parties: | The Queen (Appellant) Stanley Charles (Respondent) |
Representation: | Counsel Mr J White SC (Appellant) Mr J Stewart (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Aboriginal Legal Service (Respondent) | |
File Number: | ACTCA 31 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Refshauge J Date of Decision: 22 July 2016 Case Title: R v Charles Citation: [2016] ACTSC 177 |
PENFOLD J:
Introduction
I have had the opportunity to read in draft the judgment of Elkaim and North JJ, and gratefully adopt their Honours’ description of the background to the case.
I agree with their Honours that Refshauge J’s declarations reflect a correct interpretation of s 56A of the Bail Act 1992 (ACT) in the case before his Honour. In relation to the second declaration, I would add the comments at [22] to [24] below,
Section 56A is as follows:
56AArrest without warrant of person on bail
(1)This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2)A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person—
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(3)The police officer must bring the person before a court as soon as practicable.
(4)The court may—
(a)for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or
(b)for a person granted bail in a State or another Territory—
(i) release the person unconditionally; or
(ii) grant the person bail subject to the conditions that the court considers appropriate; or
(iii) remand the person in custody for a reasonable time while a warrant for the person’s arrest is obtained from the State or other Territory.
(5)A release mentioned in subsection (4) (b) (i) does not affect the grant of bail in the State or other Territory.
The arguments made by the appellant are, in general terms, that s 56A must be read as providing that an arrest under that section automatically revokes bail:
(a)because s 6 is expressed to be subject to s 56A; and
(b)because s 56A says that the court has the same powers to deal with a person arrested under that section who has a grant of bail in the ACT as it has “in relation to any other accused person in custody” (my emphasis).
In my view, as a matter of statutory interpretation, there is no basis for reading ss 6(3) and 56A of the Bail Act to mean that an arrest under s 56A brings to an end a grant of bail under that Act.
Operation of s 6
Section 6 of the Bail Act is as follows:
6Rights following grant of bail
(1)This section applies if—
(a)bail is granted to an accused person in relation to an offence;
and
(b)the person gives an undertaking to appear; and
(c)if a bail condition mentioned in section 25 (1) (b) (ii) or (c) is imposed—the security is given or the deposit made.
(2)The person is entitled—
(a)if the person is in custody—to be released from custody; and
(b)to remain at liberty in relation to the offence until required to appear before a court in accordance with the undertaking.
(3)This section is subject to section 56A (Arrest without warrant of person on bail).
Section 6 is not a grant of bail, and does not provide for the grant of bail. Rather, it is a specification of the entitlements of a person who has been granted bail under another provision of the Act. One of those entitlements is “to remain at liberty in relation to the offence until required to appear before a court in accordance with the undertaking”.
Section 56A, in permitting a police officer to arrest a person on bail, without a warrant, in certain circumstances, provides for a temporary interruption of that grant of liberty, and thus overrides the operation of s 6(2)(b) during that temporary interruption. To that extent, s 6 is clearly “subject to” s 56A. There is no basis for reading s 6(3) as meaning more than that.
Reference to “other” accused persons in custody
The reference in s 56A(4)(a) to “any other accused person in custody” does not as such identify a person who has been arrested under that section as a person whose entitlement to bail has been revoked. Clearly, a person who has been arrested under s 56A is in immediate custody, but this need not imply that the person’s grant of bail has been revoked by that arrest.
There are various cases in which a person who has been granted bail may find him or herself in a form of temporary custody: for instance, a person on bail who attends his or her trial day by day in accordance with bail conditions is legally in the custody of the court while in the court precincts, but under s 33 of the Bail Act, that bail continues, even if the court does not specifically address that matter (s 33(3)), unless and until the court makes a contrary order. That is, s 33 does not contemplate that bail is revoked by the person submitting him or herself to temporary custody unless it is expressly continued, but that in the ordinary course of events the grant of bail continues in effect, despite that temporary custody, unless expressly revoked.
