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1. Dylan Smith has applied for bail. He is presently facing a charge of recklessly inflicting grievous bodily harm or, in the alternative, assault occasioning actual bodily harm. The prosecution intends to proceed with a joint commission assault occasioning actual bodily harm charge against him. The offending is alleged to have occurred on 23 June 2025.

2. The application is supported by an affidavit of 15 April 2026 affirmed by his solicitor.

3. That affidavit indicates that the applicant has been in custody since 23 June 2025. It also indicates that he has previously made bail applications in the Magistrates Court on 23 June 2025 and 31 July 2025, both of which were refused. He also made an application for bail in the Supreme Court on 5 December 2025 which was refused.

4. The prosecution accepted that there was a change in circumstances relevant to the granting of bail for the purposes of s 20C(2) of the Bail Act 1992 (ACT).

5. The affidavit also proposed conditions for a grant of bail including a curfew condition, a reporting condition, supervision by ACT Corrective Services and conditions precluding contact with the complainant and the use of drugs.

6. Yesterday, I made an order dismissing the application and reserving my reasons. These are my reasons.

7. The reason that bail was refused was because s 9D of the Bail Act applied, and the applicant had not established special or exceptional circumstances favouring the grant of bail as required by s 9D(2). That had the consequence that the court was precluded from granting bail.

The issues

8. Section 9D applies if a person is accused of a “serious offence” and “the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding”. A “serious offence” is defined to mean “an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor’s election))”.

9. There were two issues in relation to the application of s 9D. (a) First, assuming that a New South Wales offence could be a serious offence for the purposes of the section, as a matter of fact, was the applicant alleged to have committed the offence while a charge against him for another serious offence was pending or outstanding? (b) Second, as a matter of law, could a New South Wales offence be the earlier serious offence?

Factual matters

10. The prosecution tendered a New South Wales Police Force criminal history as part of the prosecution tender bundle on the present bail application. That is identified as relating to Dylan Smith, date of birth 7 August [year]. His address is recorded as being in the suburb of Barrack Heights, New South Wales, and the following aliases are also recorded on the cover page: (a) Dylan Smith, date of birth 28 July [year]; (b) Dylan Blake Smith, date of birth 7 August [year]; (c) Dylan Barnes, date of birth 28 July [year]; and (d) Dylan Barnes, date of birth 7 August [year].

11. Counsel for the applicant asserted that the applicant’s date of birth was 28 July [year] and that it was not established that the criminal history related to his client because, leaving aside the various aliases, the criminal history recorded that it related to a Dylan Smith born on 7 August [year] who was not established as being his client.

12. The prosecution also tendered an email from the informant which stated in relation to the criminal history: Yes, NSWPF put his date of birth in incorrectly on their system. NSWPF have on their system an alternate DOB for his person entity as 28/7/[year] (this is displayed on page 1 of the criminal history PDF). It’s the same person entity. The NSW RTA Licence database says his DOB is 28/7/[year].

13. There was no explanation of what the reference to “person entity” meant or whether the informant was doing anything more than reading the document that had been tendered.

14. The prosecution also tendered a letter tendered by the applicant at an earlier bail application. The letter was from the applicant’s father, Paul Barnes, identifying the applicant as “Dylan-Blake Smith” and saying that the applicant was his carer. The letter also identified that: (a) the applicant’s mother is Tracy Lee Smith; (b) the applicant was due to attend court in Queanbeyan on 16 June 2025 and that hearing was adjourned until 23 June 2025; and (c) the applicant went to Canberra on 20 June 2025 so that he could be there for his court date and was arrested in Canberra.

15. The offending is alleged to have occurred on 23 June 2025.

16. The New South Wales criminal history identifies that there was a hearing in the Queanbeyan Local Court on 23 June 2025 where the person to whom the record relates did not appear, that person was convicted and a warrant was issued.

17. I find on the balance of probabilities that the criminal history relates to the applicant for bail. I make that finding because of the following aggregation of circumstances: (a) the name given on the criminal history as one of the aliases corresponds to the name and date of birth of the applicant; (b) the letter from the applicant’s father is evidence that he was required to attend court in Queanbeyan on 23 June 2025 and that corresponds to what is stated in the criminal history; and (c) the letter from the applicant’s father, whose name is Paul Barnes, is consistent with one of the aliases provided in the history, namely Dylan Barnes.

