[2015] ACTSC 3

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - History of bail - Refusal of bail is not conclusive of application being made - Connection between bail and remand order

STATUTES - ACTS OF PARLIAMENT - Interpretation - Definition of "serious offence" - Includes an offence charged in another jurisdiction

Acts Interpretation Act 1901 (Cth), s 15AA

Australian Capital Territory (Self-Government) Act 1988, (Cth)

Bail Act 1977 (Vic)

Bail Act 1992 (ACT), 5, 6, 9D, 9C, 10, 14, 17, 20C, 22, 30, 33

Bill of Rights (1 Will & Mary, Sess 2 c 2, 1688), s10

Crimes Act 1900 (ACT), ss 20, 24, 25, 212

Crimes Act 1900 (NSW), s 33(1)(a), 374

Crimes Act 1914 (Cth), ss 4J, 9G, 9H, 9J

Human Rights Act 2004 (ACT), ss 18, 30

Imperial Acts (Adoption and Application) Act 1850 (NSW) (14 Vict No 43)

Imperial Acts Application Ordinance 1986 (ACT) Sch 3 Pt 11

Indictable Offences Act 1848 (UK) (11 & 12 Vict c 42)

Justices Act 1902 (NSW)

Legislation Act 2001 (ACT), s 139, Pt 11.3

Magistrates Court Act 1930 (ACT), s 70

Remand Centres (Amendment) Act (No 2) 1996 (ACT), s 7

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 4F

Statute of Westminster (3 Edward 1 Stat 1 c 15), (4 Edward III c 2)

Supreme Court Act 1933 (ACT), s 68(3)(b)

Courts Legislation Amendment Bill 2010 (ACT)

Antunovic v Dawson (2010) 30 VR 355

Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391

Challis v The Queen [2008] NSWCCA 210; (2008) 188 A Crim R 154

Clooth v Belgium [1991] ECHR 71; (1991) 14 EHRR 717

Forster v Forster [1907] VicLawRp 31; (1907) VLR 159

In re Nottingham Corporation [1897] 2 QB 502

In the Matter of a Bail Application by Massey [2008] ACTSC 145

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429

Re Application for Bail by Islam (2010) 4 ACTLR 238

Re an Application for Bail by Merritt (No 1) [2009] ACTSC 56

Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7

Rogers v Magistrates Court of South Australia [2004] SASC 428; (2004) 90 SASR 560

R v Rochford; Ex parte Harvey (1967) 15 FLR 140

The Queen v Creighton [2011] ACTCA 13

Tomasi v France [1992] ECHR 53; (1993) 15 EHRR 1

Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668

Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797)

Sir James Stephen, History of the Criminal Law of England (1883) v 1

Douglas Brown, "Bail: An Examination" (1971) 45 Australian Law Journal 193

Explanatory Memorandum for the Bail Bill 1992 (ACT)

Explanatory Memorandum for the Bail Amendment Bill 2001 (ACT)

Explanatory Memorandum for the Remand Centres (Amendment) Bill 1996 (No 2) (ACT)

Supplementary Explanatory Statement to the Courts Legislation Amendment Bill 2010 (ACT)

Legal Aid ACT (Applicant)

1. On 31 May 2014, Taniela Pikula, the applicant, was arrested by police. It was alleged that he had been involved in a serious fight at premises in McKellar, a Canberra suburb, when it is said he assaulted a young man causing him actual bodily harm and attacked another man with a knife, causing him grievous bodily harm.

2. As a result, Mr Pikula was charged with assault occasioning actual bodily harm, an offence contrary to s 24 of the Crimes Act 1900 (ACT), which attracts a maximum penalty of five years' imprisonment, and recklessly inflicting grievous bodily harm, an offence against s 20 of the Crimes Act, rendering him liable to a maximum penalty of fifteen years' imprisonment.

