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4
Supreme Court 9 August 2018

Noufl v Director of Public Prosecutions (NSW)

[2018] NSWSC 1238

DrugsPublic order & justice offences
CRIMINAL LAW RELEASE APPLICATION NOVEL SUBMISSIONS BY PROSECUTOR SUBMISSIONS ACCEPTED CONSTRUCTION OF BAIL ACT 2013 SECOND READING SPEECH

Citation: Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge: Hamill J

Background

The applicant had been sentenced in the District Court on two counts of supplying methylamphetamine. Judge Maiden SC imposed a total effective sentence of 2 years, 1 month and 14 days, with a non-parole period of 1 year, 2 months and 9 days, due to expire on 28 April 2019. No application for bail was made to the District Court following sentence, and the applicant subsequently filed a Notice of Intention to Appeal to the Court of Criminal Appeal.

The applicant then brought a release application before a single judge of the Supreme Court under the Bail Act 2013 (NSW). The DPP raised a threshold objection: that a single Supreme Court judge had no jurisdiction to hear such an application in these circumstances.

The matter was heard in full on the assumption that jurisdiction existed, with the jurisdiction question resolved separately after written submissions from both parties.

  • Whether a single judge of the Supreme Court has power under the Bail Act 2013 (NSW) to hear a bail application where an appeal is pending before the Court of Criminal Appeal and the applicant has not yet made a first appearance in that court, and where no bail was sought from the District Court after sentence.
  • Whether the Supreme Court's inherent jurisdiction could cure any absence of statutory power.
  • Whether the applicant had established "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW) sufficient to justify bail pending appeal (considered, but rendered academic by the jurisdiction finding).

Decision

Hamill J accepted the DPP's submissions and held that a single judge of the Supreme Court has no jurisdiction to hear the release application in these circumstances. The relevant provisions of the Bail Act 2013, particularly ss 61, 62, 63, 66, 67 and 68, confer power on specific courts in defined situations. On the court's analysis, none of those provisions extended power to a single Supreme Court judge on the facts presented.

The position under the predecessor legislation was different. Section 28 of the Bail Act 1978 (NSW) had expressly conferred jurisdiction on a single Supreme Court judge in this type of situation. The 2013 Act removed that express conferral, and the court found the statutory language of the new Act to be clear: whatever jurisdiction previously existed had not been carried over. Hamill J acknowledged this may have been an unintended consequence of the legislative reform, given the second reading speech did not signal a deliberate removal of that power, and noted the point had never previously been raised or decided.

The court also rejected the argument that the Supreme Court's inherent jurisdiction could supply what the statute did not. Inherent jurisdiction cannot create a power to hear a bail application where the statute governing bail applications does not confer it. The court noted the practical consequence: bail applications of this kind must now be brought before either the District Court (if the applicant has not yet made a first appearance in the Court of Criminal Appeal) or the Court of Criminal Appeal itself, adding to that court's workload, a concern previously flagged by Beech-Jones J and Adams J in DPP v Tony Mawad [2015] NSWCCA 227.

On the merits (addressed in the event the jurisdiction finding was wrong), Hamill J observed that the application had some arguable basis. The proposed appeal raised grounds including possible disparity between the applicant's sentence and that of a more culpable co-offender, inadequate consideration of non-custodial alternatives, and possible confusion in the sentencing judge's assessment of the co-offenders' subjective circumstances. A significant portion of the non-parole period would also have elapsed before any appeal was heard. However, these observations were not determinative given the outcome on jurisdiction.

Orders Made

  • The application is refused for want of jurisdiction.
  • If a release application is made to the District Court, the Registrar of that court is recommended to list it urgently.
  • If a release application is made to the Court of Criminal Appeal, the Registrar is recommended to deal with it expeditiously.
  • The transcript of the sentencing proceedings and judgment on sentence is recommended to be prepared and revised as a matter of urgency.
  • The parties have leave to approach the judge's Associate to relist the application urgently if the circumstances relating to jurisdiction change.

Key Takeaways

  • Under the Bail Act 2013 (NSW), a single judge of the Supreme Court does not have jurisdiction to hear a bail pending appeal application where the appeal is before the Court of Criminal Appeal and no bail was sought from the District Court after sentence, because no provision in the Act expressly confers that power in those circumstances.
  • The Bail Act 1978 (NSW) did confer such jurisdiction on a single Supreme Court judge through s 28, but that conferral was not replicated in the 2013 Act. Hamill J suggested this omission may have been inadvertent, and indicated the legislature might wish to consider an amendment.
  • Inherent jurisdiction cannot supplement a statutory scheme to create a power that the statute does not confer. The court treated this principle as settled.
  • A practical consequence of this interpretation is that more bail applications pending Court of Criminal Appeal proceedings must be brought before the Court of Criminal Appeal itself, constituted by three judges, intensifying a workload concern already noted in prior decisions.
  • Where jurisdiction does exist, applicants seeking bail pending appeal under s 22 of the Bail Act 2013 must establish "special or exceptional circumstances," with the prospects of the appeal and the likely expiry of the sentence before the appeal is heard being the central considerations.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 3, 5(1)(d), 18, 22, 48, 61, 62, 63, 66, 67, 68 and 90
- Bail Act 1978 (NSW), s 28
- Criminal Appeal Act 1912 (NSW), ss 3, 10, 22 and 29
- Supreme Court Act 1970 (NSW), ss 23, 51(1) and 101(5)
- Civil Procedure Act 2005 (NSW), s 14
- Suitors Fund Act 1951 (NSW), s 6
- Third Charter of Justice, Letters Patent of 13 October 1823

Cases
- El-Hilli and Melville v R [2015] NSWCCA 146
- Obeid v R (No 2) [2016] NSWCCA 321
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27
- R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
- R v Moore [2015] NSWSC 1262
- R v Younan [2016] NSWSC 197
- R v Mahaffy [2016] NSWSC 1085
- Mahaffy v Mahaffy [2018] NSWCA 42
- Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54