Supreme Court New South Wales Medium Neutral Citation: R v Dacich [2019] NSWSC 1517 Hearing dates: 10, 23 October 2019 Date of orders: 23 October 2019 Decision date: 04 November 2019 Jurisdiction: Common Law Before: Rothman J Decision: Conditional bail granted. Catchwords: BAIL – application pending judicial review – jurisdiction of the Supreme Court to grant or refuse bail – bail granted Legislation Cited: Bail Act 2013 (NSW), ss 15, 22, 61, 62, 66, 67, 68, 69 Bail Act 1978 (NSW), ss 28, 30, 45, 46 Crimes (Domestic and Personal Violence) Act 2007 (NSW) Criminal Appeal Act 1912 (NSW), s 8A Supreme Court Act 1970 (NSW) s 25, 38, 69 Cases Cited: AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) (2010) NSWLR 143; [2010] NSWCCA 195 R v Michael Jefferys (Supreme Court (NSW), Rothman J, 17 December 2014, unrep) Category: Principal judgment Parties: Regina (Crown – Respondent ) Clare Dacich (Applicant) Representation: Counsel: S Jaeger (Solicitor) (Crown – Respondent ) Self-represented (Applicant) Solicitors: Office of the Director of Public Prosecutions NSW (Crown – Respondent ) File Number(s): 2019/308039 Judgment 1. HIS HONOUR: On 23 October 2019, the Court, as presently constituted issued short reasons, with full reasons to follow, in relation to the grant of bail for the applicant. Those short reasons were issued ex tempore and were in the following terms: "Firstly, the provisions of s 69C of the Supreme Court Act 1970 (NSW) make clear that the legislature takes the view that the Court, that is, this Court, has power to grant bail under the Bail Act and that can, it seems to me, either be on the basis of the inherent power of the Court, or pursuant to a provision of the Bail Act 2013 (NSW). On the understanding that an application for judicial review to the Court of Appeal from the District Court is a matter that either fits within s 66, or s 61, it seems more likely that s 61 is the applicable section under the Act, that is, that the application for judicial review is classified by the legislature as proceedings for the offence and they are pending in the Supreme Court. Having said that, the issue before the Court is a complicated one. The applicant alleges a denial of natural justice. It seems that the natural justice relates to the fact of the conviction, or some of them, which, in turn, affects the sentence that would have otherwise been imposed. The applicant has appealed to the District Court, but it seems, on the limited material before the Court as presently constituted, that the appeal in the District Court was a severity appeal, rather than a conviction appeal. APPLICANT: Your Honour, I can't hear you. HIS HONOUR: and no appeal was made against the conviction and no attempt was made to withdraw the pleas of guilty based on the material that has been forthcoming from the applicant. I do not here address, or seek to determine the veracity, or reliability of the factual circumstances that are said to give rise to the natural justice point. The matter is before the Court of Appeal on 11 November 2019, which is only two weeks away. Ordinarily, for a case that involves a sentence imposed by a court after a hearing, even a hearing on appeal, a delay of two weeks would be such as to satisfy the Court that bail should not be granted. The difficulty is that, on 11 November 2019, the matter is listed before the Court of Appeal for mention. I understand from the applicant that she is to be represented, one way or another, before the Court of Appeal. The likelihood of the applicant being successful may well depend upon her being represented. Given the custodial order that has been imposed, if bail were to be granted, it would have to be on extremely strict conditions. There are a number of aspects relating to bail concerns. The Crown raises a failure to appear. There have been previous occasions when the applicant has failed to appear, although, never in circumstances that seem to suggest that there is a real risk of flight. Indeed, on one of the occasions most recently, bail was revoked because of her failure to appear and, instead, the applicant appeared a little later and bail was re-granted. Notwithstanding the grant of bail and the seriousness of the offences, the applicant attended and appeared at the proceedings in the District Court. The applicant has a young daughter, which is a lawful reason for her to be at liberty. The applicant is in an impossible position, or extremely difficult position, in terms of the preparation of her case before the Court of Appeal, as she has not been represented in the past and she would need to do a significant amount of work with her legal representation in order for it to be in a position to file submissions by 11 November 2019. There are a number of other matters raised by the Crown. The Crown raises the danger to the safety of the community, or interference with witnesses. I do not consider that interference with witnesses is an unacceptable risk. As to the danger to the community, and I use that word to include victims, individuals, as well, it seems to me that endangerment of the safety of victims, individuals, or the community relates more to the issue of physical safety, rather than the commission of offences. The likelihood of the commission of a serious offence is one that is, in my view, an unacceptable risk. The