IONGI v R

The consequence of the above history on the jurisdiction of this Court

To the extent that this Court has jurisdiction to determine the application, that jurisdiction is to be found in the Bail Act: see Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153 at [7]; Mashayekhi v R [2021] NSWCCA 55 at [38]-[39]; Noufl v Director of Public Prosecutions (NSW) (2018) 274 A Crim R 519; [2018] NSWSC 1238 at [58]. It is necessary then to consider the provisions of that Act in some detail.
Parts 1 to 4 of the Act deal with matters of a preliminary nature, definitions and matters of general application. It will be necessary to return to some of these provisions. Part 5 is titled "Powers to Make and Vary Bail Decisions". Division 1 of that Part deals with powers of police officers. Division 2 is titled "Powers of Courts and Authorised Justices - Bail Applications" and includes s 49.
The present proceedings were commenced by an application brought pursuant to s 49(1) of the Act which, reproduced with its heading, provides: 49 Accused person may make release application (1) A person accused of an offence may apply to a court or authorised justice for bail for the offence to be granted or dispensed with.
The application is called a "release application": s 49(2). On hearing the release application, a court (or authorised justice) may dispense with bail, grant bail (with or without conditions), or refuse bail: s 49(3). If a bail decision has previously been made, a court may, after hearing the application affirm or vary the earlier decision: s 49(4). Sections 50 and 51 make provision for detention applications and applications for variation by interested persons.
Section 48 makes provision for a court or authorised justice to hear one of the applications referred to above. That section, together with its heading, is as follows: 48 Powers of courts and authorised justices to hear bail applications (1) A court or authorised justice may make or vary a bail decision, in the manner provided for by this Division, after hearing a bail application. Note - There are 3 types of bail application - (a) a release application (which can be made by the accused person), or (b) a detention application (which can be made by the prosecutor), or (c) a variation application (which can be made by any interested person). (2) A bail application can be made to, and heard by, a court or authorised justice only if the court or authorised justice has power to hear the application. (3) A court or authorised justice has power to hear a bail application in the circumstances specified in Part 6. Note - In general, a court has power to hear a bail application if - (a) proceedings for the offence are pending in the court, or (b) proceedings on an appeal against a conviction or sentence of the court are pending in another court and the accused person has not made a first appearance before the other court, or (c) the bail decision to be varied was made by the court. However, additional powers, and restrictions on powers, also apply under Part 6.
Despite the heading to s 48, it does not confer a general power on courts to hear bail applications. As can be seen, s 48(2) provides that a bail application can be "made to, and heard by, a court or authorised justice only if the court or authorised justice has power to hear the application". Section 48(3) provides that such powers are to be found in Part 6 of the Act.
Part 6 of the Act is titled "Powers to Hear Bail Applications". Consistent with the note to s 48(3) set out above, there are general powers (in Division 2) to hear applications for "an offence" where proceedings for "the offence" are pending in the court: s 61; and a power to hear an application for "an offence" if the court has convicted a person of "the offence" and proceedings on appeal are pending in another court but the person has not yet appeared before the court in the appeal proceedings: s 62. A court may also hear a variation application with respect to its own bail decision: s 63. None of those general powers are applicable to the present circumstances.
Division 3 is headed "Additional Powers" and gives specific powers to the Local Court and authorised justices (s 64); the District Court (s 65); the Supreme Court (s 66) and the Court of Criminal Appeal (s 67).
For the reasons given by Hamill J in Noufl at [32]-[38], for the purposes of the Act, the Supreme Court is not the Court of Criminal Appeal and the Court of Criminal Appeal is not the Supreme Court. Thus, if this Court has power to hear the present application it is to be found in s 67. That section, together with its heading, is as follows: 67 Powers specific to Court of Criminal Appeal (1) The Court of Criminal Appeal may hear a bail application for an offence if - (a) the Court has ordered a new trial and the new trial has not commenced, or (b) the Court has made an order under section 8A (1) of the Criminal Appeal Act 1912 and the person is before the Court, or (c) the Court has directed a stay of execution of a conviction and the stay is in force, or (d) an appeal from the Court is pending in the High Court, or (e) a bail decision has been made by the Land and Environment Court or the Supreme Court. (2) Despite subsection (1) (e), a Judge of the Court of Criminal Appeal sitting alone cannot hear a bail application if a bail decision has been made by the Supreme Court (however constituted) unless the rules made under the Supreme Court Act 1970 permit the Judge to do so.
