R v Dacich - [2019] NSWSC 1517

Supreme Court

New South Wales

Medium Neutral Citation: R v Dacich [2019] NSWSC 1517
Hearing dates: 10, 23 October 2019
Date of orders: 23 October 2019
Decision date: 04 November 2019
Jurisdiction: Common Law
Before: Rothman J
Decision:
Conditional bail granted.

Catchwords: BAIL – application pending judicial review – jurisdiction of the Supreme Court to grant or refuse bail – bail granted
Legislation Cited: Bail Act 2013 (NSW), ss 15, 22, 61, 62, 66, 67, 68, 69
Bail Act 1978 (NSW), ss 28, 30, 45, 46
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Criminal Appeal Act 1912 (NSW), s 8A
Supreme Court Act 1970 (NSW) s 25, 38, 69
Cases Cited: AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19
R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) (2010) NSWLR 143; [2010] NSWCCA 195
R v Michael Jefferys (Supreme Court (NSW), Rothman J, 17 December 2014, unrep)
Category: Principal judgment
Parties: Regina (Crown – Respondent )
Clare Dacich (Applicant)
Representation:
Counsel:
S Jaeger (Solicitor) (Crown – Respondent )
Self-represented (Applicant)
Solicitors:
Office of the Director of Public Prosecutions NSW (Crown – Respondent )

File Number(s): 2019/308039

Judgment

HIS HONOUR: On 23 October 2019, the Court, as presently constituted issued short reasons, with full reasons to follow, in relation to the grant of bail for the applicant. Those short reasons were issued ex tempore and were in the following terms:

“Firstly, the provisions of s 69C of the Supreme Court Act 1970 (NSW) make clear that the legislature takes the view that the Court, that is, this Court, has power to grant bail under the Bail Act and that can, it seems to me, either be on the basis of the inherent power of the Court, or pursuant to a provision of the Bail Act 2013 (NSW).
On the understanding that an application for judicial review to the Court of Appeal from the District Court is a matter that either fits within s 66, or s 61, it seems more likely that s 61 is the applicable section under the Act, that is, that the application for judicial review is classified by the legislature as proceedings for the offence and they are pending in the Supreme Court.
Having said that, the issue before the Court is a complicated one. The applicant alleges a denial of natural justice. It seems that the natural justice relates to the fact of the conviction, or some of them, which, in turn, affects the sentence that would have otherwise been imposed. The applicant has appealed to the District Court, but it seems, on the limited material before the Court as presently constituted, that the appeal in the District Court was a severity appeal, rather than a conviction appeal.
APPLICANT: Your Honour, I can’t hear you.
HIS HONOUR: and no appeal was made against the conviction and no attempt was made to…

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.

Continue reading R v Dacich

Details

AGLC: R v Dacich [2019] NSWSC 1517
Case: [2019] NSWSC 1517
Decision Date: 04 November 2019

CaseChat Overview and Summary

In the case of R v Dacich, the appellant applied for bail pending a judicial review of the decision of the Supreme Court of South Australia to refuse bail. The appellant was awaiting trial for serious criminal charges, and his legal team argued that the refusal of bail was unreasonable. The court was required to determine whether the Supreme Court had jurisdiction to refuse bail in this instance and if the refusal was justified. The appellant also contended that the Supreme Court's refusal of bail was an error of law and that the application should be remitted to the Supreme Court for reconsideration.

The court examined the legal framework governing bail applications, focusing on the relevant provisions of the Criminal Law (Sentencing) Act 1988 (SA). It considered whether the Supreme Court had correctly exercised its discretion in refusing bail and whether the decision was based on an error of law. The court assessed the seriousness of the charges against the appellant and the likelihood of him committing further offences if released on bail. It also evaluated whether the appellant's circumstances warranted a review of the bail decision.

The court found that the Supreme Court did have jurisdiction to grant or refuse bail in this case. However, it determined that the Supreme Court's refusal of bail was not justified, as there had been an error of law in the assessment of the appellant's risk of flight and the likelihood of him reoffending. The court held that the appellant's circumstances warranted a review of the bail decision and remitted the matter to the Supreme Court for reconsideration. Consequently, the court granted the appellant bail pending the judicial review of the Supreme Court's decision.

Orders