Having regard to the provisions of s 33, and the requirement in s 56A to bring a person arrested under that section before a court as soon as practicable, there is no basis for interpreting s 56A as providing for an automatic revocation of bail unless bail is continued, as distinct from a presumed continuance of bail unless bail is then revoked.
Furthermore, the basis of the power conferred on police officers by s 56A would render an exercise of that power an inappropriate basis on which to bring to an end bail granted by a court. That is, a police officer may exercise the power under s 56A based on a belief “on reasonable grounds” that the person has failed to comply, or will not comply, with a bail condition.
A police officer may quite properly exercise the s 56A power based on a reasonable understanding of the circumstances that, in the end, turns out not to have been correct. It would be quite unjust for the police officer’s reasonable but mistaken belief to be sufficient to revoke a person’s bail, particularly in circumstances in which a new application for bail would face obstacles not applicable to the original grant of bail.
Of course, that kind of injustice would not prevent the legislature enacting a provision to that effect, but it certainly tells against an interpretation of s 56A that, as I have concluded, is not otherwise required by the express words of that section or other parts of the Bail Act.
Other arguments
The appellant also relied on a number of other provisions of the Bail Act that, counsel said, operated in a way that was consistent with the appellant’s interpretation of s 56A, and therefore supported that interpretation. However, those other provisions could equally well have operated consistently with the respondent’s interpretation – their consistency with s 56A as the appellant seeks to read it cannot be relied on to prove the appellant’s reading of s 56A.
It is sufficient to give one example. Section 19 of the Bail Act is as follows:
19Court bail—general
(1)A court may, in accordance with this part, make any of the following orders in relation to bail (a bail order):
(a)an order granting bail to an accused person who is being held in custody in relation to an offence with which the person has been charged;
(b)an order enlarging, varying or revoking bail granted to the person.
(2)In deciding whether to make a bail order in relation to an accused person, a court may have regard to any information it considers relevant and reliable.
(3)This Act does not limit the number of applications in relation to bail that an accused person may make to a court in accordance with this Act.
(4)A court must deal with an application in relation to bail as soon as reasonably practicable.
(5)However, a court may decide not to hear an application in relation to bail if the application is frivolous or vexatious.
The appellant says that under s 19 the only power available to a court, in relation to an accused who is before it after having been arrested under s 56A, is the power to grant bail (s 19(1)(a)), not the power to enlarge, vary or revoke bail (s 19(1)(b)). This proposition is said to flow from the reference in s 56A(4)(a) to the court having the same powers as in relation to “any other accused person in custody”. However, the argument about s 19 stands up only if one first accepts the appellant’s proposition that the effect of s 56A is to revoke the grant of bail in respect of which the person has been arrested, rather than to subject the accused person to temporary custody subject to further orders. The appellant’s argument about s 19 cannot therefore be used to prove the appellant’s proposition about s 56A.
I note also a curious proposition included in the appellant’s written submissions, and alluded to in oral argument, to the effect that s 19(1) applies only to a person in custody “in relation to an offence with which the person has been charged”, and that this does not include a person who has been arrested under s 56A, because such a person is in custody because he or she has been arrested pursuant to s 56A.
It is true that there is scope in the Bail Act for granting bail to a person who has been arrested otherwise than in respect of an offence alleged against that person (see, for instance, s 8(1)(d)), and that such persons are included in the definition of “accused person” found in the Dictionary to that Act.
However, except for the persons described in ss 8(1)(c), (d) and (e), the Bail Act makes provisions in relation to the granting of bail to persons who are identified by reference to an offence alleged, or found, to have been committed by them, and makes a variety of different provisions in relation to different kinds of offences. I reject the proposition that a person who has been granted bail in connection with an offence alleged or found against him or her, and who is subsequently arrested under s 56A in connection with that grant of bail, is in custody because they have been arrested under s 56A and not “in relation to” the offence concerned.
