Al Saleh v Director of Public Prosecutions [2019] NSWCCA 31

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Al Saleh v Director of Public Prosecutions [2019] NSWCCA 31 Hearing dates: 8 February 2019 Date of orders: 22 February 2019 Decision date: 22 February 2019 Before: Basten JA; Button J; Lonergan J Decision: Release application refused. Catchwords: CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – bail refused, then granted by Local Court – detention order made by Supreme Court – further application to Court of Criminal Appeal – power of Supreme Court to hear subsequent release application

CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – whether change of circumstances – prosecution witness contradicts earlier statement at committal hearing – whether strength of prosecution case affected – unforeseen delay before trial – unforeseen collapse of family business whilst applicant in custody Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 19, 66, 67, 74 Cases Cited: Trinh v R [2016] NSWCCA 110 Category: Principal judgment Parties: Hussein Al Saleh (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel: Mr G Brady SC (Applicant) Mr P Leask (Respondent)

Solicitors: One Group Legal Pty Ltd (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2018/270011

Judgment 1. THE COURT: On 28 February 2018 the applicant, Hussein Al Saleh, was arrested and charged with five offences arising out of a shooting which occurred on 31 January 2018. Mr Al Saleh applied in the Local Court to be released under the Bail Act 2013 (NSW). On 21 June 2018, he was granted conditional bail. The prosecutor then made a detention order application in the Common Law Division, which was granted by Fullerton J on 6 July 2018. On Friday, 8 February 2019 a release application made by the applicant was listed before this Court for hearing. 2. The papers provided to this Court did not contain the release application. However, the Court was provided with correspondence between the Registrar and solicitors for the applicant, which caused the Court to make further inquiries as to the listing arrangements. Those inquiries revealed that the release application had originally been filed in the Common Law Division on 13 August 2018. After a series of exchanges between the Registrar and the solicitors for the applicant, a fresh application was filed on 6 November 2018 in this Court. Thus, a period of some six months elapsed between the date of the original release application and the hearing. On the face of it, that is a matter of concern. 3. That concern is mitigated by two circumstances. The first is that the fact of the detention order made by Fullerton J in the Common Law Division on 6 July 2018 led the applicant to believe that, to succeed on his release application, he would need to demonstrate a material change of circumstances, which he sought to do. However, as the matter was presented before this Court, his case in that regard was significantly improved as a result of very recent developments in the course of the committal proceedings, now part heard in the Local Court. There was no suggestion that steps had been taken to seek an earlier hearing date. 4. The second matter arises from the extraordinary level of uncertainty as to the operation of the Bail Act in the present circumstances. It is desirable that the confusion be explained and, to the extent possible, resolved, although arguably that will require statutory amendment. 5. An issue of jurisdiction was raised in an email from the Registrar to the parties on 5 November 2018 stated: "• Given a bail decision has already been made by the Supreme Court, it appears to me that the Supreme Court has no jurisdiction under s 66 of the Bail Act to hear another application, albeit the first decision was pursuant to a detention application and this is a release application. • It would seem to me that s 67 more readily applies. In which case, the applicant would need to lodge a fresh application in the Court of Criminal Appeal and [have] the matter listed before that Court for hearing." 1. The applicant's solicitor, Mr Chahine, replied promptly but merely noted that the application "is made due to a change in circumstances." As this was unresponsive to the issues raised in his earlier email, the Registrar replied to Mr Chahine asking him to address the issue of jurisdiction and undertaking to list the matter for callover three days later, on 8 November, if a fresh application were filed on November 5. Mr Chahine responded promptly stating: "The application is made under s 74. It is not an appeal of the decision made by her Honour. The application does not need to be listed before her Honour. It is a fresh application due to a change in circumstances." 1. The Registrar was not persuaded that that the reference to s 74 was correct and reiterated his view that the application should have been filed (pursuant to s 67) in the Court of Criminal Appeal. A solicitor in the office of the Director of Public Prosecutions took the same view. 2. It is necessary to refer to the legislation. Section 74 of the Bail Act provides as follows: 74 Multiple release or detention applications to same court not permitted (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. (2) A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application. (3) For the purposes of this section, the grounds for a further release application are: (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence. (4) For the purposes of this section, the grounds for a further detention application are: (a) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (b) circumstances relevant to the grant of bail have changed since the previous application was made. (5) In this section, court does not include an authorised justice. 1. The Registrar's primary position was correct in part. Section 74 does not, in its terms, confer any power on a court to hear a release application; rather, it imposes conditions upon the hearing of a further release application. It is possible that such a provision could, by implication, confer a power, whilst conditioning the exercise of the power; however, the structure of the Bail Act makes that reading unlikely. Consistently with the Registrar's approach, s 74 is restricted to two circumstances, namely a conditional prohibition on hearing (a) a further release application, after the court has refused bail or affirmed a decision to refuse bail "after hearing a release application", and (b) a further detention application, where the court has granted bail or affirmed a decision to grant bail "after hearing a detention application". The section says nothing about constraints on the court hearing a release application after it has granted a detention application. Why the same conditions should not apply to a release application following a successful detention application is by no means obvious; nevertheless, s 74 does not in terms address that situation. 2. On the assumption that s 74 is not a conferral of power to hear any bail application, whether a release application or a detention application, one must look elsewhere for the relevant power. With respect to the Supreme Court, the specific power is contained in s 66 which reads as follows: 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. 1. The operation of this provision is obscure in a critical respect. Read literally s 66(1) is engaged in the present case. The applicant was arrested on 28 February 2018; he made a bail application in the Local Court on 15 May 2018, which was refused. Accordingly the condition that "bail for the offence has been refused by another court …" was satisfied. On the other hand, the present release application was not made by way of a response to the refusal of bail by the Local Court, but to the detention order made by Fullerton J on 6 July 2018. If the condition in s 66 looks to the cause of the current status of the applicant, s 66 does not confer power on the Supreme Court to hear a release application if bail has been refused by the Supreme Court. 2. Whilst the latter reading is more attractive than the former (strictly literal) reading, it runs into the difficulty that it would deny power to the Supreme Court to hear a second release application, if on the last occasion bail was refused by that Court and not another court. In that circumstance, being the very circumstance to which s 74(1) is directed (so far as it deals with the Supreme Court), s 74(1) would not be engaged. The alternative reading, namely that, so long as bail has been sought unsuccessfully in another court, the Supreme Court has power to consider a release application, should be adopted. However, that approach also gives rise to an anomaly, in that the present release application, if heard in the Supreme Court, would not be subject to the conditions imposed by s 74. 3. Whilst the Registrar was undoubtedly attempting to expedite the hearing of the release application in the Court with jurisdiction, it would have been better to allow the application to be listed before the Supreme Court. The difficult questions of jurisdiction would then fall to be determined by a judge of the Court. 4. It is not now necessary to pursue the question of jurisdiction further because it is without doubt that this Court has power under s 67(1)(e) to hear and determine any bail application where a bail decision has been made by the Supreme Court. Accordingly the matter, being before the Court will be determined by the Court. Nevertheless, it would be unfortunate if all such applications, requiring a fresh hearing, were to be diverted to this Court, despite the wishes of the applicant that the matter be resolved in the Common Law Division. The primary function of the Court of Criminal Appeal is to deal with criminal appeals and, where necessary, ancillary issues which arise with respect to the exercise of that appellate jurisdiction. That function is not engaged where the only precondition to the filing of a release application in this Court is that a bail decision has been made by the Land and Environment Court or the Supreme Court. If frequently invoked, this Court's expeditious despatch of its appellate jurisdiction is likely to be adversely affected.