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Court of Criminal Appeal 2 March 2022

IONGI v R

[2022] NSWCCA 42

Drugs
BAIL RELEASE APPLICATION CONSTRUCTION OF BAIL ACT 2013 NO JURISDICTION TO HEAR APPLICATION NO VIEW EXPRESSED AS TO MERITS

Citation: IONGI v R [2022] NSWCCA 42
Court: Court of Criminal Appeal, NSW
Date: 2 March 2022
Judge(s): Macfarlan JA, Bellew J, Dhanji J (unanimous)

Background

The applicant had been in custody since his arrest in June 2021, having been refused bail on two Commonwealth criminal charges (relating to directing a criminal organisation and dealing in proceeds of crime). Bail was refused in the Local Court on multiple occasions, and a Supreme Court judge also refused bail in December 2021.

In February 2022, the prosecution withdrew the original two charges and filed three new charges against the applicant, including conspiracy to traffic a commercial quantity of methamphetamine and related money laundering offences. The Local Court refused bail on those new charges. No application for bail in respect of the new charges had been made to the Supreme Court.

The applicant then brought a release application directly to the Court of Criminal Appeal, and both parties initially assumed the Court had jurisdiction to hear it. After the hearing, the Court raised the jurisdictional question of its own motion, and both parties subsequently accepted that jurisdiction was absent.

  • Whether the Court of Criminal Appeal had jurisdiction under the Bail Act 2013 (NSW) to hear a release application in respect of the new charges
  • Whether a bail decision made by the Supreme Court in relation to different (now withdrawn) charges was sufficient to enliven s 67(1)(e) of the Bail Act 2013
  • Whether s 74 of the Act would restrict a fresh release application to the Supreme Court concerning the new charges

Decision

The Court's jurisdiction to hear bail applications is found exclusively in the Bail Act 2013, not in any general or inherent power. For the Court of Criminal Appeal, the relevant provision is s 67. The applicant relied on s 67(1)(e), which permits the Court to hear a bail application for an offence where "a bail decision has been made by the Land and Environment Court or the Supreme Court."

The critical issue was that bail decisions under the Act are offence-specific. The Supreme Court's December 2021 refusal related only to the original charges (sequences 1 and 2), which had since been withdrawn. The new charges (sequences 3 to 5) were distinct offences for which no Supreme Court bail decision had ever been made. Accordingly, s 67(1)(e) was not satisfied, and the Court had no jurisdiction.

Dhanji J acknowledged that this outcome was unfortunate. For all practical purposes, the applicant had proceeded through the steps that ordinarily lead to an application before the Court of Criminal Appeal. Requiring him to return to the Supreme Court was described as a waste of the Court's and the parties' resources.

The Court also noted that a fresh release application to the Supreme Court on the new charges would not be caught by the restriction in s 74(1) of the Act. That provision limits further release applications to a court that has previously refused bail "for an offence," and since Davies J's refusal concerned different offences, s 74(1) would not apply. Because an alternative avenue remained open, the Court declined to express any view on the merits of the bail application.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under the Bail Act 2013, bail decisions are offence-specific: a decision refusing bail for one set of charges does not constitute a "bail decision" for the purposes of different charges, even against the same accused in the same proceedings.
  • The Court of Criminal Appeal's jurisdiction to hear bail applications derives solely from the Bail Act 2013, and in the absence of a Supreme Court bail decision relating to the specific offences in question, s 67(1)(e) is not enlivened.
  • Withdrawing original charges and filing new ones resets the bail history for jurisdictional purposes, meaning the procedural pathway to the Court of Criminal Appeal must be traversed again with respect to the new charges.
  • Section 74(1) of the Act, which restricts repeat release applications to a court that has previously refused bail "for an offence," does not apply where the prior refusal related to different (now withdrawn) offences.
  • In dismissing for want of jurisdiction, the Court noted a structural limitation in the Act: where an alternative avenue (here, a fresh Supreme Court application) remains open, it will decline to address the merits of the underlying bail application.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 48, 49, 50, 51, 61, 62, 63, 64, 65, 66, 67, 74
- Criminal Code (Cth), ss 11.2A, 11.5(1), 302.2(1), 400.3(1A)
- Criminal Appeal Act 1912 (NSW), s 8A(1)
- Supreme Court Act 1970 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Mashayekhi v R [2021] NSWCCA 55
- Noufl v Director of Public Prosecutions (NSW) (2018) 274 A Crim R 519; [2018] NSWSC 1238
- Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153