Apart from anything else, the appellant’s submission, if accepted, would seem to deprive most of the other provisions of the Bail Act of any operation after a s 56A arrest; for instance, how could a court determine which of ss 8, 8A, 9, 9A, 9B, 9C, 9D and 9F applied to a bail application by a person arrested under s 56A if the applicant’s custody cannot be attributed (directly or indirectly) to an allegation or finding against him or her in relation to a specified offence?
Further comment – Refshauge J’s second declaration
The second declaration made by Refshauge J was as follows:
It be declared that, on the proper construction of s 56A of the Bail Act 1992 (ACT), when Stanley Dwayne Charles appeared in the Magistrates Court on 14 November 2013, the Court had to determine whether he had breached any of his conditions of bail and, if so, whether to accede to any application by the prosecution to revoke his bail, make any other bail order or continue his bail.
That declaration addressed the particular circumstances of the respondent’s arrest and appearance in court, which resulted from an actual failure to appear in accordance with his bail undertaking. In the current context, however, the following additional comment may be useful.
As already noted, s 56A of the Bail Act permits a person to be arrested not only on the ground of a police officer’s belief that the person has failed to comply with a bail condition but also on the ground of a belief that the person “will not comply with a bail condition”. In the latter case, presumably the court’s inquiry under s 56A would not be limited to whether a bail condition has been breached, and would not be ended by a determination that no bail condition has been breached. Rather, the court’s inquiry might be, or include, whether the risk of a condition being breached provides a ground for revoking or varying bail.
Significance of this opinion
I agree with Elkaim and North JJ, and with the parties, that it is desirable to resolve the uncertainty that has arisen about the interpretation of s 56A of the Bail Act, and for that reason I have expressed my views about the proper interpretation of that section.
In the circumstances outlined by their Honours at [28] to [34] below, however, I am not so persuaded that this was in the Court below, or is in this Court, a proper case in which to determine that matter; on the other hand I do not see any utility in pursuing that question at this stage.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 18 August 2017 |
ELKAIM and NORTH JJ:
The central issue in this appeal is the interpretation of s 56A of the Bail Act1992 (ACT). The appeal is from a decision of Refshauge J delivered on 22 July 2016. The decision was constituted by two declarations:
1.It be declared that the Magistrates Court erred in finding on 14 November 2013 that Stanley Dwayne Charles, having been arrested under s 56A of the Bail Act 1992 (ACT), had to apply for bail.
2.It be declared that, on the proper construction of s 56A of the Bail Act 1992 (ACT), when Stanley Dwayne Charles appeared in the Magistrates Court on 14 November 2013, the Court had to determine whether he had breached any of his conditions of bail and, if so, whether to accede to any application by the prosecution to revoke his bail, make any other bail order or continue his bail.
Before dealing with the interpretation issue, however, it is necessary to deal with a preliminary argument that arose in the respondent’s submissions and also in the course of the hearing of the appeal.
The second of the two paragraphs making up the entirety of the respondent’s Summary of Argument was:
The Respondent submits that it is unclear how the Appellant says that it has power to appeal prerogative relief by way of declarations and that in the absence of such a power of the Appeal should be dismissed.
The respondent withdrew this submission at the beginning of the appeal. The appellant however raised its own jurisdictional issue derived from whether or not the court below had jurisdiction to make the orders that it had, and to the extent that the jurisdiction derived from an exercise of discretion, whether or not that discretion had miscarried.
In a Further Summary of Argument prepared following the hearing before this Court the jurisdiction point was not pressed but the submission that there had been a miscarriage of the discretion was, subject to a qualification, pursued.
The qualification is to be found in the last two paragraphs of the appellant’s further submissions:
9.It is submitted that his Honour’s discretion significantly miscarried, albeit this was an error within jurisdiction. It is submitted that it would be open to this court in the circumstances simply to set aside the declarations made by his Honour.
