Ahmad v Director of Public Prosecutions

Supreme Court of NSW|2017-01-20|Before: Campbell J

EX TEMPORE JUDGMENT - REVISED

The plaintiff is seeking an order in the nature of mandamus under s 69 of the Supreme Court Act 1970 commanding the Local Court to exercise its power to consider his bail application.
The background is not in dispute. The applicant is charged with the very serious offence of supplying a large commercial quantity of a prohibited drug contrary to the provisions of s 25 of the Drug Misuse and Trafficking Act 1985. He is said to be relevantly involved in a series of supplies, each of which was greater than the commercial quantity, and all of which taken together exceed the threshold for a large commercial quantity. Local Court bail application.
He was arrested in January 2016, and was bail refused upon arrest. No bail application was made on his behalf to the Local Court until 6 December 2016 when Mr Kradolfer, a solicitor in the employ of the plaintiff's solicitor, forwarded an application for bail to the Local Court at Burwood.
It is necessary to record by way of explanation that, Ms Toomey, the principal of Toomey Criminal Defence Lawyers, received instructions to assume the carriage of the plaintiff's defence in or about November 2016, and towards the end of November, received instructions to make the bail application. Enquiries were made of the registry at Burwood including by personal attendance by Mr Kradolfer to obtain an early hearing date. He attended the registry on 7 December 2016 and explained that the application for bail was considered complex and that the estimated duration would be 30 to 60 minutes.
The matter was listed for hearing on 21 December 2016, which I am informed was the final DPP list day at Burwood Court for the year and the second last day of the Local Court's law term.
It is common ground that there were two magistrates sitting at Burwood on 21 December, each of whom, unsurprisingly, had a long and busy list. Ms Toomey appeared for the plaintiff, and Mr Low who appears before me today for the first defendant, appeared for the DPP. It was intended to show some footage that had been taken of the plaintiff during the course of police surveillance leading up to his arrest. I am informed that those snippets would have been short. The prosecution case as put to me is that the plaintiff was not the principal involved in the alleged drug supply offending, but operated, as it was put, as the "muscle", which I suppose puts him a little lower down the chain of command than some others.

What happened on 21 December 2016.

In any event, the matter was mentioned before her Honour Magistrate Goodwin just after 10 o'clock, and the content of the expected hearing was explained. Her Honour indicated that she was dealing with the list and stood the matter down until after the conventional morning adjournment.
The legal representatives of the parties returned to court just after midday. Her Honour was continuing to deal with other matters in the list. The matter was mentioned again at about 12.50 when Ms Toomey confirmed that the application was ready to proceed. Her Honour indicated it would not be reached before the luncheon break at 1 o'clock, and directed the parties to return at 2 o'clock, which they did.
Just after 3 o'clock, her Honour mentioned the matter again informing the legal representatives of the parties, as must have been obvious to all in court, that she was still busy with the list. Her Honour suggested that perhaps the parties could inquire of her Honour Magistrate Seagrave who was also sitting whether she might have time to consider the application.
The matter was mentioned before her Honour Magistrate Seagrave at about 3.15 pm. Her Honour inquired about the content and length of the matter, and upon being informed by Ms Toomey of an estimated duration of one hour, indicated that due to the state of the list she did not have time to hear the application that day.
The matter was returned to Magistrate Goodwin's court. Her Honour permitted the matter to be mentioned again at about 3.35 pm. She was still dealing with the matters which had been allocated ahead of this matter, and she again inquired about the expected duration of the application. Again Ms Toomey informed her that the matter would take some 45 minutes to an hour.
I have drawn this narrative from the affidavit of Ms Toomey sworn on 7 January 2017, and I infer from what she says at [18] to [19] of that affidavit that the learned magistrate expressed some exasperation about the listing, inquiring why the matter was listed on the final list day for the year. Speaking as a judicial officer, I understand judicial exasperation is experienced and even expressed from time to time and I confess to being susceptible to this myself on occasions. Nothing should be read into even a testy inquiry of this type coming from a judge or a magistrate.

The application is not reached.

It was clear, I think, by then, that the matter would be not reached. Judicial officers work long hours and, particularly in the Local Court, it is notorious that the pressure of business is great. As in other professions and occupations, those pressures increase as the Christmas vacation approaches. No objection or complaint, I should record, is made because the matter was not reached. The gravamen of the complaint is about what happened next.
Her Honour, I think, indicated that the matter would be not reached and that it would be necessary for it to be adjourned for that reason. She also indicated, no doubt correctly, that the list at Burwood was heavy and there was unlikely to be an available date, on Ms Toomey's evidence, "for some months". Her Honour consulted the diary, and indicated that the matter could be heard on 31 March 2017. It may have been Ms Toomey's turn to become exasperated because she says, and I quote from para 19 of her affidavit, "I told her Honour that the application needed to be heard sooner than that."
Her Honour then invited Ms Toomey to consult the Court diary for herself to find an earlier date. Perhaps her exasperation, if there was any, was again understandable, but equally understandably, Ms Toomey refused the invitation. A number of available dates were provided by the legal representatives of the parties and the matter was listed on 31 March 2017.
The complication which arises in this case is that when the matter was before her Honour, the case had already been fixed for a paper committal on 24 February 2017. From this it followed that her Honour fixed the bail application for hearing on a date when in all probability the matter would no longer be before the Local Court, as the parties agreed that given the comparative strength of the Crown case, the matter would certainly be committed for trial in the District Court when it came before the Local court on 24 February 2017.

The plaintiff's case

The plaintiff, in bringing this application, relies upon certain provisions of the Bail Act 2013 NSW. I should also record that in dealing with indictable matters, before committal, the Local Court is exercising powers conferred upon it by the Criminal Procedure Act 1986 NSW. That Act provides however, by s 317, that to the extent of any inconsistency between that Act and the Bail Act, the latter prevails.
Ms Toomey argues that the Local Court was not authorised to adjourn the question of bail to 31 March 2017 by reason of the provisions of either s 41 or s 71 of the Bail Act. S 41 is in the following terms:

41 Limitation on length of adjournments if bail refused (1) If an accused person is refused bail for an offence: (a) an authorised justice or the Local Court is not to adjourn the hearing of the matter for a period exceeding 8 clear days, except with the consent of the accused person, and (b) an authorised justice who is not a registrar of the Local Court is not to adjourn the hearing of the matter, on a first adjournment, for a period exceeding 3 clear days, and (c) any second or subsequent adjournment of the hearing by an authorised justice who is not a registrar of the Local Court must: (i) be for a period not exceeding 48 hours, and (ii) be to the Local Court constituted by a magistrate, if a magistrate is reasonably available to deal with the case. (2) Subsection (1) does not apply to an adjournment of a hearing if: (a) the accused person is in custody for some other offence, and (b) the authorised justice or court is satisfied that there are reasonable grounds for a longer period of adjournment, and (c) the accused person would be in custody for the other offence for the balance of the longer period. (3) The consent of the accused person is not to be sought or given for the purposes of subsection (1) (a) unless the authorised justice or court first advises the person whether or not bail will be granted to the person and the proposed bail conditions (if any).

Section 71 is in the following terms:

"A bail application is to be dealt with as soon as reasonably practicable."

That provision has a heading "Bail applications to be dealt with expeditiously". However, headings to individual provisions do not form part of the Act, unlike headings to parts of an Act: s 35(2) Interpretation Act 1987 NSW.
In relation to s 41, Ms Toomey says given that her client was bail refused, her Honour was not authorised "to adjourn the hearing of the matter for a period exceeding 8 clear days, except with the consent of the accused person." (See s 41(1)(a).) It was obvious, Ms Toomey argues, and I so find, that the plaintiff did not consent to an adjournment to 31 March 2017.
Ms Toomey's argument proceeds on the basis that the expression "the matter" in s 41(1)(a) includes a bail application. The expression "the matter" is not a defined term in the Bail Act. The expression "bail application" is defined in s 4 of the Act in terms including a release application which the plaintiff was making.

The DPP's case

Mr Low, who appears for the first defendant, argues that the meaning of s 41 is best determined from its context. He submits that it relates to a person who is bail refused upon arrest by a bail authority who is a police officer, and it acts in support of the provisions of other legislation, and the Common Law, which require the police, upon arrest, to bring that person before a court as soon as reasonably practicable.
It is argued that in that context, the work that s 41 has to do is exhausted when the person is brought before the Local Court and is dealt with on the first mention date in accordance with the usual procedures. That is to occur when bail is refused within 8 clear days of the matter first coming before the Court. On his submission, the meaning of "the matter" does not include a bail application. He argues that had the provision been concerned with the expedition with which bail applications were to be dealt with, the defined term "Bail application" would have been used rather than the undefined term "the matter". Moreover, Mr Low argues that such an interpretation of s 41 would leave s 71 with no practical work to do.

