New South Wales Court of Criminal Appeal CITATION : Regina v Nanai [2000] NSWCCA 204 FILE NUMBER(S) : CCA 60240/00 HEARING DATE(S) : Tuesday 23 May 2000 JUDGMENT DATE : 23 May 2000 PARTIES : Regina v Satuala Nanai JUDGMENT OF : Grove J at 1; Greg James J at 14; Bell J at 15 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70211/99 LOWER COURT JUDICIAL Hidden J OFFICER : COUNSEL : M. Blackmore with Ms Noman (Crown) K. Horler QC (Applicant) SOLICITORS : S.E. O'Connor (Crown) Anita Betts (Applicant) CATCHWORDS : Criminal Law and Procedure - Bail - Attendance of Accused for Trial - Inability to Excuse - Appeal - Competency Criminal Appeal Act 1912 LEGISLATION CITED : Bail Act 1978 Telecommunications (Interception) Act 1979 CASES CITED: R v Serratore 1995 81 A Crim R 363 DECISION : Appeal Dismissed. IN THE COURT OF CRIMINAL APPEAL 60240/00 GROVE J GREG JAMES J BELL J Tuesday 23 May 2000 REGINA v SATUALA NANAI JUDGMENT 1 GROVE J : There is before the Court an appeal pursuant to s5F of the Criminal Appeal Act. Leave is not required to the appellant as it is accompanied by a certificate by the Honourable Justice Hidden. That certificate does not raise a question for decision by this Court in the clearest of terms and it is desirable to state a little background. 2 His Honour is presently presiding over a trial of multiple accused, one of whom is Satuala Nanai, the present appellant. The appellant has been on bail pending his trial and it is common ground that in the course of trial his bail has been continued during adjournments, including weekends and days when the court is not sitting. An application was made to his Honour arising out of the circumstance that the appellant's employment was in danger of being terminated as a result of the necessity that he interrupt it for the purpose of attending his trial. 3 Certain material was put before his Honour in connection with commitments of the appellant to his wife and daughter and to the mortgagee of their home. It can be commented that the circumstances were viewed sympathetically by the learned trial judge and by counsel appearing for the Crown. 4 His Honour treated the application as an application for bail during the course of the hearing or, alternatively, an application to dispense with bail. 5 The material before this Court shows clearly that his Honour declined to accept the suggestion that bail should be dispensed with and Mr Horler QC has fairly acknowledged on behalf of the appellant that the issue of dispensing with bail is not available for debate in these proceedings. What is left, therefore, is the refusal of his Honour to make a bail order in terms which would permit the appellant not to be present during the hearing of the trial, or at least, substantial parts of it. 6 Mr Horler has suggested that the bail order is an interlocutory order and that it is competent for this Court to entertain the appeal within the jurisdiction vested by s5F. 7 When dealing with the matter below Hidden J observed that the Bail Act itself, which is declared to be comprehensive of the law of bail in this State, was silent on the issue of power to make an order such as was sought. 8 Be that as it may, a preliminary question arises as to the competence of this appeal. The certificate removes the requirement for leave to be granted but, as Mr Horler properly acknowledged, that does not remove from the necessity for decision upon the issue of competence. 9 Section 5F in its terms declares that it applies to proceedings, including committal proceedings, for the prosecution of offenders on indictment in the Supreme Court or in the District Court and in proceedings under s51A of the Justices Act. 10 Although his Honour's certificate is not expressed in these precise terms the question arises as to whether a bail decision granting or refusing bail is a matter which is within the scope of the grant of jurisdiction by s5F. Some assistance can be gleaned from the case of R v Serratore (1995) 81 Aust Crim R 363 where the Court was dealing with an issue involving both the Bail Act and the Telecommunications (Interception) Act 1979 (Commonwealth). The latter statute contained provisions concerning the subject matter of the legislation, in particular providing that a person may give privately obtained information in evidence in an exempt proceeding. 11 What is of assistance in the present case is the definition of "exempt proceeding" which is given by s5B of the Act and provides: "A reference in this Act to an exempt proceeding is a reference to (a) a proceeding by way of a prosecution for a prescribed offence." It can readily be observed that, although not identical, there is considerable comparison to be had between that expression and the expression which I have noted in s5F of the Criminal Appeal Act. Concerning the expression in the Telecommunications (Interception) Act and the Bail Act Kirby P. as he then was, made these observations: "An application for bail could not, in the ordinary use of that word of the English language, be classified as a proceeding by way of a prosecution for a prescribed offence. It is connected to such a proceeding. It is adjunct to it. It arises out of it. It is related to it, but it is not such a proceeding." His Honour added: "Nor is an application for bail a proceeding by way of a prosecution." 12 In the same case Santow J reached a similar conclusion for reasons which he expressed which are not inconsistent with the views of the President that I have recited. 13 I am of the view that an application for bail, whether successful or otherwise, including an application for bail variation, cannot fall within the prescription of words used in s5F of the Criminal Appeal Act. It follows, therefore, that this appeal is incompetent. I would propose, therefore, that the appeal be dismissed. 14 JAMES J: I agree. 15 BELL J: I also agree. 16 GROVE J: The order of the Court, therefore, will be that the appeal is dismissed. ********** 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.