Supreme Court New South Wales Medium Neutral Citation: Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 Hearing dates: 25 July 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Common Law Before: Hamill J Decision: (1) The application is refused for want of jurisdiction. (2) If a release application is made to the District Court, I recommend to the Registrar of that Court that it be given expedition and listed as a matter of urgency. (3) If a release application is made to the Court of Criminal Appeal, I recommend to the Registrar that it be dealt with expeditiously. (4) I recommend that the transcript of the proceedings and judgment on sentence be prepared and revised as a matter of urgency. (5) The parties have leave to approach my Associate with a view to listing the application as a matter of urgency should the circumstances relating to jurisdiction change. Catchwords: CRIMINAL LAW – release application – bail pending appeal to the Court of Criminal Appeal – appeal against sentence imposed in District Court – whether single judge has power to hear release application – where bail not sought in the District Court – whether Supreme Court is the Court of Criminal Appeal for purpose of powers granted under Bail Act – where jurisdiction in single judge hitherto assumed – novel submissions by prosecutor – submissions accepted –– construction of Bail Act 2013 – where earlier legislation gave jurisdiction to single judge – second reading speech – possible unintended removal of Court's power – point never previously raised – absence of relevant authorities – statutory language clear – inherent jurisdiction unable to cure absence of statutory power – lost luggage Legislation Cited: Bail Act 1978 (NSW) s 28 Bail Act 2013 (NSW) ss 3, 5(1)(d), 18, 22, 48, 61, 62, 63, 66, 67, 68, and 90 Civil Procedure Act 2005 (NSW) s 14 Criminal Appeal Act 1912 (NSW) ss 3, 10, 22 and 29 Suitors Fund Act 1951 (NSW) s 6 Supreme Court Act 1970 (NSW) ss 23, 51(1) and 101(5) Third Charter of Justice, Letters Patent of 13 October 1823 Cases Cited: Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 El-Hilli and Melville v R [2015] NSWCCA 146 Mahaffy v Mahaffy [2018] NSWCA 42 Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 Obeid v R (No 2) [2016] NSWCCA 321 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Jefferys (Supreme Court (NSW), Rothman J, 17 December 2014, unrep) R v Mahaffy [2016] NSWSC 1085 R v Moore [2015] NSWSC 1262 R v Paul Campbell (a pseudonym) [2017] NSWSC 1844 R v Thomas [2014] NSWSC 1975 R v Yaghi (Supreme Court (NSW), Rothman J, 1 July 2014, unrep) R v Younan [2016] NSWSC 197 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Texts Cited: New South Wales, Parliamentary Debates, Legislative Assembly, 1 May 2013 Category: Principal judgment Parties: Mohammad Noufl (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: D Hawkins (Applicant) M Reville (Respondent) Solicitors: Attia Lawyers and Consultants (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2018/220809 Publication restriction: No Judgment 1. On Wednesday 25 July 2018, Mohammad Noufl made a release application pursuant to the provisions of the Bail Act 2013 (NSW) ("Bail Act"). The prosecutor disputed that the Court as constituted had jurisdiction to hear the application. The matter was heard in full, including evidence and submissions on the merits, on an assumption that I did have jurisdiction to determine the matter. Counsel for the applicant filed written submissions on jurisdiction after the hearing. Application for bail pending appeal to the Court of Criminal Appeal 1. Putting aside the question of jurisdiction, the application is governed by s 22 of the Bail Act because the applicant seeks bail in relation to an offence for which an appeal is pending in the Court of Criminal Appeal against a sentence imposed on conviction on indictment. 2. On 11 July 2018, Judge Maiden SC sentenced the applicant in relation to two offences of supplying methylamphetamine. Each offence involved a quantity of about 27.5 grams. The sentence on each count was partially accumulated. The total effective sentence was 2 years, 1 month and 14 days with a non-parole period of 1 year, 2 months and 9 days. The non-parole period will expire, and the applicant is to be released, on 28 April 2019. 3. No application for bail was made to the District Court after sentence was imposed. 4. Section 22 requires the applicant to establish "special or exceptional circumstances" justifying the grant of bail. The operation of s 22 has been considered in a number of cases: see, for example, El-Hilli and Melville v R [2015] NSWCCA 146 (Hamill J, Simpson and Davies JJ agreeing) cited with approval in Obeid v R (No 2) [2016] NSWCCA 321 (Bathurst CJ, Hoeben CJ at CL and R A Hulme J). As a general proposition the matters informing the question whether special or exceptional circumstances are established include first, whether the proposed appeal or application for leave to appeal has reasonable prospects of success and second, whether it is likely that the sentence subject to the appeal will have expired or largely expired before the appeal has been heard. Other matters, more generally associated with an ordinary bail application, are also relevant to a consideration of an application governed by s 22. The "unacceptable risk" test and the criteria identified in s 18 of the Bail Act are imported into the provision by s 22(3). 