(b) the approach of the primary judge
28Before the primary judge the applicant asserted that Burrell demonstrated he enjoyed a high prospect of success in the High Court. This reliance appears to misunderstand what was decided by the High Court in Burrell . The procedural background involved two judgments of this Court. The second sought to reopen the first, on the basis of acknowledged factual errors. The first decision was, however, confirmed by the second judgment. In the High Court, the second judgment was set aside on the basis that the Court had no power to reopen its earlier perfected judgment, applying Grierson v The King [1938] HCA 45; 60 CLR 431, and Elliott v The Queen [2007] HCA 51; 234 CLR 38 at [7]. The High Court made no assessment of the factual errors, simply noting that there being "no dispute that the first orders were pronounced on an infirm factual foundation, those orders must also be set aside": at [29].
29After referring to the error in the judgment of the Court of Criminal Appeal and noting a possible explanation, which appeared to be inconsequential, the primary judge then stated at [14]:
"Before any conclusion could be reached that Mr Potier's confidence in success on appeal is well founded, he would need to establish a high likelihood that a number of things would occur, including that (a) the High Court would grant an extension of time in which to apply for special leave to appeal after so much time has elapsed since delivery of the judgment of this Court; (b) it would regard the matter as being of sufficient significance that it would grant special leave to appeal; (c) that it would allow the appeal and remit the matter to this Court for rehearing; (d) that this Court would accept that the Telstra material had not been disclosed as Mr Potier contends and that it would treat it as 'fresh evidence'...; and (e) that this Court would conclude that there had been a miscarriage of justice."
30It was conceded in the course of argument before this Court that the applicant had made no application to the High Court in respect of the first conviction appeal: Tcpt 28/07/11, p 1(36). Accordingly, no question arises of any grant of bail pending determination of any proceedings in the High Court. Furthermore, even had he done so, the applicant would not require bail in respect of the convictions and sentences for the first and second offences. Following an appeal to this Court, the orders of the sentencing judge were varied to make the sentence on the second offence partly cumulative upon the sentence of the first offence. In the result, the later of the two non-parole periods expired on 7 August 2006; the full term of the sentence expired on 7 January 2009. Accordingly the applicant is not serving any sentence in respect of the first two offences. His custody relates solely to his conviction for the third offence. Any issue of bail arises only in respect of that offence.
31It follows that, if the applicant seeks to pursue his bail application, he needs to identify the following matters:
(1) the terms of the sentence which he is presently serving;
(2) the pending proceeding in respect of which bail is sought ( Bail Act , s 30);
(3) the relevant grounds of appeal;
(4) the reasons for delay in having the pending proceedings determined;
(5) the date when the pending proceedings are likely to be heard;
(6) any other circumstances relied upon as "special or exceptional" for the purposes of s 30AA.
32So that the matter may be dealt with expeditiously, and now that, as it appears, the applicant has access to a computer and to counsel:
(1) the folder of materials should be amended to remove duplicated material and any material not relied upon (including letters of a procedural kind) and a single typed index identifying each document included;
(2) the applicant should file and serve a single document containing written submissions prepared by counsel, not to exceed 15 pages in length and not adopting other documents by reference;
(3) the respondent should file and serve submissions in reply, not to exceed 15 pages in length and not adopting other documents by reference;
(4) the matter will be listed before the Registrar for directions at 9am on 22 September, 2011. The directions shall include a timetable for the preceding steps.
33SIMPSON J : I have read in draft the judgments of Basten JA and Garling J.
34In my opinion, the jurisdictional issue in this matter can be determined by no more than reference to the application filed by the applicant, dated 18 September 2010, for bail. It is a handwritten document, apparently prepared by the applicant himself. It is on a pro forma that is designed for use in various applications, that is headed:
"APPLICATION FOR REVIEW OF BAIL DETERMINATIONS"
35In the applicant's application, the words "review of" and "determinations" are struck out, leaving the words " Application for Bail ". The pro forma contains provision for identification of the court in which the application is made. In that space, the applicant has written the word "Supreme". Below that, he has completed a space provided for identification of his next court appearance as "Court of Criminal Appeal" on 23 September 2010. The latter insertion indicates (as would be expected from the applicant's history) that he was familiar with the distinction between the Court of Criminal Appeal and the Supreme Court. He made his application in the Supreme Court.
