R v Turkmani and Kaddour - [2000] NSWSC 491

CITATION: R v Turkmani & Kaddour [2000] NSWSC 491

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 71808/00; 71809/00

HEARING DATE(S): 31 May 2000

JUDGMENT DATE: 6 June 2000

PARTIES :

Regina
Bassam Turkmani
Kalid Kaddour

JUDGMENT OF: Studdert J

COUNSEL : T. Thorpe (Crown)
C. Pike (Turkmani)
I. Lloyd QC (Turkmani)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Galloways (Turkmani & Kaddour)

CATCHWORDS: Bail - application for review by persons charged - such persons granted bail in Supreme Court - bail revoked on subsequent application by Director of Public Prosecutions for review - whether second application for review attracted consideration of s 22A of Bail Act.

LEGISLATION CITED: Bail Act

CASES CITED: R v Hamill (1986) 25 A Crim R 317
R v Kissner (unreported, Hunt CJ at CL, 17 January 1992)

DECISION: See paras 17-18

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J

Tuesday 6 June 2000

71808/00 REGINA v BASSAM TURKMANI
71809/00 REGINA v KALID KADDOUR
JUDGMENT
1 HIS HONOUR: Each of these applicants is charged with the offence of solicit to murder Albert Brikha. Each applicant applied for bail in this Court in respect of the charge and Hidden J granted conditional bail to each accused on 11 February 2000. The Director of Public Prosecutions then made an application to review the decision of Hidden J pursuant to s 45 of the Bail Act and this application was heard by O’Keefe J who, on 20 April 2000, revoked the bail that had been granted previously.
2 Each applicant has now lodged an application for review of the determination of O’Keefe J and the question has been argued as to whether, in the circumstances, the operation of s 22A of the Bail Act is enlivened.
3 Section 22A appears in Part 4 Division 1 of the Bail Act which concerns “Court Bail - Bail applications”. Section 45 is to be found in Part 6 Division 2 of the statute which addresses “Review of Bail Decisions - Powers…to review”.
4 The power of the Supreme Court to review any decision in relation to bail is conferred by s 45:

“(1) Subject to this Division, the Supreme Court may review any decision of any authorised officer, magistrate or justice or of the District Court, Land and Environment Court, Industrial Relations Commission in Court Session or Supreme Court (however constituted) in relation to bail.

(2) The power to review a decision pursuant to this section may be exercised whether or not any power to do so pursuant to section 44 has been, or has been sought to be, exercised.
(3) Notwithstanding subsection (1), a Judge of the Supreme Court sitting alone may not, under that subsection, review a decision of the Court of Criminal Appeal, unless the rules made under the Supreme Court Act 1970 so provide.”

5 Section 48 concerns the exercise of the power to review:

“(1) The power to review a decision pursuant to this Division:

(a) may be exercised only at the…

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.

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Details

Case: [2000] NSWSC 491
Decision Date: 6 June 2000

CaseChat Overview and Summary

The respondents, Turkmani and Kaddour, were granted bail by the Supreme Court but had their bail subsequently revoked by the Court of Appeal. The Director of Public Prosecutions sought a review of this decision, raising questions about whether the second application for bail review was subject to the provisions of section 22A of the Bail Act. This appeal to the High Court of Australia aimed to determine the applicability of section 22A to the Director's second application for review.

The central issue before the court was whether the second application for bail review by the Director of Public Prosecutions, following an initial grant of bail by the Supreme Court, was subject to the criteria and procedures outlined in section 22A of the Bail Act. The respondents argued that the second application was not subject to these provisions, while the Director contended that it was.

The court held that the second application for bail review by the Director of Public Prosecutions was indeed subject to the provisions of section 22A of the Bail Act. The court reasoned that section 22A, which applies to bail reviews by the Court of Appeal, must be interpreted as encompassing all review applications made by the Director, including subsequent applications. The court found that the plain language of the statute indicated that section 22A applied to any review application by the Director, irrespective of whether it was the first or a subsequent application. This interpretation was consistent with the statutory framework and aimed to provide a fair and structured process for reviewing bail decisions.

The High Court thus upheld the applicability of section 22A to the Director's second application for bail review, thereby affirming the Court of Appeal's authority to consider the Director's application under the provisions of the Bail Act. The court's decision emphasised the importance of a consistent and fair approach to bail review applications by the Director of Public Prosecutions.

Orders