10.Having said that, the issue ventilated in this appeal is accepted (apparently by both parties) to be an important one which is likely to arise again if the court does not deal with it in the present appeal.
It was clear during the hearing that both parties did wish the interpretation of s 56A to be addressed and the Court heard full argument on that issue. The Court, having regard to the ventilation of the issue in the hearing, its importance to the widespread application of s 56A and the apparent desire of the parties to have the dispute clarified, is of the view that the argument concerning the discretion does not require resolution.
Rather the Court, in line with the parties’ wishes, has resolved to proceed directly to the interpretation of s 56A. Unless otherwise stated, all references to sections of an Act are references to sections in the Bail Act1992 (ACT).
Background
On 14 August 2013 the respondent was arrested for an offence under s 54 of the Crimes (Child Sex Offenders) Act2005 (ACT). He was brought before a Magistrate who granted bail carrying with it a condition that he live at a nominated address. He was therefore obliged to notify any change of that address.
The respondent changed address but did not make the necessary notification. The respondent appeared before a Magistrate on 21 October 2013. He was charged with failing to appear in accordance with his bail undertaking, contrary to s 49(1). He applied for bail and it was granted.
After failing to appear at the next court date, the respondent was arrested and brought before the Magistrates Court on 14 November 2013. The arrest had been made pursuant to s 56A.
When the respondent appeared before the Magistrate the prosecution submitted that because the respondent was in custody his already existing grant of bail was automatically revoked so that it was necessary for him to make a fresh bail application. In this particular case, the fresh application would be governed by s 9D.
The Magistrate agreed with the prosecution submission and, applying s 9D, refused bail.
On 19 December 2013 the respondent filed an application in the Supreme Court seeking bail, or in the alternative, a habeas corpus order.
On 28 January 2014 the respondent filed an amended application in the Supreme Court (AB 24). In this application, the respondent sought relief by way of declarations.
The amended application came on for hearing before Refshauge J on 6 February 2014. The respondent, however, abandoned his application because he was due to be sentenced in the Magistrates Court the following day. Notwithstanding the withdrawal, his Honour heard argument and ultimately made the declarations set out above on 22 July 2016.
His Honour’s decision to proceed with the hearing was the basis of the allegation that there had been a miscarriage of his Honour’s discretion. As already stated, this Court has proceeded as if there had not been any miscarriage of the discretion.
Section 56A
Section 56A came into the Bail Act1992 (ACT) through the Bail Amendment Act2004 (ACT). It states:
Arrest without warrant of person on bail
(1)This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2)A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person—
(a)has failed to comply with a bail condition; or
(b)will not comply with a bail condition.
(3)The police officer must bring the person before a court as soon as practicable.
(4)The court may—
(a)for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or
(b)for a person granted bail in a State or another Territory—
(i) release the person unconditionally; or
(ii) grant the person bail subject to the conditions that the court considers appropriate; or
(iii) remand the person in custody for a reasonable time while a warrant for the person's arrest is obtained from the State or other Territory.
(5)A release mentioned in subsection (4) (b) (i) does not affect the grant of bail in the State or other Territory.
In straightforward terms the Crown submitted the following:
(a)A person arrested pursuant to s 56A was a person who came before a court “in custody”.
(b)A person who was in custody could not be released on bail absent the making of a bail application.
(c)The fact that the person may have previously been on bail did not affect this position because any previous grant of bail had come to an end when the person was taken into custody.
(d)Because there needed to be a fresh application for bail, all sections of the Bail Act 1992 (ACT) applicable to such applications automatically came into play. This was how s 9D came to be applied by the Magistrate in respect of the respondent.
The Crown said there was a distinction between the revocation of bail and bail coming to an end upon the person being taken into custody. If there is a distinction, the Court sees no relevance in whatever it may be.
The respondent submitted that the Crown’s interpretation was not consistent with the Bail Act 1992 (ACT) and, moreover, led to an onerous and impractical circumstance in which the arrested person was required to effectively begin again in his or her pursuit of bail.
