R v Alo-Bridget Namoa [2020] NSWSC 1872

Supreme Court New South Wales

Medium Neutral Citation: R v Alo-Bridget Namoa [2020] NSWSC 1872 Hearing dates: 15 December 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Common Law Before: Rothman J Decision: Bail refused Catchwords: BAIL – Terrorism offence – no threat subsisting – but circumstances not exceptional – bail refused. Legislation Cited: Bail Act 1978 (NSW), s 9D Bail Act 2013 (NSW), Pt 3, s 16A Crimes Act 1914 (Cth), s15AA Criminal Code Act 1995 (Cth), ss 11.5, 101.5 Supreme Court Act 1970 (NSW), s 23 Cases Cited: Midland Bank Trust Co Ltd v Green [1981] 3 All E. R. 744 R v Daron John Wright (Supreme Court of New South Wales, Rothman J, 7 June 2005). R v Khayat (No 11) [2019] NSWSC 1320 R v Naizmand [2016] NSWSC 836 Category: Principal judgment Parties: Alo-Bridget Namoa (Applicant) Regina (Respondent) Representation: Counsel: G Foster (Applicant) D New (Respondent)

Solicitors: Z Burrows (Applicant) Office of the Director of Public Prosecutions (Cth) File Number(s): 2020/326023 Publication restriction: Nil

Judgment 1. HIS HONOUR: The applicant Alo-Bridget Namoa seeks release on bail and makes an application, according to her written submissions, for bail pursuant to s 15AA(1) of the Crimes Act 1914 (Cth) (hereinafter "the Commonwealth Crimes Act") and Part 3 of the Bail Act 2013 (NSW). The circumstances of this "reserved" judgment and the hearing of the matter need recounting. 2. The matter was given an estimate of one hour by the parties and was brought on for hearing in the Bail list at 3 PM. At 4:20 PM, the Commonwealth DPP (hereinafter "the DPP") was asked how much longer they would be, to which they responded they had only been "20 minutes". Of course, that was 20 minutes after having filed a 17-page written submission, accompanied by a 117-page bundle of material including affidavits. 20 minutes is the time provided for special leave applications in the High Court. 3. Because the reporting service no longer sits beyond 5 PM, there was insufficient time at the conclusion of the hearing for the Court to issue judgment. As a consequence, even though, technically, this judgment is reserved, it has been dealt with as if it were a judgment delivered ex tempore on account of a full bail lists on the following days of the week. 4. Despite the 17 pages of written submission, on behalf of the DPP, and 14 pages of written submissions by the applicant, neither party referred the Court to the circumstances that give rise to the jurisdiction of the Court to grant bail. 5. On a previous occasion, in matters unrelated to the current matter, the Court, as presently constituted, has expressed the view that, notwithstanding the limiting provisions in the Bail Act, the Court has or may have inherent jurisdiction to grant bail. If the Court were possessed of inherent jurisdiction arising from its establishment as a superior court of record with the jurisdiction of all the courts of Westminster under the Third Charter of Justice of 1824 and/or s 23 of the Supreme Court Act 1970 (NSW), such jurisdiction ought not be exercised, other than in exceptional circumstances, when there is a legislative scheme dealing with the grant and/or refusal of bail. 6. The jurisdiction of the Supreme Court under the Bail Act is conferred by s 66 of the Bail Act and confines the Court's capacity to hear a release application for any offence to circumstances where bail for the offence has been refused by another court, authorised justice or police officer. No material before the Court, at least provided by either party, refers to any prior refusal of bail in relation to this applicant. 7. The provisions of the Commonwealth Crimes Act, and in particular s 15AA thereof, are a restriction on the jurisdiction otherwise to grant bail and not, in and of themselves, a grant of jurisdiction. As earlier stated, there is no reference, in any of the voluminous documents provided by the DPP, or by the applicant, to a prior application for and refusal of bail. 8. Apparently, as a result of the Court's own enquiries through electronic records, otherwise known as JusticeLink, bail was refused for Ms Namoa on 28 July 2020 by Magistrate R. Brender at the Local Court at Parramatta. As a consequence, s 66 of the Bail Act grants to the Court, as presently constituted, jurisdiction to deal with the release application.