Director of Public Prosecutions (NSW) v AP

THE RELEVANT LEGISLATION

1. A number of provisions of the Act are relevant to the determination of the Director's application.
2. To begin with, the purpose of the Act is set out in s 3: 3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions.
3. Section 4 of the Act defines a "bail application" to include a detention application of the kind which is presently before me.
4. Section 7 of the Act defines "bail" as: … authority to be at liberty for an offence.
5. Section 49 of the Act confers, on a person accused of committing an offence, the right to apply to a Court, or to an authorised justice, for bail to be granted or dispensed with.
6. Section 66 of the Act sets out the power of this Court to hear the present application: 66 Powers specific to Supreme Court (1) The Supreme Court may hear a release application for an offence if bail for the offence has been refused by another court, an authorised justice or a police officer. (2) The Supreme Court may hear a detention application or variation application for an offence if a bail decision has been made by the District Court, the Local Court, an authorised justice or a police officer.
7. Section 73 of the Act confers a discretion on the Court to refuse to hear the present application: 73 Discretionary grounds to refuse to hear bail application (1) A court may refuse to hear a bail application if satisfied that-- (a) the application is frivolous or vexatious, or (b) the application is without substance or otherwise has no reasonable prospect of success. (2) A court (other than the Local Court) may refuse to hear a bail application if satisfied that the application could be dealt with as a variation application by the Local Court or an authorised justice. (3) This section does not apply to a release application or a variation application made by an accused person on a first appearance in substantive proceedings for the offence.
8. The primary focus of the present application is s 22B of the Act which became operative on 27 June 2022, and which is in the following terms: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court-- (a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person--must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section-- "conviction" also includes a plea of guilty.
9. Section 98(1) of the Act sets out the regulation making power: 98 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
10. Clause 45 of the Bail Regulation 2021 (NSW) (the Regulation) contains a transitional provision in the following terms: 45 Transitional provision for Bail Amendment Act 2022 - the Act, Schedule 3, cl 1 To avoid doubt, the amendments to the Act made by the Bail Amendment Act 2022 apply to any bail decision made after the commencement of that Act.
11. The amendments to the Act made by the Bail Amendment Act 2022 (NSW) obviously include s 22B.

THE ISSUES ARISING ON THE PRESENT APPLICATION

1. In light of the submissions of the parties, the following issues arise for determination: 1. Should the Court, pursuant to s 73 of the Act, refuse to hear and determine the application on the grounds that it is frivolous, vexatious, without substance or otherwise lacks reasonable prospects of success? 2. If not, does s 22B of the Act apply to the application? 3. If so, can I be satisfied that the respondent will be sentenced to full-time imprisonment? 4. If so, are there special or exceptional circumstances which justify the detention application being dismissed?

The discretionary refusal to hear the application

1. Counsel for the respondent advanced the following propositions in support of the overarching submission that I should exercise the discretion conferred by s 73(1) of the Act to refuse to hear the Director's application: 1. in circumstances where the present application had not been made to the District Court, and where that Court was seized of the substantive proceedings, the Director's approach undermined the hierarchy of decision-making which was envisaged by s 66(2) of the Act; 2. the respondent had been on bail since 29 March 2022 following the verdicts of the jury, a period of more than three months; 3. the fact that the present application arises from the enactment of s 22B on 27 June 2022 constituted, without more, a special or exceptional circumstance, to the point where no hearing was necessary to further consider that issue; 4. the respondent was entitled, pending sentence, to arrange his affairs on the basis of the law as it existed at the time of his release, particularly in circumstances where only 23 days remained until sentence would be imposed; 5. the Director's decision to bring the application reflected a "lack of executive restraint" which brought it within one or more of the categories set out in s 73(1)(a) and/or (b) of the Act; and 6. the application gave rise to a number of complex legal and factual issues which were not appropriately determined in the circumstances outlined above.
2. For the following reasons, I am not persuaded that the Director's application is frivolous or vexations, nor am I persuaded that it is without substance or otherwise has no reasonable prospects of success.
3. The term "frivolous" is defined in the Macquarie Dictionary 2022 as: … of little or no weight, worth or importance; not worthy of serious notice, characterised by lack of seriousness or sense.
4. The term "vexatious" is defined as: … instituted without sufficient grounds, and serving only to cause annoyance.
5. There is nothing to support a conclusion that the Director's application has been made without proper or sufficient grounds, much less for the purposes of causing annoyance. Any suggestion that the application is characterised by a lack of seriousness overlooks its fundamental nature, and the issues which arise.
6. Over and above those matters, I make the following specific observations in relation to the submissions advanced by counsel for the respondent.
7. First, the fact that the Director did not bring the application in the District Court is largely immaterial. I accept, for the reasons expressed in Director of Public Prosecutions (NSW) v Duncan, [3] that difficulties can arise when a Court asked to determine an application of this nature is not the sentencing Court. However, the fact remains that by virtue of s 66(2) of the Act, this Court is seized of jurisdiction to hear and determine the application. There is no cogent reason to decline to do so.
8. Secondly, I do not accept that what was said to be the "unusual" nature of this application renders it special or exceptional, to the point where I should simply decline to hear it. A determination whether circumstances are special or exceptional is one to be made on the whole of the evidence, following a hearing.
9. Thirdly, the fact that the respondent will be sentenced in 23 days does not render the present application frivolous, vexatious, without substance or otherwise lacking in reasonable prospects of success.
10. Fourthly, I reject the proposition that it is open to infer, simply from the fact of the Director's application, that there has been a "lack of executive restraint" in bringing it. Such a submission is wholly unsupported by the evidence.
11. Finally, whilst I accept that the Director's application poses difficult legal and factual issues, that is not a basis on which to decline to hear it. On the contrary, the fact that they arise warrants such issues being authoritatively determined.

Does s 22B of the Bail Act 2013 apply to this application?

1. Counsel for the respondent submitted that in circumstances where s 22B came into force after the most recent detention application had been dismissed by Judge Hoy SC, the section had no application. That submission was based largely upon s 30(1) of the Interpretation Act 1987 (NSW) which is in the following terms: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not-- (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.
2. Counsel relied, in particular, on sub-paragraphs (a) and (c).
3. A similar proposition was advanced in Duncan. For the reasons set out in that judgment, [4] I am satisfied that s 22B of the Act applies.

Will the respondent be sentenced to full-time imprisonment?

1. In Duncan, [5] I made reference to the difficulties created by s 22B where a Court which is not the sentencing Court is called upon to determine whether a person will be sentenced to full-time imprisonment. In the present case, such difficulties are alleviated to a considerable degree by the fact that the written submissions of senior counsel who appeared for the respondent on the sentence proceedings effectively conceded that a full-time custodial sentence would be imposed. [6] I am satisfied in those circumstances that the respondent will, on the balance of probabilities, be sentenced to full-time imprisonment. [7]

Are there special or exceptional circumstances?

1. Two principal submissions were advanced by counsel for the respondent in support of the proposition that special or exceptional circumstances were established.
2. The first was that the background against which the application had been brought, bearing in mind the enactment of s 22B, was itself special or exceptional. In my view, that is an impermissibly circular proposition.
3. The second was that the respondent wished to arrange his personal affairs before commencing any sentence. In Duncan, I canvassed the meaning of the terms "special" and "exceptional". Bearing in mind the views I expressed, I am not satisfied that the respondent's desire to arrange his personal affairs prior to being taken into custody is a circumstance which falls into either category. On the contrary, an offender's desire to arrange his or her affairs before going into custody to commence serving a sentence is something which would be common to the overwhelming majority of offenders in the respondent's position, and thus the antithesis of what is special or exceptional.

ORDERS

1. For these reasons, I made the following orders at the conclusion of the hearing: 1. The Crown detention application is granted; 2. The respondent's bail is revoked; and 3. The respondent is to be taken into custody forthwith.

Endnotes

1. Count 1.
2. Counts 4, 10 and 12.
3. [2022] NSWSC 927 (Duncan) at [42] - [43].
4. [2022] NSWSC 927 at [25] - [36].
5. At [42] - [43].
6. See written submissions on sentence of senior counsel for the respondent at [43] - [ 50], [54], [58] and [60].
7. See Duncan at [39] - [41] citing Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938 at [61]. 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: 22 July 2022