Regina v Kaddour and Regina v Turkmani
[2000] NSWSC 888
•14 April 2000
Reported Decision: (2000) 119 A Crim R 204
New South Wales
Supreme Court
CITATION: Regina v Kaddour and Regina v Turkmani [2000] NSWSC 888 FILE NUMBER(S): SC 71047/00 and 71049/00 HEARING DATE(S): 13/04/00 JUDGMENT DATE: 14 April 2000 PARTIES :
Regina v Kalid Kaddour and Regina v Bassam TurkmaniJUDGMENT OF: O'Keefe J at 1
COUNSEL : Mr J Doris - for Applicant
Mr T Thorpe - for CrownSOLICITORS: For Applicant
Neil J O'Connor & Associates
Sydney
For Crown
S E O'Connor
Solicitor for DPP
Sydney
CATCHWORDS: Bail - Review - Power of Supreme Court - Revocation of Bail granted by Judge of co-ordinate jurisdiction - Meaning of "may" In Bail Act - Discretion - Factors relevant to exercise of discretion LEGISLATION CITED: Bail Act, 1978 Ss 22, 22A Part 6, Ss 45 and 48
Interpretation Act, 1987 S.9
Limitations Act,1989 S.68G
Bail Act, 1992 (ACT)CASES CITED: Regina v Pakis (1980-1981) 3 ACR 132
Regina v Hamill (1986) 25A Crim R 316
Dunstan v DPP (FCA 921, 7 July 1999)
House v The King (1936) 55 CLR 499
Brisbane South Regional Authority v Taylor (1996) 186 CLR 541DECISION: Application for review entertained.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONO'KEEFE J
FRIDAY 14 APRIL 2000
71047/00 - REGINA v KALID KADDOUR
71049/00 - REGINA v BASSAM TURKMANIJUDGMENT - On application for bail review
1 HIS HONOUR: Application has been made by the Director of Public Prosecutions pursuant to ss 45 and 48(1)A(iv) of the Bail Act 1978 (the Act) to review a decision of Hidden J given on 11 February 2000 by which bail was granted to Kalid Kaddour (Kaddour) and Bassam Turkmani (Turkmani) (the accused persons) in respect of charges of solicit to murder.
2 S 45 of the Act provides as follows:
"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 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."
3 Counsel for the accused persons has raised a preliminary point. He has submitted that since the question of bail has already been determined in favour of his clients I should not, in the absence of new material, entertain the present application for review since to do so would in effect result in one judge reviewing a decision of another judge of co-ordinate jurisdiction in the same matter. This, so the argument ran, is inconsistent with the hierarchical structure of the court system, contrary to the principles of judicial comity, and such as to lead in effect to judge shopping.4 Furthermore, he submitted that if some restriction was not imposed upon the authorities who are entitled to make and application for review, the structure of the Act as it now stands would result in an inequality in the positions of accused persons on the one hand and the persons ad authorities referred to in s 48(1)(a),(ii), (iii) and (iv) on the other.
5 Furthermore, he submitted that before a review was undertaken it was, as a matter of law, or should be as a matter of discretion, incumbent on the applicant to show that there is new or additional or different material available on which the Court could arrive at a decision different from the decision the subject of review. Such an approach is, so he argued, supported by authority and he relied in this regard on Dunstan v Director of Public Prosecutions FCA 921 (7 July 1999).
6 When the matter came before Hidden J in February 2000 the accused persons had already been granted bail in respect of a number of very serious drug offences. Furthermore, Turkmani had been charged with a number of lesser offences, car stealing, receiving and harbouring an escaped prisoner, in respect of which bail had already been granted.
7 Kaddour also stood charged with a number of other offences, goods in custody, malicious damage by fire with intent to endanger life, aggravated dangerous driving causing grievous bodily harm and harbouring an escaped prisoner. In respect of all of these charges Kaddour had been granted bail. However, bail had been refused to both accused persons in respect of the charge of solicit for murder.
8 In granting bail to each of the accused persons Hidden J took into account the following:
1. The Crown case against the applicants rested primarily on the evidence of an alleged accomplice.
2. "Kaddour and Turkmani had been on bail with no breaches of that bail...suggested."
