R v Clayton Tierney

[2014] NSWDC 124

District Court

New South Wales

Medium Neutral Citation:	R v Clayton TIERNEY [2014] NSWDC 124
Hearing dates:	22 July 2014
Decision date:	22 July 2014
Before:	Judge A Haesler SC DCJ
Decision:	Conditional Bail granted
Catchwords:	Bail, detention order s 50, jurisdiction of court if bail previously dispensed with.
Legislation Cited:	Bail Act 2013
Cases Cited:	Project Blue Sky [1998] HCA 28; 194 CLR 355
Category:	Principal judgment
Parties:	Crown (DPP) Clayton Tierney (Offender)
Representation:	Ms G Wasilewicz (DPP) Ms McKenzie (Offender)
File Number(s):	2014/00072543

Judgment

On application to hear detention application

1. This is an application by the Director of Public Prosecutions for a bail detention order pursuant to s 50 Bail Act 2013 in respect of Clayton Tierney. A similar detention application came before the Local Court; however the learned Magistrate took the view that she had no jurisdiction to entertain a detention application.

1. The charge, the subject of the Local Court proceedings, has been committed to this Court and is for arraignment this coming Friday, 25 July 2014. While this court now has jurisdiction in relation to the trial, a question arises as to whether it can make the detention order requested. The Director says it can, and should. Ms McKenzie, for the respondent, says the Magistrate got it right and the Bail Act 2013 does not allow the application, as bail has been dispensed with.

1. Clayton Tierney is serving the balance of parole of a sentence for another matter. The balance of parole of that sentence expires tomorrow, 23 July 2014. He is entitled to his liberty in relation to that matter tomorrow.

1. While serving this balance of parole, fresh proceedings for a break and enter matter were brought before the Local Court by way of a Future Court Attendance Notice (FCAN) for an unrelated offence of aggravated break, enter and steal. When the fresh matter was first before the Local Court, no bail decision was formally made.

1. A bail decisions is defined in s 8 of the Bail Act 2013.

"Bail decisions that can be made

(1)   The following decisions (each of which is a "bail decision") can be made under this Act in respect of a person accused of an offence:

(a)   a decision to release the person without bail for the offence,

(b)   a decision to dispense with bail for the offence,

(c)   a decision to grant bail for the offence (with or without the imposition of bail conditions),

(d)   a decision to refuse bail for the offence.

Note. Part 3 sets out how a bail decision is to be made by a bail authority.

(2)   A bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings for the offence are pending before a court.

(3)   A bail decision can also be made in respect of a person who is not accused of an offence in the circumstances specified in Schedule 1."

1. As the Local Court made no bail decision, s 10 Bail Act 2013 applies:

"Decision to dispense with bail

(1)   A decision to dispense with bail can be made only by a court or authorised justice with power to make that bail decision under this Act.

(2)   If bail for an offence is dispensed with, the person accused of the offence is entitled to be at liberty for the offence, in the same way as if bail had been granted.

(3)   A court or authorised justice is taken to have dispensed with bail for an offence if:

(a)   a person accused of the offence appears before the court or authorised justice in proceedings for the offence, and

(b)   the person has not previously been granted or refused bail for the offence, and

(c)   the court or authorised justice does not grant or refuse bail for the offence."

1. Section 10(3) applies in its terms. The Court is taken to have dispensed with bail, given that the matters noted in 10(3) (a), (b) and (c) all occurred. As a consequence Mr Tierney is taken to have had his bail dispensed with in relation to the fresh matter now before the court.

1. I note:

Bail is authority to be at liberty for an offence: s 7(1). Bail can be granted under this Act to any person accused of an offence: s 7(2). A person who, because of bail, is entitled to be at liberty for an offence is entitled, if in custody, to be released from custody: s 7(3)

1. The application is brought pursuant to s 50 of the Act. Section 50(1) provides:

"The prosecutor in proceedings for an offence may apply to a court or authorised justice for the refusal or revocation of bail for an offence."

1. The proposed application is made by the Prosecutor. There are proceedings for an offence before this Court and there is an application for refusal or revocation of bail.

1. The position apparently held by the Magistrate (I note I have no decision or transcript), and argued today by Ms McKenzie, is that bail having been formally dispensed with by operation of s 10(3) Bail Act 2013, there is nothing, that is, no bail, for this proposed application to refuse or revoke, to relate to, as bail has been dispensed with. To put it another way, the application has no subject, and thus, the prosecution have no jurisdiction to make a detention application.

1. I do not agree. Section 50(1) in its terms does not preclude an application if bail has previously been dispensed with. Section 50(1) must be read with the definition of bail in s 7(1). If that is done it, the section allows for an application for refusal or revocation of the authority of this accused-respondent to be at liberty for an offence.

1. A s 50 application is not a review of the decision made pursuant to s 10(3). It is a fresh application that the accused/ respondent's right to be at liberty be revoked.

1. The Act, in its terms, does not preclude the prosecution making a detention application for someone who has previously had bail dispensed with. The scope, objects and the nature of the Bail Act 2013 compel that interpretation: see Project Blue Sky [1998] HCA 28; 194 CLR 355, at 389-390 [92]-[93].

1. I do have jurisdiction to hear a detention application pursuant to s 50(1).

1. Note: For reasons which do not need to be reported the detention application was granted, bail was initially refused, but bail was granted with conditions on 25 July 2015.

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Decision last updated: 04 August 2014