18. I reach the conclusion that the criminal history relates to the applicant more readily in circumstances where, if it did not relate to him, he might have given evidence that he was not the subject of the proceedings identified in the criminal history.

19. A second factual issue arose as to whether or not the New South Wales proceedings were “outstanding” at the time when it is alleged that the ACT offence occurred. Counsel for the applicant submitted that the charge was not outstanding because the criminal history showed that on 23 June 2025 the applicant was “CONVICTED S25(2) WARRANT TO ISSUE” and had therefore been “found guilty by a court of the offence” for the purposes of the definition of “outstanding” in s 9D(6) of the Bail Act.

20. The reference to s 25(2) is to a provision of the Crimes (Sentencing Procedure) Act 1999 (NSW), which states: (2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court— (a) may issue a warrant for the offender’s arrest, or (b) may authorise an authorised officer to issue a warrant for the offender’s arrest, for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires.

21. This factual issue is resolved by the chronology of events. What is alleged against the applicant in the present case is articulated in the prosecution case statement. Relevantly, that indicates (at [9]-[13]): (a) the complainant and another woman returned to the house where the two accused were at about 1am on 23 June 2025; (b) the complainant and the other woman went to bed at about 2am in the lounge room where both the accused were sleeping; and (c) “A few hours later, while it was still dark”, the complainant woke up, was asked for money by both accused and then assaulted.

22. Having regard to the times stated and the allegation that the complainant was assaulted at a time when it was still dark, I draw the inference that it is alleged that the offence was committed in the early hours of the morning prior to ordinary court hours. Therefore, insofar as the criminal history records that the applicant was found guilty of an offence on 23 June 2025, that occurred after the time when the ACT offence is alleged to have occurred. It follows that the New South Wales charge was still “outstanding” at the time that the ACT offence is alleged to have occurred.

Legal issue

23. The legal issue raised on behalf of the applicant is whether or not a “serious offence”, as defined in s 9D(6) of the Bail Act, includes a New South Wales offence punishable by imprisonment for five years or longer. In the present case, the offence relied upon by the prosecution is the offence for which the applicant was found guilty in his absence on 23 June 2025, namely, “destroy or damage property”. That is an offence against s 195 of the Crimes Act 1900 (NSW), headed “Destroying or damaging property”, which provides that: (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable— (a) to imprisonment for 5 years; or …

24. The applicant did not contend that s 195 was not the relevant provision.

25. Section 195(1)(a) clearly provides that the offence meets the requirement of being punishable by imprisonment for “5 years or longer” if it is otherwise within the scope of the definition of “serious offence” in s 9D(6) of the Bail Act.

26. The applicant submitted that the reference to an offence in the definition of “serious offence” should be interpreted as being confined to an ACT offence. If that is the correct interpretation, then a New South Wales offence would not enliven the operation of s 9D.

27. The applicant advanced a number of reasons why the definition of serious offence should not be interpreted as extending to offences in other jurisdictions. (a) He submitted that sentencing options would be reduced or taken away if offences in other jurisdictions could trigger the operation of s 9D, pointing to the effect upon deferred sentence orders under s 27 of the Crimes (Sentencing) Act 2005 (ACT) and the difficulty in releasing a person subject to s 9D “pending a DASL determination”. (b) He submitted that it was possible for two identical offences to be treated differently in different jurisdictions as a result of the availability of summary disposal in the ACT under s 374 of the Crimes Act 1900 (ACT). (c) He submitted that it was possible that there could be offences in another jurisdiction which did not exist in the ACT. (d) He submitted that it was not possible to limit the other jurisdictions which may qualify and that offences in other countries could be within the definition if it extended beyond the ACT.

