DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v Salvatore Peter CASSANITI

CATCHWORDS: CRIMINAL APPEAL - BAIL - Power of Court of Criminal Appeal to review decision of single judge - power to grant bail where no valid notice of appeal - referral of review to a judge of the Supreme Court

Bail Act 1978 (NSW), ss 4, 27, 28, 29, 30, 30AA, 45, 46, 47, 48 Bail Regulation 1999 (NSW), cl 22(1)(b) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), ss 3, 6, 10, 22, 29 Criminal Appeal Rules, rules 3A(1), 3B(1), 23C, 23D, 76 Crimes Act 1914 (Cth), s 29D Judiciary Act 1903 (Cth), s 68

Commonwealth DPP v Germakian [2006] NSWCA 275 CASES CITED: Regina v Antoun [2005] NSWCCA 270 R v Burns (1920) 20 SR (NSW) 351 Regina v Potier [2005] NSWCCA 256

PARTIES: Director of Public Prosecutions (Cth) - Appellant Salvatore Peter Cassanaiti - Respondent

COUNSEL: P. Roberts SC - Appellant P. Byrne SC - Respondent

SOLICITORS: Commonwealth Director of Public Prosecutions - Appellant Kiki Kyriacou Lawyers, Kings Cross - Respondent

IN THE COURT OF CRIMINAL APPEAL CCA 2006/1860 SC 2006/682

BASTEN JA BELL J JOHNSON J

19 October 2006 DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v Salvatore Peter CASSANITI Judgment 1 THE COURT: On 30 September 2005 Mr Cassaniti ("the Appellant") was found guilty by a jury on 22 charges under s 29D of the Crimes Act 1914 (Cth) of defrauding the Commonwealth and on one charge of attempting to defraud the Commonwealth. The offences were committed by him as the principal of an accountancy firm, Cassaniti and Associates. The charges related to payments on account of income tax, or refunds of tax purportedly paid. 2 On 2 December 2005 the Appellant was sentenced in the District Court to a period of five years imprisonment with a non-parole period of two years and nine months. The first of the sentences was to date from 30 September 2005 and involved a period of one year and seven months, expiring on 29 June 2008: Judgment on sentence, 2 December 2005, pp 1 and 49 (Norrish DCJ). 3 On 7 November 2005, after his conviction but before his sentence, the Appellant filed a "notice of intention to appeal". Despite that prompt action, a notice of appeal with grounds was not filed until 9 August 2006. The following day, 10 August 2006, he applied for bail pending determination of the appeal. The appeals, together no doubt with such leave applications as are necessary in relation to the sentences, are to be heard by this Court on 7 December 2006. 4 On 22 September 2006, the bail application came before Hidden J, sitting as a judge in the Common Law Division of the Supreme Court. His Honour granted bail subject to a number of conditions as to residence, reporting to police, deposits of security and requirements that he not apply for a passport or travel document or approach any point of departure from the country. 5 The primary judge acknowledged that the Appellant needed to demonstrate "special or exceptional circumstances" justifying the grant of bail, in order to satisfy s 30AA of the Bail Act 1978 (NSW). He identified the relevant circumstances relied upon as:

(a) a deterioration in the Appellant's mental health since his incarceration, and

(b) his involvement in a complex of civil litigation.

Grounds of review 6 The application for review of the bail determination is brought by the Director of Public Prosecutions (Cth), pursuant to a power conferred by s 48(1)(a)(iv) of the Bail Act. The power conferred by s 48 on identified individuals is a power to review a decision "pursuant to" Part 6, Division 2. The document entitled "Request for review" does not specify the section under which review is sought, although there is a reference to s 46 (presumably of the Bail Act) included at the head of the form. (According to the Bail Regulation, cl 22(1)(b), Form 11 may not be appropriate, but nothing turns on this.) Assuming this Court has a relevant power, the Court in this matter is exercising federal jurisdiction and the reference to "the Director of Public Prosecutions" in s 48 should be understood as including the Commonwealth Director: see Commonwealth DPP v Germakian [2006] NSWCA 275 at [43]. Other provisions of the Bail Act operate in federal jurisdiction pursuant to s 68(1) of the Judiciary Act 1903 (Cth): see generally, Germakian at [42]-[44]. 7 The specific power of this Court to review a decision in relation to bail arises from a combination of ss 30, 46 and 47. It will be necessary to consider the terms of those provisions below. 8 The grounds upon which the Director seeks to review the decision of the primary judge were as follows:

1. By reason of the provisions of the Criminal Appeal Act 1912 (NSW), Hidden J sitting as a single judge of the Court of Criminal Appeal had no power to grant bail under ss 30 and 30AA of the Bail Act 1978 (NSW).