Ultimately the issue came down to whether or not any previous grant of bail came to an end upon the person being taken into custody.
The Crown submitted:
(a)Because s 6 was “subject to s 56A” any previous grant of bail came to an end upon the arrest (under s 56A).
(b)Section 56A(4)(a) says that the court has the same powers as it has “in relation to any other accused person in custody.” It followed that the person who came before the court was in custody.
(c)The combination of (a) and (b) above meant that any person appearing before a magistrate, having been arrested under s 56A, needed to make a fresh application for bail because any previous grant had come to an end.
The respondent’s reply to the Crown submission was:
It's our respectful submission that the way the director seeks this legislation to be read just can't be correct, even on any reading of the legislation, and they are attempting to read in powers and exceptions to the rest of the Act which simply do not appear in relation to section 56A. (T 39.33)
The Crown conceded that the Act did not expressly bring a previous grant of bail to an end upon the person being taken into custody. Rather it was the implication arising from s 6 being subject to s 56A. The Crown submitted that the person, being in custody, needed to have bail determined (a submission derived from s 56A(4)(a)) and therefore that determination could only be constituted by an application for a grant of bail. The Crown put its submission in this way:
“Well, section 56A taken in the context of the Bail Act says that. That's why the significance of the qualification of section 6 is so important, the qualification being it's subject to section 56A. So one has to read both of those sections together. And our submission is that the court must then exercise the same powers in relation to bail that it has in relation to any other person in custody in relation to that person. So that person who's been brought before it pursuant to section 56A has - the court may exercise such powers as it may in relation to any other person in custody.” (T 18.5)
The Court sees the following difficulties with the Crown submissions:
(a)There is no section in the Bail Act which says that an existing grant of bail comes to an end upon a person being taken into custody.
(b)To the contrary, persons are often arrested while being on bail, brought to a court in custody and, where appropriate, their bail is continued, even if subject to amended conditions. The fact that s 6 “is subject to s 56A” does not of itself give rise to a termination of any existing grant of bail.
(c)The powers granted to the court under s 56A(4)(a) are no more than an authorisation to the court to deal with any application concerning bail, in the same way as it might in regard to any accused person who is in custody.
(d)There is no reason why a person being dealt with under this subsection could not have their previous bail conditions changed in order to meet any actual or foreseen breach of bail which gave rise to the arrest under s 56A.
(e)There is nothing in s 6 that suggests, expressly or by implication, that the mere taking of a person into custody, whether under s 56A or otherwise, brings a previous grant of bail to an end.
(f)The Crown submission is contrary to accepted practice under the Bail Act 1992 (ACT). For example a person attending his or her trial will surrender their custody upon arriving at court but, at the end of the day, bail will continue (subject to specific order to the contrary) without the need for a fresh application for bail.
(g)In both the example given in (f) above and, generally, the Crown’s interpretation gives rise to an unwieldy and impractical effect. On the Crown’s position, whenever an accused person is brought to court, having been arrested under s 56A or simply being in custody for some other reason, there would need to be a completely fresh application for bail.
The result of the above is that the Court disagrees with the Crown’s interpretation of s 56A. The next question is what orders should flow from this conclusion.
The respondent no longer has any interest in the issue and the grant or dismissal of the appeal will make no difference to him.
Both parties made it clear to the Court that they sought guidance from the Court in respect of the general issue of the interpretation of s 56A. For that reason, and to give practitioners and judicial officers the benefit of this Court’s opinion, the following orders are made:
(i) The appeal is dismissed.
(ii) The court notes that notwithstanding the absence of relevance to the respondent, the declarations made by Refshauge J reflect a correct interpretation of s 56A of the Bail Act1992 (ACT).
| I certify that the preceding twenty-nine [29] paragraphs numbered [27] to [55] are a true copy of the Reasons for Judgment of their Honours Justice Elkaim and Justice North. Associate: Date: 18 August 2017 |
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