Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: IONGI v R [2022] NSWCCA 42 Hearing dates: 14 February 2022 Date of orders: 2 March 2022 Decision date: 02 March 2022 Before: Macfarlan JA at [1] Bellew J at [2] Dhanji J at [3] Decision: Application dismissed for want of jurisdiction. Catchwords: BAIL – release application – bail refused in Local and Supreme Court for original charges – bail refused in Local Court for new charges – whether this Court has jurisdiction to hear release application with respect to new charges – construction of Bail Act 2013 – bail and bail decisions are specific to offences – no bail decision has been made by the Supreme Court – no jurisdiction to hear application – no view expressed as to merits Legislation Cited: Bail Act 2013 (NSW) Criminal Code (Cth) Cases Cited: Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232 Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 Mashayekhi v R [2021] NSWCCA 55 Noufl v Director of Public Prosecutions (NSW) (2018) 274 A Crim R 519; [2018] NSWSC 1238 Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153 Category: Principal judgment Parties: Otenili Iongi (Applicant) Director of Public Prosecutions (Cth) (Respondent) Representation: Counsel: M Tedeschi AM QC with D Bhutani (Applicant) D Jordan with N Evans (Respondent) Solicitors: Miers Legal (Applicant) Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2022/0013694 Publication restriction: Nil Judgment 1. MACFARLAN JA: I agree with Dhanji J 2. BELLEW J: I agree with Dhanji J 3. DHANJI J: The applicant has applied to this Court for his release on bail pursuant to s 49(1) of the Bail Act 2013 (NSW) ("the Act"). Subject to this Court having jurisdiction in the particular case, the Act allows for a de novo application to be made: Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232 at [2], [11]. Jurisdiction 1. The parties proceeded on an assumption that this Court had jurisdiction to hear the application. Subsequent to the hearing of the matter, the Court raised with the parties a question as to whether that assumption was sound. Submissions were subsequently received from the Crown, with which the applicant joined, accepting this Court does not have jurisdiction. To understand why this is so, it is necessary to set out a brief outline of the history of the matter before turning to a consideration of the Act. The history of the matter 1. The following history sets out relevant matters for the purpose of the present issue. The applicant was arrested on 7 June 2016. He has been in custody, having been refused bail, since that time. On his arrest he was charged with the following offences (the original charges): Seq Offence Offence Date Act/Section Penalty 1 Direct activities to aid / risk aiding a criminal organisation 30 July 2020 to Section 390.6(1) Imprisonment for 10 years 7 June 2021 Criminal Code (Cth) 2 Deal in proceeds of crime, money worth $1 million or more 17 April 2021 to Section 400.3(1A) Imprisonment for 25 years 7 June 2021 Criminal Code (Cth) 1. He first appeared on 8 June 2021 at Burwood Local Court. On that date, the matter was adjourned to 16 June at Central Local Court for the purposes of a release application. That application was ultimately made on 17 June, on which date bail was refused. 2. On 29 October 2021, a further release application was made in the Local Court and refused. Following this, an application for bail was made to the Supreme Court. That application was heard by Davies J on 13 December 2021. Bail was refused. 3. On 2 February 2022, the matter was back before the Local Court. The prosecution withdrew sequences 1 and 2 and filed three new charges being sequences 3, 4 and 5 against the applicant as follows: Seq Offence Offence Date Act/Section Penalty 3 Conspiracy to traffic a commercial quantity of a controlled drug, namely methamphetamine. Between about 1 January 2021 and 7 June 2021 Sections 11.5(1) and 302.2(1) of the Criminal Code (Cth) Imprisonment for life or 7,500 penalty units, or both 4 Conspiracy to deal with money of a value of $1,000,000 or more believing it to be proceeds of an indictable crime. Between about 1 January 2021 and 16 February 2021 Sections 11.5(1) and 400.3(1A) of the Criminal Code (Cth) Imprisonment for 25 years, or 1,500 penalty units, or both. 5 By joint commission, trafficked in commercial quantity of a controlled drug, namely Between about 24 March 2021 and 9 April 2021 Sections 11.2A and 302.2(1) of the Criminal Code (Cth) Imprisonment for life or 7,500 penalty units, or both. methamphetamine. 1. Bail was refused on that date at the Local Court with respect to the new charges. Further, no application for bail has been made to the Supreme Court with respect to these charges. The consequence of the above history on the jurisdiction of this Court 1. To the extent that this Court has jurisdiction to determine the application, that jurisdiction is to be found in the Bail Act: see Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153 at [7]; Mashayekhi v R [2021] NSWCCA 55 at [38]-[39]; Noufl v Director of Public Prosecutions (NSW) (2018) 274 A Crim R 519; [2018] NSWSC 1238 at [58]. It is necessary then to consider the provisions of that Act in some detail. 