36That is supported by his application for review of the bail determination of R A Hulme J. There, he asserted that he had been last refused bail by:
"Supreme Court, Common Law Division"
37The judgment of R A Hulme J is entitled, and given a medium neutral citation number appropriate to, a judgment of the Court of Criminal Appeal. It seems that his Honour was under the misapprehension that he was dealing with the application as a judge of the Court of Criminal Appeal. That, no doubt, came about because the application was one of three dealt with by his Honour on the same day. In Potier v R [2010] NSWCCA 231, his Honour said:
"Mr Potier has made three applications that I heard on 8 October 2010. There are two applications that persons be required to attend and give evidence and in relation to those I was sitting as a single judge pursuant to s 22 of the Criminal Appeal Act 1912. The third application was for bail, a matter I deal with in a separate judgment."
38In his judgment on the bail application (entitled Potier v R [2010] NSWCCA 234) his Honour noted that the applicant had applied for bail in respect of a matter in which an appeal was pending in the Court of Criminal Appeal, and said that the power of the court to grant such an application is provided by s 30 of the Bail Act 1978. Section 30 confers jurisdiction on the Court of Criminal Appeal to grant bail in specified circumstances.
39Notwithstanding that, there being no evidence that the application was transferred from the Supreme Court to the Court of Criminal Appeal, I am satisfied that the reality is that his Honour was sitting as a judge of the Supreme Court. That leaves beyond doubt the jurisdiction of this Court to review the determination: Bail Act s 45(1)(b).
40That being so, and being the common understanding of all members of this Bench, I expressly refrain from embarking on consideration of whether R A Hulme J was properly constituted as the Court of Criminal Appeal pursuant to s 3 of the Criminal Appeal Act 1912. The question is simply irrelevant. Specifically with respect to para [21] of the draft judgment of Basten JA, I have not been party to any inquiries made of the Registrar of the Court of Criminal Appeal concerning the constitution of the court on the days in question. Had I been invited to take part in any such inquiries, I would have declined.
41I note, however, that s 3 provides that the "Supreme Court shall for the purposes of this Act [ie the Criminal Appeal Act ] be the Court of Criminal Appeal" (emphasis added), and "be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct."
42On any view, the application made by the applicant was made to the Supreme Court under the Bail Act . It was not made "for the purposes of the [ Criminal Appeal Act ]". By s 4 of the Bail Act , the Court of Criminal Appeal includes a judge of that Court (ie the Court of Criminal Appeal); R A Hulme J is a judge of the Supreme Court; by s 3 of the Criminal Appeal Act he is a judge of the Court of Criminal Appeal.
43Section 3(1) has been part of the Criminal Appeal Act from its introduction in 1912. It has not kept pace with subsequent amendments: for example s 22, which confers power on single judges of the Court of Criminal Appeal to exercise certain specified powers, (not including the grant of bail) but does not expressly require direction of the Chief Justice as to constitution of the court. Plainly, the requirement of s 3 that the court be constituted by such three or more judges of the Supreme Court does not apply to the exercise of powers under s 22; and it is at least debateable whether the power of the Court of Criminal Appeal under s 30 of the Bail Act to grant bail is limited to the court constituted as prescribed by s 3.
44Questions of the interaction of the Bail Act and the Criminal Appeal Act may arise for determination at some time. They do not call for consideration or determination in this case, and I expressly refrain from stating a view in relation thereto. Nor do I join in the observations contained in the judgment of Basten JA at [23] - [31]. In respect of the further pursuit of his application for review of the bail determination, the applicant should take such advice as is available to him.
45Since no orders are proposed, it is sufficient simply that I express my agreement that there is no jurisdictional barrier to the further hearing of the application for review of the determination of R A Hulme J of 18 October 2010.
46GARLING J : I agree with the conclusion of Basten JA that this Court is engaged on the hearing of a review under s 45(1)(b) of the Bail Act of a decision of the Supreme Court (R A Hulme J) to refuse a bail application made by Mr Potier.
47I also agree that the directions proposed by Basten JA in [32] above ought to be made in order to facilitate the efficient conduct of the review by this Court.
48However, I reach that conclusion by a different path, and therefore express my reasons separately.
49The only extant sentence that Mr Potier is presently serving is that based upon a conviction after his trial for the third offence as the judgment of Basten JA clearly demonstrates. An appeal against conviction has been filed in this Court, and as well an application for leave to appeal against sentence. Those proceedings await hearing.
50The judgment of R A Hulme J, from which this application for review has been made, is entitled as if his Honour was sitting, albeit as a single judge, in the Court of Criminal Appeal. A question has arisen as to whether that was so. The determination of the question is important because it goes to the power of this Court to engage in a review.
