REGINA v HENRY BUDIMAN [1997] NSWCA 263

REGINA v HENRY BUDIMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and POWELL JJA 12 November 1997, 12 November 1997

[1997] NSWCA 263

Criminal law — Bail — defendant found guilty by jury of drug importation offences (Ecstasy) — application by DPP for revocation of bail granted by trial judge — referral to Court of Appeal — presumption against bail — Bail Act 1978, s8A; Customs Act, s233B

Mason P This is an application by the Commonwealth Director of Public Prosecutions to review the decision of his Honour Acting Judge Stewart in relation to a grant of bail to Mr Henry Budiman.

The power of this Court to review that decision is given by s65 of the Bail Act 1978. Consistent with the practice of the Supreme Court, adopted since 1979, an application of this nature when made to the Supreme Court was referred to the Court of Appeal. The authorities discussing that practice are referred to in The Queen v Roberts, Court of Appeal unreported 14 March 1997. In that case I emphasised, when giving the reasons with which Justices Powell and Beazley agreed, that the jurisdiction of this Court is an original jurisdiction not depending upon demonstrating error on the part of the trial judge. Nevertheless it was acknowledged that this is a matter in which an appellate court should exercise restraint having regard to the fact that a trial judge will be in a much better position than an appellate court to weigh up the various factors supporting or negating an application for bail.

Mr Bellanto of Senior Counsel suggested that these principles may not apply, or may not apply with the same force, where the application to the Supreme Court is one seeking revocation of bail, bail having been granted by a decision of a judge as distinct from an application for bail where bail was previously refused. I will come back to that argument.