history of offending in relation to these financial offences is, while not the worst case, it is certainly not the best case and these are not first offences; there is a long history dating from 2015 over the last four years. APPLICANT: Your Honour, I have not-- HIS HONOUR: Just wait. I am in the middle of a judgment. The coincidence between the birth of the child and the commission of these offences is too great not to notice. Nevertheless, it seems to me that there is an unacceptable risk of the commission of serious offence, being of the kind with which the applicant has been convicted and for which she has been sentenced. Nevertheless, given the issues raised about the care of her child, which is currently in the care of her grandmother, and the necessity to prepare her representation and the comments I have made in relation to the absence of a risk of flight in the real sense, the Court is minded to grant bail. The bail conditions will be strict and will include house arrest, subject to her ability to work and prepare her proceedings. In relation to the charges of which the applicant has been convicted and sentenced and pending any conclusion of the proceedings before the Court of Appeal, the applicant, Clare Dacich, is granted bail subject to the following conditions. FOR BAIL CONDITIONS SEE COURT FILE." 1. Thereafter, the Court set out the conditions of bail, which, for present purposes, it is unnecessary to repeat, but those conditions are recorded and entered on the applicant's record of proceedings, available to the Court, practitioners, police officers and other persons with access to Justice Link. 2. In the course of the proceedings for bail, the Crown, initially, objected to the grant of bail on the basis that the Court had no jurisdiction to grant bail under the Bail Act 2013 (NSW) (hereinafter "the Act"). The relevant provisions of the Act are ss 61 and 66 of the Act, which are in the following terms: "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." "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. An applicant for bail and proceedings for the grant of bail are, for the purposes of the Evidence Act 1995 (NSW), defined as criminal proceedings. Otherwise, unless defined for specific purposes, historically and for present purposes, hearings for a bail application and the grant of bail are seen as civil proceedings and civil orders. Prior to the promulgation of the Act, the grant of bail by this Court was covered by the terms of the Bail Act 1978 (NSW) (hereinafter "the 1978 Act"). 2. The 1978 Act, by operation s 45 of the 1978 Act, allowed the Supreme Court to grant bail in a review of any decision of any authorised officer, magistrate or approved justice, or of the District Court and a number of other courts, except the Court of Criminal Appeal. The Court of Criminal Appeal could review any decision made by that court in relation to bail (s 46 of the 1978 Act). 3. Further, pursuant to s 30 of the 1978 Act, the Court of Criminal Appeal could grant bail in accordance with the 1978 Act, in relation to any appeal pending in the Court of Criminal Appeal or where that Court had ordered a new trial and the new trial had not commenced. Otherwise, pursuant to the terms of s 28 of the 1978 Act, the Supreme Court could grant bail to any person accused of any offence, whether or not he or she appeared before the Supreme Court in connection with that offence. 4. A provision, of the kind contained in s 28 of the 1978 Act, is not contained as part of the Act. As a consequence, there are a number of obvious gaps, if the Act were intended to be a code specifying the jurisdiction of the courts to grant bail and preventing the Supreme Court from granting bail in any other circumstances. 5. The first such gap occurs when a person, who has otherwise been refused bail and seeks a release application before the Supreme Court of New South Wales, is charged with a further offence for which bail has neither been refused nor granted. That offence, if the Act is a code, could not be the subject of the grant of bail together with the other offences to be dealt with by the Court. 6. Further, where an appeal is pending in the Court of Criminal Appeal, from another court, the Court cannot grant bail, unless the Court of Criminal Appeal is the Supreme Court for the purposes of the Act. There are good reasons why the Court of Criminal Appeal may well be the Supreme Court at least for the purposes of exercising the powers and jurisdiction of the Court of Criminal Appeal, but is unnecessary for the Court, as presently constituted, to deal with that issue: see R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) (2010) NSWLR 143; [2010] NSWCCA 195; AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72. 7. A court may hear a bail application for an offence, if there is an appeal pending in that court or an appeal from that court, provided, in the latter case, there has not been an appearance in the appeal court prior to the hearing for bail: s 62 of the Act. 8. The provisions of s 66 of the Act have been recited above. The powers conferred on the Court of Criminal Appeal, by s 67 of the Act are limited to circumstances where the Court has ordered a new trial, which has not yet commenced, or for committal proceedings to be continued (s 8A the Criminal Appeal Act 1912 (NSW)); or the Court of Criminal Appeal has directed a stay of execution of a conviction that remains in force; or an appeal from the Court of Criminal Appeal is pending in the High Court; or from a bail decision of the Land and Environment Court or the Supreme Court. 