Flack v DPP & Anor [2000] NSWSC 125

New South Wales Supreme Court

CITATION : Flack v DPP & Anor [2000] NSWSC 125 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 10453 of 2000 HEARING DATE(S) : Monday 6 March 2000 JUDGMENT DATE : 9 March 2000

Glen Roderick Flack(plaintiff) PARTIES : Director of Public Prosecutions (1st defendant) Michael Price (2nd defendant) JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Michael Price JUDICIAL OFFICER :

COUNSEL : P Boulten (plaintiff) R Ellis (1st defendant) Watsons (plaintiff) SOLICITORS : Solicitor for Public Prosecutions (1st defendant) I.V. Knight, Crown Solicitor (2nd defendant) CATCHWORDS : CRIMINAL LAW - Bail - prosecution application to review bail granted to plaintiff - whether bail can be revoked pending the determination of the review - whether magistrate hearing review is disqualified from further hearing LEGISLATION CITED : Bail Act 1978 Justices Act 1902 CASES CITED : Balic (No 2) (1994) 75 ACrimR 515 DECISION : Revocation of bail quashed - matter remitted to Local Court to be heard by another magistrate

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Thursday 9 March 2000

10453 of 2000 Glen Roderick Flack v Director of Public Prosecutions & Anor Reasons for judgment

1 HIS HONOUR: The plaintiff, Glen Roderick Flack, is awaiting committal proceedings in respect of a number of serious drug charges and firearms charges. Following his arrest on 20 September 1999, he made several unsuccessful applications for bail in the Local Court. On 3 December 1999 I heard a further application, which was also refused. 2 However, on 27 January 2000 the applicant sought a review of my decision, pursuant to s44(6) of the Bail Act, before Magistrate Lillian Horler. This application was based upon the conditions of his custody which, for reasons which need not be explored here, were unusually harsh and made it difficult for him to confer with his legal advisers and prepare his case. On the following day, Magistrate Lillian Horler granted him bail. The first defendant, the Director of Public Prosecutions, then sought a review of that bail decision, pursuant to s44(2) of the Act, contending that bail should again be refused. That application came on for hearing before the second defendant, another magistrate, who has entered a submitting appearance in this Court. 3 The proceedings commenced on 2 February 2000 and were adjourned, part-heard. The solicitor then representing the first defendant asked that bail be revoked in the meantime but his Worship declined to do so, saying that "it might be premature to revoke it mid-way through a hearing". Accordingly, bail was continued. The hearing was resumed on 8 February and was again adjourned, part-heard. Again, the solicitor for the first defendant sought the revocation of bail but his Worship declined to do so for the same reason, and continued bail. 4 The matter was next before the Court on 18 February, when the prosecution case closed. The plaintiff was represented by Mr Boulten of counsel, who appeared in this Court, but on that occasion his instructing solicitor was unable to attend as he was ill. Mr Boulten intended to present evidence on his client's behalf but was unwilling to do so in the absence of his instructing solicitor, who had been involved in the matter from the outset and was intimately acquainted with it. Accordingly, his Worship acceded to an application for a further adjournment. However, he effectively invited the solicitor for the first defendant to renew his application that bail be revoked in the meantime and, despite the spirited protest of Mr Boulten, he made that order. Mr Boulten then asked his Worship to disqualify himself from the further hearing of the review, on the basis that his revocation of bail at that stage gave at least the appearance of his having pre-judged the outcome. That application was refused. 5 In relation to the revocation of bail and his Worship's refusal to disqualify himself, the plaintiff now seeks declaratory and other relief in this Court. Leave pursuant to s104(3) of the Justices Act is sought to appeal under Part 5 of that Act, and the summons also seeks an order in the nature of certiorari. No point has been taken on behalf of the first defendant about the form of relief claimed. It is accepted that, if the plaintiff makes good his arguments of substance, he is entitled to the declarations which he seeks and the remission of the matter to the Local Court to be dealt with accordingly. 6 I do not have all the material which was before his Worship. It appears that much of the evidence was directed to the circumstances of the plaintiff's custody and the prospect of his being moved to an institution where conditions would be more favourable. However, there was also evidence touching upon the strength of the Crown case and the extent of any fear that, if granted bail, he would abscond. It seems that Mr Boulten intended to call evidence in the plaintiff's case about his community ties: in particular, the situation of his family and his prospects of employment. In other words, the evidence in the review proceedings was not confined to the conditions of his custody but was intended to canvass all the matters which a court normally considers when making a bail determination. 7 His Worship's reasons for revoking bail on 18 February are, with respect, not entirely clear. He noted he had before him the whole of the material relied upon by the first defendant. He referred to the "great number of bail determinations made over a significant period of time". He concluded: I balance out the application made by the Director of Public Prosecutions, the prosecuting authority, the material the Court has at this stage and without, to use the vernacular, closing the door on the totality of material which the Court will ultimately have to determine on the question of bail, it would be the view of this Court at this stage, given the reasons and the additional material this Court now has, that pending the next hearing that bail will be refused. 8 The matter was again before his Worship on 29 February, by which time the proceedings in this Court had been instituted. The plaintiff's solicitor informed his Worship that, for that reason, he did not propose to present evidence in the review proceedings. His Worship recorded that bail had been refused on 18 February "on the basis of the history of the matter, the reasons consistently set out in the form 8 since the inception of the matter, and of course the Supreme Court bail decision and the additional evidence which has been tested or cross-examined". Bail was again refused, and the matter was further adjourned to await the decision of this Court.