5. Because an assessment of the prospects of success of the appeal is a critical consideration in applications for bail pending appeal, proposed grounds of appeal (or arguments) are generally foreshadowed or articulated in the course of the release application. Ideally, draft grounds of appeal are tendered on the application. An example of a properly prepared and presented application for bail pending an appeal to the Court of Criminal Appeal was R v Paul Campbell (a pseudonym) [2017] NSWSC 1844. In that case, grounds of appeal and draft submissions were filed. This is not always possible when the judgment appealed against is not available or when the legal representatives presenting the bail application did not appear in the Court below. 6. The present application was presented somewhat chaotically. There was no clear articulation of the grounds of appeal upon which the proposed application for leave to appeal against sentence is to be pursued. This may have been, at least partly, because the remarks on sentence were not available. I was told that the judgment was unlikely to be available for a period of 6 to 8 weeks. Counsel who appeared on the release application did not appear at the sentencing hearing. However, counsel's instructing solicitor did appear in the District Court. Belatedly, in the course of argument and after the evidence had closed, leave was granted to allow the solicitor to give evidence as to matters that may be relevant to an appeal against the sentence. 7. It emerged that there may be some arguable appeal grounds including grounds that raise the issue of: 1. Whether the sentencing Judge gave any, or any proper, consideration to alternatives to a full-time custodial sentence; 2. Whether the applicant has a justifiable sense of grievance as a result of a lack of proper proportion (disparity) between the sentence imposed upon him and a sentence imposed on a co-offender who was far more seriously involved in the drug transactions; and 3. Whether the sentencing Judge confused the subjective cases of the two offenders. 1. It is also the case that a reasonable proportion of the non-parole period will have expired by the time the proposed appeal is heard and determined. 2. The applicant has no previous criminal history and tendered a body of subjective material, all or most of which was tendered at the sentencing hearing. Subject to one entry on the bail report (the underlying details of which were not provided), he complied with conditional bail up until the date of sentence. 3. At first blush, and notwithstanding the requirement that the applicant establish special or exceptional circumstances, the release application has some merit in that: 1. It is a relatively short sentence and a significant portion of the custodial component will have been served by the time the appeal is heard; 2. On the limited material available, there may be some merit in the proposed appeal against sentence; and, 3. More general considerations militate in favour of the grant of bail. Whether a single Judge has jurisdiction to hear the application 1. The solicitor appearing for the Director of Public Prosecutions (DPP) raised an anterior question of a most fundamental kind. The question is whether a single Judge of the Supreme Court has jurisdiction to hear an application under the Bail Act where there is an appeal pending before the Court of Criminal Appeal and there has been no prior refusal of bail. 2. Helpful written submissions were filed on behalf of the Director in which it was submitted that there is no jurisdiction in those circumstances. Because counsel for the applicant had only shortly returned from overseas and, as I was (perhaps gratuitously) informed, had lost her luggage, she was not in a position properly to address the Director's submissions. The submissions were dense and well researched. Accordingly, counsel was given the opportunity to file submissions on the question of jurisdiction within 48 hours of the conclusion of the hearing. 3. The parties agreed that a Notice of Intention to Appeal has been filed and that this means that "an appeal is pending in the Court of Criminal Appeal": s 22(1); and see Criminal Appeal Act 1912 s 10(2)(b) and Obeid v R (No 2) [2016] NSWCCA 321 at [4]. It also appeared to be common ground that the applicant is yet to make his first appearance in the Court of Criminal Appeal. Relevant provisions of the Bail Act 2013 1. The purpose of the Bail Act is set out in s 3 and provides that: 3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions. 1. The power of various courts to deal with bail applications is dealt with in Parts 5 and 6 of the Bail Act. Section 48 relevantly provides: 48 Powers of courts and authorised justices to hear bail applications … (2) A bail application can be made to, and heard by, a court or authorised justice only if the court or authorised justice has power to hear the application. (3) A court or authorised justice has power to hear a bail application in the circumstances specified in Part 6. In general, a court has power to hear a bail application if: (a) proceedings for the offence are pending in the court, or (b) proceedings on an appeal against a conviction or sentence of the court are pending in another court and the accused person has not made a first appearance before the other court, or (c) the bail decision to be varied was made by the court. However, additional powers, and restrictions on powers, also apply under Part 6. 1. The note following sub-s (3) reflects the provisions in Part 6. In the present case, the note suggests there is jurisdiction in the Court of Criminal Appeal because "proceedings for the offence are pending in the court", and in the District Court because "an appeal against a … sentence of the court are pending in another court and the accused person has not made a first appearance before the other court." 2. Turning to Part 6 of the Bail Act, the following provisions in Division 2 are relevant: 61 Power to hear bail application if proceedings are pending in court A court may hear a bail application for an offence if proceedings for the offence are pending in the court. 62 Power to hear bail application if sentence or conviction appealed A court may hear a bail application for an offence if: (a) the court has convicted a person of the offence, and (b) proceedings on an appeal against sentence or conviction are pending in another court, and (c) the person has not yet made his or her first appearance before the court in the appeal proceedings. 1. The definition of "proceedings for an offence" includes "proceedings on an appeal against conviction or sentence": s 5(1)(d). 2. Part 6, Division 3 provides "additional powers" and "powers specific" to particular courts. The relevant provisions are: 66 Powers specific to Supreme Court (1) The Supreme Court may hear a release application for an offence if bail for the offence has been refused by another court, an authorised justice or a police officer. (2) The Supreme Court may hear a detention application or variation application for an offence if a bail decision has been made by the District Court, the Local Court, an authorised justice or a police officer. 67 Powers specific to the Court of Criminal Appeal: (1) The Court of Criminal Appeal may hear a bail application for an offence if: (a) the Court has ordered a new trial and the new trial has not commenced, or (b) the Court has made an order under section 8A (1) of the Criminal Appeal Act 1912 and the person is before the Court, or (c) the Court has directed a stay of execution of a conviction and the stay is in force, or (d) an appeal from the Court is pending in the High Court, or (e) a bail decision has been made by the Land and Environment Court or the Supreme Court. (2) Despite subsection (1) (e), a Judge of the Court of Criminal Appeal sitting alone cannot hear a bail application if a bail decision has been made by the Supreme Court (however constituted) unless the rules made under the Supreme Court Act 1970 permit the Judge to do so. 1. Part 6, Division 4 provides restrictions on the powers of courts. Section 68 relates to the situation when proceedings are pending in another court and may be relevant for what it does not say or do: 68 Limited powers when proceedings pending in another court (1) The Local Court or an authorised justice cannot hear a bail application if: (a) proceedings for the offence are pending in a court (other than the Local Court) and the accused person has made his or her first appearance before the court in those proceedings, or (b) summary proceedings for the offence are pending in the Supreme Court, or (c) the accused person has made his or her first appearance before the Supreme Court after being brought up by a writ of habeas corpus following summary conviction for the offence. … (3) The District Court or the Land and Environment Court cannot hear a bail application if: (a) proceedings for the offence are pending in the Supreme Court or the Court of Criminal Appeal and the accused person has made his or her first appearance before the court in those proceedings, or (b) the accused person has made his or her first appearance before the Supreme Court after being brought up by a writ of habeas corpus following summary conviction for the offence. 1. In contrast to the position of the Local Court and the District Court when proceedings have moved to a higher court, s 68 does not specifically restrict the power of the Supreme Court to hear a bail application where proceedings are pending in the Court of Criminal Appeal. A novel submission contrary to the assumptions underpinning earlier cases 1. Mr Reville, who appeared for the Director, acknowledged that his submission that a single judge of the Supreme Court lacked jurisdiction was a novel one. He accepted that, hitherto, it had been assumed that the power to hear such an application resided in the Judges of the Common Law Division sitting alone in the bail list, and that there are many cases where the Court has exercised that power without demur from the DPP. He also "recognise[d] the implications" of what he was submitting. It was accepted that single judges of the Court have dealt with many such applications on an assumption that there was no issue as to jurisdiction. Examples of such cases include R v Thomas [2014] NSWSC 1975, R v Moore [2015] NSWSC 1262; R v Younan [2016] NSWSC 197, R v Paul Campbell (a pseudonym) [2017] NSWSC 1844. There are many others, most of which are not recorded on Caselaw NSW. As far as can be known, in none of these cases did the DPP question the power of a single judge to hear the application. 2. Mr Reville drew attention to the distinction between the provisions of the Bail Act set out above, and in particular ss 48 and 66, and the relevant provisions that existed under the previous legislation. Section 28 of the Bail Act 1978 (NSW) provided: 28 Power of Supreme Court to grant bail The Supreme Court may grant bail in accordance with this Act to any person accused of an offence, whether or not the person has appeared before the Supreme Court in connection with the offence. Whether Parliament considered the issue when the 2013 amendments were made 1. It may be that the assumption on all sides, that a single judge of the Supreme Court has jurisdiction to deal with such applications, was based on the fact that it had always enjoyed that power. The absence of reference to the matter in s 68 may suggest that, if the power was taken away with