2. There were no valid appeals before Hidden J as leave was required to file the grounds of appeal and no such leave had been given; absent such leave there was no jurisdiction in the Court to grant bail.

3. Even assuming leave is granted to lodge the subject grounds of appeal, there is no power in the Court to grant bail in relation to those offences of which the offender was convicted and sentenced which are not the subject of an appeal. The subject grounds of appeal do not relate to counts 2, 5, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24.

4. None of the material presented to Hidden J on behalf of the offender gave rise or gives rise to special or exceptional circumstances for the purposes of enabling bail to be granted.

Jurisdiction of single judge 9 The first ground challenges the jurisdiction of a single judge to grant bail in relation to an appeal to this Court, assuming one was extant. It refers to Hidden J sitting "as a single judge of the Court of Criminal Appeal". The reasons for determination of the bail application, as published by his Honour, were headed in the Common Law Division. It is therefore necessary to consider both whether he was sitting in the Common Law Division or in the Court of Criminal Appeal and whether, on either view, he had power to grant bail. 10 The Court of Criminal Appeal is dealt with in Part 4, Division 5 of the Bail Act. That Division contains two sections, 30 and 30AA. Power is conferred by s 30 which relevantly provides: 30 Power of Court of Criminal Appeal to grant bail The Court of Criminal Appeal may grant bail in accordance with this Act to any person accused of an offence if, in connection with the offence: (a) an appeal is pending in the Court, … (d) the Court has directed a stay of execution of a conviction and the stay is in force … . 11 For the purposes of the Bail Act, appeal is defined to include an application for leave to appeal and "a proceeding by way of appeal": s 4(1). Further, a reference to a person accused of an offence includes a person convicted of an offence: s 4(2)(a). 12 The first point raised by the Director is that the constitution of the Court for the purpose of exercising its powers is defined by the Criminal Appeal Act 1912 (NSW). That Act relevantly provides:

3 Constitution of court (1) The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct. (2) More than one sitting of the court may be held at the same time.

The Director also relies upon s 22 of the Criminal Appeal Act which identifies the powers of the Court which may be exercised by a judge of the Court, but does not include determining an application for bail. The Director refers to R v Burns (1920) 20 SR (NSW) 351, for the proposition that the Court has no powers "except those conferred upon it by the [ Criminal Appeal Act ]": at p 358 (Gordon J) (Pring J agreeing). 13 Put in these terms the submission is without substance. True it is that Gordon J in Burns made the statement he did, but it was in the context of a possible amendment by the Court of Criminal Appeal to an indictment, in order to apply the proviso in s 6 of the Act that there had been no substantial miscarriage of justice. It was not a pronouncement of principle in any general sense, nor should it be read as such. Other statutes can confer powers on this Court, a fact expressly recognised in relation to the Bail Act by s 29 of the Criminal Appeal Act, which provides that the Bail Act shall prevail to the extent of any inconsistency between that Act and the Criminal Appeal Act. Indeed, as the Director effectively concedes, it is s 30 of the Bail Act which confers power on this Court to grant bail. The term "Court of Criminal Appeal" is defined in s 4(1) of the Bail Act to include a judge of the Court. To the extent that all Supreme Court judges are judges of this Court, absent any indication to the contrary, the power conferred on this Court by s 30 can be exercised by a judge of the Court. Because the Criminal Appeal Act does not confer powers with respect to bail, the absence of any reference to the power to grant bail in s 22 of that Act does not give rise to any implication that a judge of the Court has no such power. 14 The strength of the Director's argument must rely upon the fact that s 3(1) of the Criminal Appeal Act provides that the Court must be "constituted" by identified judges "as the Chief Justice may direct". The argument must therefore be that, unless Hidden J was a member of the Court of Criminal Appeal as constituted on the day on which he granted bail (22 September 2006), he was not sitting as this Court and therefore could not exercise the power conferred on this Court by s 30 of the Bail Act. 15 That reasoning should be accepted. The reasons for judgment of 22 September 2006 indicate that his Honour was sitting in the Common Law Division. It is not uncommon for applicants for bail pending appeal to be dealt with in that jurisdiction. Indeed, in Regina v Antoun [2005] NSWCCA 270, in considering an application for bail pending an appeal to the High Court (special leave having been granted), this Court noted that such a course was indeed appropriate, given the administrative difficulties in constituting this Court, should any subsequent variation be required: at [5]. Similarly, in the matter of Regina v Potier [2005] NSWCCA 256 (publication of which has been restricted until earlier this month) it is clear that an application had been made to a single judge exercising the jurisdiction of the Supreme Court, prior to the application to this Court: at [3]. The practice of constituting the bail judge as a judge of the Court of Criminal Appeal for the purpose of dealing with a bail application by an appellant is not known to this Court. It should be assumed that it did not happen in relation to Hidden J. 16 The Director further submitted that this was a fatal flaw in his Honour's jurisdiction, because the clear inference to be drawn from the presence of s 30 of the Bail Act was that bail pending an appeal to this Court could only be dealt with by this Court. 17 This last submission is not persuasive. Part 4 of the Bail Act confers in separate Divisions powers on magistrates, the District Court, the Supreme Court, the Court of Criminal Appeal, and other courts. In some cases restrictions are imposed on the powers conferred: for example, s 27 imposes limitations on the power of a District Court judge. Division 4 confers power on the Supreme Court to grant bail, in terms which are not so limited. In Division 5, s 30 confers powers on this Court in the terms set out above. The limitation provided by s 30AA is as follows: 30AA Limitation on power to grant bail Notwithstanding anything in this Act, if: (a) an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence passed on conviction on indictment, or (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a), bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail.

