The Queen v Gardiner - [2020] NTSC 10

CITATION: The Queen v Gardiner [2020] NTSC 10

PARTIES: THE QUEEN

v
GARDINER, Matthew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22004476
DELIVERED:  2 March 2020
HEARING DATE:  21 February 2020
JUDGMENT OF:  Mildren AJ
CATCHWORDS:

BAIL REVIEW – review of Local Court decision to grant bail – procedures on review of bail – whether by re-hearing or hearing de novo – interpretation of pt 6 of the Bail Act – no requirement to show proof of error in original decision – power of review under the Bail Act is a fresh exercise of original jurisdiction to make a decision on bail.
Bail Act 1982 (NT) ss, 19, 24, 33, 34, 35, 36, 36A
Mental Health and Related Services Act 1998 (NT)
CH v Mental Health Review Tribunal and Anor [2017] NTSC 43 distinguished; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, applied; Hans Traut v Faustmann Bros Pty Ltd (1983) 77 FLR 98 (FC) at 105-106 applied
REPRESENTATION:
Counsel:
Prosecution:  K Benson
Defendant:J Razi
Solicitors:
Prosecution:  Office of the Director of Public Prosecutions
Defendant:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  MIL20559
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Gardiner [2020] NTSC 10

No. 22004476

BETWEEN:
THE QUEEN

AND:
MATTHEW GARDINER

CORAM: MILDREN AJ
REASONS FOR RULING
(Delivered 2 March 2020)

The Defendant appeared in the Local Court charged with various offences on information relating to allegedly assaulting a paramedic and police officers who had attended at a scene where he had been found unconscious, and who were trying to assist him to be taken to hospital.
The Defendant had been granted bail by a Judge of the Local Court on strict conditions. Counsel for the prosecution informed the court that a request for a review of the decision would be made to the Supreme Court under s 36A of the Bail Act 1982. Accordingly, the decision of the Local Court was stayed pending the review of that decision by this Court, vide s 36A(2) of the Act.
At the hearing before me, counsel for the Defendant, Mr Razi, submitted that the review was a re-hearing on the evidence before the Local Court, and that I should decide the application on the basis of the transcript of the Local Court proceedings and upon reviewing the reasons given by the Local Court. It was submitted, with reference to the judgment of Hiley J in CH v Mental Health Review Tribunal and Anor,[1] that the re-hearing required to be conducted under the Act was not a re-hearing de novo.
After hearing submissions, I ruled that the re-hearing before this Court was a
re-hearing de novo. I said that I would publish my reasons later. These are my reasons.
Whether a review is to be treated as an appeal, and if so whether it is an appeal by way of re-hearing in the sense that the appeal court determines the fate of the appeal essentially on the materials before the court or tribunal originally constituted, is a matter requiring close attention to the statutory provisions providing for the right of review.
Section 36A(4) of the Act provides:
The stay of the decision has effect until the earliest of the following:
(a) the Supreme Court affirms or varies the decision or substitutes another decision for the decision of the Local Court;
(b) a police officer or legal practitioner appearing for the Crown files in the Supreme Court a notice that the Crown does not desire to proceed with the review;

(c) 4pm on the day that is 3 business days after the day the decision was made.