the passing of the Bail Act 2013, it was an unintended consequence. I have perused the Second Reading speech and there was no clear indication that the new Act was intended to take away that power. Insofar as the Attorney General said anything relevant to the present question, Hansard records the following: [1] Proposed section 61 provides the general rule that a court has power to hear a bail application for an offence if proceedings for the offence are pending before it. However, proposed section 62 provides that a court that convicts a person for an offence may still hear a bail application for the offence after an appeal is lodged against the conviction or sentence, up until the person makes their first appearance in the appeal proceedings. Proposed division 3 sets out the powers of particular courts to hear bail applications. I will not set out these provisions in detail. However, I note that proposed section 66 allows the Supreme Court to hear a variation application or detention application where a bail decision has already been made by the District Court. This differs from the existing Act whereby decisions of the District Court can be reviewed only by the Court of Criminal Appeal. Division 4 of part 6 imposes some restrictions on the powers of courts to hear bail applications. These restrictions have largely been carried over from the existing Act. 1. There is nothing in the Second Reading Speech that suggests the intention of the legislature was to take away from the Supreme Court a power that has existed, as part of its inherent jurisdiction as a superior court since its creation and, under statute, since the introduction of s 28 of the Bail Act 1978. 2. Even accepting that the Parliament did not intend to remove a power that the Court enjoyed under earlier legislation, the language of s 48(2) and subs (3) is unambiguous. The power of a court to hear a bail application is governed by the provisions of the Bail Act. The provisions in ss 48(3), 61, 62 and 66(1) suggest that the courts that have power to hear the applicant's release application are: 1. The District Court, until the applicant makes his first appearance before the Court of Criminal Appeal. 2. The Court of Criminal Appeal. 3. The Supreme Court, but only after a release application has been refused by another court (or police or an authorised officer). The applicant's written submissions 1. Counsel for the applicant submitted that a single judge has jurisdiction to hear a bail application where an appeal is pending in the Court of Criminal Appeal. She relied on the "inherent power of the Supreme Court to allocate judges to whatever role and in whatever number it sees fit" and submitted that this Court has jurisdiction "to hear release applications in the manner it sees fit. In this case it is by a single judge." The Supreme Court has "the ultimate arbiter role" in relation to bail applications unless its power is "expressly taken away". The inherent jurisdiction of the Court was emphasised. 2. It was submitted: [2] The Court of Criminal Appeal and Court of Appeal are divisions of the Supreme Court, and they are not 'another court' they are divisions of the same court being the Supreme Court. 1. Accordingly, once the matter is pending in the Court of Criminal Appeal (in the sense that the Notice of Intention to Appeal has been filed) there are "proceedings for an offence pending in the [Supreme] Court". 2. Counsel submitted that the District Court was "functus officio" and that the matter had "moved out of the jurisdiction of the District Court". This submission is contrary to the provision in s 62 of the Bail Act and must be rejected. Until the applicant makes his first appearance in the Court of Criminal Appeal, the District Court "may hear a bail application." Insofar as this submission led on to the proposition that the Supreme Court must have jurisdiction, it cannot be accepted. Similarly, I cannot accept the related proposition that the lack of power in the District Court overcomes the requirement in s 66(1) that the Supreme Court's power is enlivened only after bail is refused by another court. The plain language of s 66(1) was considered, in a different context, by the Court of Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [9]-[12]. Is the Court of Criminal Appeal the Supreme Court? Is the Supreme Court the Court of Criminal Appeal? And, if so, in what context? 1. The resolution of the question turns, at least to some degree, on whether the Court of Criminal Appeal and the Supreme Court are the same court for the purpose of the relevant provisions of the Bail Act. It also turns on whether a single judge of the Supreme Court constitutes the Court of Criminal Appeal for the purpose of those provisions. 2. In the context of deciding whether there was an avenue of appeal from the Court of Criminal Appeal to the High Court, the latter court held in Stewart v The King (1921) 29 CLR 234; [1921] HCA 17 at [240]: [The Criminal Appeal Act 1912] does not create or constitute a new Court distinct from the Supreme Court, but merely directs that the Supreme Court shall act as the Court of Criminal Appeal (sec. 3). The statute prescribes how the Court shall be constituted for hearing appeals (sec. 3), gives certain supplemental powers (sec. 12), and prescribes the procedure to be followed in the Court (sec. 10). But all this is as consistent with the view that the Supreme Court is to act as a Court of Criminal Appeal as with the view that a new Court is created by the statute. If there can be no appeal to this Court unless the Supreme Court and the Court of Criminal Appeal are one, the Legislature evidently thought they were one, because sec. 24(2) assumes that an appeal lies to this Court. 