3. After proceedings in the ACT Magistrates Court, he was, on 12 August 2014, committed for trial to this Court. An indictment dated 16 September 2014 included, as well as the above offences, a further offence, preferred ex officio, namely causing grievous bodily harm by an unlawful act or omission, an offence prohibited by s 25 of the Crimes Act and which provides for a maximum penalty of five years' imprisonment.

4. Mr Pikula has now applied for bail. To understand the application, it is necessary to give some background.

5. Bail at common law traces its roots back to Norman and French traditions. Indeed, Fox J, in R v Rochford; Ex parte Harvey (1967) 15 FLR 140 at 141, quoted with approval the comment of Sir James Stephen, in his magisterial History of the Criminal Law of England (1883) v 1 p 243, namely, "The power of the superior courts to bail in all cases whatever, even high treason, has no history ... It exists in the present day precisely as it has always existed from the earliest times".

6. Pollock B described it in In re Nottingham Corporation [1897] 2 QB 502 at 510 by citing what he described as "a book of very high authority", the very early law dictionary John Rastell, Termes de la Ley (1527), though somewhat modernising the language, as follows:

Bail is when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty, and being by law bailable, offers sureties to those who have authority to bail him, which sureties are bound for him to the King's use in a certain sum of money or body for body, that he shall appear before the justices of gaol delivery at the next sessions, &c.; then upon the bonds of these sureties as is aforesaid he is bailed, that is, set at liberty, until the day appointed for his appearance.

7. I pointed out in Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7 at [30], the common law's concern with bail was that the accused person would appear to take his or her trial. That, however, did not limit the enquiry on a bail application as explained in the useful detailed analysis of bail at common law in modern times by Douglas Brown, "Bail: An Examination" (1971) 45 Australian Law Journal 193.

8. It was, however, a recognition of the importance, recognised by the law, of the fundamental right of members of the community to liberty. Bell J in Antunovic v Dawson (2010) 30 VR 355 has explored the authorities in detail.

9. Bail was affected by legislation from time to time, perhaps the most famous example being the Bill of Rights (1 Will & Mary, Sess 2 c 2, 1688) which, by s 10, required that "Excessive bail ought not to be required" (see Imperial Acts Application Ordinance 1986 (ACT) Schedule 3 Part 11). Earlier, however, the Statute of Westminster (3 Edward 1 Stat 1 c 15) had set the main foundations by enumerating the accused who were not bailable. There were some subsequent statutory modifications to the common law (eg to permit justices of the peace to grant bail: (4 Edward III c 2). The statutes, however, left the procedure and law as to the considerations relating to bail largely alone.

10. There was some later legislative activity in the United Kingdom. The Criminal Law Act 1826 (UK) (7 Geo 4 c 64), and then the Indictable Offences Act 1848 (UK) (11 & 12 Vict c 42), superseded the previous legislation on the subject and resulted in the sole criterion for a grant of bail becoming the risk that the accused would not appear to take his or her trial. These statutes, however, were never regarded as part of the inherited law of Australia, though the latter Act was adopted, with some amendments, in 1850 by the Imperial Acts (Adoption and Application) Act 1850 (NSW) (14 Vict No 43) and then repealed by the Justices Act 1902 (NSW).

11. This changed substantially in the second half of the twentieth century, however, when Australian legislatures started to codify bail, following the lead of Canada which enacted the Bail Reform Act 1971 (Can). In Australia, Victoria led with the Bail Act 1977 (Vic) and in the next decade all States and Territories made bail acts, except this Territory, which only did so in 1992, and Tasmania in 1994.

12. The Bail Act 1992 (ACT), referred to in these reasons as the Bail Act, was initially suggested to have consolidated but not to have codified the law of bail. See Explanatory Memorandum to the Bill which became the Bail Act. It later effectively and, probably, in law, became a code by abolishing "[a]ny inherent power of the Supreme Court to grant bail" in 1996 (s 57AA, inserted by s 7 of the Remand Centres (Amendment) Act (No 2) 1996 (ACT). That was, in any event, clearly the intention as expressed in the Explanatory Memorandum circulated by the Attorney-General for a Bill that became that Act. Whether this amendment is inconsistent with s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) is not a matter I need to consider.

