KOPUZ v DISTRICT COURT OF NEW SOUTH WALES (NO 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 14 May 1992, 14 May 1992 [1992] NSWCA 125 CRIMINAL LAW and PROCEDURE — bail — summons to Court of Appeal — challenge to order of District Court judge entered in appeal under Justices Act 1902 to District Court — whether bail may be granted by a single Judge of Appeal — whether granted under Bail Act 198 or pursuant to inherent power of Court of Appeal as incidental to its disposal of a summons for relief prerogative in nature directed to District Court concerning its conviction and sentence of the applicant — held: (By Kirby P, sitting alone): (1) It is unnecessary to determine whether the power to grant bail derives from the Bail Act 198 or from the inherent powers of the Court of Appeal as part of the Supreme Court; (2) Upon either basis the claimant was entitled to bail having established, in the hearing of the summons, a concrete case raising the prospect that he might succeed. Upon that footing he should be granted bail, upon conditions, to abide the outcome of the summons. BAIL — jurisdiction of Court of Appeal — claim for prerogative relief directed to District Court concerning conviction and sentence in appeal under Justices Act 1902 — whether power to grant bail derives from inherent power or Bail Act — held: Unnecessary to determine — bail granted on conditions. Bail Act 198 (sic) Justices Act 1902. KIRBY P (On second application for bail) KIRBY P: Before the Court is an application for bail on behalf of Engin Kopuz. He is the claimant in proceedings which have been heard this day before the Court of Appeal constituted by Priestley and Meagher JJA and myself. The Court has reserved its decision in the summons. By that summons the claimant has sought relief prerogative in nature. The Court's decision will, in due course, be handed down. On 27 April 1992, the Court (differently constituted on that occasion by Sheller and Cripps JJA and myself) declined to provide bail to the claimant. At that stage, much less was known of the case than is known today. The reasons for the refusal of bail on that occasion are set out in the reasons of the Court given that day. As a result of the extensive argument before the Court today it is sufficient to say that there is a sustainable argument upon the basis of which the claimant may secure relief from the Court. I say a sustainable argument because no concluded decision has yet been made either by myself, by the members of the court or by the Court. The Court having reserved the matter, it will take time to consider what should be done. The case is not without difficulty. Nor is it without importance for the general administration of justice and for the relationship between the Court of Appeal and the District Court in appeals from decisions made under the Justices Act 1902 to the District Court. It is therefore appropriate that this Court should take a little time to consider all of the matters that have been placed before it today. 2 UNREPORTED JUDGMENTS Having said this, it is also sufficient to say that there is enough in the arguments to raise the prospect that the claimant may succeed in what was his central application. This was to have the orders concerning him, made in the District Court by Saunders DCJ, quashed so that the matter could be returned to the District Court for reconsideration of his conviction, and hence of any sentence which may lawfully imposed upon him if he is convicted. Very properly and with great assistance to the Court today counsel for the Crown has placed before us detailed argument which provides a basis upon which it may be proper to secure the end which, at least at this time and to me, appears the most desirable course. This would seem to be that the matter be returned to the District Court to be reconsidered in the light of the fresh evidence which is now available to this Court but which, in the events which occurred, was not considered in its detail by Saunders DCJ. Whether this will prove possible will depend upon a consideration of the legal submissions which have been received and are now to be considered by the Court. Because of the substance of the matter which has now unfolded it appears much more concrete than it did when it was last before this Court on 27 April 1992. It is therefore appropriate that, pending the outcome of the summons the claimant should be restored to his liberty. The Crown has not suggested that, with proper conditions, the claimant would not attend to complete his sentence if that be the outcome of the summons. Nor has it been argued that the claimant should be denied bail pending the determination of the case by the Court for any other reason. If the claimant is entitled to have his liberty today, he should not be denied it, even for a short time, whilst the court determines whether or not he should succeed in his application. For those reasons, it is appropriate that bail should be allowed. On 27 April 1992 it was argued, and assumed, that bail was available to be granted by this Court under common law powers enjoyed by the court ancillary to the exercise of its powers to provide relief as the supervisory court of the State. It has now been suggested that no such common law powers to grant bail have survived the Bail Act 1978. It was not necessary to determine the matter finally on 27 April 1992 because bail was on that occasion denied. In order to avoid any consideration of that matter today, I am dealing with the matter as a single Judge of the Supreme Court so that, if need be, I may grant the bail sought solely under the Bail Act. I do not consider that it is necessary to identify the source of the power to grant bail. It is not disputed that I have that power. It is proper to exercise it. Having regard to all of the foregoing matters, I am of the view that bail should be granted to the claimant pending the determination of his summons to this Court and further orders of the Court. I should say, although it is strictly irrelevant, that the view I have reached in relation to the grant of bail is shared by the other members of the Court who constituted the Court for the hearing of the summons. The conditions which should be imposed upon the claimant's release to bail are two, namely: 1. That the claimant will report to the officer in charge of the police station at Blacktown, New South Wales, on each Thursday before 9 pm, commencing on Thursday 21 May 1992 and until the determination of the summons or any further or other order that the Court of Appeal or a Judge of Appeal; and 2. That upon reasonable notice by the Registrar to the solicitor for the claimant of the publication of judgment in the summons, the claimant will URJ = KOPUZ v DISTRICT COURT OF NEW SOUTH WALES (NO 2) (KIRBY P) 3 attend court at the time of the handing down of the judgment to abide the further orders of the Court in relation to his sentence. The sentence imposed on the claimant by Saunders DCJ will immediately be suspended by order of the Court and stayed pending further or other orders of the Court of Appeal in the summons. Having noted that counsel for the claimant, on behalf of the claimant and in his presence, gives undertakings to the Court to abide by the two conditions of bail, I will grant bail to the claimant under those conditions. The claimant may be taken forthwith to enter into the undertakings in writing that he will abide by the conditions which the Court has set. Once he has done so, he may be set at liberty. Grant bail to the claimant Engin Kopuz upon the following conditions: 1. That the claimant will report to the officer-in-charge of the police station at Blacktown, New South Wales, on each Thursday before 9 p.m., commencing on Thursday 21 May 1992 and until the determination of the summons or any further or other order that the Court of Appeal or a Judge of Appeal; and 2. That upon reasonable notice by the Registrar to the solicitor for the claimant of the publication of judgment in the summons, the claimant will attend Court at the time of the handing down of the judgment to abide the further orders of the Court in relation to his sentence. Counsel: Claimant: M Coleman 1st Opponent: Submitting 2nd Opponent: RN Howie QC / PA Johnson Solicitors: Claimant: Yvonne Swift and Co 1st Opponent: HK Roberts, State Crown Solicitor (submitting) 2nd Opponent: SE O'Connor, Director of Public Prosecutions