1. Stewart v The King was applied in R v AB (No. 2) [2018] NSWCCA 148. In that case the Court (Meagher JA, Rothman and Garling JJ) considered the power of the Court of Criminal Appeal to grant an indemnity certificate under the Suitors Fund Act 1951 (NSW). Section 6 conferred the power to grant a certificate to the "Supreme Court". It was held that the reference to the Supreme Court "included the Court of Criminal Appeal". See also Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 at [6]-[10]. 2. While those decisions might be thought to provide some support for the applicant's submission, it is necessary to place them in the context of the express provisions of the Bail Act and to consider other sections of the Criminal Appeal Act 1912 (NSW). Section 3(1) provides: 3 Constitution of court The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct. 1. The words "for the purposes of this Act" are important. It is also important to note that, while the Judges of the Common Law Division frequently sit on the Court of Criminal Appeal, that is the result of a direction by the Chief Justice on each occasion. Generally speaking, perhaps universally, no such direction is given in respect of single judges sitting in the bail court. 2. Section 29 of the Criminal Appeal Act provides that to the extent of any inconsistency, the Bail Act 2013 prevails over the Criminal Appeal Act. 3. Section 22 provides a catalogue of powers that can be exercised by a single judge of the Court of Criminal Appeal. The catalogue does not include the power to deal with a bail application. However, s 67(2) of the Bail Act may (arguably) imply that a single judge of the Court of Criminal Appeal can hear a bail application provided that the Supreme Court (however constituted) has not made a bail determination in the matter. The implication arises from the fact that s 67(2) makes specific provision that a single judge of the Court of Criminal Appeal cannot hear such an application (that is, an application to the Court of Criminal Appeal where the Supreme Court has made a bail determination). Such a provision may be superfluous unless there is otherwise a power in a single judge to hear such an application. That question does not have to be resolved here because the Chief Justice has made no direction under s 3 of the Criminal Appeal Act whereby I am exercising jurisdiction as a judge of the Court of Criminal Appeal. Authorities relied on by the parties or otherwise considered 1. Mr Reville relied on certain implications he submitted arose from the following passage in Obeid v R (No 2) [2016] NSWCCA 321 at [4]: The application before Beech-Jones J was made on the basis that an appeal was pending but the applicant had not yet made his first appearance in this Court: s 62 of the Bail Act 2013 (NSW). The Criminal Appeal Act 1912 (NSW) provides in s 10(2)(b) that an appeal is taken to be pending in this Court when a notice of intention to appeal has been filed (within the time allowed). 1. It was submitted that this passage implies that, apart from the express statutory power in s 62, a single judge may not otherwise exercise the jurisdiction of the Court of Criminal Appeal. While I accept the logic of this submission, I am not inclined to make very much of implications arising from what was a brief introductory passage in circumstances where there was no doubt about the power of Beech-Jones J to hear the initial application. The Court was not predominately concerned with questions of power and jurisdiction. 2. Both parties took me to a decision of Rothman J in R v Mahaffy [2016] NSWSC 1085. As I understand her written submissions, counsel for the applicant contends that his Honour's reasoning supports the proposition that the Supreme Court is the Court of Criminal Appeal for the purpose of the present (and similar) bail applications. Reference was made to paragraphs [17] and [25]. Those paragraphs are in the following terms: 17. As a consequence of the foregoing, orders made by this Court, sitting as a single judge pursuant to the terms of s 40 of the Supreme Court Act 1970 (NSW) or sitting as the Court of Appeal, are, nevertheless, judgments of the Supreme Court of New South Wales. When the Court of Appeal exercises jurisdiction it exercises a different jurisdiction from that of a single judge, but both are the jurisdiction of the Court and the bench comprised in that manner is, respectively, the Court. In other words, each of the Court of Appeal and a single judge exercise for different purposes the jurisdiction of the Supreme Court of New South Wales and is the Supreme Court of New South Wales for that purpose. 25. As a consequence of that, and the principles adumbrated by the High Court in Jarman, the Court of Criminal Appeal so called is the Supreme Court exercising a jurisdiction conferred by the Criminal Appeal Act and the Court of Appeal is the Supreme Court exercising the jurisdiction of appeal conferred by various Acts, including, inter alia, the Supreme Court Act, and a judge sitting alone is the Supreme Court exercising jurisdiction pursuant to s 40 of the Supreme Court Act. 1. Mr Reville emphasised the manifest differences between the present application and the circumstances pertaining to Mahaffy. He took me to various passages in the judgment and submitted the reasoning (especially at [36]) implies that there must be some statutory provision to empower a single judge to deal with proceedings otherwise before the Court of Appeal or Court of Criminal Appeal. 