Stewart v Director of Public Prosecutions

[2023] ACTSC 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Stewart v DPP

Citation:

[2023] ACTSC 11

Hearing Date:

27 January 2023

DecisionDate:

27 January 2023

Before:

Mossop J

Decision:

The application is dismissed.

Catchwords:

CRIMINAL LAW – BAIL – Jurisdiction of Supreme Court to hear bail application – whether prior bail hearing was a bail review pursuant to s 42A of the Bail Act 1992 (ACT) – nothing to indicate hearing was a bail review – application dismissed

Legislation Cited:

Bail Act 1992 (ACT), ss 42(c), 43A

Parties:

Euan Graham Thomas Stewart ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

Representation:

Counsel

Self-represented ( Appellant)

G Meikle ( Respondent)

Solicitors

Self-represented ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

MBA 1 of 2023

MOSSOP J:

Introduction

1. Mr Stewart has applied for bail so as to be released to participate in a program conducted by Wayback Ltd.  He is due to be sentenced in the Magistrates Court on 13 February 2023 for a number of charges. The Director of Public Prosecutions (DPP) has taken the point that an application for bail, as such, is not available in the Supreme Court for proceedings that are in the Magistrates Court, and, insofar as the present application might be treated as an application for bail review, that is a course which is not open because it is only available where the Magistrates Court itself has conducted a bail review and that has not, in fact, occurred.

1. The distinction between a bail review and a bail application is one which is made in the Bail Act 1992 (ACT) and can, therefore, be seen as being treated as of some significance by the legislature. In practice, and having regard to the limited occasions when transcripts of previous bail applications are obtained, a bail application and a bail review have little practical difference between them. Despite this, because of the distinction drawn in the legislation between a bail application and a bail review, it is necessary to try to work out whether there has been a bail review conducted in the Magistrates Court that would enliven the jurisdiction under s 43A of the Bail Act for this court to consider the question of Mr Stewart's bail.

1. For the purposes of considering this, the court has had access to the Magistrates Court file. That indicates that bail was considered on 4, 16 and 24 November 2022. Having regard to the requirement in s 42A(c), that there have been two previous bail applications, the application on the 24th was the only one that might have been a bail review.

1. The information that I have received from the parties is that Mr Stewart's case manager provided a bail application to the DPP and that prompted an email by a paralegal at the DPP seeking that the Magistrates Court list the matter for a bail application. That is not consistent with that application having been made as an application for bail review. The application was based upon the availability of a place in a rehabilitation program. That may have satisfied the requirement for a change in circumstance, but the bench sheet indicates that there was no capacity to grant bail because the court was not satisfied that there were special or exceptional circumstances.

1. There is nothing in that history which indicates that the matter proceeded as a bail review, even though the distinction, in the circumstances that existed, may not have amounted to much.

1. The unsatisfactory circumstances of refusing to deal with the substance of Mr Stewart's bail application is, in the present case, somewhat reduced by his capacity to apply for a bail review in the Magistrates Court on the same basis as he is applying for bail at the moment. 

1. There was, in fact, a listing of an application for bail in the Magistrates Court on 31 January 2023.  I was told that that had been withdrawn, presumably on the basis that the matter would proceed in this court, but Ms Meikle, who appeared for the DPP, indicated that she would attempt to have the matter, relisted by the Magistrates Court on that date so that the substance of the application for bail, based upon the availability of the position in the Wayback program, could be dealt with.  In those circumstances, the only order that I will make is that the application is dismissed.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 3 April 2023