13. Among amendments introduced were express criteria for the grant of bail (s 22 of the Bail Act) which widened from the earlier single criterion of whether the accused would attend to take his or her trial (including the likely severity of the sentence on conviction) to other considerations such as whether the accused would commit further offences or interfere in some way with evidence or witnesses.

14. The Bail Act also altered the position of a surety. As I described in Re an Application for Bail by Merritt (No 1) [2009] ACTSC 56 at [25]- [27], a surety was, at common law, the actual custodian of the failed person, but the Bail Act abolished the authority of the surety to arrest the bailed person. It also specified the duties of a surety which did not require the surety to monitor or be responsible for the failed person's compliance with the conditions of bail, other than to appear in court as required.

15. The Bail Act has been amended from time to time by changes that seem principally to have been intended to make it harder for applicants, especially charged with more serious offences, to obtain bail, but it has also increased the complexity of the procedure. Thus, it has become quite prescriptive in the procedural requirements for bail applications. It has, in particular, now included two provisions which are particularly relevant to Mr Pikula's bail application.

16. The first is in s 20C of the Bail Act which, in summary, requires an applicant for a second or subsequent application for bail to show that, since the last application, there has been a change in circumstances relevant to the granting of bail or fresh evidence or information relevant to the granting of bail that was unavailable at the last application. The second is in s 9D of the Bail Act, with which I will have to deal in some detail.

18. After Mr Pikula was committed for trial to this Court, he appeared on a number of occasions for case management. His trial was then listed for callover on 17 November 2014. The trial was then listed for hearing to commence on 7 April 2015. The annotation on the bench sheet stated that the Court then ordered "Bail refused".

19. In the affidavit of Mr Pikula's lawyer, filed in support of this application, his lawyer deposed in paragraph 6

The applicant has not previously applied for bail with respect to the charges subject to this proceeding.

20. The Crown, as respondent to the bail application, did not take issue with that statement and I accept it, subject to being assured that the court records are not inconsistent with it.

21. As noted above (at [1]), Mr Pikula was arrested on 31 May 2014, presumably under s 212 of the Crimes Act. That ended his liberty unless and until released. He could be released by police, either by release under s 212(3) of the Crimes Act (sometimes called being "unarrested"), or by being granted bail under s 14 of the Bail Act by a police officer who is an authorised officer under the Bail Act.

22. Under s 17 of the Bail Act, an arrested person who has been charged with an offence and not released by police in either of the ways set out above (at [21]) must be brought before a court as soon as practicable and, in any case, within forty-eight hours of being taken into custody, that is, being arrested.

23. It seems clear, at least by implication from ss 5 and 6 of the Bail Act, that, once before the court, a person who is arrested is in the custody of the court. He or she can only be released by the court, which may allow him or her to be at large (the usual and appropriate response to an appearance following service of a summons), by the court dispensing with bail under s 10 of the Bail Act, or by being granted bail under the Bail Act. If not so released, the person may be remanded in custody under s 70 of the Magistrates Court Act 1930 (ACT), which provides a limit on the length of the remand.

24. When Mr Pikula was first committed for trial to this Court, he was remanded in custody by an order of this Court made in chambers on 21 August 2014. The remand was "to a date to be advised by the Registrar".

25. That order was made under s 68(3)(b) of the Supreme Court Act 1933 (ACT), which empowers this Court to hold an accused person in custody or admit him or her to bail. When held in custody, the accused is said to be remanded (ie "sent back") to custody. Such a remand may be subject to limits, at least as to the length of the remand, under the Human Rights Act. See, for example, Tomasi v France [1992] ECHR 53; (1993) 15 EHRR 1.

26. It seems to me that, if the person subsequently appears in court, the remand is at an end. The person remains in the custody of the court (for the reasons set out above at [23]) and an order for release or a further remand must be made. In the case of a person on bail, however, the Bail Act provides a convenient short cut in s 33 that, if no direction is given in respect of such a person, the court is taken to have continued the bail and the person remains bound by the undertaking to appear.