3. The protection of the principal Crown witnesses was secured because they were "themselves in custody."
9 Ss 45 and 48 are in Div 2 of Pt 6 of the Act. S 48 of the Act provides that the power to review a decision in relation to bail which is relevantly to be found in s 45 of the Act may be invoked not only by the informant, complainant in respect of a domestic violence offence, and the Attorney General or Director of Public Prosecutions, but also by an accused person. The section provides that the power to review a decision includes "a power to affirm or vary the decision or to substitute another decision" (s 48(1)(b)). Significantly, there is no restriction provided in Pt 6 of the Act on the number of applications for a review which may be made.
10 However, in Dunstan v Director of Public Prosecutions supra, the Full Court of the Federal Court held that a review could not be undertaken in respect of an earlier review of a decision made in respect of bail. I shall return to this decision later in this judgment.
11 As originally enacted the position of the authorities and an accused person in relation to repeated applications for bail or for review of bail was the same. The only limitations provided were in s 48(7) of the Act which enabled the Court to refuse to entertain a request to review a decision in relation to bail "if the Court is satisfied that the request is frivolous or vexatious." The review which the Court is empowered to undertake by s 45 of the Act is subject to one further restriction, namely, that a judge of the Court sitting alone may not review a decision of the Court of Criminal Appeal (s 45(3)).
12 However, in 1989 (Act 109 of 1989) the legislature inserted s 22A into the Act. That section circumscribed the unlimited number of applications in relation to bail that an accused person could make (s 22(1)), by providing that where an application for bail had been made and dealt with by the Court, the Court may refuse to entertain a second or subsequent application by that person in relation to bail if "the Court is not satisfied that there are special facts or special circumstances that justify the making of the application." It is in my opinion significant that the legislature did not impose any like bar or create any like gateway in respect of applications by the persons and authorities referred to in s 48 (a)(ii), (iii) and (iv) in relation to review applications under Pt 6 of the Act.
13 The review of a decision pursuant to Pt 6 Div 2 of the Act is by way of re-hearing (s 48(3)) and may be undertaken on evidence or information in addition to or in substitution for the evidence or information given or obtained on the making of the decision which is the subject of the review. The Act itself is silent about other restrictions on the exercise of the power of review. However, in the matter of George Pakis (1980-1981) 3 ACR 132, O'Brien CJ of Crim Div, considered the nature of review provided for in s 48 and the circumstances in which such review may be undertaken. It was submitted to him that before a review would be undertaken, the applicant must show that the decision in respect of which the review was sought involved an erroneous exercise of discretion. Although not referred to in the judgment, the type of error which it was suggested was required was one of those dealt with in House v The King (1936) 55 CLR 499 at 504-505.
14 In rejecting this submission, O'Brien CJ of Crim Div, held that the decision the subject of review was not to be treated as an original decision and the review as a dependent decision but rather each was to be treated as "an independent decision on such evidence and information as are at the time of making such decision made available for that decision" (supra at 137).
15 The material on which the review is carried out and a result arrived at may be the very same material as that which gave rise to the decision the subject of review. This is what was done by Reynolds J in the matter of Hamill (1986) 25 ACRIMR 316. Reynolds J decided that it was not necessary for fresh circumstances or additional evidence to exist before the Court can hear an application for review under Pt 6 of the Act. The only limitation in the case of the Attorney General and Director of Public Prosecutions is if the court regards the application as frivolous or vexatious. Reynolds J said:
"The power of review is given for the enforcement of a right existing in both the accused and the Attorney General. That being so, in my opinion, the Court when called upon to review a bails determination should be obliged to hear an application unless it is shown to be frivolous or vexatious. The Court has, in my opinion, no general discretion to refuse to entertain an application whether it be made by the accused or the Attorney General. The Act is so worded to limit the right of the Court to refuse to entertain the application if it be frivolous or vexatious. It follows that it is not necessary for fresh circumstances or additional evidence to exist before the Court can hear an application to review brought by an accused person or the Attorney General" (at 320-321).
16 The Director of Public Prosecutions is in a like position to that of the Attorney General. In Hamill no additional evidence was put before the Court. The matter was determined on the material which had been put before the judge of co-ordinate jurisdiction who had granted bail on the original application. In the result, Reynolds J revoked the bail which had been granted by the original judge whose decision was the subject of review.
