AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 9 March 2000

Flack v DPP & Anor

[2000] NSWSC 125

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW BAIL

Citation: Flack v DPP & Anor [2000] NSWSC 125
Court: Supreme Court of New South Wales, Common Law Division
Date: 9 March 2000
Judge(s): Hidden J

Background

The plaintiff was on remand awaiting committal proceedings on serious drug and firearms charges. After several unsuccessful bail applications, a magistrate granted him bail on 28 January 2000, largely on the basis that the conditions of his custody were unusually harsh and were hampering his ability to prepare his defence.

The Director of Public Prosecutions (the first defendant) sought a review of that bail grant under the Bail Act 1978, asking that bail be refused again. That review came before a second magistrate (the second defendant). The hearing was adjourned on two occasions, and on both occasions the magistrate declined to revoke bail during the adjournments.

When the matter returned on 18 February 2000, with the prosecution case closed but the plaintiff's evidence not yet presented, the magistrate effectively invited the prosecution to renew its revocation application. He then made an order revoking bail, over counsel's protest, before the hearing was complete. When the plaintiff's counsel applied for the magistrate to disqualify himself on apprehended bias grounds, that application was refused. The plaintiff then sought relief in the Supreme Court.

  • Whether a magistrate conducting a bail review under the Bail Act 1978 has jurisdiction to revoke bail during an adjournment of those review proceedings, before the review is completed.
  • Whether the magistrate was disqualified from continuing to hear the review on the basis of apprehended bias arising from his conduct in revoking bail mid-hearing.

Decision

Jurisdiction to revoke bail mid-review

Hidden J held that the magistrate had no jurisdiction to revoke bail before the review proceedings were completed. Section 6 of the Bail Act 1978 sets out the periods during which bail may be granted or refused. The reference to "adjournment or adjournments" in s 6(c) must be read ejusdem generis with the other provisions in s 6 and s 16, which concern adjournments in the proceedings in respect of which bail is originally sought. That language has no application to a review of a bail decision under Part 6 of the Act itself.

The DPP had argued that the word "adjournment" in s 6(c) was unqualified and therefore broad enough to encompass an adjournment of review proceedings. Hidden J rejected that submission. The bail review proceedings were distinct from the underlying committal proceedings, and no provision of the Act extended the court's bail powers to the adjournment of the review itself.

Apprehended bias

Hidden J also held that the magistrate was disqualified from continuing the hearing. Several features combined to create at least the appearance of prejudgment: the magistrate had twice declined to revoke bail, but on the third occasion actively prompted the prosecution to renew the application; he revoked bail before the plaintiff had presented any evidence; and during the plaintiff's counsel's submissions in response, he restricted the plaintiff's movements to the floor of the courthouse before the argument had even concluded. Applying the principles from Balic (No 2), the court was satisfied that a fair-minded member of the public could reasonably conclude the magistrate had prejudged the outcome.

Orders Made

  • The second defendant's orders of 18 February and 29 February 2000 refusing bail are quashed.
  • The proceedings are remitted to the Local Court to be heard by a different magistrate.
  • The plaintiff is to be released from custody forthwith, subject to the original bail conditions set by Magistrate Horler on 28 January 2000.
  • Declarations made that: (a) the second defendant had no jurisdiction to revoke bail prior to the completion of the review proceedings; and (b) the second defendant is disqualified from further hearing those proceedings.

Key Takeaways

  • The Supreme Court held that a magistrate conducting a prosecution bail review under the Bail Act 1978 has no jurisdiction to revoke bail during an adjournment of the review proceedings themselves. The power to deal with bail during adjournments under s 6(c) is confined to adjournments of the underlying criminal proceedings, not of the review process.
  • Reading s 6(c) ejusdem generis with the surrounding provisions was central to the Court's reasoning: the extended meaning of "adjournment" does not stretch to a different species of proceeding entirely.
  • Apprehended bias does not require proof of actual bias. Under the principles confirmed in Balic (No 2), the question is whether a fair-minded member of the public could reasonably conclude that the decision-maker had prejudged the outcome.
  • A combination of factors, taken together, can establish apprehended bias even where each factor, in isolation, might be explicable. Here, the magistrate's invitation to the prosecution to renew its application, the revocation of bail before the defence case was heard, and the mid-submission restriction of the plaintiff's movements collectively met that threshold.
  • Where a bail revocation is made without jurisdiction, the appropriate remedy includes quashing the impugned orders and remitting the matter to a differently constituted court.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), ss 6, 14, 44(2), 44(6), Part 6
- Justices Act 1902 (NSW), ss 30(2), 33, 41(1A), 48E, 104(3), Part 5

Cases
- Balic (No 2) (1994) 75 A Crim R 515 (Court of Criminal Appeal, per Cole JA)