2. Parts 1 to 4 of the Act deal with matters of a preliminary nature, definitions and matters of general application. It will be necessary to return to some of these provisions. Part 5 is titled "Powers to Make and Vary Bail Decisions". Division 1 of that Part deals with powers of police officers. Division 2 is titled "Powers of Courts and Authorised Justices – Bail Applications" and includes s 49. 3. The present proceedings were commenced by an application brought pursuant to s 49(1) of the Act which, reproduced with its heading, provides: 49 Accused person may make release application (1) A person accused of an offence may apply to a court or authorised justice for bail for the offence to be granted or dispensed with. 1. The application is called a "release application": s 49(2). On hearing the release application, a court (or authorised justice) may dispense with bail, grant bail (with or without conditions), or refuse bail: s 49(3). If a bail decision has previously been made, a court may, after hearing the application affirm or vary the earlier decision: s 49(4). Sections 50 and 51 make provision for detention applications and applications for variation by interested persons. 2. Section 48 makes provision for a court or authorised justice to hear one of the applications referred to above. That section, together with its heading, is as follows: 48 Powers of courts and authorised justices to hear bail applications (1) A court or authorised justice may make or vary a bail decision, in the manner provided for by this Division, after hearing a bail application. Note— There are 3 types of bail application— (a) a release application (which can be made by the accused person), or (b) a detention application (which can be made by the prosecutor), or (c) a variation application (which can be made by any interested person). (2) A bail application can be made to, and heard by, a court or authorised justice only if the court or authorised justice has power to hear the application. (3) A court or authorised justice has power to hear a bail application in the circumstances specified in Part 6. Note— In general, a court has power to hear a bail application if— (a) proceedings for the offence are pending in the court, or (b) proceedings on an appeal against a conviction or sentence of the court are pending in another court and the accused person has not made a first appearance before the other court, or (c) the bail decision to be varied was made by the court. However, additional powers, and restrictions on powers, also apply under Part 6. 1. Despite the heading to s 48, it does not confer a general power on courts to hear bail applications. As can be seen, s 48(2) provides that a bail application can be "made to, and heard by, a court or authorised justice only if the court or authorised justice has power to hear the application". Section 48(3) provides that such powers are to be found in Part 6 of the Act. 2. Part 6 of the Act is titled "Powers to Hear Bail Applications". Consistent with the note to s 48(3) set out above, there are general powers (in Division 2) to hear applications for "an offence" where proceedings for "the offence" are pending in the court: s 61; and a power to hear an application for "an offence" if the court has convicted a person of "the offence" and proceedings on appeal are pending in another court but the person has not yet appeared before the court in the appeal proceedings: s 62. A court may also hear a variation application with respect to its own bail decision: s 63. None of those general powers are applicable to the present circumstances. 3. Division 3 is headed "Additional Powers" and gives specific powers to the Local Court and authorised justices (s 64); the District Court (s 65); the Supreme Court (s 66) and the Court of Criminal Appeal (s 67). 4. For the reasons given by Hamill J in Noufl at [32]-[38], for the purposes of the Act, the Supreme Court is not the Court of Criminal Appeal and the Court of Criminal Appeal is not the Supreme Court. Thus, if this Court has power to hear the present application it is to be found in s 67. That section, together with its heading, is as follows: 67 Powers specific to Court of Criminal Appeal (1) The Court of Criminal Appeal may hear a bail application for an offence if— (a) the Court has ordered a new trial and the new trial has not commenced, or (b) the Court has made an order under section 8A (1) of the Criminal Appeal Act 1912 and the person is before the Court, or (c) the Court has directed a stay of execution of a conviction and the stay is in force, or (d) an appeal from the Court is pending in the High Court, or (e) a bail decision has been made by the Land and Environment Court or the Supreme Court. (2) Despite