27. The bench sheet discloses that, on 17 November 2014, Mr Pikula was not present in Court. That is not determinative that the remand had not been broken. He may have been required by the Registrar to attend, but, because he was legally represented, he may have been excused from attendance under s 30 of the Bail Act. In this event, it would have been necessary to make a remand order.

28. While it may be a little opaque, an order that bail is refused may amount to an elliptical remand order, given the very close association between bail and remand, the reason for one being the denial of the other.

29. Even if I am wrong about this, the order refusing bail does not necessarily imply that an application has been made, though it may be preferable to make a remand order rather than refuse an application that has not been made, especially as there may be serious consequences for any application for bail subsequently made.

30. Accordingly, I accept that Mr Pikula has not made an earlier bail application in this Court. Thus, no question of a need for compliance with s 20C of the Bail Act arises.

31. When Mr Pikula was arrested, he was, at the time, on bail for other charges. On 14 December 2013, he had been arrested when police alleged that he was present in his sister's home in Queanbeyan and during the early hours of the morning he armed himself with a knife and stabbed the victim in the forearm with the knife. As a result, he was charged with three offences, including wounding a person with intent to cause grievous bodily harm in a domestic violence related incident. This offence is contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), which section sets out the maximum penalty as twenty-five years' imprisonment. I shall refer to this as the NSW offence.

32. In his affidavit, Mr Pikula's lawyer deposed in relation to the current offences on which bail had been refused

At the time of the alleged offending, the applicant was facing charges in the NSW Local Court. Prior to his arrest, the applicant had been admitted to bail on the NSW charges. Those charges are next listed before that court on Monday, 22 December for mention. However, those matters are not in a position to proceed until the applicant's current ACT matters are resolved.

33. This appeared to be common ground between the parties.

34. The Crown submits that this circumstance means that Mr Pikula is subject to s 9D of the Bail Act. That section provides

9D Bail for serious offence committed while charge for another pending or outstanding

(1) This section applies if -

(a) a person is accused of a serious offence; and

(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

Example

Claude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years' imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years' imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -

(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults); or

(b) for a child - the matters mentioned in section 23 (Criteria for granting bail to children).

(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence - bail by authorised officer).

(5) This section does not affect the application of section 9F (4) and (5) to the accused person if -

(a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and

(b) an authorised person grants bail to the accused person.

(6) In this section:

outstanding - a charge against a person for an offence is outstanding -

(a) until the charge is finally dealt with in any of the following ways:

(i) the charge is withdrawn;

(ii) the charge is dismissed by a court;

(iii) the person is discharged by the Magistrates Court following a committal hearing;

(iv) the person is acquitted or found guilty by a court of the offence; and

(b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal - from the date the new trial is ordered until the earliest of the following happens -

(i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);

(ii) the order for the new trial is reversed on a further appeal.

Note Found guilty, of an offence, includes -

• having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders - general)
• having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing)

(see Legislation Act, dict, pt 1).

pending - a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has -

(a) been arrested for the offence (unless the person is later released without being charged with a serious offence); or

(b) been served with a summons to appear before a court to answer a charge for the offence; or

(c) at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.

serious offence means 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).

35. The Crown submitted that the fact that Mr Pikula was on bail for the NSW offences at the time he is alleged to have committed the offences on which he has been refused bail meant that s 9D of the Bail Act regulated this bail application.

36. Mr H Jorgensen, counsel for Mr Pikula, submitted that s 9D of the Bail Act did not apply. He submitted that the definition of "serious offence" did not include an offence charged in another jurisdiction; it was limited to offences charged under Territory law.

37. Mr Jorgensen very properly conceded that, if his submission was not upheld, then the bail application could not succeed, as there were no special or exceptional circumstances (at least as these words had been interpreted in this jurisdiction: In the Matter of a Bail Application by Massey [2008] ACTSC 145 at [8]) which favoured the grant of bail.

