Citation: Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 19 October 2006
Judge(s): Basten JA, Bell J, Johnson J
Background
The respondent, an accountant, was convicted by jury in September 2005 on 22 charges of defrauding the Commonwealth and one charge of attempted fraud, committed through his accountancy firm. He was sentenced in December 2005 to five years imprisonment with a non-parole period of two years and nine months. After conviction but before sentence, he filed a notice of intention to appeal, though a formal notice of appeal with grounds was not lodged until August 2006.
In September 2006, Hidden J, sitting in the Common Law Division of the Supreme Court, granted the respondent bail pending determination of the appeal. His Honour was satisfied that "special or exceptional circumstances" existed under s 30AA of the Bail Act 1978 (NSW), based on a deterioration in the respondent's mental health and his involvement in complex civil litigation.
The Commonwealth Director of Public Prosecutions applied to the Court of Criminal Appeal to review that bail decision. The review raised a threshold question about the proper jurisdictional basis for that review, which the Court addressed before turning to the merits.
Legal Issues
- Whether Hidden J, when granting bail, was sitting as a judge of the Court of Criminal Appeal or as a judge of the Supreme Court in the Common Law Division
- Whether the Court of Criminal Appeal has jurisdiction to review a bail decision made by a judge of the Supreme Court sitting in the Common Law Division
- Whether a valid appeal or leave to appeal was before the Court at the time bail was granted, given the procedural history of the notice of intention to appeal
- Whether the review should instead be conducted under s 45 of the Bail Act by a judge of the Supreme Court
Decision
The Court first addressed whether Hidden J's bail determination was made in his capacity as a member of the Court of Criminal Appeal or as a judge of the Supreme Court. The Court concluded that his Honour was sitting in the Common Law Division, not as a member of the Court of Criminal Appeal, noting that the bail determination was headed in the Common Law Division. This distinction carried significant jurisdictional consequences.
The Court then examined s 47 of the Bail Act, which governs the Court of Criminal Appeal's power to review bail decisions. That provision empowers the Court to review decisions made by the Court of Criminal Appeal itself, not decisions made by the Supreme Court. Because Hidden J had acted as a Supreme Court judge in the Common Law Division, s 47 provided no basis for the Court of Criminal Appeal to conduct a review of his decision.
The Court also addressed the procedural defects in the respondent's appeal. The notice of intention to appeal had been filed promptly but was followed by an extended delay before formal grounds were lodged. The Court remedied those procedural difficulties by extending the operative period of the notice of intention to appeal and directing that subsequently filed documents be treated as properly filed.
Having concluded that it lacked jurisdiction to review the bail decision, the Court referred the review to Basten JA to conduct under s 45 of the Bail Act, in his capacity as a judge of the Supreme Court sitting in the Common Law Division. The respondent's counsel did not object to the presiding judge conducting that review in his Supreme Court capacity, though he did object to all three members of the Court of Criminal Appeal doing so.
Orders Made
- The period during which the notice of intention to appeal filed on 7 November 2005 has effect was extended up to and including 22 September 2006, pursuant to r 3A(2) of the Criminal Appeal Rules
- Documents that should have accompanied the notice of appeal but were filed subsequently were accepted as properly filed on the dates they were filed, pursuant to r 76
- The Court, being satisfied it lacked jurisdiction to review the bail determination made by Hidden J on 22 September 2006, referred the review to Basten JA to conduct under s 45 of the Bail Act as a judge of the Supreme Court sitting in the Common Law Division
Key Takeaways
- The Court of Criminal Appeal confirmed that its power to review bail decisions under s 47 of the Bail Act is confined to reviewing decisions made by the Court of Criminal Appeal itself, not decisions made by a judge of the Supreme Court sitting in the Common Law Division.
- Where a judge grants bail while sitting in the Common Law Division rather than as a member of the Court of Criminal Appeal, any review of that decision must proceed under s 45 of the Bail Act as a Supreme Court review, not under s 47.
- Because members of the Court of Criminal Appeal are also judges of the Supreme Court, referral to one of those judges to conduct a s 45 review in their Supreme Court capacity provides a practical pathway when the Court of Criminal Appeal itself lacks jurisdiction.
- Procedural defects in lodging appeal documents, including late filing of grounds, can be remedied through the Court of Criminal Appeal's rules without necessarily defeating the validity of the underlying appeal proceedings.
- Under s 68(1) of the Judiciary Act 1903 (Cth), provisions of the Bail Act applying in federal jurisdiction include references to "the Director of Public Prosecutions" as encompassing the Commonwealth Director, consistent with the earlier Court of Appeal decision in Germakian.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), ss 4, 27, 28, 29, 30, 30AA, 45, 46, 47, 48
- Bail Regulation 1999 (NSW), cl 22(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 3, 6, 10, 22, 29
- Criminal Appeal Rules, rr 3A(1), 3A(2), 3B(1), 23C, 23D, 76
- Crimes Act 1914 (Cth), s 29D
- Judiciary Act 1903 (Cth), s 68
Cases:
- Commonwealth DPP v Germakian [2006] NSWCA 275
- Regina v Antoun [2005] NSWCCA 270
- R v Burns (1920) 20 SR (NSW) 351
- Regina v Potier [2005] NSWCCA 256