The present matter was in this Court, with the assumption that s 67(1)(e) applied, the applicant having been refused bail by Davies J in the Supreme Court. Clearly none of s 67(1)(a)-(d) apply. Section 67(1)(e) allows this Court to hear a bail application for an "offence" if a "bail decision" has been made by the Supreme Court. "Offence" is defined in s 4 of the Act in a manner that is of no significance for present purposes ("offence includes an alleged offence"). The definition of "bail decision" and "bail" in s 4 refer the reader to ss 8 and 7 respectively. Section 8 provides: 8 Bail decisions that can be made (1) The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an offence - (a) a decision to release the person without bail for the offence, (b) a decision to dispense with bail for the offence, (c) a decision to grant bail for the offence (with or without the imposition of bail conditions), (d) a decision to refuse bail for the offence. Note - Part 3 sets out how a bail decision is to be made by a bail authority. (2) A bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings for the offence are pending before a court. (3) A bail decision can also be made in respect of a person who is not accused of an offence in the circumstances specified in Schedule 1. Note - Schedule 1 provides for the grant of bail where a person is required to appear in proceedings otherwise than because he or she is accused of an offence. In such cases, this Act applies as if the person were accused of an offence.
Section 7 provides: 7 What is bail (1) Bail is authority to be at liberty for an offence. Note - An offence includes an alleged offence. (2) Bail can be granted under this Act to any person accused of an offence. (3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody. Note - Limitations to the entitlement to be at liberty are specified in section 14.
As can be seen from the above, bail, and in turn bail decisions, are specific to offences. This is consistent with other provisions referred to above which refer to bail for "an offence" or "the offence" and with the Act more generally. While s 5 provides a definition of "proceedings for an offence" it remains the case that bail decisions are made with respect to particular offences and not in relation to some broader idea of a proceeding or an arrest.
To return to the history, the applicant has made a release application in relation to sequences 3 - 5. The determination by Davies J was a refusal of bail with respect to sequences 1 and 2. It follows that there has been no "bail decision" made by the Supreme Court in this matter. It follows that this Court has no jurisdiction to hear the matter.
Before leaving the matter, it is appropriate to say something more. The jurisdiction of this Court to hear de novo bail applications has previously been the subject of comment: Saadieh per Beech-Jones CJ at CL at [2]-[3]; Adamson J at [62]-[66]; Bathurst CJ agreeing at [1]; Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 per Beech-Jones CJ at CL at [49]. I agree with those observations. However, to the extent that this Court has been given jurisdiction, the present case demonstrates an unfortunate stricture on the Court's power to hear to such applications. For all practical purposes the applicant has passed through the steps that would normally allow him to make an application to this Court. It is a waste of the resources of the Court and the parties to require him to return to the Supreme Court.
That said, it should be noted that a consequence of the above analysis is that s 74 of the Act will have no application should the applicant make a release application in the Supreme Court. Section 74(1) of the Act operates to restrict a further release application to a court that has previously refused or a affirmed a decision to refuse bail "for an offence". In such a case, the court is to "refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application". A release application to the Supreme Court in relation to the current charges would not be an application for bail for the offences with respect to which the applicant was refused bail by Davies J. Consistently with the reasoning above, the release application would thus not be caught by s 74(1) of the Act. Given that it is open to the applicant to explore this avenue, I prefer not to express any view as to the merits of the application in this Court: cf Rogers; Mashayekhi. While in each of those cases consideration was given to the merits of the application despite the lack of jurisdiction, that was in circumstances where there was no alternative avenue available that the applicants there might have pursued.

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