R v Turkmani & Kaddour

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Tuesday 6 June 2000 71808/00 REGINA v BASSAM TURKMANI 71809/00 REGINA v KALID KADDOUR

1 HIS HONOUR: Each of these applicants is charged with the offence of solicit to murder Albert Brikha. Each applicant applied for bail in this Court in respect of the charge and Hidden J granted conditional bail to each accused on 11 February 2000. The Director of Public Prosecutions then made an application to review the decision of Hidden J pursuant to s 45 of the Bail Act and this application was heard by O'Keefe J who, on 20 April 2000, revoked the bail that had been granted previously. 2 Each applicant has now lodged an application for review of the determination of O'Keefe J and the question has been argued as to whether, in the circumstances, the operation of s 22A of the Bail Act is enlivened. 3 Section 22A appears in Part 4 Division 1 of the Bail Act which concerns "Court Bail - Bail applications". Section 45 is to be found in Part 6 Division 2 of the statute which addresses "Review of Bail Decisions - Powers…to review". 4 The power of the Supreme Court to review any decision in relation to bail is conferred by s 45: "(1) Subject to this Division, the Supreme Court may review any decision of any authorised officer, magistrate or justice or of the District Court, Land and Environment Court, Industrial Relations Commission in Court Session or Supreme Court (however constituted) in relation to bail.

(2) The power to review a decision pursuant to this section may be exercised whether or not any power to do so pursuant to section 44 has been, or has been sought to be, exercised.

(3) Notwithstanding subsection (1), a Judge of the Supreme Court sitting alone may not, under that subsection, review a decision of the Court of Criminal Appeal, unless the rules made under the Supreme Court Act 1970 so provide." 5 Section 48 concerns the exercise of the power to review: "(1) The power to review a decision pursuant to this Division: (a) may be exercised only at the request of: (i) the accused person, (ii) the informant (being a police officer), (iii) the informant or complainant (whether or not a police officer) in the case of bail granted in respect of a domestic violence offence or a complaint for an apprehended violence order under Part 15A of the Crimes Act 1900, or (iv) the Attorney General or the Director of Public Prosecutions, and (b) includes the power to affirm or vary the decision or to substitute another decision.

(2) A decision as varied or substituted must be in conformity with this Act.

(3) The review of a decision shall be by way of rehearing, and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review.

(4) Where, on a review of a decision pursuant to this Division, a court varies the decision, or substitutes another decision, section 38 applies to and in relation to the decision as varied or substituted as if originally made by the court.

(5) Where, on a review of a decision pursuant to this Division, bail for an accused person is revoked, a justice may by warrant commit the person to prison.

(6) Where, on a review of a decision pursuant to this Division: (a) bail is granted unconditionally and no bail undertaking has been given by the accused person, or (b) a bail condition is imposed, a justice may by warrant commit the person to prison until the person gives the undertaking or enters into the condition, as the case may be.

(7) A court may refuse to entertain a request to review a decision pursuant to this Division if the court is satisfied that the request is frivolous or vexatious.

(7A) The Supreme Court may refuse to entertain a request to review a decision pursuant to this Division if the Court is satisfied that the request comprises a bail condition review that could be dealt with under section 48A by a magistrate or justice or the District Court.