2. I have given close consideration to the careful judgment of Rothman J in Mahaffy. The circumstances were urgent and unusual. It was not a case, on its face, where the applicant sought to exercise a recognised avenue of appeal under the Criminal Appeal Act although the applicant purported to bring an appeal to that Court. It was a case of contempt where Schmidt J imposed an aggregate sentence of ten months in relation to several counts of contempt arising out of District Court proceedings. By the time the matter came before Rothman J in the bail court, the applicant had served eight months of that sentence. His Honour noted the provision in s 101(5) of the Supreme Court Act 1970 which gave the Court of Appeal jurisdiction to deal with appeals "from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court." His Honour then considered the exercise of jurisdiction under s 51(1) of the Supreme Court Act. Section 51 is concerned with the distribution of proceedings as between the Court of Appeal and the Divisions of the Supreme Court. Section 51(1)(b) provides that either the Court of Appeal or "the Court in the Division" can make an order removing the matter into the Court of Appeal. His Honour was exercising jurisdiction under s 51 as well as considering whether to make an order staying the orders made by Schmidt J and otherwise dispensing with the rules of the Court under s 14 of the Civil Procedure Act 2005 (NSW). 3. That was the context in which his Honour held at [36]: As a consequence of the provisions of s 51(1) of the Supreme Court Act, the Court as presently constituted may deal with the proceedings and continue to deal with the proceedings before removal into the Court of Appeal, if that be the appropriate course. 1. In those circumstances, his Honour held (implicitly I think) that, for the purpose of s 61 of the Bail Act, "proceedings for [an] offence [were] pending in the Court." 2. While many of the statements of fundamental principle enunciated by Rothman J in Mahaffy are obviously correct and apposite to the circumstances of the case before his Honour, the relevant legal principles are far removed from the particular legislative provisions governing the disposition of the present case. [3] The Bail Act deals specifically with cases where an appeal is pending in the Court of Criminal Appeal and sets out the powers of various courts to deal with bail applications once an appeal to that Court is instituted. The Bail Act makes no specific reference to cases where an appeal lies to the Court of Appeal. 3. In this context, reference might also be made to the decision of Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280. That was a case in which Meagher JA exercised jurisdiction to discharge two litigants from orders for imprisonment for contempt imposed by Rothman J. Meagher JA considered the provisions and powers relating to bail in cases of contempt, noting at [4] that s 90(1) of the Bail Act provides that the Act "does not affect any power or duty that a court has 'to grant bail, or to grant relief in the nature of bail, for any contempt or alleged contempt.'" An exception is where the proceedings for contempt are commenced by information or complaint: s 90(3). The analysis of Meagher JA, and the provision in s 90, confirms my conclusion that the decision in Mahaffy is of little assistance in determining the issue of power raised by the DPP in the present case. Does the Supreme Court have "inherent jurisdiction" to hear any bail application? 1. Since the present application was argued, I have become aware of two unreported decisions of Rothman J where his Honour held that the Supreme Court, as part of its inherent jurisdiction, has power to hear, essentially, any bail application: R v Yaghi (Supreme Court (NSW), Rothman J, 1 July 2014, unrep) and R v Jefferys (Supreme Court (NSW), Rothman J, 17 December 2014, unrep). 2. In R v Yaghi the applicant was pursuing an appeal from the Local Court to the District Court in circumstances where, through some kind of forensic glitch, no release application had been made. Accordingly, neither ss 62 nor 66 gave the Supreme Court power to hear the application. The parties did not raise the question of jurisdiction. As his Honour said: I do not by the foregoing suggest that the issue, whether the court should deal with the application, is a matter of contention. The applicant seeks that the Court deal with it, the Crown does not oppose that course or does not seek to put submission in relation to it. 1. His Honour traced the history of bail and the power of "Superior Courts and Courts of Assizes" to order the release of prisoners to bail back to 1450 AD. His Honour showed that "by the mid to late 1600s and certainly by the mid 1700s bail was an inherent power of the courts of Westminster." Thus, when this Court was established in 1824 by the Third Charter of Justice, [4] the power to grant bail was an inherent part of its jurisdiction inherited from the Courts of Westminster. His Honour noted that the inherent powers of the Court were confirmed by s 23 of the Supreme Court Act 1970. His Honour recognised that the provision in s 28 of the Bail Act 1978 (which clearly granted the Supreme Court jurisdiction) had not been transposed into the Bail Act 2013 and said: There is no doubt in my view that the Bail Act 2013 should be amended to confirm or deal with the proposition that the jurisdiction of this Court in relation to all bail applications is unchanged from that which was the situation in s 28 of the Bail Act 1978. 1. I agree with that part of his Honour's reasons. 