9. Interestingly, s 68 of the Act refers to and expressly limits the power of the Local Court or an authorised justice to hear a bail application that is pending in the Supreme Court in certain circumstances and s 69 of the Act limits the powers of the Local Court, the District Court and the Land and Environment Court to hear a bail application for an offence where a bail decision has been made by the Supreme Court or the Court of Criminal Appeal. There is no provision of the Act that expressly limits the power of the Supreme Court. 10. Further to the foregoing, the criteria for the grant of bail are contained within Pt 3 of the Act and include those provisions that require an applicant to show cause; the prescription of bail concerns; the matters to be considered as part of the assessment of bail; the conditions that may be imposed; et cetera. Further again, s 22, which is contained within Pt 3 of the Act, requires a court not to grant bail or dispense with bail where an offence for which an appeal is pending in the Court of Criminal Appeal against a conviction on indictment or a sentence imposed on conviction on indictment or an offence on appeal from the Court of Criminal Appeal is pending in the High Court, unless the applicant establishes that special or exceptional circumstances exist that justify the bail decision. 11. Part 3 of the Act commences with s 15 which expressly provides that bail decisions are "to be made in accordance with this Part". The jurisdiction of the courts is contained in Pt 5 and Pt 6 of the Act; and not in Pt 3 of the Act. Thus, there is no express provision, similar to that contained in s 15 of the Act, or in the provisions restricting the powers of the Local Court and District Court, which applies to restrict the powers of the Supreme Court otherwise provided. 12. This issue has arisen on earlier occasions. The jurisdictional objections initially raised by the Crown on this application related to the proposition that the application for prerogative relief, taken in the Court of Appeal, was not "a bail application for an offence" where "proceedings for the offence are pending in the court" and therefore this Court could not grant bail pursuant to the terms of s 61 of the Act. There are two subsidiary questions arising from such an objection. 13. The first is whether application for orders in the nature of certiorari are proceedings of a substantive kind for the offence? Secondly, is the Court of Appeal, for the purposes of the Act, the Court? 14. The answer to the second aspect is relatively uncontroversial. The Supreme Court Act 1970 (NSW), s 25, provides that the Court, defined as the Supreme Court of New South Wales, shall be composed, inter alia, of "Judges of Appeal, Judges and associate Judges as the Governor may from time to time appoint". Further, s 38 of the Supreme Court Act divides the Court, for the more convenient despatch of business into: the Court of Appeal; and the Common Law Division; and the Equity Division. As a consequence of those two provisions, the Court of Appeal is part of the Supreme Court of New South Wales. 15. The first issue is a little more difficult. An analysis should commence with the provisions of s 69C of the Supreme Court Act. Section 69C of the Supreme Court Act provides that the execution of a sentence imposed as a consequence of a conviction or any order (other than an apprehended violence order) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is stayed pending judicial review in the Court under s 69 of the Supreme Court Act. 16. The foregoing provision does not apply to a person who is in custody when the proceedings seeking judicial review are commenced. However, s 69(3) of the Supreme Court Act, which exempts a person in custody from the automatic staying of a conviction or sentence, also provides for an exception where the claimant is entitled to be released on bail. It is in the following terms: "69 PROCEEDINGS IN LIEU OF WRITS (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings: (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings." 1. The provisions of s 69(3) of the Supreme Court Act seem to accept that a claimant, who is the subject of a sentence imposed as a consequence of a conviction and is in custody, pending an application for judicial review under s 69 of the Supreme Court Act, is capable of being released on bail under the Act or have their bail dispensed with. 2. Yet, the Act has no provision specifying any court with the power to grant such bail or dispense with such bail unless the proceeding under s 69 of the Supreme Court Act is a proceeding to which s 61 of the Act applies. Section 69(3) of the Supreme Court Act is not the grant of jurisdiction. It is an acknowledgement that jurisdiction exists elsewhere. 