Vu v New South Wales Police Service

[2007] FCA 1192

FEDERAL COURT OF AUSTRALIA

Vu v New South Wales Police Service [2007] FCA 1192 

APPEAL – Bail – pending appeal from court of summary jurisdiction – where appellant has been sentenced to imprisonment for offences under the Copyright Act 1968 (Cth) – whether the Court has jurisdiction to stay or suspend the operation of the sentence pending the hearing of an appeal against the sentence

Federal Court of Australia Act 1976 (Cth) ss 25(5), 29(1)(b), 29A
Federal Court Rules 1979 (Cth) O 52 r 35(3)

VAN HANH VU v NEW SOUTH WALES POLICE SERVICE
NSD 1510 OF 2007

RARES J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1510 OF 2007

ON APPEAL FROM THE LOCAL COURT OF NEW SOUTH WALES

BETWEEN:	VAN HANH VU Appellant
AND:	NEW SOUTH WALES POLICE SERVICE Respondent

JUDGE:	RARES J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT:

1.Notes the undertaking of the appellant given personally and by his solicitor to the Court that the appellant will treat and answer his bail undertaking given on 20 June 2007 to appear at the District Court of New South Wales on 3 August 2007 as if it referred to the Federal Court of Australia in lieu of the District Court of New South Wales until further order.

2.Upon the undertaking noted in par 1 being given to the Court, grants the appellant bail to appear before the Court on 9 August 2007 and stays up to and including 9 August 2007, the sentence of the Local Court of New South Wales imposed on the appellant on 20 June 2007, the subject of his appeal to the Court.

3.Adjourns the appellant’s application for bail to 9.30 am on 9 August 2007 before Rares J.

4.Orders the appellant to serve on the respondent on or before 5 pm on 6 August 2007:

(a)a copy of these orders;

(b)an affidavit by himself or his solicitor setting out a copy of each charge against him and each document recording his conviction in respect of the appeal together with any reasons for judgment which are available for the imposition of the sentence, and to file such affidavit.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1510 OF 2007

ON APPEAL FROM THE LOCAL COURT OF NEW SOUTH WALES

BETWEEN:	VAN HANH VU Appellant
AND:	NEW SOUTH WALES POLICE SERVICE Respondent

JUDGE:	RARES J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I was approached urgently tonight in this appeal to grant bail to the appellant pending an opportunity for a hearing on whether or not he should be granted bail or the orders for his weekend detention should be stayed.  The application has been made ex parte in circumstances where, because of the lateness of the hour, I have conducted the hearing by telephone with the solicitor for the appellant being present on the telephone together with the appellant personally.

2. I am satisfied that I have jurisdiction to make orders as a single judge exercising the appellate jurisdiction pursuant to s 25(5) of the Federal Court of Australia Act1976 (Cth). For present purposes, and in the absence of any detailed argument, I am satisfied that my powers include a power under s 29(1)(b) to stay or suspend the operation of the sentence and that if I do so s 29A of the Act provides that the time during which the appellant is released on bail pending the determination of the appeal does not count as part of the term of his imprisonment. Pursuant to O 52 r 35(3) I have power to admit the appellant to bail pending the hearing of his appeal. I am satisfied that the Court also has inherent jurisdiction, having been seized of jurisdiction to deal with the appeal, to stay the operation of the sentence: Tait v The Queen (1962) 108 CLR 620 at 624-625.

3. The circumstances of this case show that the appellant gave an unconditional bail undertaking to appear at the District Court of New South Wales at Campbelltown at 9.30 am today and thereafter to attend at that court at such day and at such time and place as was, from time to time, specified in a notice to be given or sent to him.   This undertaking was given in the context of the appellant, and those advising him at that time, understanding that the appeal from the decision of the Local Court of New South Wales sentencing the appellant to a term of six months’ weekend detention lay to the District Court of New South Wales, rather than to this Court pursuant to the provisions of the Copyright Act 1968 (Cth).

4. On the basis that the appellant would have been entitled to bail tonight, pending the determination of his appeal by the District Court, it seems to me that there are sufficient circumstances to justify my making an order admitting him to bail and staying the operation of his sentence up to and including next Thursday.  Then the matter can be dealt with appropriately by those representing the appellant as well as those representing the respondent, New South Wales Police Service, or any other person who may take over the conduct of the respondent’s case on the appeal.  The parties will then be able to debate, in an informed way, before the Court the way in which the appeal ought thereafter to proceed, the appellant’s entitlement to bail, and the conditions, if any, which ought to attach to any grant of bail that might be appropriate to give to the appellant.

5. In my opinion it would not be just to require the appellant to commence tonight to serve his weekend detention having regard to the circumstances in which the matter has come before the Court that I have set out.

6. In those circumstances I propose, subject to hearing from the solicitor for the appellant as to any comments he has to make as to the form of the orders, to make orders in the terms that I have suggested are appropriate.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        8 August 2007

Solicitor for the Applicant:	H Ledinh of Ledinh Lawyers
Date of Hearing:	3 August 2007
Date of Judgment:	3 August 2007