The words emphasised reveal unequivocally that the power to grant bail in relation to an appeal pending in this Court is not restricted to this Court. The term "court" includes the Supreme Court and therefore includes a judge of the Supreme Court exercising power under s 28. There is nothing in Division 4 (containing ss 28 and 29) to preclude that exercise of power. Section 30AA is inconsistent with the inference sought to be drawn by the Director. 18 It follows that Hidden J had power to consider the application to grant bail albeit, as his Honour correctly noted, the power was constrained by the express terms of s 30AA.

No valid appeal on foot 19 The second ground of review asserted that no valid appeal was extant at the time the primary judge dealt with the application for bail. The reason for that was that the notice of intention to appeal having been lodged on 7 November 2005, the six month period during which the notice had effect expired on 6 May 2006: Criminal Appeal Rules, r 3A(1). A notice of appeal was required to be given either within the period of three months after conviction or sentence or within the six month period during which the notice of intention had effect: r 3B(1). As at the date on which bail was granted, neither of those periods had been extended and accordingly, the Director argued, the notice of appeal filed on 9 August 2006 was invalid, with the result that there was no appeal pending in this Court at the date on which his Honour granted bail. 20 Somewhat opportunistically, the Respondent sought to adopt that submission and rely upon s 47 of the Bail Act which provides as follows: 47 General limitation on power to review A court may not pursuant to this Division review a decision in circumstances where, had the decision not been made, the court would be prohibited from making a decision in relation to the grant of bail.

In other words, there being no valid appeal pending at the present time, this Court would be unable to exercise its powers under s 30 to grant bail and would therefore not be entitled, under s 46(1), to review a decision made by the Court in relation to bail. 21 Once it is accepted that the primary judge exercised a power as a judge of the Supreme Court under s 28 of the Bail Act, the Director's complaint falls away. The jurisdiction under s 28 is conferred in relation to "any person accused of any offence". The term "a person accused of an offence" is defined to include a person charged with, convicted of or found guilty of an offence: s 4(2)(a). The power would extend to a person convicted but not yet sentenced, and, theoretically perhaps, to a person convicted and sentenced, whether or not an appeal had been lodged. The last conclusion may, however, be doubtful because s 4(2)(c) expressly extends the definition of a person accused of an offence to "a person in respect of whom an appeal … relating to an offence is pending". But that doubt need not be resolved in this case. 22 Subject to one qualification, the Director accepts that this Court may extend the period for which a notice of intention to appeal has effect, whether before or after the expiry of the period: see r 3A(2). (It would appear that where a notice of intention to appeal has been given within time, there is no power to extend the period of three months after conviction, during which a notice of appeal may be given: cf r 3B(2).) However, an explanation has been given for the delay and the Director, subject to the qualification noted, did not oppose an extension of time within which to lodge a notice of appeal. The Appellant required an extension to avoid his appeal being dismissed because not validly lodged. 23 The qualification arose from the requirements of r 23C in relation to the documents which are to accompany a notice of appeal. These include a statement of the grounds of appeal, written submissions in support of the appeal, a certificate in relation to the availability of the transcript of the proceedings below and the exhibits at the trial and a statement nominating the legal representatives acting for the appellant. The written submissions, in support of the notice of appeal, were not lodged until 22 September 2006, being the date of the decision of Hidden J. Unless those documents "accompanied" the notice of appeal, the Director submitted the notice was a nullity. In fact it would have had effect "as a notice of intention to appeal" (r 23D) but would have been out of time and otiose. However, non-compliance with the rules will not prevent an appeal being prosecuted, but this Court may give appropriate directions, including alternative means of ensuring that the relevant materials are obtained: r 76. Further, this Court could grant leave to extend the period during which the notice of intention to appeal had effect, until after the date on which the last relevant documents were filed. 24 Section 10(2) of the Criminal Appeal Act provides that "an appeal against conviction or sentence is taken to be pending in the court if notice of intention to appeal … has been duly given to the court": see s 10(2)(b), which operates for the purposes of any other Act or statutory instrument. Thus, for the purposes of the Bail Act, the existence of a notice of intention to appeal is sufficient to bring the Respondent within s 4(2)(c) of that Act and hence within the class of persons to whom the Supreme Court may grant bail under s 28. (It would also be sufficient to invoke the power of this Court under s 30.) This Court can extend the effect of the notice of intention, until 22 September 2006. Although that step may not be necessary, that will be done. 25 The qualification suggested by the Director therefore falls away and there is no obstacle to making an appropriate order extending time. The result is that Hidden J had power to grant bail pursuant to s 28 of the Bail Act. Ground 2 should be rejected.