2. Rothman J adopted the same reasoning, and traced the same history, in R v Jefferys. That was a case where the applicant had appealed to the Court of Criminal Appeal from a sentence imposed in the District Court. No release application had been made in the District Court. Rothman J recognised that this meant that the Bail Act did not grant power to the Supreme Court to hear the application. However, "the Crown does not object to the Court dealing with the application on proper principle." It will be seen that, apart from the position taken by the prosecutor, the case raised the same issue of jurisdiction confronting me. Rothman J apologised "for the distraction, given the agreement of the parties that the Court should deal with it" but noted (uncontroversially) that "consent cannot grant jurisdiction." 3. His Honour held that: [T]he provisions of section 23 of the Supreme Court Act and the history just recited mandate that the provisions of the Supreme Court are sufficiently broad to enable the Court to deal with bail applications that are otherwise unable to be dealt with under the Bail Act 2013, and in particular are sufficiently broad to enable the Court to deal with the current application before the Court. 1. His Honour also held: I reiterate the earlier comment that the provisions of the Bail Act 2013 are a code in relation to those factors to which the Court must have regard or may have regard in the grant of bail, but the jurisdiction to grant bail is a jurisdiction that can be found otherwise than in the provisions of the Bail Act 2013. 1. I have considered these decisions of Rothman J carefully. While they are not binding on me, and while each was decided in the absence of any contradictor on the issue of jurisdiction, I would not lightly disregard a decision of a senior member of the Court. Further, it is obviously undesirable that two members of the same Division, who regularly preside in the bail court, take a different approach to such a fundamental question of power. However, I am unable to accept that the inherent jurisdiction of the Court, recognised by s 23 of the Supreme Court Act, can overcome the clear terms of the Bail Act. Nor can I accept that the Bail Act 2013 does not relevantly codify the question of jurisdiction in the present circumstances. 2. The language in s 48 seems very clear to me. Sub-s (2) states that a bail application can be made to a court "only if the court has power". Sub-s (3) states that "a court has power to hear a bail application in the circumstances specified in Part 6." As Rothman J recognised, nothing in Part 6 gives the Supreme Court power to hear an application in the circumstances prevailing here. Conclusion as to jurisdiction 1. In The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 it was stressed at [421]: It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words. 1. The submissions of the parties, and an analysis of the case law, suggests that – apart from the decision of Rothman J in R v Jefferys – there is no direct authority on the jurisdictional question raised in the present application. In R v Jefferys, the point was not argued by the parties and the prosecutor was content for a single judge to deal with the matter. As I have said, I am unable to agree with the proposition that s 23 of the Supreme Court Act and the inherent jurisdiction of the Court, confers jurisdiction when the Bail Act does not do so. Otherwise, none of the authorities to which reference was made by the parties, or to which I have resorted since taking submissions, does very much, if anything, to illuminate the question. The question of power is to be determined by reference to the provisions of the Bail Act. 2. As to the suggestion that the Supreme Court is the Court of Criminal Appeal for the purpose of the Bail Act, I cannot reconcile this proposition with the clear demarcation of powers manifest in the Bail Act and a proper construction of the legislation read as a whole and taking into account its language and purpose. [5] 3. I am driven to the conclusion that an unintended consequence of the repeal of the Bail Act 1978 and the introduction of the Bail Act 2013 is that a single judge of the Supreme Court is no longer empowered to hear a bail application while an appeal is pending in the Court of Criminal Appeal unless: 1. The proceedings for the offence were dealt with in the Supreme Court and the applicant is yet to make their first appearance before the Court of Criminal Appeal (s 62); or 2. A release application has been refused by another court, police or authorised officer (s 66). 1. For the foregoing reasons the release application must be dismissed for want of jurisdiction. It should be clear that I have not come to any conclusion on the question under s 22 and the dismissal of the application is not based on the merits. As I have said, at first blush and on the limited material available, there is some merit in the submission that special or exceptional circumstances exist. Period of remand before sentence was imposed 1. I should note in passing that in the course of argument, counsel indicated that bail was refused in the Local Court. [6] However, this submission was not pursued further and was not referred to in the written submissions filed specifically in reference to the question of jurisdiction. There is no evidence that the Local Court ever refused bail and, in view of the way the matter was conducted, I am unable to act on that one, seemingly off the cuff, statement made in the course of argument and not further articulated. 