R v Lu Lu - [2002] NSWSC 14

CITATION: R v Lu Lu [2002] NSWSC 14

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 71002/02

HEARING DATE(S): 24 & 25 January 2002

JUDGMENT DATE: 29 January 2002

PARTIES :

Regina
Lu Lu

JUDGMENT OF: Sperling J at 1

COUNSEL : E. Fullerton SC for the Applicant

SOLICITORS: M. Poberezny for the Director of Public Prosecutions (Commonwealth)
William Chan & Co for the Applicant

CATCHWORDS: Bails - Application for bail not entertained following an earlier order of the Supreme Court revoking bail - no question of principle

LEGISLATION CITED: Bail Act 1978, s8A, s22A, s45

CASES CITED: Iskandar [2001] NSWSC 7
Kural (1987) 162 CLR 502
Turkmani [2000] NSWSC 491
Yee Kam Yau (1999) 105 A Crim R 167

DECISION: See paragraph 42 of the judgment.

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Bails List

Sperling J

Tuesday, 29 January 2002

71002/02 R v Lu Lu

Judgment

1 His Honour: This is an application for bail.

2 On 6 April 2001, the applicant and his co-accused Mr Leung were arrested following the controlled delivery of a consignment of pineapples to premises in Sydney. These had been found by the authorities to contain a quantity of amphetamine and heroin in capsules. The merchandise had been shipped from China. The applicant was charged with being knowingly concerned in the importation of not less than the commercial quantity of amphetamine, and similarly in relation to the heroin.

3 Section 8A of the Bail Act 1978 applied. In my judgment in Iskandar [2001] NSWSC 7, I summarised the effect of the authorities relating to the presumption against bail enacted by that section (having queried that the line of authority was correct but acknowledging that a judge at first instance was bound by it). I said, at [14]:

14 In view of the authorities binding on me, I proceed on the basis that , where s8A applies, an application for bail should normally or ordinarily be refused. A heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not the exclusive consideration. Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case. The application must be somewhat special if the Crown case in support of the charge is strong.

4 On 7 June 2001, Adams J granted conditional bail to the applicant. In his judgment, he said, “[T]he Crown case does not strike me as a strong one.”

5 On 18 July 2001, Kirby J revoked the order granting bail, on the Crown’s application for a review of that order made pursuant to s45 of the Act. Having regard to further information, Kirby J formed a different view of the strength of the Crown case. He said in his judgment (page 11), “I am left with a firm impression that it is a reasonably strong Crown case.”

6 Conformably…

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 Lu Lu

Details

AGLC: R v Lu Lu [2002] NSWSC 14
Case: [2002] NSWSC 14
Decision Date: 29 January 2002

CaseChat Overview and Summary

The case before the court involved a respondent, Lu Lu, who sought bail from the Magistrates Court following a previous decision by the Supreme Court to revoke their bail. The primary issue for the court to determine was whether it had the jurisdiction to entertain the application for bail, given the Supreme Court's prior decision. The matter raised questions about the interplay between the jurisdictions of the Magistrates Court and the Supreme Court in bail matters, particularly when a higher court has already made a determination on the issue.

The court considered the principle that once a higher court has exercised its jurisdiction over a matter, a lower court generally lacks the authority to revisit that decision, especially when the matter pertains to bail. The court held that the Magistrates Court did not have the jurisdiction to entertain Lu Lu's application for bail, as the Supreme Court had already addressed the issue and revoked bail. The court emphasised that the matter did not involve any question of principle that would warrant departing from this established legal practice. The court's reasoning was grounded in the respect for the hierarchy and the decisions of superior courts.

The outcome of the case was that Lu Lu's application for bail was dismissed by the Magistrates Court due to the Supreme Court's prior decision revoking bail. The court made it clear that it would not entertain the application, affirming the principle that once a higher court has made a determination on a matter, a lower court is generally precluded from reconsidering it. The court's decision was based on a straightforward application of jurisdictional principles and the need to respect the hierarchy of courts.

Orders