New South Wales Supreme Court CITATION : R v Christopher GIBBS [2008] NSWSC 415 HEARING DATE(S) : 30 April 2008 JUDGMENT DATE : 30 April 2008 JURISDICTION : Common Law JUDGMENT OF : Rothman J DECISION : The provisions of sub-section 9(4) of the Bail Act 1978 do not deny jurisdiction to grant bail. CATCHWORDS : CRIMINAL LAW - bail - jurisdiction to grant - applicant serving sentence for other offence - construction of section 9 of the Bail Act - Court has jurisdiction. LEGISLATION CITED : Bail Act 1978 CATEGORY : Separate question Application of Harrod (1978) 1 NSWLR 331 CASES CITED : Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29; (1998) 194 CLR 355 R v Rochford ex parte Harvey (1967) 15 FLR 140 PARTIES : Regina (Crown) Christopher Gibbs (Applicant) FILE NUMBER(S) : SC 2008/4980 SOLICITORS : Director of Public Prosecutions (Crown) Aboriginal Legal Service (Applicant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 30 APRIL 2008 2008/4980 R v Christopher GIBBS EX TEMPORE JUDGMENT - On question of jurisdiction VIDEO LINK TO BATHURST CORRECTIONAL CENTRE 1 HIS HONOUR: The Crown and the applicant for bail in this matter come before the court in circumstances where the applicant seeks bail in relation to the charges of malicious damage, armed with intent to commit an indictable offence, a second offence of driving while never licensed and drive without visible headlights. 2 The Crown, quite properly and appropriately, raises with the Court the issues associated with the application of the provisions of s 9(4) of the Bail Act 1978. That provision is in the following terms: "(4) A person is not entitled under this section to be granted bail in respect of an offence to which this section applies, if: (a) the person is in custody serving a sentence of imprisonment in connection with some other offence, and (b) the authorised officer or court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the first mentioned offence would be granted. " 3 The Crown raises with the Court the problems that have been associated with the application of this provision in circumstances where it is not uncommon for the Parole Authority, in relation to another offence, to signify that they would or would be likely to grant parole but for the fact that the person is in prison on a charge and not bailed by the relevant court. 4 The difficulty then arises that the applicant is in a dilemma caused by the circularity of the process, namely the particular court is required to apply the provisions of sub-sections (3) and (4) of s 9 of the Bail Act and the Parole Authority will not grant parole or is less likely to grant parole in circumstances where the court has not granted bail in relation to a later offence. Thus a person who commits an offence, even a minor offence, which is in breach of their parole returns to prison to serve out the remainder of their parole period and, on one view of the legislation, cannot be granted bail and will not be granted parole - even in relation to a minor offence. 5 Thankfully, the Parole Authority operates a little more practically than that; grants parole on the earlier offence (if otherwise minded so to do); and the court then unarguably has jurisdiction to grant bail. Occasionally, the problem arises in a significant way, as it is said in this case it does. 6 The Crown submits that s 9(4), and to a lesser degree s 9(3), preclude the grant of bail. In my view, subs-sections (3) and (4) of s 9 of the Bail Act must be construed to give effect to the purpose and policy of the Act and must be read as a whole. As the High Court of Australia has said in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381: "[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme." (per McHugh, Gummow, Kirby and Hayne JJ) 7 The power to grant bail is granted to the Supreme Court under s 28 of the Bail Act. That statutory provision allows the court to grant bail in accordance with the Act to any person accused of any offence, whether or not before the Supreme Court. Prior to the enactment of s 28 of the Bail Act and indeed even after it, the Supreme Court's power to grant bail was part of, and still is part of, the inherent jurisdiction of this Court as a superior court of record. So much was adumbrated by the Court of Appeal (per Hutley JA) in the Application of Harrod (1978) 1 NSWLR 331 at p 333. It is also referred to in the judgment of R v Rochford ex parte Harvey (1967) 15 FLR 140. 8 Further, s 6 of the Bail Act provides that "bail may be granted in accordance with this Act to an accused person in respect of any one or more of the following periods" and then sets out those periods of time. 9 Section 13 of the Bail Act provides that an accused person who is "not entitled under section 9 to be granted bail may nevertheless be granted bail". 10 It seems to me that there are a number of provisions both within the inherent jurisdiction of the Court and under the Bail Act which allow the Court to grant bail. 11 One must then concern oneself with the proper construction of s 9. Section 9 is a section that deals with the presumption in favour of bail for certain offences. Sub-section (1) is a provision that sets out the offences to which s 9 applies and the offences to which it does not apply. Sub-sections (2), (3) and (4) are in the following terms: "(2) A person accused of an offence to which this section applies is entitled to be granted bail in accordance with this Act unless: (a) the authorised officer or court is satisfied that the officer or the court is, pursuant to a consideration of the matters referred to in section 32, justified in refusing bail, (b) the person stands convicted of the offence or the person's conviction for the offence is stayed, or (c) the requirement for bail is dispensed with, as referred to in section 10. (3) Subject to subsection (4) and section 9B (1) (e), a person is entitled under this section to be granted bail in respect of an offence to which this section applies, notwithstanding that the person is in custody also for some other offence or reason, in respect of which the person is not entitled to be granted bail. (4) A person is not entitled under this section to be granted bail in respect of an offence to which this section applies, if: (a) the person is in custody serving a sentence of imprisonment in connection with some other offence, and (b) the authorised officer or court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the first mentioned offence would be granted." 12 Sub-sections (3) and (4) of s 9 must be seen in the context of the operative provisions of sub-section (2) and the offences to which s 9 applies. What is crucial in the wording of subs-sections (3) and (4) of s 9 is the use of the words "not entitled" or "entitled". Sub-section (3) provides for a person's entitlement under the section to be granted bail. Sub-section (4) refers to a person not being entitled under the section to be granted bail. 13 It seems to me consistent with the remainder of the provisions of the Act and, in particular, consistent with the legislative purpose in s 9 and s 13, that subs-sections (3) and (4) of s 9 operate to grant or deny the presumption or entitlement otherwise granted by sub-section 9(2). 14 As a consequence, sub-section (4) is not a restriction on the jurisdiction of the Court, but rather a limitation on the presumptive effect of the other provisions of s 9 and I so hold. It is therefore open to the Court to grant bail, notwithstanding the provisions of sub-sections (3) and (4) of s 9 of the Bail Act. Of course, such bail would not effect the release of a prisoner who is serving a sentence imposed after conviction for another offence. ********** 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.