2. It is not clear whether any refusal of bail before sentence was imposed related to the current offences. It could not have related to the circumstances prevailing after sentence was imposed. The Statement of Agreed Facts on sentence did not refer to any pre-sentence custody and there was no reference to bail. The criminal history (in the form of a Bail Report) referred to a detention application on 27 December 2017 and says that a breach of bail was established. However, the details are scanty. The custodial history suggests that the applicant was in custody from 30 June 2017 (the date of his arrest) until he received "bail at court" on 18 August 2017. He was admitted (presumably to custody in relation to the alleged breach of bail) on 27 December 2017 but granted "bail at court" that same day. From these records, an inference might be drawn that the applicant was refused bail by a police officer or authorised officer in the early stages of the criminal litigation. However, there is no evidence of a release application being refused. In any event, the early period of custody was not relied on as laying the foundation of jurisdiction under s 63. Practical implications in other cases 1. Because of the potential significance of this decision, and the fact that it runs contrary to the general understanding of the powers of a single judge, this judgment will be published on Caselaw NSW and my Associate will bring the decision to the attention of relevant professional bodies. 2. Practitioners should be aware that if it is proposed to seek bail pending an appeal against conviction or sentence to the Court of Criminal Appeal, a release application should first be made to the District Court (unless the proceedings were conducted in the Supreme Court). Practical implications in the present case 1. In the case of the present applicant, and assuming he is yet to make his first appearance before the Court of Criminal Appeal, he should (if so advised and inclined) seek to make a release application to the District Court. 2. Because of the novel (and I think correct) submissions made by the DPP, and because this judgment represents a significant departure from what was previously understood to be the jurisdiction of a single judge of this Court, consideration of the applicant's release application has been, and will be, significantly delayed. This is through no fault of the applicant. For that reason, I will recommend that the Registrar of the District Court attempt to give the matter some priority (unless the matter can be urgently dealt with by the sentencing Judge). I will make a similar recommendation to the Registrar of the Court of Criminal Appeal in the event that the applicant seeks to pursue a release application to that Court. I will also recommend that the transcript of the judgment and proceedings on sentence be prepared as a matter of urgency. 3. The applicant (and the Director of Public Prosecutions) will have leave to approach my Associate with a view to list the matter before me as a matter of urgency should circumstances change and the pre-requisites for jurisdiction are established. Amendment to the Bail Act 2013 1. I agree with the observation of Rothman J in R v Yaghi that the Bail Act should be amended to clarify the situation. If I am correct, and the removal of this Court's jurisdiction to deal with such applications was inadvertent, it may be that the legislature would think it appropriate to amend the Act so that it reflects the terms of s 28 of the Bail Act 1978. 2. On the other hand, if the removal of power was deliberate and considered to be desirable, it may be that the limitations on power in s 68 should include a clear provision that the Supreme Court does not have jurisdiction. 3. One unfortunate consequence of this interpretation of the Bail Act 2013 is the likelihood that even more bail applications will be brought before the Court of Criminal Appeal (constituted by three judges). That Court, generally a court of appeal in a strict sense, is already confronted with many bail applications which are to be heard as de novo applications. Beech-Jones J expressed his disquiet about this in Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [49], sentiments with which Adams J expressed his "strong agreement" at [6]. ORDERS AND RECOMMENDATIONS 1. For the foregoing reasons, I make the following orders and recommendations: 1. The application is refused for want of jurisdiction. 2. If a release application is made to the District Court, I recommend to the Registrar of that Court that it be given expedition and listed as a matter of urgency. 3. If a release application is made to the Court of Criminal Appeal, I recommend to the Registrar that it be dealt with expeditiously. 4. I recommend that the transcript of the proceedings and judgment on sentence be prepared and revised as a matter of urgency. 5. The parties have leave to approach my Associate with a view to listing the application as a matter of urgency should the circumstances relating to jurisdiction change. ********** Endnotes 1. New South Wales, Parliamentary Debates, Legislative Assembly, 1 May 2013, 87-98, (Greg Smith, Attorney-General). 2. Applicant's written submissions at [5]. 3. It is noted in passing, that the wisdom and justice of his Honour's decision was highlighted when the Court of Appeal reduced dramatically the sentence imposed on the contemnor and he was not returned to custody: Mahaffy v Mahaffy [2018] NSWCA 42. 4. Third Charter of Justice, Letters Patent of 13 October 1823. 5. Cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70]. 6. Transcript p 9 line 24. Amendments 16 August 2018 - 16 August 2018 - [14] reference added, [60] citation amended 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. Decision last updated: 16 August 2018