3. It would seem that the legislature had in mind that the provisions of the Act applied in such a way that a person, in custody, who has applied for orders in the nature of prerogative relief against a sentence that has been imposed or a conviction recorded may make application for bail and be granted bail under the Act or have bail dispensed with under the Act. To whom would such a bail application be made? 4. It would seem, on an analysis of the Act that the appropriate court to deal with such an application is this Court and that the legislature has taken the view that an application for orders in the nature of prerogative relief against a conviction or sentence imposed on conviction brings the application for orders in the nature of prerogative relief within the terms of s 61 of the Act. In circumstances where, as already stated, the Court of Appeal is part of the Supreme Court, there is then proceedings pending in the Supreme Court and the Supreme Court may grant (or refuse) bail. 5. Ultimately, on the basis of the provision in s 69(2) and s 69(3) of the Supreme Court Act, the Crown conceded that its initial objection should not be made and withdrew the objection to jurisdiction. It should be borne in mind that proceedings under s 69 of the Supreme Court Act are not universally heard and determined by the Court of Appeal, but all such applications in relation to proceedings in the District Court are matters, pursuant to s 48 of the Supreme Court Act, assigned from the outset to the Court of Appeal. 6. The only other basis upon which this Court may have jurisdiction is within its inherent power. As earlier stated, there is no express limitation on the powers of the Supreme Court to grant bail. 7. While it is clear that the provisions of Pt 3, being the criteria for the grant or refusal of bail or the necessity to obtain special circumstances et cetera, are intended to be a code. That is expressly stated in s 15 of the Act. No other provision dealing with the jurisdiction of the Court makes for any such construction. 8. Indeed, given that the legislature has expressly provided for Pt 3 to be a code and not so provided for those parts that deal with the jurisdiction of the Court, the proper construction of the Act is that the provisions granting jurisdiction are not intended to be a code. As to the inherent power of the Court to deal with the grant of bail, one must refer, given that bail is generally a civil proceeding, to the provisions of s 23 of the Supreme Court Act, which provides that the court has all jurisdiction necessary for the administration of justice. Necessary in that context should be construed in the same manner as the High Court construed it in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19. 9. The inherent jurisdiction of the Courts of Westminster included a jurisdiction to grant bail. This issue was dealt with by the Court, as presently constituted, in R v Michael Jefferys (Supreme Court (NSW), Rothman J, 17 December 2014, unrep). During the course of that application the Court made the following comments, albeit ex tempore: "During the course of the application I raised with the parties an issue relating to the jurisdiction of the Court to deal with the application for bail. That question arose because Mr Jefferys, as earlier stated, was convicted and has appealed to the Court of Criminal Appeal. The Court of Criminal Appeal is to deal with the appeal on 18 February 2015 but the applicant has not sought bail in relation to this matter post conviction, nor had bail been refused by any court up until the time at which it came before this Court. The provisions of section 61 of the Bail Act 2013 allow a court, that is any court, to hear a bail application for an offence if proceedings for the offence are pending in the court. Proceedings for an offence are defined to include an appeal. Likewise section 62 allows a court in which a person has been convicted to hear and grant a bail application in relation to that conviction, or despite that conviction, to the extent that the proceedings are on appeal or are intended to be on appeal and the person has not yet appeared before the appeal court. Section 66 of the Bail Act recites the powers under the Act to hear a release application or an application for bail for an offence in this Court in terms that it allows the Court to hear a release application, 'if bail for the offence has been refused by another court, an authorised justice or a police officer.' The question arises as to whether the Court has jurisdiction to hear the application or whether it is required to be heard by the Court of Criminal Appeal. Interestingly the specific powers granted to the Court of Criminal Appeal to hear and determine an application for bail seem to relate to circumstances in which the Court has made another order that require the person to be retried or staying the conviction or circumstances in which there has been a further appeal to the High Court and there seems to be no specific provision in the Act for the Court of Criminal Appeal to hear and grant bail or a release order in circumstances where there is an appeal from the District Court to the Court of Criminal Appeal and the District Court has not thus far refused bail. It seems in those circumstances that, unless a person makes an application to the District Court, no court would have the power to grant bail pending an appeal that is, to say the least, an odd situation. I hasten to add that if there has been even a directions hearing before the Court of Criminal Appeal it would seem that the District Court would not have that power. That