R v Peter PETROVSKI

[2008] NSWDC 110

Reported Decision: 7 DCLR (NSW) 140

District Court

CITATION:	R v Peter PETROVSKI [2008] NSWDC 110
HEARING DATE(S):	22 May 2008
JUDGMENT DATE:	22 May 2008
EX TEMPORE JUDGMENT DATE:	22 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Bail Granted
CATCHWORDS:	Criminal Law - Judgment - Application for Bail - Bail Amendment Bill
LEGISLATION CITED:	Bail Act, 1978
CASES CITED:	R v Kissner Unreported NSWSC Hunt CJ 17/1/1992 R v Turkmani & R v Kaddour [2000] NSWSC 491
PARTIES:	The Crown Peter Petrovski
FILE NUMBER(S):	DC 08/12/0643
COUNSEL:	G. Heathcote - Applicant
SOLICITORS:	NSW DPP Ajaka Gestakovski Lawyers

JUDGMENT

1 HIS HONOUR: I have before me an application for bail by Peter Petrovski. Mr Petrovski was sentenced by a Magistrate to a period of imprisonment for an offence of mid range PCA, his reading being 0.145. He received a fixed term of imprisonment of six months. The Magistrate refused him bail pending an appeal to this Court. He now applies for Bail in this Court.

2 Before dealing with the merits of the application, it is appropriate to turn to s 22A of the Bail Act. The Crown’s position is that s 22A(1) applies in the present circumstances. Mr Petrovski was legally represented when he applied for bail in the Local Court, so the Crown says that I should only entertain the application for bail brought today if I am satisfied that new facts or circumstances have arisen.

3 Mr Heathcote (who appears for Mr Petrovski) submits s 22A does not apply to bail applications being made in a different jurisdiction to that where the application was originally made.

4 I now quote the opening words of s 22A(1) so that the argument advanced by the Crown can be understood. It reads,

“A court is to refuse to entertain an application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by a court unless...”

5 The Crown says that the use of the words “a court” where secondly appearing suggests that if bail has been refused by any court, then any other court is to refuse to entertain an application for bail unless the circumstances in 22A(1)(a) or (b) are satisfied. That is the only argument that the Crown is able to advance in support of its position.

6 I do not mean to denigrate the Crown’s position by saying that that is the only argument it can advance. It is a pretty good argument after all because it involves the interpretation of s 22A, giving meaning to the words in that section. If Mr Heathcote is correct then the section would have been better expressed if the words “a court” where secondly appearing, were replaced by the words “the court”. That would make it clear that what was to be inhibited was not a consideration of bail by a superior court following refusal of bail by a court lower in the hierarchy, but magistrate shopping or judge shopping. Mr Heathcote’s submission is that that is what s 22A is there to deal with, - cases where every time a person appears before a particular court, for whatever reason, mention or otherwise, a fresh bail application is made.

7 In the time that Mr Heathcote and the Crown have had available to them, no decision on this matter has been identified. Some earlier cases dealing with s 22A in its earlier form were found but they dealt with 22A when it was in a different form to that which it is presently in. Those cases, R v Kissner BC9202103 NSWSC Hunt CJ 17/1/1992 and R v Turkmani & R v Kaddour [2000] NSWSC 491 dealt with the position where there were repeated applications to the Supreme Court, not this present case where there is an appeal to the District Court following refusal of bail in the Local Court.

8 Section 22A was introduced in its present form fairly recently. The Bail Amendment Bill of 2007 was debated in the Legislative Council on 24 October 2007, after having been the subject of a second reading speech by the Attorney General a few days earlier. I will quote the relevant part of the Attorney General’s second reading speech:

“Provisions already exist to limit the number of applications for bail in the Supreme Court. These provisions will extend to bail applications in the local court.”

9 I interpolate here that that means that one can consider s 22A in its earlier form which, as I have mentioned, concerned repeated applications for bail in the one jurisdiction. The Attorney General in the speech, as I have just been quoting, suggests that these provisions will also apply to the local court jurisdiction. There is nothing in those sentences to suggest that the provisions will apply, to use an inelegant term, cross-jurisdictionally. The Attorney General went on:

“Under the amended provisions the court will not be able to proceed with a second bail hearing unless the applicant had no legal representation the first time he made an application for bail or the court can be satisfied that new facts or circumstances have arisen since the previous application. The changes strike an appropriate balance between offering greater protection to victims of crime to serving the rights of an accused to apply to a court for bail. Proviso recognises that an accused will often lack the necessary skills to present the case well and shall not be prejudiced through an initial inability to obtain representation. But changes will also prevent what is known as magistrate shopping, the process of going from magistrate to magistrate or judge to judge, with the hope of obtaining a different outcome.”

10 It is important to note that the Attorney General does not say the amendments will prevent an applicant going from magistrate to judge with the hope of obtaining a different outcome. After debate, the Attorney General’s reply was also of assistance. He said:

“I do not think it is unreasonable to say that the bill should contain some provisions to prevent forum shopping, in other words, every time a matter comes up before a court, a fresh decision can be made on the same facts. Ms Sylvia Hale may not receive the kinds of letters that I receive from victims who are concerned about a person who might have been refused bail on one occasion and who can then make another application every time a matter comes back before the court. There can be several occasions in the local court in particular, bearing in mind the process that involves briefs being prepared, committals and the various stages of the criminal justice process. I do not think it is unreasonable to state that a decision should be made if that decision is erroneous, to provide an appeal mechanism as still exists under these laws.”

11 Of course I am not to look at extrinsic material such as second reading speeches and speeches in reply to create confusion but only to resolve it. I am satisfied that, given the legislative history of s 22A, there is some confusion as to what the Parliament meant by the terms of s 22A. I do not consider that the use of the words “a court” where secondly appearing in s 22A, provides a clear and unmistakable basis for suggesting that the Crown’s view should prevail. I have therefore looked at the extrinsic materials provided by Mr Heathcote which make it clear beyond argument that the provision is limited in the way Mr Heathcote suggests. That is, it applies where a person has been refused bail in one jurisdiction and then makes a further application in that same jurisdiction. It does not apply in the present circumstance where having been refused bail by a magistrate, an appellant appears before the District Court seeking bail pending his appeal.

12 I turn now to the merits of the matter. The appellant has substantial community ties. He lives with his mother who is in poor health. She is 76 years of age. The applicant’s criminal history does not suggest any failure to appear in the past. Apart from one offence of contravening an apprehended violence order, his previous criminal convictions all concern driving matters. There would be a risk of the appellant committing further offences but that risk can be reduced by an appropriate condition of bail which Mr Heathcote has suggested. Further, there is the possibility of a person depositing the sum of $10,000 as surety and for more abundant caution I can make it a condition of bail that the applicant report. In those circumstances, I am satisfied that the grant of bail is appropriate. So the applicant is granted bail. He is to report three times a week to the officer-in-charge of police at Mascot police station, that is every Monday, Wednesday and Friday between the hours of 8am and 8pm. He is to live at (...). He is to not drive any form of motor vehicle and accordingly, he is not to apply for the return of his licence. One acceptable person is to deposit the sum of $10,000 either in cash or security to that extent and enter into an agreement to forfeit such amount if the appellant fails to comply with his bail undertaking.

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