Citation: R v Bobak (No 4 – bail on warrant) [2025] NSWSC 1058
Court: Supreme Court of New South Wales
Date: 12 September 2025
Judge(s): Dhanji J
Background
The Supreme Court was hearing the murder trial of Trevor Bobak. The Crown sought to call Melody Greedy as a witness, and a subpoena was issued for her attendance. Ms Greedy was served with the subpoena on 1 September 2025 and received multiple text messages advising her she was required to attend on 10 September 2025, but she failed to appear on either 10 or 11 September.
On 11 September 2025, Dhanji J issued a bench warrant for Ms Greedy's arrest (see R v Bobak (No 3) [2025] NSWSC 1057). She was arrested the following morning after police encountered her during an unrelated domestic dispute. She was brought before the Court in custody.
Ms Greedy's conduct in court was described as erratic and irrational to such a degree that the Court treated her as having elected to absent herself from the proceedings. A lawyer, Mr Payten, attended at short notice to assist but reported significant difficulty obtaining instructions. The custody management record tendered by the Crown raised concerns about Ms Greedy's mental state.
Legal Issues
- What power does the Supreme Court have to deal with a person brought before it on a bench warrant when no extant proceedings (such as contempt charges) have been commenced against that person?
- Can the Court apply the Bail Act 2013 (NSW) to determine whether to detain or conditionally release the witness, given that the statutory provisions (ss 308 and 312 of the Criminal Procedure Act 1986 (NSW)) conferring bail-related powers appear limited to "authorised officers" and do not extend to a Supreme Court judge?
- Can the Court make an order under s 21(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for a mental health assessment, given that the provision is directed to an "authorised justice" in the context of summary proceedings before a magistrate?
Decision
Dhanji J identified a gap in the statutory framework. Section 308 of the Criminal Procedure Act allows an "authorised officer" to apply the Bail Act to persons arrested on warrant as if they were charged with an offence. However, the definition of "authorised officer" in s 3 of the Act does not include a Supreme Court judge. His Honour described this as a "curious" result, leaving the Court with less statutory power than an authorised officer in these circumstances.
Similarly, s 21(1)(b) of the Forensic Provisions Act, which empowers an "authorised justice" hearing bail proceedings to order a person to be taken to a mental health facility for assessment, applies within Part 2 of that Act. Part 2 is directed at summary criminal proceedings before a magistrate. Dhanji J concluded that these provisions did not, on their terms, apply to him.
His Honour held that the Supreme Court's inherent power, preserved by s 23 of the Supreme Court Act 1970 (NSW), filled the gap. The administration of justice required a determination as to Ms Greedy's detention or conditional release to secure her attendance at an ongoing murder trial. The Court was therefore satisfied it could apply the Bail Act and invoke the equivalent of s 21(1)(b) of the Forensic Provisions Act under its inherent jurisdiction.
On the merits, Dhanji J found no sensible basis for granting bail. Ms Greedy was homeless, appeared to be suffering from a mental disorder (possibly related to or exacerbated by intoxication), and was in no state to give evidence or navigate the outside world. While the Court acknowledged some concern about the utility of detention if Ms Greedy could not give evidence in her current state, assessment and possible treatment could restore her capacity to do so.
Orders Made
- Ms Greedy was ordered, pursuant to s 21(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (applied through inherent power), to be taken to and detained in a mental health facility for assessment.
- If found on assessment not to be a mentally ill or mentally disordered person, she was to be brought before a magistrate or authorised justice as soon as practicable unless granted bail by a police officer at the facility.
- Ms Greedy was to appear before Dhanji J on 15 September 2025, whether in custody, on bail, or in answer to the subpoena.
- His Honour noted that any magistrate or authorised justice dealing with bail in the interim had power to do so under s 312 of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- Where a statutory gap leaves the Supreme Court without express power to deal with a witness arrested on a bench warrant, the Court's inherent jurisdiction under s 23 of the Supreme Court Act 1970 (NSW) can fill that gap where necessary for the administration of justice.
- Sections 308 and 312 of the Criminal Procedure Act 1986 (NSW) confer bail-related powers on "authorised officers" and magistrates but do not, on their terms, extend to a Supreme Court judge dealing with a person arrested on a bench warrant issued by that Court. Dhanji J described this legislative result as "curious."
- Under its inherent power, the Supreme Court applied both the Bail Act 2013 (NSW) and s 21(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), despite those provisions being directed to "authorised officers" or "authorised justices" in the context of summary proceedings.
- A witness's homelessness, erratic courtroom conduct, and concerns documented in a custody management record were sufficient to support a finding that the person appeared to be a mentally ill or mentally disordered person within the meaning of ss 14 and 15 of the Mental Health Act 2007 (NSW), warranting an assessment order.
- Contempt proceedings for failure to answer a subpoena (under Pt 33, r 12 of the Uniform Civil Procedure Rules 2005 and Pt 55 of the Supreme Court Rules 1970) were identified as available but impractical as a mechanism for securing a witness's attendance at an ongoing trial, given the procedural requirements including involvement of the Registrar and Crown Solicitor.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), s 4
- Criminal Procedure Act 1986 (NSW), ss 3, 239, 308, 312
- Mental Health Act 2007 (NSW), ss 14, 15
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pt 2, s 21(1)(b)
- Supreme Court Act 1970 (NSW), s 23
- Supreme Court Rules 1970 (NSW), Pt 55
- Uniform Civil Procedure Rules 2005 (NSW), Pt 33, r 12
Cases:
- R v Bobak (No 3) [2025] NSWSC 1057