Fernandez v DPP [2002] VSCA 115

Fernandez v DPP [2002] VSCA 115 - VSCA 2002 case summary — Zoe

[52]

Prior to the introduction of s.18A into the Bail Act in 1981, the Director of Public Prosecutions had no right of appeal to the Supreme Court against the order of a court granting bail to an accused person. In its terms s.18A confers upon the Director an entirely new right of appeal to the Supreme Court against bail orders made by judicial officers in favour of persons charged with, but not convicted of, indictable offences. It says nothing about the appellate review of those decisions made by the Supreme Court. For present purposes, it is unnecessary to consider whether a Director's appeal pursuant to s.18A will lie from a determination made by a Supreme Court judge granting bail in the exercise of his or her original jurisdiction. That is a matter to which I shall return. It is sufficient to note, for present purposes, that the Director's appeal from a magistrate's determination granting bail to a person charged is concerned only with a review of that decision. The very fact that the section does not deal with appellate review of the Supreme Court's determination may be reason enough to conclude that s.18A "is not an express provision of the kind contemplated by s.17(2) of the Supreme Court Act"[40]. The Director, nevertheless, urged us not to depart from the decision in Beljajev notwithstanding his concession, to which I have referred, that the reasoning of the High Court in Roy Morgan Research "would seem to implicitly overrule" what was decided in Beljajev. The Director submitted that the reasoning of the Court in Beljajev is correct and should compel us to the view that, whatever formula of words is used to interpret the exclusionary provisions in s.17(2), the Bail Act 1977 established a scheme for dealing with "bail procedure" which "expressly" excluded appellate rights beyond the decision of the judge of the Trial Division. In particular the Director contended that the Court's analysis of the Bail Act 1977 and that Act's affirmation (in s.18) of the prisoner's common law rights to make successive applications for bail, depending upon circumstances, to various judicial officers including judges of the Supreme Court, was accurate and sufficiently compelling to justify its conclusion that, consistently with s.17(2) of the Supreme Court Act, the appeal rights afforded to the Director by s.18A were confined to the single judge of the Supreme Court and that further appeals were excluded.

[54]

The decision in Beljajev was based upon implication or "reasonably plain intendment" said to be found in the provisions of s.18A when interpreted against the historical background of the common law development of the practice and procedure relating to bail. However, as it seems to me, the facts and matters upon which the Court relied to reach its conclusion lack the explicitness or specificity which, in the view of the High Court, is necessary to attract the exclusionary provisions of s.17(2) of the Supreme Court Act. The fact that the "Director's appeal" to the Supreme Court is an anomaly in the context of bail, and the fact that it is a right given only to the Director, are not, in my view, facts or matters which either expressly, or by implication, attract the exclusionary provisions of s.17(2).[42] If anything, they suggest the contrary. The "Director's appeal" to the Supreme Court is anomalous because it gives for the first time a right of appeal, "in the public interest", which is in the nature of a review of the discretion exercised by the judicial officer who granted bail and, thus, to be determined on the facts and circumstances which were before that officer. Such an appeal is, therefore, discretely different from, and foreign to, the concept of successive applications to judicial officers seeking grants of bail or revocations thereof. For the most part, such an appeal is directed towards securing a quashing of the original order and the remand of the person accused in custody. To suggest that a procedure which is given for the purpose of attracting such a result, simply by reason of its anomalous nature, either expressly or by necessary implication excludes an appeal from the single judge's decision is something which seems to me to now run contrary to authority. Nor does the fact that the accused person retains his or her right to make further applications for bail, if circumstances change, assist in demonstrating an intention in the Bail Act to exclude a right of appeal from the single judge's decision. The mere fact that a single judge, on a s.18A appeal, concludes that the original judicial officer's discretion miscarried and, accordingly, substitutes his or her own order remanding the accused in custody will leave little scope for the circumstances to relevantly change so that any appropriate fresh application could readily be made. Indeed the authority of a Supreme Court judge's decision made in the public interest would probably assist to defeat any such application. These factors, directly affecting - as they do - the liberty of the subject, do not indicate to me an intention to expressly exclude rights of appeal from the single judge's determination on review of the original court's decision. I am, in the light of current authority binding on this Court, unable to share the view of the Court in Beljajev that:

[59]

There were two other matters which arose in the course of argument which have an impact on the central issue. The first was whether, if the Director's appeal to the Trial Division judge failed, that was "the end of the road" or whether the Director, too, had further appellate rights to the Court of Appeal. It would seem that, in Beljajev, counsel for the Director accepted that, if the Director failed before the single judge then he had no further right of appeal. That concession was accepted by the Court, and was one of the factors upon which it relied to conclude that "further appellate rights" beyond the decision of the trial judge were "by reasonably plain intendment" to be excluded. In this Court, the Director made no such concession. On the contrary, he contended that if appellate rights beyond the decision of the trial judge are conferred, then those rights existed both for the person accused and the Director, in the absence of some provision such as that found in s.84(2) of the Magistrates' Court Act[43]. Mr. Nash, for the appellant, agreed that - if his submissions were to be accepted - that result must follow. In my view, the concession is correct. In the absence of reasons, it is not clear from the Court's decision in Beljajev why it concluded that s.18A "permitted the Director [only] a single appeal"[44]. It would appear that it was a view based on the Court's interpretation of the section and its intention. If it is accepted that the appellate rights conferred by s.18A are "unrestricted", then - as it seems to me - either party would be entitled to challenge the single judge's decision on appeal. Given the fact that the rights conferred by s.18A are not confined, the Director's appellate rights would not be trammelled by concepts in the nature of "double jeopardy"; although they would be restricted (unlike those of the person charged) by the provisions of s.17A(4)(b) of the Supreme Court Act because, in the circumstances postulated, any appeal by the Director to the Court of Appeal would not, relevantly, concern "the liberty of the subject"[45], but would be from an interlocutory order in a matter of practice or procedure. As such leave would be required.

[64]

For the reasons stated, I am of the view that the appeal to this Court is competent. The remaining issue is whether the determination by Bongiorno, J. in the exercise of the jurisdiction conferred upon him by s.18A was erroneous. The nature of the "appeal" created by s.18A was explained clearly and accurately by the Appeal Division in Beljajev[51]. The words of sub-s.(1) are reminiscent of s.567A of the Crimes Act which gives to the Director a right of appeal to the Court of Appeal pursuant to Part VI of that Act against a sentence imposed upon a person convicted on indictment. Sub-section (6) is, in terms, similar to sub-s.(4) of s.567A of the Crimes Act which incorporates the powers exercisable by the Court of Appeal upon a Director's appeal against sentence. These powers are, themselves, powers of the same nature as those invested in the Court of Appeal by s.568(4) of the Crimes Act, which the Court exercises upon applications for leave to appeal against sentence brought by persons convicted on indictment. The principles which the Court applies are well known and were authoritatively stated by the Full Court in R. v. Taylor & O'Meally[52]. It is clear from these authorities - as the Court noted in Beljajev - that the principles which the Court applies in deciding a "Director's appeal" against sentence are broad, in the sense that intervention is not confined to demonstrated error of law. Rather, the Director may succeed if he can show that on any ground, whether of law or fact, the discretion of the primary judge has miscarried and can persuade the Court that a different order should have been made. Similar principles, therefore, are applied by the judge who entertains an appeal by the Director pursuant to s.18A of the Bail Act[53]. However, as was pointed out by the Court in Beljajev, the appeal which is brought to the Court by virtue of s.18A is an appeal against orders made "in a matter of practice and procedure", and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders[54].

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