(8) The regulations may make provision for or with respect to: (a) the manner of making a request to review a decision pursuant to this Division, (b) the giving or sending to persons of notices relating to the proposed exercise of the power to review a decision pursuant to this Division, and (c) prescribing the circumstances in which such a power may be exercised in the absence of the accused person or the person's representative as if the person or the person's representative were present." 6 Mr Lloyd of Queen's Counsel, appearing for Kalid Kaddour, submitted that s 22A had no application to the present case. The request for review was made by the applicant as contemplated by s 48(1)(a)(i), and there was nothing in Part 6 to prevent the application from being entertained. The application was an application for review as distinct from an application for bail under Part 4. It was submitted that the only restraint on a succession of applications under Part 6 was to be found in s 48(7): the Court may refuse to entertain a review application "if the Court is satisfied that the request is frivolous or vexatious." 7 Mr Pike, who appeared for Bassam Turkmani, adopted Mr Lloyd's submissions. 8 Mr Lloyd referred to R v Hamill (1986) 25 A Crim R 317, a case in which the Attorney General sought the review of a decision to grant bail previously given. In the course of his judgment Reynolds J considered ss 45 and 48 and said at 320-321: "In s 45 of the Bail Act 1978 a power is given to the Supreme Court. It is a power to review which may be exercised subject to Pt VI of the Act. It is necessary to look at the remaining sections in Pt VI, in particular s 48, in order to decide whether the words 'may review' are subject to s 23 of the Interpretation Act 1897. The effect of s 48 is to give to an accused, an informant and the Attorney-General, a right to request a review of a bail determination. Such people have a right to make such an application. The Act gives to an accused the right to make any number of applications for bail and that right is contained in s 22(1). An accused can also make applications to have a bail determination reviewed: s 48. Any such application by an accused has, in my view, because of the presence of s 48(1)(b) and s 48(5), the same effect as a fresh application. The Attorney-General is given the right to make an application for review: s 48. There is no specific provision limiting the number of times such an application may be brought. In the case of an accused and the Attorney-General, the only limitation is if the court should regard the application as frivolous or vexatious, whether it be a fresh application or an application for review by the accused, or an application for review by the Attorney-General. That this is so, at least in relation to the application for review made by the accused or the Attorney-General, is reinforced by the presence in s 45(1) of the words 'subject to this part'. To my mind the words just mentioned are of significance when deciding whether the words 'may review' should be given a permissive meaning. Those words give power to this Court and that power is to be invoked by a judicial proceeding. The power of review is given for the enforcement of a right existing in both the accused and the Attorney-General. That being so, in my opinion, the court when called upon to review a bail determination should be obliged to hear an application unless it can be shown to be frivolous or vexatious: Ward v Williams (1955) 92 CLR 496 at 506-507; see also Re Fettell (1952) 52 SR (NSW) 221 at 226-227; Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 at 60-61 and Ex parte NSW Rutile Mining Co Pty Ltd; Re Burns [1967] 1 NSWR 545 at 554. The court has, in my opinion, no general discretion to refuse to entertain an application whether it be made by the accused or the Attorney-General. The Act is so worded to limit the right of the court to refuse to entertain the application if it be frivolous or vexatious. It follows that it is not necessary for fresh circumstances or additional evidence to exist before the court can hear an application for review brought by an accused or the Attorney-General." 9 It is to be observed however that Hamill was decided before the introduction of s 22A of the Bail Act. This section was first introduced to the Act in 1989 and has been in its present form since 1993. Hamill was decided when there was no limit on the number of applications for bail that could be made under Part 4, unless the court was satisfied that an application that was being made was frivolous or vexatious. In this regard s 22 provided: "(1) There is no limit on the number of applications in relation to bail that may be made to a court by a person accused of an offence. ………… (4) Notwithstanding subsections (1) and (2), a court may refuse to entertain an application in relation to bail if it is satisfied that the application is frivolous or vexatious." 10 In R v Kissner (unreported, 17 January 1992) Hunt CJ at CL considered the scope of s 22A in a case in which the applicant had been granted bail which was subsequently revoked on a review application. The applicant made a further application, not by way of review, but as a fresh application under s 28. Indeed his Honour remarked in the course of his judgment that the application was not one which sought a review of the decision revoking bail, and Mr Lloyd submitted this was a feature that distinguished Kissner from the present application. However, his Honour said in considering s 22A: "Both the original application dealt with by Sharpe J and the application to review this decision dealt with by Wood J were applications in relation to the applicant's bail. The operation of s 22A is not limited to those situations where a previous application for bail has been refused. Indeed it is not even limited to applications made by the person who seeks bail. It need only be an application made 'in relation to that bail'. Section 22A is therefore applicable to the present application. In the exercise of the discretion which the section gives, the fact that the previous application resulted in the refusal of bail is of importance. One of the previous applications dealt with in the present case did result (after a rehearing) in the refusal of bail. Accordingly I see no reason why the requirements of the section should not in fact be applied to the present application." 11 Since the decision in Kissner, Act No. 102 of 1993 amended s 22A to include after the word "application" first appearing, the words "by a person", and after the word "application" secondly appearing, the words "by the person". Since the 1993 amendments s 22A reads: "(1) Despite section 22 (1) and (2), the Supreme Court may refuse to entertain an application by a person in relation to bail if: (a) an application by the person in relation to that bail has already been made and dealt with by the Supreme Court (however constituted), and (b) the Court is not satisfied that there are special facts or special circumstances that justify the making of the application.

(2) Despite section 22 (1) and (2), the Supreme Court may refuse to entertain an application in relation to bail if the bail application comprises a bail condition review that could be dealt with under section 48A by a magistrate or justice or the District Court." 12 Hence it can now be said, contrary to the remark of Hunt CJ at CL in Kissner, that the operation is limited to applications made by the person who seeks bail. The 1993 amendments to the Act do not otherwise however impact upon his Honour's analysis, with which I respectfully agree. 13 Section 22A introduced into the Bail Act a restraint on the making of repeated applications in relation to bail additional to what was previously to be found in the Act. 14 It seems to me that the present application, although expressed as an application for review of a bail determination, is an application "in relation to bail" within the meaning of that expression in s 22A. For the purposes of s 22A(1)(a) there has been an earlier application by each of these applicants, such as "has already been made and dealt with" by reason of the hearings before Hidden J and O'Keefe J. On this analysis the Court must be satisfied that there are "special facts or special circumstances that justify the making" of each of these applications. 15 In this regard each application is in the same position. The application which each applicant made earlier was successful. Where each applicant failed was on the subsequent review application, which, of course, was not a proceeding taken at the initiative of the applicant in either case. 16 Moreover, since the proceedings before O'Keefe J, the committal proceedings against these applicants have commenced and the affidavit of Abigail Bannister sworn on 31 May 2000 in relation to the applications points to areas in which the evidence of the principal prosecution witness given so far before the magistrate has departed from his earlier statement to the police. That same affidavit addresses areas in which a second prosecution witness who has completed her evidence before the magistrate also gave evidence that, it is submitted, should be regarded as unsatisfactory because of her earlier police statement. Mr Lloyd submitted that the evidence taken thus far at the committal proceedings indicates a weaker prosecution case than appeared to be available when O'Keefe J revoked bail. I should add that there is an earlier affidavit of the same deponent addressing perceived weaknesses in the prosecution case that have emerged on committal. 17 Taken in combination, I consider that the circumstances reviewed in paras 14 and 15 amount to special circumstances for the purposes of s 22A(1)(b) and that this Court should entertain the present applications for bail on a date to be arranged with the Registrar. In so deciding, I want to emphasise that I have not formed a view on the strength of the Crown case as it now stands. As was made clear in Kissner, where the issue of the application of s 22A arises that issue should be determined before the merits of the application for bail are addressed. I have addressed only stage one in this judgment. It will be for the judge who hears the applications for bail, in having regard to the requirements of s 32 of the Bail Act, to evaluate, so far as can be done, the strength of the evidence against each applicant in the light of the evidence thus far received in the committal proceedings. 18 I now stand each application over for hearing on a date to be fixed. **********

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