38. Mr Jorgensen based his submission on the reference in the definition of "serious offence" in s 9D(6) of the Bail Act to "the Crimes Act 1900, section 374". There was no such provision in the Crimes Act 1900 (NSW).

39. He submitted that this there was an indication by the reference to that provision that the offences, which were serious offences, were restricted to offences against Territory laws. In addition, he submitted that the provision could not work if it was applied to interstate offences.

40. This is not a question about the extra-territorial operation of the legislation, where the legislature of this Territory is presumed not to deal with persons or matters the jurisdiction over which properly belongs to some other sovereignty. See Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391 at 423-4 per Dixon J, where his Honour, after describing this principle, quoted with approval the statement of Cussen J in Forster v Forster [1907] VicLawRp 31; (1907) VLR 159 at 164 that the relevant Act is to be construed so as to harmonise with the rules of international law.

41. A legislature may refer to events which might or might not occur within the Territory as providing a precondition to an effect which occurs wholly within the Territory. For example, s 4F of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) defines a person as a repeat offender if he or she is convicted of an offence (which has to be an offence under that Act) but where the person has already been convicted of a relevant offence, which is defined to include an offence against a law of another jurisdiction that corresponds to the offences under the Act or arises out of the use of a motor vehicle by a person who is or may be affected by alcohol or a drug or both. That is to say, the Act makes no effort to interfere with the proper traffic regulation of another jurisdiction, but simply provides a consequence for those who have previously committed offences of a like kind when committing such offences in the Territory, but not limiting the consequence to those who have committed such offences previously only in the Territory.

42. While this example does not limit corresponding offences to those committed in Australia, it is clear that, in the federation that is the Commonwealth, where there is a frequent movement of people between States and Territories, such an approach accords with common sense.

43. The question, however, is whether that is the approach that has been adopted here. For example, in the Road Transport (Alcohol and Drugs) Act, the legislature has been at some pains to describe the offences that may qualify as offences for the purpose of rendering offenders in the Territory as repeat offenders and has given a complex description of them. That, however, is because of the nature of the exercise; it requires a clearer description of the nature and subject matter of the offending.

44. Here, in contrast, the relevant similarity is in simply the maximum length of imprisonment for the offence. This is a helpful discriminator, for, as the High Court has observed in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31] "The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence". Of course, different jurisdictions can have different statutory penalties for what is essentially the same offence (as to which see, The Queen v Creighton [2011] ACTCA 13 at [41]- [42]) but it cannot be said other than that, whatever the individual maxima for particular offences, a sentence of at least five years' imprisonment means that the offence is a serious one in the ordinary sense.

45. The question, then, is whether the exception expressed in the definition (which, I note, has, in the print version, lost the second bracket that it should have at the very end - perhaps remediable in the next publication under Pt 11.3 of the Legislation Act 2001 (ACT)) has the effect that the reference to "offence punishable by imprisonment for 5 years or longer" is only to such offences under Territory laws. That exception is "other than an offence in relation to which an election for summary disposal has been made under Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor's election)".

46. It is helpful to consider the precise terms of s 374 of the Crimes Act which is as follows:

374 Summary disposal of certain cases at prosecutor's election

(1) This section applies if a person (the defendant) is before the Magistrates Court charged with an offence punishable by imprisonment for longer than 2 years but not longer than 5 years.

(2) The prosecutor must elect whether to have the case disposed of summarily.

(3) The defendant must not be required to plead guilty or not guilty to the charge if the prosecutor has not made an election under subsection (2).

(4) The prosecutor must make the election before the later of -

(a) the 2nd time the proceeding for the offence is before the court; and

(b) 21 days after the 1st time the proceeding for the offence is before the court.

(5) If the prosecutor does not elect to have the case disposed of summarily within the time required under subsection (4), the court must deal with the charge in accordance with section 375 (6) to (16).