28. The difficulty for the plaintiff’s arguments is that, in the earlier decision of Re Pikula [2015] ACTSC 3; 293 FLR 115, Refshauge J considered whether offences in other jurisdictions could fall within the scope of a “serious offence” as defined in s 9D(6) of the Bail Act. While his Honour identified some anomalies that arise from the fact that only s 374 of the Crimes Act 1900 (ACT) is referred to in the definition of “serious offence”, and not other provisions allowing summary disposal of charges, his Honour interpreted s 9D as extending to serious offences arising under the law of another jurisdiction. His Honour’s essential reasoning was at [55]-[63]. It turned on the application of s 139 of the Legislation Act 2001 (ACT), with his Honour saying (at [57]-[58]): It seems to me clear that s 9D of the Bail Act is intended to make the threshold for applicants for bail more strict where the person is charged with a serious offence when they are already on bail having been charged with another serious offence. This accords with sentencing practice that to commit an offence while on conditional liberty (as bail provides) is an aggravating feature: Challis v The Queen (2008) 188 A Crim R 154 at 161; [36]. As to that, the jurisdiction in which the earlier charge was laid would seem not only to be irrelevant but, if not ignored, to undermine much of the point of the provision in a jurisdiction like the Territory which is surrounded by New South Wales, for example, where many of those who work in the Territory live and where many who live in the Territory work or visit not infrequently.

29. His Honour then went on to consider the legislative history relating to the reference to s 374 within the definition of “serious offence” in s 9D(6) of the Bail Act. He concluded that this “was simply to deal with a local issue and to leave the rest of the definition in general terms to address the issue for which the section was intended, namely, to provide a presumption against bail where an offender had been charged with an offence of the prescribed seriousness while on bail for an offence of a prescribed seriousness” (at [62]).

30. There is no rule of law which binds a single judge of this court to follow a decision of another single judge. That is subject to some statutory qualification which is not applicable here: see s 76(3) of the Court Procedures Act 2004 (ACT). A judge of first instance will as a matter of judicial comity usually follow a decision of another judge of first instance in the same jurisdiction unless convinced that the earlier judgment was wrong: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820. Some authorities have referred to the test for departure as being that the earlier authority was “clearly wrong” or “plainly wrong”: see Commercial Banking Company of Sydney Ltd v Federal Commissioner of Taxation (1983) 70 FLR 433 at 443; Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]; Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 32. However, those references tend to be confusing if they are interpreted as meaning that the error must be patent or obvious or clearly perceived. Rather, they reflect the level of conviction that there is an error in the earlier decision: Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [283]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [9]-[11], [21]. Where a first instance judge considers with an appropriate level of conviction that the earlier decision was incorrect, there is not an obligation to follow it. However, in other circumstances, the values of predictability and certainty in the law favour consistency of approach between first instance judges within a single jurisdiction.

31. The interpretation of the definition of “serious offence” arrived at by Refshauge J is one which was reasonably open having regard to the words used in the definition. The interpretation adopted turns on the application of s 139 of the Legislation Act. That is a provision in relation to the application of which reasonable minds may differ. In the present case, it gives s 9D a broader operation than would otherwise have been the case. That is not a reason to consider that the decision is wrong. The decision has stood for more than 10 years. I applied the decision in In the matter of an application for bail by Fakatounaulupe Ngata [2015] ACTSC 139, although I was not asked to depart from the earlier decision in Pikula. The arguments advanced by the applicant are not sufficient to persuade me with an appropriate degree of conviction that the decision in Pikula is wrong so that I should depart from it.

32. During the course of his submissions, counsel for the applicant submitted that I should refer the question of whether or not to follow the decision in Pikula to a Full Court of the Supreme Court pursuant to s 13 of the Supreme Court Act 1933 (ACT). I declined to do so prior to having heard the submissions of the applicant as to why the earlier decision was said to be wrong. Having heard those submissions, I determined that it was more efficient for me to determine the matter myself given that a Full Court decision on the question would not occur earlier than a decision on an appeal from my decision to refuse bail.

No special or exceptional circumstances

33. I do not consider that the circumstances of the present case involve special or exceptional circumstances. I do not consider the length of time that the applicant has been in custody, namely approximately 310 days, amounts to special circumstances. Rather, that is within the usual range of time for the hearing of serious criminal proceedings. The fact that the charge is likely to be amended and the applicant will then consent to its remittal to the Magistrates Court does not amount to a special circumstance favouring the grant of bail. It was asserted that, had the charge of joint commission assault occasioning actual bodily harm been the original charge, then “it would have been heard by now”. That was not supported by any evidence and was not otherwise a matter of judicial notice.

34. For those reasons, I made the orders that I did yesterday.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: