Citation: Regina v Nanai [2000] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 23 May 2000
Judge(s): Grove J, Greg James J, Bell J
Background
The appellant was one of several accused standing trial in the Supreme Court before Hidden J. He had been on bail throughout the proceedings, with bail continued during adjournments including weekends and non-sitting days. His employment was at risk of termination due to the demands of his trial attendance, and he had family and mortgage commitments that made his absence from work financially significant.
An application was made to Hidden J seeking either dispensation of bail or a variation of the bail order that would permit the appellant to be absent from trial, or at least from substantial parts of it. Hidden J refused to dispense with bail (which the appellant ultimately conceded was not challengeable in this appeal) and also declined to make a variation order permitting his absence from the hearing.
Hidden J certified the matter, removing the need for leave, and the appellant appealed to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, arguing that the bail variation refusal was an interlocutory order within that Court's jurisdiction.
Legal Issues
- Whether an appeal against a bail decision (including a bail variation) falls within the jurisdiction conferred by section 5F of the Criminal Appeal Act 1912
- Whether the appeal was competent, notwithstanding that Hidden J had issued a certificate removing the requirement for leave
Decision
Grove J identified the threshold question as one of competence rather than merits. Section 5F applies to proceedings "for the prosecution of offenders on indictment" in the Supreme Court or District Court. The central question was whether a bail decision falls within that description.
Grove J drew on the reasoning of Kirby P (as he then was) in R v Serratore (1995) 81 A Crim R 363, a case involving similar definitional language in the Telecommunications (Interception) Act 1979 (Cth). In that case, Kirby P held that an application for bail could not, in ordinary language, be characterised as a proceeding "by way of a prosecution." It is connected to, and arises out of, such a proceeding, but it is not itself such a proceeding. Santow J reached a consistent conclusion in the same case.
Applying that reasoning to section 5F, Grove J held that an application for bail, whether successful or not, and including an application for bail variation, falls outside the jurisdictional reach of that provision. The existence of Hidden J's certificate removed the need for leave but did not cure the absence of jurisdiction. James J and Bell J agreed.
Orders Made
- Appeal dismissed.
Key Takeaways
- A bail application, including an application to vary bail conditions, is not a "proceeding for the prosecution of offenders on indictment" within the meaning of section 5F of the Criminal Appeal Act 1912, and therefore falls outside that Court's appellate jurisdiction.
- In dismissing the appeal, the Court confirmed that a certificate from a trial judge removing the requirement for leave does not itself confer jurisdiction where none otherwise exists. Competency remains a separate threshold question.
- The principle established in R v Serratore, that bail proceedings are adjunct to, but not part of, a prosecution proceeding, was applied across comparable statutory language in a different Act.
- Under the Bail Act 1978, which is declared to be comprehensive of the law of bail in NSW, the trial judge found no power to make the order sought. The Court of Criminal Appeal did not need to resolve that question given its finding on competency.
- No avenue for challenging a refusal of a bail variation of this kind was identified as available under the Criminal Appeal Act 1912 on the facts considered in this case.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F
- Bail Act 1978 (NSW)
- Telecommunications (Interception) Act 1979 (Cth), sections 5B and 51A
Cases:
- R v Serratore (1995) 81 A Crim R 363