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2
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
Date: 02 March 2022
Judge(s): Macfarlan JA, Bellew J, Dhanji J (Macfarlan JA and Bellew J agreeing with Dhanji J)

Background

The applicant had been in custody since his arrest on 7 June 2016, having been refused bail throughout that period. He was originally charged with certain offences (sequences 1 and 2), and bail was refused at various stages in the Local Court and ultimately by Davies J in the Supreme Court in December 2021.

On 2 February 2022, the prosecution withdrew sequences 1 and 2 and filed three new charges against the applicant (sequences 3, 4 and 5). The Local Court refused bail on the new charges, and no application for bail was made to the Supreme Court in relation to those new charges.

The applicant then applied to the Court of Criminal Appeal for release on bail in relation to the new charges. Both parties initially assumed the Court had jurisdiction, but the Court raised the question itself after the hearing. Following additional submissions, both the Crown and the applicant accepted that jurisdiction was absent.

Legal Issues

  • Whether the Court of Criminal Appeal has jurisdiction under the Bail Act 2013 (NSW) to hear a release application concerning new charges where the only prior Supreme Court bail decision related to different, now-withdrawn charges.
  • Whether bail decisions under the Bail Act 2013 (NSW) are specific to particular offences, or attach more broadly to proceedings or an arrest.

Decision

Jurisdiction under section 67 of the Bail Act 2013 (NSW):

The Court's power to hear bail applications, to the extent it exists, is found entirely within the Bail Act 2013 (NSW) (at [10]). Within that Act, the Court of Criminal Appeal's specific power is conferred by section 67, which permits the Court to hear a bail application for an offence only where a bail decision has previously been made by the Supreme Court in respect of that offence (at [18]-[19]).

Bail decisions are offence-specific:

Sections 7 and 8 of the Act make clear that bail, and bail decisions, are specific to particular offences. This is confirmed throughout the Act, which consistently refers to bail "for an offence" or "the offence," rather than treating bail as attaching to proceedings or an arrest in some broader sense (at [21]).

No Supreme Court bail decision on the new charges:

Davies J's refusal of bail was made with respect to sequences 1 and 2, not sequences 3, 4 and 5. Because no bail decision had been made by the Supreme Court in relation to the new charges, the precondition for the Court of Criminal Appeal's jurisdiction under section 67(1)(e) was not satisfied. The application was therefore dismissed for want of jurisdiction, and the Court expressed no view on the merits (at [22], [24]).

Section 74 and the path to the Supreme Court:

The Court noted that section 74 of the Act, which restricts repeat release applications for the same offence, would not operate to bar a fresh application to the Supreme Court on the new charges. A Supreme Court release application on sequences 3, 4 and 5 would not be an application for the same offences on which Davies J refused bail, and so section 74(1) would not apply (at [24]).

Orders Made

  • Application dismissed for want of jurisdiction.

Key Takeaways

  • Under section 67 of the Bail Act 2013 (NSW), the Court of Criminal Appeal's power to hear a release application is conditioned on a prior bail decision having been made by the Supreme Court in respect of the same offence. Where no such decision exists, the Court has no jurisdiction. (at [18]-[19], [22])
  • Bail decisions under the Bail Act 2013 (NSW) are offence-specific. They attach to particular charges, not to an arrest or to proceedings in a general sense, and the Act's consistent references to bail "for an offence" reinforce that construction. (at [21])
  • Where original charges are withdrawn and new charges filed, a Supreme Court bail decision on the original charges does not constitute a "bail decision" for the purposes of a bail application on the new charges, even if the accused has otherwise traversed the normal procedural steps leading to the Court of Criminal Appeal. (at [22])
  • Section 74(1) of the Act, which restricts repeat release applications for the same offence, does not prevent an accused from making a fresh release application to the Supreme Court on newly filed charges that differ from those on which bail was previously refused. (at [24])
  • In dismissing the application, the Court acknowledged the practical inconvenience of requiring the applicant to return to the Supreme Court, observing that the jurisdictional limitation represents an "unfortunate stricture" on the Court of Criminal Appeal's power to hear such applications. (at [23])

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Criminal Code (Cth)

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