makes the outcome of that construction of the Act even more strange. There can be little doubt that the provisions of section 17 and following constitutes a code of the factors and basis upon which bail will be granted or a release order made in any circumstances. However, the provisions of section 17 and following do not, it seems to me, amount to a code reciting or confining the courts that otherwise would have the power to grant bail. In those circumstances one must then deal with the issues of construction to which I have referred relating to the hiatus in the Act and the provisions of section 61 and 66. It seems to me on that basis the provisions of section 66 are an enabling provision which grant the Supreme Court power to hear a release application in certain circumstances or clarify that basis notwithstanding the refusal by another court or another relevant officer having refused that application, and the question then becomes whether the Supreme Court would otherwise have the power to grant bail were it not for the provisions of the Bail Act. One must recall that under the Bail Act 1978, which was replaced by the current Act, section 28 of that Bail Act provided expressly for the Supreme Court to have jurisdiction to grant bail in all cases and did not depend upon the existence of a refusal of bail in another court. Without wishing to seem too esoteric, the power to grant bail has been in existence in the superior courts and courts of assizes since at least 1450. The practice arose essentially because the courts of assizes did not have the power to exercise jurisdiction in civil matters to have people brought before them and exercise jurisdiction over them. The courts ruled in or about the early 1400s that civil proceedings could be served on anyone who was in custody. As a consequence the device arose that a person would be the subject of complaint of trespass on a person or trespass generally which would allow the arrest of that person and, once arrested, the person would be served with civil proceedings. The device was then that bail was granted which was in essence a surety to ensure that the person attended court on a stated day. The practice was commented upon and established as a proposition that reasonable bail was available for persons in custody on account of any civil action, and I refer in particular to Kempe's case (1448) YB MICH 27 Henry VI 5. By 1480 apparently the practice - albeit in my view ethically questionable - became common that persons were prosecuted for some form of trespass. They were then arrested, served with a civil complaint and, after service of the civil complaint and the grant of bail, trespass or the reason for custody was withdrawn. At the same time persons were imprisoned without express cause sometimes in the name of privatum. In 1540 the judges held that the court could review the cause of imprisonment and that proposition found its way ultimately into the Magna Carta. Nevertheless habeas corpus, which was awarded by that review, and bail developed quite separately. Bail, I should add, was not and is not a substitute for the writ of habeas corpus. The situation of separate development continued throughout the period of the 1400s and 1500s. It continued and was referred to on the abolition of the Star Chamber in 1641 and was mentioned by the Courts of Westminster in the 5 Marks case which immediately preceded the Bill of Rights in 1688. By the end of the 1600s and in the mid 1700s bail was an inherent power of the Courts of Westminster, and was also a power granted to lower courts by a statutory fiat. As a consequence the power to grant bail reposed in the Courts of Westminster by the Third Charter of Justice of 1824 which established the Supreme Court of Justice granted to this Court. The Third Charter of Justice granted to this Court all of the powers of the Courts of Westminster and the inherent power to grant bail came with it. The question arises as to whether or not the inherent power to grant bail was or indeed can be overridden by the provisions of the Bail Act 1978 or the Bail Act 2013. On the face of it the provisions of section 23 of the Supreme Court Act 1970 continue the jurisdiction otherwise granted by the Third Charter of Justice and grant to the Supreme Court all of the jurisdiction necessary for the administration of justice in the State of New South Wales. In my view the provisions of section 23 of the Supreme Court Act and the history just recited mandate that the provisions of the Supreme Court Act 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 it. … 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. Nevertheless, there is a difference of opinion amongst the judges of the Court as to the inherent nature of the jurisdiction and whether it subsists. I adhere to the view expressed earlier, for the reasons otherwise given in the earlier reasons for judgment and in the reasons for judgment now issued. 2. For the reasons above, I took the view that the concession by the Crown as to the jurisdiction of the Court to grant bail was the correct one and, notwithstanding that the Court cannot rely on consent for its jurisdiction, took the view that bail could be granted and granted bail on very strict conditions. ********** 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: 04 November 2019