17 Counsel for Kaddour and Turkmani has submitted that the reasons of Reynolds J had been undermined by the insertion of s 22A of the Act. He shied away from submitting, and correctly did so, that the insertion of s 22A had an effect on the meaning of s 48 as originally enacted. Be that as it may, I do not think that his basic submission in relation to the decision in Hamill is correct.
18 As Reynolds J pointed out, both an accused person and the authorities have the right to make an application under Pt 6 of the Act to review a decision made in relation to bail. Whilst originally both had equal rights in that regard, s 22A now circumscribes the rights of a person accused of an offence to make applications for bail. However, the essential reasoning of Reynolds J which is similar to that of O'Brien CJ, is that Pt 6 of the Act does not impose a condition precedent nor create a threshold bar or gateway to the exercise of the power of review other than as provided in ss 45(3) and 48(7). This situation is in marked contrast, for example, to that created by s 60I of the Limitations Act 1989 in respect of the powers to extend the limitation period given by s 60G of that Act, see Brisbane South Regional Authority v Taylor (1996) 186 CLR 541.
19 Before leaving the decision of Reynolds J in Hamill, attention needs to be given to the form of s 45(1). That section provides that the Supreme Court may review any decision of an authorised officer in relation to bail. The form of the section may be regarded either as empowering or as creating a discretion. If empowering then the grounds on which the application is to be considered would, one would expect, be found within the ambit of Pt 6. When one goes to Pt 6, that is in fact the situation. In s 48(2) provision is made that the decision as varied must be in conformity with the Act. The criteria for the making of that decision therefore must be found within the four corners of the Act.
20 However, because the section is empowering it does not necessarily mean that it does not create a discretion. In legislation, the use of the word “may” normally means that there is a discretion created (Interpretation Act, 1987). If there is not to be a discretion then, the word shall is normally used. To that extent I express my reservation about what was said by Reynolds J in Hamill concerning the Court having to proceed with a review once application is made, provided that the application is not frivolous or vexatious.
21 The existence of a discretion would ensure that matters such as judicial comity, the correctness of the decision or, putting it another way, the futility of undertaking a review because of the obvious correctness of the decision and other like considerations could be taken into account in the exercise of the discretion. However, I agree with Reynolds J when he says that there are no conditions precedent created to the exercise of the powers under Pt 6 except those provided for in Pt 6. In my opinion, these include those that are inherent in the use of the word “may” in s 45. Furthermore, I agree that it is not necessary that there be any new or different situation in relation to the situation that prevailed at the time the original decision the subject of review was made.
22 The decision in Dunstan v Director of Public Prosecutions (supra) related to Pt (vi) of the Bail Act 1992 ACT). That part of the Bail Act 1992 (ACT) provides for a review of bail decisions, and although the arrangement of the sections is different from that in New South Wales, ss 43(1) and (2) of the ACT legislation are similar in form to ss 45(1) and (2) of the Act. In addition, ss 45(1) to (8) of the Act are virtually identical with the provisions of s 48(1)(b) to (7) and (8) of the Act. In short, there does not appear to be a material difference between the relevant provisions in the New South Wales legislation and those in the ACT legislation.
23 In the course of the judgment in Dunstan it was said that it was most unusual for there to be a full re-hearing review of the decision of an inferior tribunal by a single judge, being itself subjected to another full hearing review by another judge. This is correct. However, the unusual may be a consequence of legislative intervention and that is the essence of the decisions of O'Brien CJ of Crim Div and Reynolds J.
24 The essence of the decision in Dunstan is that if there has already been a review of a judge's decision, another judge cannot review that review. The appellate process must be resorted to or the accused person must make a fresh application for bail. However, the authorities in New South Wales do not have a right under s 22 of the Act in the same way as an accused person does. The rights of the authorities to make applications in respect of bail are to be found in Pt 6 of the Act. Furthermore, once a decision has been made on a review carried out under Pt 6, the decision made on that review is a decision for the purposes of the Act by the s 48 (a)(ii) and (iv). Accordingly, I do not think that the limitation which the Federal Court has applied to the New South Wales legislation is apposite to the Act.
25 In my opinion, it is competent to this Court in the exercise of its discretion under Pt 6 to review the decision of Hidden J and, if thought appropriate, to substitute another and different decision for that arrived at by him on 11 February.
26 For these reasons I am of the opinion that the application for review should be entertained, and I propose so to do.
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