subsection (1) (e), a Judge of the Court of Criminal Appeal sitting alone cannot hear a bail application if a bail decision has been made by the Supreme Court (however constituted) unless the rules made under the Supreme Court Act 1970 permit the Judge to do so. 1. The present matter was in this Court, with the assumption that s 67(1)(e) applied, the applicant having been refused bail by Davies J in the Supreme Court. Clearly none of s 67(1)(a)-(d) apply. Section 67(1)(e) allows this Court to hear a bail application for an "offence" if a "bail decision" has been made by the Supreme Court. "Offence" is defined in s 4 of the Act in a manner that is of no significance for present purposes ("offence includes an alleged offence"). The definition of "bail decision" and "bail" in s 4 refer the reader to ss 8 and 7 respectively. Section 8 provides: 8 Bail decisions that can be made (1) The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an offence— (a) a decision to release the person without bail for the offence, (b) a decision to dispense with bail for the offence, (c) a decision to grant bail for the offence (with or without the imposition of bail conditions), (d) a decision to refuse bail for the offence. Note— Part 3 sets out how a bail decision is to be made by a bail authority. (2) A bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings for the offence are pending before a court. (3) A bail decision can also be made in respect of a person who is not accused of an offence in the circumstances specified in Schedule 1. Note— Schedule 1 provides for the grant of bail where a person is required to appear in proceedings otherwise than because he or she is accused of an offence. In such cases, this Act applies as if the person were accused of an offence. 1. Section 7 provides: 7 What is bail (1) Bail is authority to be at liberty for an offence. Note— An offence includes an alleged offence. (2) Bail can be granted under this Act to any person accused of an offence. (3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody. Note— Limitations to the entitlement to be at liberty are specified in section 14. 1. As can be seen from the above, bail, and in turn bail decisions, are specific to offences. This is consistent with other provisions referred to above which refer to bail for "an offence" or "the offence" and with the Act more generally. While s 5 provides a definition of "proceedings for an offence" it remains the case that bail decisions are made with respect to particular offences and not in relation to some broader idea of a proceeding or an arrest. 2. To return to the history, the applicant has made a release application in relation to sequences 3 – 5. The determination by Davies J was a refusal of bail with respect to sequences 1 and 2. It follows that there has been no "bail decision" made by the Supreme Court in this matter. It follows that this Court has no jurisdiction to hear the matter. 3. Before leaving the matter, it is appropriate to say something more. The jurisdiction of this Court to hear de novo bail applications has previously been the subject of comment: Saadieh per Beech-Jones CJ at CL at [2]-[3]; Adamson J at [62]-[66]; Bathurst CJ agreeing at [1]; Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 per Beech-Jones CJ at CL at [49]. I agree with those observations. However, to the extent that this Court has been given jurisdiction, the present case demonstrates an unfortunate stricture on the Court's power to hear to such applications. For all practical purposes the applicant has passed through the steps that would normally allow him to make an application to this Court. It is a waste of the resources of the Court and the parties to require him to return to the Supreme Court. 4. That said, it should be noted that a consequence of the above analysis is that s 74 of the Act will have no application should the applicant make a release application in the Supreme Court. Section 74(1) of the Act operates to restrict a further release application to a court that has previously refused or a affirmed a decision to refuse bail "for an offence". In such a case, the court is to "refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application". A release application to the Supreme Court in relation to the current charges would not be an application for bail for the offences with respect to which the applicant was refused bail by Davies J. Consistently with the reasoning above, the release application would thus not be caught by s 74(1) of the Act. Given that it is open to the applicant to explore this avenue, I prefer not to express any view as to the merits of the application in this Court: cf Rogers; Mashayekhi. While in each of those cases consideration was given to the merits of the application despite the lack of jurisdiction, that was in circumstances where there was no alternative avenue available that the applicants there might have pursued. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2022