In the matter of an application for bail by Serena Holmes [2011] ACTSC 187 (18 November 2011)

20B Power in relation to bail - Supreme Court

The Supreme Court has power to make a bail order in relation to an accused person only if -

(a) a proceeding for an offence with which the person is charged is before the Supreme Court; or

(b) if the proceeding is not before the Supreme Court - section 43 (Power of Supreme Court to review - decision of authorised officer) or section 43A (Power of Supreme Court to review - decision of Magistrates Court or Supreme Court) apply.

4. As the proceedings for the offence charged against the applicant are in the Magistrates Court, this Court could only grant bail if s 20B (b) of the Act is satisfied. Section 43 of the Act, dealing with applications to review decisions of authorised officers, clearly has no application to the present case, meaning that this Court's power to grant bail to the applicant depends on the applicant establishing that s 43A of the Act applies. This section provides:

43A Power of Supreme Court to review - decision of Magistrates Court or Supreme Court

(1) This section applies if a decision in relation to bail for an accused person has been made by -

• (a) the Magistrates Court in accordance with section 42A (Power of Magistrates Court to review - decision of Magistrates Court); or
• (b) the Supreme Court.

(2) The Supreme Court may, on application under this division, review the decision of the court, only if the court is satisfied that the applicant has shown -

• (a) a change in circumstances relevant to the granting of bail since the court's decision; or
• (b) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.

5. On its face s 43A of the Act could only apply, relevant for present purposes, if a decision in relation to bail for the applicant had been made by the Magistrates Court in accordance with s 42A of the Act. This provides:

42A Power of Magistrates Court to review - decision of Magistrates Court

The Magistrates Court may, on application under this division, review any decision of the court (however constituted) in relation to bail for an accused person, only if -

(a) the court has power to make a bail order under section 20 (1) (a) (Power in relation to bail - Magistrates Court); and

(b) the court is satisfied that the applicant has shown -

• (i) a change in circumstances relevant to the granting of bail since the court's decision; or
• (ii) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision; and

(c) for an application made by the accused person - the person has made 2 applications for bail in the Magistrates Court in the proceeding to which the bail relates.

6. Counsel for the respondent accepted that the preconditions for the Magistrates Court conducting a review of bail under s 42A of the Act had been met, but submitted that no application for review had been made to, or heard by, the Magistrates Court. As such, it was his submission that the requirements of s 43A of the Act had not been satisfied. If this were correct, this Court would not have jurisdiction under s 20B of the Act to hear this application.

7. The Magistrates Court record, by way of the bench sheet, shows that the applicant initially applied for bail in the Magistrates Court on 30 September 2011. At that time bail was refused, and she was remanded in custody to 21 October 2011. On 11 October 2011 she again applied for bail, which was again refused. She was remanded in custody again until 21 October 2011. On that date the Magistrates Court was again asked to consider the issue of bail, although it is not clear from the bench sheet whether there was a bail application or an application for review of the earlier decision to refuse bail. Counsel for the respondent submitted that the proceedings in the Magistrates Court on 21 October 2011 constituted an application for bail pursuant to s 20A of the Act, and not an application to review bail.

8. There was nothing on the Magistrates Court bench sheet to indicate the nature of the application before the court on 21 October 2011.

9. The Act distinguishes between applications to grant or dispense with bail and applications to review bail decisions. Applications to grant or dispense with bail are dealt with in Parts 2, 3, 4 and 5 of the Act. Some provisions of Part 7 are also relevant to applications to grant or dispense with bail. Applications to review bail decisions are governed by Part 6 of the Act.

10. The combined effect of ss 20B, 42A and 43A of the Act is that this Court has no jurisdiction to make a bail order with respect to an accused facing charges in the Magistrates Court until two applications for bail have been made in the Magistrates Court, and an application for review of a bail decision has also been made in that Court. It is therefore imperative that practitioners take care to identify to the Magistrates Court the nature of any application concerning bail made to that Court. Magistrates should also take care to enter onto the bench sheet, as the record of the court, the legal nature of the application.

11. In the instant case, Mr Edmonds, counsel for the applicant, informed me that he appeared for the applicant in the Magistrates Court on 21 October 2011 and advised the magistrate that the application was one for review of a bail decision, presumably the order refusing bail on 11 October 2011. On the basis of that assurance, I was satisfied that I had jurisdiction to hear the application. After granting bail to the applicant, the parties requested that I provide written reasons for my decision. These are those reasons.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the applicant: Canberra Criminal Lawyers

Solicitor for the respondent: ACT Director of Public Prosecutions