(6) If the prosecutor elects to have the case disposed of summarily, the court must hear and determine the charge summarily and sentence or otherwise deal with the defendant according to law.

(7) If the court disposes of a case summarily under this section and convicts the defendant of the offence, the court must not impose a penalty that exceeds -

(a) a fine of $5 000, imprisonment for 2 years or both; or

(b) if the maximum penalty provided for the offence by the law creating it is a fine of less than $5 000 - the maximum penalty.

(8) In this section:

Magistrates Court includes the Childrens Court.

(9) The Minister must -

(a) review the operation of this section as soon as practicable after the end of its 2nd year of operation; and

(b) present a report of the review to the Legislative Assembly within 3 months after the review is started.

(10) Subsection (9) and this subsection expire 3 years after the day this section commences.

47. It may be accepted that the exception to which I refer above (at [45]), will only apply to certain offences for which such an election could be made. These are only offences against Territory laws.

48. This introduces an anomaly. Despite s 68 of the Judiciary Act 1903 (ACT), it would appear that s 374 of the Crimes Act does not apply to Commonwealth offences, as ss 9G and 9H of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) define what are summary and indictable Commonwealth offences, and s 9J sets out when indictable offences may be dealt with summarily, a provision that "covers the field" and, for Commonwealth law, would replace s 374 of the Crimes [2004] SASC 428; Act. See Rogers v Magistrates Court of South Australia (2004) 90 SASR 560 at 565; [18].

49. If the reference to that section in the qualification to the definition of "serious offence" meant that such offences had to be Territory offences only, then the strange consequence would follow that a person on bail for an offence before the ACT Courts which was punishable by imprisonment for five years or more who is charged before those courts with committing another offence punishable by imprisonment for five years or more would only be subject to s 9D of the Bail Act if both offences were offences against Territory laws, but not if either one or both were an offence against a Commonwealth law. It is difficult to see that as consistent with the purpose of s 9D of the Bail Act.

50. I interpolate that the Commonwealth provision shows there to be another, but different, anomaly, for s 4J of the Commonwealth Crimes Act permits an offence punishable by up to ten years' imprisonment to be heard and determined summarily if both prosecution and defence consent and, in that case, the maximum penalty is two years' imprisonment (s 4J(3)). It is, thus, a very similar provision to s 374 of the Crimes Act. This means that a person whose proceedings are to be dealt with under s 4J would, nevertheless, be a serious offence if the penalty (absent s 4J(3)) were five years or more. The policy behind s 374 would suggest that that should not be the case.

51. Despite this anomaly, which seems to me to arise from a lack of familiarity with Commonwealth criminal law in the creators of s 9D of the Bail Act, I do not consider that it assists Mr Pikula. I do not consider that it is intended that Commonwealth offences before the Territory courts should not count as serious offences for the section.

52. Further, the definition of "serious offence" cannot apply only to offences for which an election under s 374 of the Crimes Act can be made, for that section only applies to "an offence punishable by imprisonment for longer than two years but not longer than five years": s 374(1). Indeed, were that the position, very few offences would be included in the meaning of "serious offences" for most of them would be punishable by more than five years' imprisonment.

53. None of the Bail Act, the Crimes Act nor the Legislation Act define "offence". On the other hand, this means that it has not been defined to mean an offence against a Territory law. It can have a wider meaning.

54. The Explanatory Memorandum, circulated by authority of the Attorney-General, for the Bail Amendment Bill 2001 (ACT) which, when enacted, introduced s 9D into the Bail Act, is unhelpful.

55. The question then resolves into one of statutory interpretation. Section 139 of the Legislation Act requires the court to prefer "the interpretation that would best achieve the purposes of the Act". It appears from what Dawson J said of the similar provision, s 15AA of the Acts Interpretation Act 1901 (Cth), in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 295, that the purpose may be that of the part of the Act rather than the whole Act; indeed, it may include the purpose of the specific provision. See Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 at 671-2 (endorsed on appeal: Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797).