Limited appeal 26 Ground 3 asserts that the Appellant has not appealed in relation to numerous counts in the indictment, pursuant to which he will be serving unchallenged sentences which would nullify the effect of any grant of bail in respect of other matters. This contention was based on the proposition that, although the notice of appeal was unrestricted as to the convictions under challenge, the grounds affect only 6 convictions (being on counts 3, 4, 6, 7, 10 and 11) so that the grounds and the written submissions had no application to the numerous counts identified in ground 3 of the present bail application. 27 Without seeking to assess the strength of the challenge to the other grounds, the Respondent concedes that the specific challenges apply only to limited grounds directly, but notes that the written submissions assert that the reasoning complained of "in relation to particular counts would have jeopardised the Appellant's prospects of receiving a fair trial generally". Accordingly, he submits that the scope of the appeal is not limited as the Director suggests. 28 It is fair to say that the three grounds identified do go to specific counts and that the broader contamination effect is but lightly treated in the written submissions. Nevertheless, as a matter of jurisdiction, it should not be held that the notice of appeal, unlimited in its terms, did not go to all of the counts in relation to which a sentence of imprisonment was imposed. Accordingly, the third ground should be rejected.

Power of this Court to carry out review 29 For reasons noted above, once an extension of time has been granted, it may well be that an application could have been made to this Court and that this Court does now have power, pursuant to s 30, to deal with an application for bail, with the result that s 47 would not preclude the Court exercising its power of review under s 46. However, there is another reason why the jurisdiction under s 46 cannot be invoked. That section, provides: 46 Power of Court of Criminal Appeal to review (1) Subject to this Division, the Court of Criminal Appeal may review any decision made by the Court (however constituted) in relation to bail. (2) Notwithstanding subsection (1), a Judge of the Court of Criminal Appeal sitting alone may not under that subsection review a decision of the Court constituted by 3 or more Judges, unless the rules made under the Supreme Court Act 1970 so provide.

It is clear from this section, especially if read as a whole, that the term "Court" refers to the Court of Criminal Appeal. Accordingly, this Court is not given power to review a decision of the Supreme Court: see Potier at [4]. It follows that it has no power to review the decision of Hidden J which, on the preferred view set out above, was made not as a member of this Court, but as a judge of the Supreme Court, in the Common Law Division. 30 On the basis that the Court might, after proper consideration, reach this conclusion, the Director was invited to rely upon the power of the Supreme Court to conduct a review of a decision of the Supreme Court, pursuant to s 45 of the Bail Act. It was pointed out that the members of this Court, being judges of the Supreme Court, could carry out that review in the latter capacity. The Director acceded to that suggestion. However, senior counsel for the Respondent, whilst acknowledging that he had come prepared to deal with the merit of the grant of bail, as identified in ground 4 proposed by the Director, objected to three members of the Supreme Court hearing the review under s 45(1). He did not, however, object to the presiding judge dealing with the review in his capacity as a member of the Supreme Court. The application for review should be considered by him in that capacity.

Orders 31 For the purposes of determining the application to this Court, it is sufficient for the Court to make the following orders:

(1) Pursuant to r 3A(2) of the Criminal Appeal Rules, the period during which the notice of intention to appeal filed by the Respondent on 7 November 2005 has effect is extended up to and including 22 September 2006.

(2) Pursuant to rule 76, the Court directs that such of the documents as should have accompanied the notice of appeal, but which have been filed subsequently, be accepted as properly filed on the date or dates on which they were filed.

(3) The Court being satisfied that it has no jurisdiction to conduct a review of the bail determination made by Hidden J on 22 September 2006, refers the review of that decision to Basten JA, to conduct the review under s 45 of the Bail Act , as a judge of the Supreme Court sitting in the Common Law Division. **********

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