Section 36A(7) provides that “the request for the review of the decision must be dealt with as expeditiously as possible”.
Section 37(8) provides that “the review is by way of re-hearing”.
Section 37(9) provides that “evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision, may be given or obtained on the review”.
Applications for bail must be dealt with according to the criteria contained in
s 24 of the Act. Section 24(1) provides that in making a determination as to the grant of bail to an accused person, an authorised member, or a court, must take into consideration so far as can reasonably be ascertained, only the matters set out in s 24(1)(a) to (e). (emphasis mine).
Section 24(2) provides that the court may take into account any evidence or information which the authorised member or the court considers credible or trustworthy in the circumstances, including hearsay evidence.
It is clear that a court is not confined to admissible evidence in making its decision. Further, the criteria which a court must take into account include matters which, by their nature, are such that the ultimate decision is one of impression and degree, often intuitively arrived at, and about which minds might differ. Particularly, this is likely to be so with hearsay information and whether it is thought to be credible or trustworthy. The decision ultimately is one which is discretionary in nature. Section 36A(10) provides that “a decision as varied or substituted under sub-section (4)(a) must conform with this Act” indicating that on a review, the Court must apply the same criteria as it would if deciding the case at first instance.
The word “review” is not defined. Section 36A is not the only provision which provides for review of a bail decision. Section 16 enables an “authorised member”, i.e. a member of the police force who holds the rank of Sergeant or higher[2], to grant or refuse bail. If bail is refused, the person charged has the right to make an application to the Local Court “for a review” of, amongst other things, the decision of the authorised member to grant or refuse bail.
Section 33(6) provides that where bail has been refused or granted, the Local Court must “review the decision or determination” and “confirm or vary the decision or determination (including varying or imposing conditions of bail for the person)”. Section 33(4) enables a Judge of the Local Court to deal with the application for review by “telephone, telex, radio or similar facility”. It is difficult to see how a Judge of the Local Court could do anything except consider the matter afresh. There is not likely to be a transcript of the authorised member’s decision, nor would one expect the authorised member to give the sort of reasons that one would expect from a trained lawyer or Judge.
Section 34 of the Act also provides for the Local Court, constituted by a Local Court Judge, to review a decision in relation to bail by the Local Court when the original decision was made by the same Judge, or a different Judge if the Local Court as originally constituted cannot conveniently be reconvened, or if the decision was made by one or more justices of the peace. A similar power exists under s 34(2) which enables the Local Court, constituted by one or more justices of the peace, to review a bail decision made by the Local Court constituted by the same justice or justices or different justices if the Local Court as originally constituted cannot be conveniently reconvened. It is of some significance that a decision of the Local Court made by one or two justices of the peace could be reviewed by the Local Court constituted by different justices of the peace in those circumstances. It is not usually the case that justices of the peace are legally trained. It is difficult to see how a review under s 33(6) or s 34 could be anything else than a de novo hearing.
Section 35 of the Act provides that the Supreme Court may also review a decision of the Local Court or of the Supreme Court in relation to bail.
Section 36(3) provides that the review of a bail decision under s 34 or 35 is “by way of re-hearing, and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the revision may be given or obtained on the review”.
It is a general rule of construction of statutes that when a word or expression is used in a statutory instrument, it is presumed that the word or phrase is intended to have the same meaning throughout unless the contrary is made clear.[3]
There are other indicia which I consider lead to the conclusion that the review is a hearing de novo. First, the nature of the decision is inherently intuitive and it is based or may be based on “information” which the decision maker “considers credible or trustworthy in the circumstances including hearsay evidence”. A hearing by way of review requiring proof of error would be difficult in such circumstances. How is a court reviewing a decision to find that the court which granted or refused the application for bail was wrong in taking into account information or hearsay evidence that was considered by the original court or decision-maker to be credible or trustworthy? Such a question does not seem to be justiciable. Secondly, s 19(1) provides that there is no limit on the number of applications in relation to bail that may be made to a court by a person accused of an offence. It seems to me to counter-productive to limit the power of review to cases where error is disclosed if the accused can re-apply for bail afresh as many times as he or she likes, albeit that the court might refuse to entertain an application which is frivolous or vexatious: see s 19(4). Further, to limit bail reviews to cases where error is shown would inevitably make it difficult for the reviewing court to deal with the application as expeditiously as possible as required by s 36(7) of the Act. There may be no transcript of the proceedings or of the ruling, because for instance, the original bail application was dealt with over the telephone, or even if there were a transcript, it may take some time to obtain. Also, the legislative provisions make it clear that additional information may be relied upon on the review, which suggests a re-hearing de novo, and certainly would appear to make it a re-hearing de novo in all cases where additional information was provided.
Finally, the legislature has deliberately used the word “review” and not the word “appeal” or the phrase “appeal by way of review”. That, in my opinion, distinguishes this case from the decision of Hiley J in CH v MentalHealth Review Tribunal and Anor relied upon by counsel for the defendant, because in that case, the legislation provided for an appeal to the Supreme Court by way of re-hearing and the answer to the question as to the nature of the appeal depended on the proper interpretation to be given to the relevant provisions of the Mental Health and Related Services Act1998 (NT).
A hearing de novo is not an appeal at all because the court is exercising original jurisdiction.[4] That is not to say that the decision being reviewed is irrelevant. Section 36A(4)(a) contemplates that the original decision may be affirmed. It is the decision, not the reasons for the decision, being reviewed. It follows that the court must be informed of what the decision was, particularly if the conditions of bail are the subject of the review. The original decision to grant bail will also provide for a time and place for the bail to be answered which will be fixed by reference to the Local Court’s listing requirements, a matter about which the Supreme Court will have no knowledge. In an application under s 36A, the Crown must begin first, as the accused is entitled to the advantage of having obtained bail[5] and this is so in my opinion notwithstanding that the original decision to grant bail is stayed.

____________________________

[1] [2017] NTSC 43

[2] Section 16(5) of the Bail Act 1982.

[3] Bennion on Statutory Interpretation, 5^th Edition, p 1160.

[4] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 at 621.

[5] Hans Traut v Faustmann Bros Pty Ltd (1983) 77 FLR 98 (FC) at 105-106.