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Supreme Court 6 June 2000

R v Turkmani & Kaddour

[2000] NSWSC 491

Public order & justice offences
BAIL

Citation: R v Turkmani & Kaddour [2000] NSWSC 491
Court: Supreme Court of New South Wales
Date: 6 June 2000
Judge(s): Studdert J

Background

Two accused persons, each charged with soliciting to murder, had successfully obtained bail from Hidden J in the Supreme Court in February 2000. The Director of Public Prosecutions then applied under section 45 of the Bail Act to review that grant of bail. O'Keefe J heard that review application and revoked bail in April 2000.

Each accused then sought a further review of O'Keefe J's decision to revoke bail. A preliminary question arose: did section 22A of the Bail Act, which restricts repeat bail applications, apply to this second round of review proceedings?

The significance of this question was practical. If section 22A applied, each applicant would need to establish "special facts or special circumstances" before the court would entertain the application on its merits.

  • Whether section 22A of the Bail Act (which limits repeat bail applications) applies to review proceedings brought under Part 6 of the Act, or whether it is confined to fresh bail applications made under Part 4.
  • If section 22A does apply, whether the circumstances of each applicant amounted to "special facts or special circumstances" sufficient to justify the court entertaining the application.

Decision

Studdert J held that section 22A was engaged in these proceedings. His Honour reasoned that each applicant had previously made an application that had "already been made and dealt with," because the earlier proceedings before both Hidden J and O'Keefe J constituted prior applications in relation to bail. As a result, each applicant was required to satisfy the court that special facts or special circumstances existed before the review could proceed on its merits.

On the question of whether those special circumstances were present, Studdert J identified two relevant features. First, the earlier application made by each applicant had succeeded before Hidden J. The revocation of bail had come not at the applicant's own instigation, but through the DPP's review application, over which the applicants had no control. Second, committal proceedings had commenced since O'Keefe J's decision, and affidavit evidence pointed to material inconsistencies between the evidence of key prosecution witnesses at the committal and their earlier police statements.

Studdert J concluded that these two matters, taken together, constituted special circumstances within section 22A(1)(b). He emphasised that this determination addressed only the threshold question of whether the application could be entertained. The evaluation of the Crown case and the merits of bail remained for a different judge hearing the substantive applications.

Orders Made

  • Each bail application was stood over for hearing on a date to be fixed.

Key Takeaways

  • Section 22A of the Bail Act can apply to review applications brought under Part 6 of the Act, not only to fresh bail applications made under Part 4. Where a prior bail determination has already been made and dealt with, an applicant seeking further review may need to establish special facts or special circumstances.
  • A two-stage approach applies where section 22A is in issue: the threshold question of whether the application can be entertained must be resolved before the merits of the bail application are addressed. This approach was confirmed by reference to the earlier decision in R v Kissner.
  • The fact that bail was revoked through a review initiated by the DPP, rather than through any proceeding taken by the accused, was treated as a relevant circumstance in the section 22A analysis.
  • Emerging weaknesses in prosecution evidence, identified through committal proceedings that had not been before the court when bail was revoked, were capable of contributing to the "special circumstances" threshold under section 22A(1)(b).
  • The Supreme Court's power to review bail decisions under section 45 is subject to the provisions of Part 6 of the Bail Act, and the primary limit on successive review applications is the frivolous or vexatious test in section 48(7), alongside section 22A where applicable.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 22A, 32, 44, 45, 48

Cases:
- R v Hamill (1986) 25 A Crim R 317
- R v Kissner (unreported, Hunt CJ at CL, 17 January 1992)