51Ordinarily, a single judge of the Supreme Court determines all applications for bail: s 28 of the Bail Act . Where that occurs, a party aggrieved by the decision has a right to have the decision reviewed by the Court of Criminal Appeal: s 45(1)(b) of the Bail Act .
52Thus the statute provides for both an original decision and an appellate review of that decision.
53The Court of Criminal Appeal is empowered to grant bail in certain circumstances: s 30 of the Bail Act .
54Where bail is granted (or refused) by the Court of Criminal Appeal, there is no provision for any review of that decision by the Court: ss 44 and 45 Bail Act . In this case, the Court of Criminal Appeal is exercising an original jurisdiction.
55In the circumstances which exist in this case, whether the original bail application is being considered by the Court of Criminal Appeal or the Supreme Court, the effect of s 30AA of the Bail Act , is to limit a grant of bail to cases which depend on exceptional circumstances justifying the grant of bail.
56The evidence and material placed before the Court demonstrate the following:
(a)The original application for bail was filed by Mr Potier in the Common Law Division of the Supreme Court.
(b)The written submissions filed by Mr Potier in support of his application for bail were also filed in the Common Law Division of the Supreme Court. The submissions sought " the grant of Supreme Court Bail to the applicant ".
(c)The written submissions filed by the Crown did not suggest that it thought that the application was being determined by the Court of Criminal Appeal. Its reliance on s 30AA of the Bail Act , which was a significant part of its opposition to the grant of bail, would be equally applicable to a grant of bail by either the Supreme Court or the Court of Criminal Appeal.
(d)The transcript of the proceedings records that R A Hulme J was sitting in the Common Law Division of the Supreme Court.
(e)The transcript records that at the end of the submissions, R A Hulme J delivered an ex tempore judgment. The uncorrected transcript of that ex tempore judgment is not available, but there is no reason to think that it would record anything other than that the proceedings were being conducted in the Common Law Division.
(f)The published judgment by R A Hulme J is entitled as being in the Court of Criminal Appeal. Although no party referred in the course of submissions to s 30 of the Bail Act , his Honour refers to it in [1] of his judgment as the source of his power to grant bail. Clearly s 28 of the Bail Act was, in the circumstances, also a sufficient source of power because Mr Potier was " a person accused of an offence " within the meaning of s 4(2)(a) and (c) of the Bail Act .
(g)Neither party to this application has brought any evidence to demonstrate that R A Hulme J was, or was not, constituted as a member of the Court of Criminal Appeal for the purpose of sitting on 18 October 2010, nor whether any of the Court's internal administrative processes supported one conclusion or the other with respect to the Court in which his Honour was sitting.
57In my opinion, if a party to any proceedings in the Court of Criminal Appeal such as this application seeks to challenge the validity of the appointment of a judge to the Court, or the constitution of the court, that party is obliged to do so, by placing evidence before the court. That evidence is then available to be challenged or contradicted, if appropriate, by any other party to the proceedings. A party is not entitled to expect, or else require, the Court itself to undertake factual investigations of this kind.
58In this case, no evidence was filed by either party directed to this issue. Accordingly, the issue becomes one of resolution of what appears to be inconsistent documents relating the hearing before and judgment of R A Hulme J. Is the transcript (and uncorrected ex tempore judgment) correctly entitled or is the published judgment correctly entitled?
59I am satisfied that what is likely to have occurred here is a clerical error. A slip has occurred in the title of the published judgment. It ought to have recorded that R A Hulme J was sitting in the Common Law Division.
60The remark of R A Hulme J at [1] does not seem to me to stand in the way of this conclusion. That his Honour had power to hear and determine the application was not in doubt. The statement of power adds nothing to his judgment. As can be seen, either by application of s 9D of the Bail Act or else by the application of s 30AA of the Bail Act , the parties had to demonstrate exceptional circumstances to warrant a grant of bail. His Honour's approach to the bail application did not depend upon whether he was sitting in the Common Law Division or else the Court of Criminal Appeal.
61When confronted with a choice of interpretation, as the Court is, between two apparently inconsistent documents, it is not unjust to the applicant to choose the alternative which allows, rather than denies, to him a right of review. It is, I am satisfied, in the interests of justice to interpret the documents in this way.
62I conclude that the judgment of R A Hulme J on the application for bail by Mr Potier was delivered in the Common Law Division of the Supreme Court. Consequently, this Court has the power to review this decision by way of a review under s 45(1)(b) of the Bail Act .