R v Glenn (a pseudonym) - [2015] NSWSC 1888

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Glenn (a pseudonym) [2015] NSWSC 1888
Hearing dates: 7 December 2015
Decision date: 07 December 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
The applicant is required to show cause pursuant to s 16A of the Bail Act 2013 (NSW) since he has previously been convicted of a serious personal violence offence within s 16B.

Catchwords:
CRIMINAL LAW – bail – whether applicant for bail required to show cause under Bail Act 2013 (NSW) – definition of “serious personal violence offence” – whether conviction for an offence which is no longer in the same terms and has been renumbered attracts the show cause requirement

CRIMINAL LAW – offence of kidnapping – nature and effect of changes in 2001 – whether s 90A, 85A and 86 amount to the same offence for the purposes of the definition of “serious personal violence offence”
STATUTORY INTERPRETATION – effect of Interpretation Act 1987 (NSW) – ambulatory nature of provisions – relevance of legislative purpose – use of present tense to be examined in context – effect on definition of repeal and remaking of offence – whether contrary intention established to displace effect of ss 5 and 68 of Interpretation Act
Legislation Cited:
Bail Act 2013 (NSW), s 16B
Bail Act 1978 (NSW), s 9B
Crimes Act 1900 (NSW), Pt 3, ss 61J, 79, 85A, 86, 90A
Crimes (Amendment) Act 1961 (NSW), s 2
Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW), Sch 1, cll 5, 6
Crimes Legislation Amendment Act 2012 (NSW), Sch 1, cl 3
Criminal Legislation Amendment Act 2001 (NSW), Sch 3, cl 2
Interpretation Act 1978 (NSW), ss 5, 33, 35, 68
Public Works Act 1912 (NSW), ss, 126, 126A

Cases Cited:
Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220
Davis v Regina [2006] NSWCCA 392

Texts Cited:
Pearce and Geddes, Statutory Interpretation, (7th ed, 2011, LexisNexis Butterworths)
Second Reading Speech to the Criminal Legislation Amendment Bill 2001 (NSW) (Legislative Assembly, 17 October 2001, page 1758)

Category: Principal judgment
Parties: Glenn (a pseudonym) (Applicant)
Regina (Crown)
Representation:
Counsel:
E Fletcher (Solicitor) (Applicant)
E Freelander (Solicitor) (Crown)
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2015/257081

Judgment

Introduction

Glenn (a pseudonym) (the applicant) was charged with an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). The Crown contended that, by reason of s16B(1)(c) of the Bail Act 2013 (NSW), he was required to show cause why his detention was not justified as he had previously been convicted of a “serious personal violence offence” as defined in s 16B(3) of the Bail Act. The applicant had previously been convicted of an offence against s 90A of the Crimes Act, for which he was sentenced to a term of imprisonment of five years with a non-parole period of two years and six months.
The applicant submitted that s 16B(1)(c)…

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 Glenn (a pseudonym)

Details

AGLC: R v Glenn (a pseudonym) [2015] NSWSC 1888
Case: [2015] NSWSC 1888
Decision Date: 07 December 2015

CaseChat Overview and Summary

The applicant, Glenn, sought bail in the Supreme Court of New South Wales. Glenn had been charged with kidnapping, an offence under section 90A of the Crimes Act 1900 (NSW). Glenn argued that he should not be required to show cause under the Bail Act 2013 (NSW) because the offence of kidnapping, as charged, was not a “serious personal violence offence.” The court had to determine whether Glenn was required to show cause for bail under the Bail Act and if his conviction for kidnapping qualified as a serious personal violence offence.

The primary legal issue was whether Glenn’s conviction for kidnapping qualified as a serious personal violence offence under the Bail Act. The court also needed to decide whether the renumbered offence of kidnapping in the Crimes Act 2001 (NSW) was substantially the same as the offence described in the Crimes Act 1900 (NSW). Additionally, the court had to interpret the relevant provisions of the Interpretation Act 1987 (NSW) to determine the current legal status of the offence of kidnapping and its classification.

The court held that Glenn was required to show cause for bail. It found that the offence of kidnapping, despite changes in the Crimes Act, remained a serious personal violence offence. The court reasoned that the renumbered offence in the 2001 Act was the same in substance as the offence under the 1900 Act. The court also examined the relevant sections of the Interpretation Act and concluded that the offence had not fundamentally changed in nature. Therefore, Glenn’s conviction qualified as a serious personal violence offence, necessitating that he show cause for bail.

The court ordered that Glenn was required to show cause for his continued detention on bail.

Orders