Determination

The meaning of s 41 is, to me, somewhat obscure. It is based upon s 25 of the Bail Act 1978 NSW (Repealed). The only material difference between the provisions is that s 25 apparently forbade the adjournment of "the hearing" rather than " the hearing of the matter". The Parliament, in re-enacting the provision as s 41 of the current legislation, has dropped the general expression "the hearing" and substituted the phrase "the hearing of the matter".
There is a dearth of authority about these provisions. I dealt with the predecessor provision in Hamilton v Director of Public Prosecutions [2012] NSWSC 1365 at [62]-[75]. I formed the following view of the meaning of the expression "the hearing" in s 25 (at [71]): "It is notable that s 25(2) refers to an adjournment of the hearing in connection with an offence. Given that s 25 applies to magistrates, registrars of the Local Court and other authorised justices the hearing referred to cannot be limited to a summary trial, but must extend to interlocutory matters." At [72] I also said:

"The administration of criminal justice would grind to a halt if matters properly before the Local Court in respect of which it is proper to refuse bail, needed to be brought back to court every 8 clear days. In my judgment, the meaning of the word "hearing" in s 25 is more limited than the reference to the proceedings generally, and refers to a Local Court however validly constituted, dealing with any necessary matter that has to be decided during the life of the proceedings. To my mind, the adjournment between conviction and sentence is not the adjournment of a hearing, and s 25 has no application to the present case." The ratio of my decision was, as that last sentence indicates, that the adjournment now common between conviction and sentence is not an adjournment of a hearing, the hearing being complete upon entry of the conviction.

The change in language to "hearing of the matter" probably changes the meaning of the provision, as it is difficult to give "the matter" a meaning other than a reference to the proceedings generally. Again, I repeat the observation I made that, reading the section literally, or giving it its ordinary grammatical meaning, would cause great inconvenience in the administration of criminal justice especially in the Local Court. That consideration weighs against an interpretation of the provision which means there can be no adjournment of any "hearing of the matter" where bail is refused, except with the consent of the accused, for a period exceeding 8 clear days.
The meaning of the expression must be more limited than that, and given the reference to "an authorised justice or the Local Court", which expression for some purposes would include a registrar of the Local Court, it is probable that the meaning propounded by the DPP is correct and section 41 is concerned with the early stages of management of the case in the Local Court, and that the initial hearing (or mention) is not to be adjourned except by the consent of the accused who is bail refused, for a period exceeding 8 days. I think that this is reinforced by s 41(3) which (I repeat) provides that: "The consent of the accused person is not to be sought for the purpose of subsection (1)(a), unless the authorised justice or court first advises the person whether or not bail will be granted to the person and the proposed bail conditions, if any."
In my judgment, and acknowledging again that the meaning of the provision is somewhat obscure, whatever "the hearing of the matter" in the context of s 41(1)(a) means, it did not refer to the adjournment following a bail application being not reached in circumstances as occurred on 21 December 2016. It is quite clear that no hearing had been embarked upon. Even if "the matter" includes "bail applications", which I have reservations about, the hearing of the bail application had not commenced because it was not reached. S 41 does not require the Local Court to bring every matter, and all aspects of every matter, in which a person is bail refused, back every 8 days.
I should observe in passing that the dearth of any authority on s 41 and its predecessor, s 25 of the 1978 Act, suggests that it is a provision overlooked or neglected in practice. One understands that, as I have said, the purpose of it may be to ensure that matters are dealt with expeditiously at the outset where persons are in custody, and that no doubt, is an important object and purpose, but given the absence of decisions of superior courts concerning it, one wonders whether it is really serving any practical purpose in the context of the 2013 Act. Section 71 Bail Act.
I turn then to the provisions of s 71. Ms Toomey argued that the expression "as soon as reasonably practicable" in s 71 really meant the same thing as the word "expeditiously" in the heading which, as I have said, is not part of the Act. It seems to me that the expression "as soon as reasonably practicable" does import a sense of urgency, however, only as urgently as the limited resources of a court will permit. By "resources", I mean limited judicial resources and other limited facilities for processing matters. These are things over which the courts themselves can exercise but very limited control.
Adopting the meaning "as urgently as the resources of the court will reasonably allow", it is necessary then to turn to consider briefly the power of this Court to issue an order in the nature of mandamus. Although concerned with certiorari, the decision of the High Court of Australia in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 176-180 demonstrates that in the case of inferior courts of ordinary jurisdiction, the supervisory power of the Supreme Court is more limited than it is in the case of tribunals or other administrators. Without going through all the categories of case in which certiorari will lie, it is important I think, to emphasise the following:

"…[A]n inferior court will exceed its authority and fall into jurisdictional error if it misconstrues [a statute establishing it or conferring its jurisdiction] and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In [this] category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern". (My emphasis.)

In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242, a plurality of justices of the High Court (Rich, Dixon and McTiernan JJ) said: "A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken an inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal."
One can see a crossover between that statement of the grounds of mandamus and the statement in Craig about when certiorari may lie. Naturally, the operation of a provision like s 71 which requires a court to deal with an application as soon as reasonably practicable will depend upon the court's evaluative judgment of all relevant circumstances. This tends to suggest that an error made in assessing reasonable practicability is likely to be an error within jurisdiction not amenable to correction by the exercise of the supervisory jurisdiction. And I think that generally this must be so. There is, however, an aspect of this case which perhaps makes it a clear case. This is what I said at the outset in relation to the listing of the matter beyond the time when the case would remain in the Local Court.
It seems to me that, acknowledging the Local Court's entitlement to manage its own list without undue interference from this Court, and bearing in mind the limited resources allocated to it to manage its business, to fix a bail application for hearing before the Local Court at a time when the matter will inevitably be before the District Court falls into the category referred to by the Justices in ex parte Bott of an ostensible determination which is not a real performance of the duty imposed by law upon the Local Court. That is to say, obviously, the order made by the learned magistrate was within power. But given that the Local Court was charged by law with the duty of ascertaining or determining facts upon which the right of the plaintiff to be at liberty depended, the ostensible determination within jurisdiction is, I think, affected in the manner in which, as I have explained, it was exercised.
What I have said is a principle of general application to the extent to which the date for hearing of the bail application duly made to the Local Court should not be fixed for determination beyond the period during which the matter will, in all likelihood, here inevitably, remain in the Local Court.
Of course, one can conjure up extreme examples showing that the Local Court does not have an absolute duty to determine bail applications before the matter is committed for trial or sentence: for example, a bail application made for the first time in court orally when the paper committal is heard perhaps could not be dealt with at all before the conclusion of the committal. What I have said about the duty owed in this case should not be taken to cover such extreme examples. Obviously, the administration of justice proceeds on the assumption that parties will make applications within the court's power in a timely way so that they may be dealt with in an orderly fashion during the court's management of the case.
It should not be overlooked that the test or the requirement is one of reasonable practicability; it is not an absolute standard. However, for reasons I have expressed, this matter was not dealt with in compliance with the duty imposed by section 71.
In making this decision, I have borne in mind that different regional courts will face different pressures of business, will have different resources and the availability of judicial resources, in particular, will differ. However, it should be borne in mind that the powers of the court include the power to change venue and to deal with a matter in other ways. There could be no objection if, in order to accommodate the determination of a bail application before 24 February 2017, in the exercise of its undoubted discretion, the Local Court decided that the appropriate way of dealing with this matter was to change the venue to a court which may have greater judicial resources for the time being than Burwood. But these are observations only and not intended to be prescriptive. Generally speaking, it is not a matter for this Court, as I have said, to interfere in the internal management by the Local Court of its business.
My orders are: 1. Direct that an order in the nature of mandamus issue requiring the Local Court to determine the plaintiff's bail application before his committal for trial. 2. Reserve the question of costs. 3. Direct the parties to provide written submissions as to the order that should be made in respect of costs. The submissions should not exceed three pages in length. They should be lodged by email with my chambers, directed to my associate by Monday 30 January 2017. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2017

Bail Act 2013(NSW)s 41, s 71

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