56. This approach is, however, subject at all times to the words actually used and not by what others, including Ministers introducing the legislation, think they mean or wish they meant. See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449.

57. 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] NSWCCA 210; (2008) 188 A Crim R 154 at 161; [36].

58. 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.

59. It is also relevant to consider the legislative history of s 374 of the Crimes Act. It is, so far as I can gather, a provision unique to the Territory. It was introduced by an amendment moved by a private member, the Shadow Attorney-General. The Supplementary Explanatory Statement, circulated by the Shadow Attorney-General, pointed out that the principal Bill, the Courts Legislation Amendment Bill 2010 (ACT), was intended to address the backlog of cases in the Supreme Court by redefining "indictable offence" from the then current meaning of an offence punishable by imprisonment for two years to one punishable by imprisonment for five years. The Supplementary Explanatory Statement continued

The Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills & Subordinate Legislation Committee) in its Reports numbered 32 raised concerns about the human rights implications of this proposal.

The amendments proposed by Vicki Dunne MLA to the Courts Legislation Amendment Bill 2010 would remove the Government's redefinition of 'indictable offence' and create, as an alternative, a simple process to enable certain criminal matters to be dealt with summarily in the Magistrates Court. That process would largely be contained within one section to be added to the Crimes Act 1900 and would not require the extensive amendments to the definition of 'indictable offence' as is provided in the Government's Bill.

That section would provide that the prosecutor, within a prescribed timeframe, would be required to make an election as to whether an indictable offence carrying a penalty of longer than two years but not longer than five years' imprisonment is to be dealt with summarily in the Magistrates Court. In the event the prosecutor does not make an election, the case would be dealt with in accordance with section 375(4) to (14) of the Crimes Act 1900.

60. This puts the provision into a context which seems to me to show that s 374 of the Crimes Act is intended to address a particularly local issue, brought about by the reform proposed to address the Territory specific issue of the workload of the Supreme Court and the effect that the Human Rights Act 2004 (ACT) had on the proposal.

61. By being so specific, the section was only relevant to Territory offences and intended to exempt those offences which, though otherwise punishable by a maximum of five years' imprisonment, were, by election of the prosecutor, presumably made wholly or substantially because of the less serious nature of the circumstances of the offence, to be dealt with in this way.

62. That specificity strongly suggests to me that the qualification in the brackets to the meaning of "serious offence" as defined in s 9D of the Bail Act 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.

63. Thus, I see no basis for suggesting that s 9D of the Bail Act is limited to applying only where both offences, that for which bail has already been granted and that of which the applicant is subsequently charged, are Territory offences.

64. Given the importance of the right to liberty, recognised by s 18 of the Human Rights Act, it is appropriate that I consider whether the interpretation submitted by Mr Jorgensen is consistent with that right and the interpretation I have concluded applies is not consistent. See s 30 of the Human Rights Act. I do not consider that either is correct. There seems to me to be no unjustifiable infringement of Mr Pikula's rights in the wider interpretation that I have placed on s 9D of the Bail Act. Indeed, the fact that a person may commit further offences is a justified basis for refusing bail as held in Matznetter v Austria (1969) 1 EHRR 198 at [9]. There is no suggestion that the further offences are only those within the court's jurisdiction. Similarly, prior offending is relevant, especially if the offences are similar in nature or degree of seriousness, as noted in Clooth v Belgium [1991] ECHR 71; (1991) 14 EHRR 717 at [40]. Again, there is no suggestion of any jurisdictional limits to the prior offending.

65. Neither party raised any question of whether s 9D of the Bail Act is inconsistent with the Human Rights Act as Penfold J held in the case of s 9C of the Bail Act in Re Application for Bail by Islam. That would, of course, not have advanced Mr Pikula's application for bail in any event.

66. Mr Pikula is subject to s 9D of the Bail Act and his application must be dealt with accordingly.

67. Given the concession he very properly makes, through his counsel, that there are no special or exceptional circumstances favouring bail in his case, his application must be dismissed.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.