Richards (a Pseudonym) v The Queen [2017] VSCA 57

1 The appellant is subject to a custodial supervision order made by a judge of the County Court under s 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the Act'). He has filed a notice of appeal against the making of that order under s 28A of the Act.

2 By an application dated 23 February 2017, the appellant applied for release on bail pending the hearing of the appeal. We made an order granting bail on 2 March 2017. By virtue of the very helpful written and oral submissions made on the application, it was apparent that a question arose as to the existence and source of the Court's jurisdiction to make the order. We indicated at the hearing that we were satisfied that we had jurisdiction but that we would publish reasons for that aspect of our decision in due course. Those reasons are set out below.

3 Section 28A is relevantly in the following terms:

(1) A person in respect of whom a supervision order is made may appeal to the Court of Appeal against the supervision order.

...

(3) On an appeal under this section, the Court of Appeal may -

(a) confirm the supervision order; or

(b) set aside the supervision order and make another supervision order in substitution for it; or

(c) set aside the supervision order and remit the matter, with or without directions, to the court that made it; or

(d) set aside the supervision order and order the person who was subject to the supervision order to be released unconditionally.

(4) If the Court of Appeal remits a matter to a court under subsection (3)(c), that court must make another supervision order in accordance with this Act and any directions given by the Court of Appeal.

(5) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order in respect of a person under this section -

(a) an order granting the person bail;

(b) subject to subsection (6), an order remanding the person in custody in an appropriate place;

(c) subject to subsection (7), an order remanding the person in custody in a prison;

(d) if it is of the opinion that it is in the interests of justice to do so, an order -

(i) that the person undergo an examination by a registered medical practitioner or registered psychologist; and

(ii) that the results of the examination be put before the court that is to make the supervision order;

(e) any other order the court thinks appropriate.

...

4 In its written submissions, the respondent referred to four possible sources of jurisdiction, three of which it was submitted were inapplicable in the present case. The appellant sought to rely on all except the first of those four alternatives.

5 First, the respondent pointed out that 'a court of general jurisdiction at common law has no inherent jurisdiction to grant bail pending an appeal to a person serving a sentence after conviction'.[2] A broad inherent power in those terms is lacking because it is not necessary for there to be such a power in order to secure the ends of justice. We return below to the question of the Court's inherent jurisdiction, which affords the avenue to the fourth possibility adverted to by the respondent.

6 Secondly, s 28A(5)(a) of the Act empowers this Court to make an order granting bail 'pending the making of a supervision order in respect of a person' under s 28A. The appellant contended that this provision should be read so as to apply to any circumstance in which the determination of an appeal pursuant to s 28A is pending. This result could be achieved, it was submitted, by reading the opening words of sub-s (5) as if the word 'possible' appeared before the words 'making of a supervision order'. Alternatively, the words '(if any)' should be read in after the reference to the making of a supervision order. On either approach, the power to grant bail would be enlivened once it became possible that the Court of Appeal might make a supervision order. It would not be necessary for the Court first to identify error in the decision under appeal.

7 In support of this submission, the appellant contended that the power in s 28A(5)(d) might be exercised with the result that the Court decides that no supervision order is appropriate at all. By parity of reasoning, the same possibility was said to inhere in the power in para (a). In both cases, the mere possibility that a supervision order might be made sufficed to enliven the power. Reliance was also placed on the principle of legality, on the basis that a construction more favourable to individual liberty should be preferred.

8 In our view, the language of s 28A(5) is intractable. Although the subsection appears in a provision dealing with appeals against supervision orders generally, it is not expressed as an appeal bail provision. Instead, it is directed in clear terms to the specific circumstance where the making of a supervision order is pending. That is reinforced by the reference in sub-s (5)(d)(ii) to the court 'that is to make the supervision order'. Such a situation may only arise after the setting aside of the supervision order under appeal, as sub-s (3)(b) makes clear. However, that is only one of several courses open to the Court under sub-s (3). The bail provision in subs (5)(a), like the other orders contemplated by sub-s (5), is not expressed to apply in cases where the Court pursues one of the other courses set out in sub-s (3). It is confined in terms to the situation envisaged in sub-s (3)(b). No other construction is reasonably open. In these circumstances, there is no scope for the operation of the principle of legality to produce a different result.[3]

9 Accordingly, s 28A(5)(a) does not provide the Court with jurisdiction to grant an appellant under s 28A bail pending the appeal. (We suggest below that this matter warrants legislative attention.)

10 Thirdly, reference was made to s 310 of the Criminal Procedure Act 2009. That section is entitled 'Bail pending appeal'. It relevantly provides:

(1) A prisoner within the meaning of the Corrections Act 1986 who appeals, or applies for leave to appeal, to the Court of Appeal may apply to the Court of Appeal to be granted bail.

(2) On an application under subsection (1), the Court of Appeal may grant the prisoner bail pending the appeal.

11 It is not in doubt that a person subject to a custodial supervision order is a 'prisoner' within the meaning of the Corrections Act 1986.[4] The appellant contends that s 310 applies to appeals under the Act and, in support of that submission, points to the fact that the Act requires processes under the Criminal Procedure Act to be followed in the course of a special hearing under the Act as closely as possible.[5]

12 However, its context reveals s 310 to be a provision ancillary to those provisions of the Criminal Procedure Act which confer rights of appeal or rights to seek leave to appeal to this Court. Read in context, the 'appeal' to which reference is made is an appeal under pt 6.3 of that Act, which confers those rights. Similarly, s 265 provides for bail pending appeal from the Magistrates' Court to the County Court under pt 6.1. This context strongly suggests that s 310 is not to be read as empowering this Court to grant bail pending an appeal under any other statutory provision.

13 In any event, at least in the case of appeals under s 28A of the Act, the position is clear. In our opinion, the grant of the specific and confined power respecting bail in s 28A(5)(a) makes it impossible to construe s 310 of the Criminal Procedure Act as conferring a much wider and unconditional power to grant bail pending an appeal under that same provision. Such an interpretation would render s 28A(5)(a) otiose. There is a presumption that a later statute does not impliedly repeal an earlier one.[6] There is also a presumption that a general provision in a later statute does not operate on a subject matter that is the subject of specific provision in an earlier statute.[7] Having regard to the matters weighing against the appellant's proposed interpretation of s 310 referred to above, neither presumption is rebutted in the present case.

14 We therefore consider that s 310 of the Criminal Procedure Act does not give the Court jurisdiction to grant bail pending an appeal under s 28A of the Act.

15 We turn then to the final possible source of jurisdiction to which the respondent drew attention.

16 The starting point for understanding this source of power to grant bail lies in the nature of the Court's wider appellate jurisdiction. As a superior court of record, the Court is able to draw upon a 'well of undefined powers', including every power necessary to effectuate the exercise of its jurisdiction.[8] Such powers are often designated as 'inherent' (or 'implied' in the case of other courts), but their description does not matter for present purposes. What is important is that this Court's appellate jurisdiction, including that under s 28A of the Act, carries with it the power to stay orders that are or may become subject to that jurisdiction.

17 When the power is exercised to order a stay pending appeal in a criminal case, the Court also has power, as an incident to that exercise of power, to grant bail. That such incidental power exists was authoritatively established by the decision of the High Court in Mexico v Cabal.[9] The Court in that case was hearing an appeal from a decision of a single judge of the High Court granting bail pending an application for special leave in an extradition matter. The Court explained:

In our view, the power to grant bail in a criminal or extradition case is an incident of the power conferred by s 73 of the Constitution to hear appeals from the orders of certain courts. It is not a question of inherent jurisdiction. The grant of judicial power carries with it authority to do all that is necessary to effectuate its main purpose. Because that is so, the Court has authority to do all that is necessary to effectuate the grant of appellate jurisdiction conferred by s 73 of the Constitution. It therefore has power to stay orders that are or may become the subject of its appellate jurisdiction. If the Court did not have power to stay an order the subject of an appeal, it might fail to do full justice to the appellant or potential appellant.

The Court has power, therefore, to stay orders in criminal cases - even orders concerned with sentences of death or imprisonment. When the Court grants bail in a criminal case, it does so as an incident in the course of staying the order that is the authority for detaining the prisoner and to make the stay order effective. If there is an application for special leave to appeal or an appeal under s 73 of the Constitution against an order of imprisonment, this Court has jurisdiction to stay that order. It also has jurisdiction to grant bail so as to make the stay order effective. Although orders staying proceedings or admitting to bail make the appellate jurisdiction of the Court effective, the orders are made in the original jurisdiction of the Court.[10]

18 Applying that reasoning to the present case, the conferral of appellate jurisdiction on this Court under s 28A carries with it both the power to stay the supervision order in respect of which the appeal is brought and the power to grant bail to the appellant pending the hearing of the appeal, so as 'to make the stay order effective'.[11]

19 Some brief attention was given in the written submissions to the question whether it was necessary for the appellant to demonstrate 'exceptional circumstances' in order to justify a grant of bail. There was no real argument that, if such a requirement existed, it was met in the present case. It is therefore undesirable for us to say anything as to whether or not it was necessary for the appellant to demonstrate exceptional circumstances.

20 For the above reasons, we were satisfied that the Court had jurisdiction to make an order granting bail, and we did so on conditions which it is not necessary to describe.

21 At the time we made the order for bail, no order was made staying the custodial supervision order. It follows from what we have said that such an order should be made, both because the order for bail would otherwise stand in conflict with the extant order under appeal and because the incidental nature of the power to grant bail requires that the stay jurisdiction be exercised in order to attract the bail power.[12] With the consent of the parties, we made an order to that effect on the papers.[13]

22 We note in conclusion that the interpretation of s 28A(5)(a) at which we have arrived produces a seemingly anomalous result. No reason was advanced before us, nor can we conceive of one, why the legislature would have conferred on this Court only a narrow statutory power to grant bail rather than a power expressed (like s 310 of the Criminal Procedure Act) in broad terms. (Nor was it submitted that the narrow terms in which s 28A(5)(a) is drafted was intended to circumscribe the non-statutory jurisdiction of the Court.)

23 The explanation for the form taken by s 28A(5)(a) may lie in the similar drafting of s 19(1)(a). That provision applies where a court of first instance has declared a person liable to supervision. In that event, the court is empowered to grant bail pending the making of a supervision order. In that quite different context, the power to grant bail is available in every case, since a court which has made a declaration of liability to supervision is bound to make a supervision order.[14] (The same language is used in s 24(1)(a), which is in turn picked up in respect of appeals against mental impairment verdicts[15] and against orders for unconditional release.[16])

24 For the reasons we have given, the language used in s 19(1)(a) is inapt to cover the range of possible outcomes of an appeal against a supervision order. Even if the appeal succeeds, there may be no stage at which the making of a supervision order is 'pending'. In the circumstances, in our view it would be desirable for consideration to be given to making specific statutory provision for bail pending an appeal under s 28A.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

[2] Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514, 517 (Brennan J); see generally at 517-18.

[3] '[T]he principle of legality favours a construction, if one be available, which avoids or minimises the statute's encroachment upon fundamental principles, rights and freedoms at common law': North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569, 581 [11] (emphasis added) (French CJ, Kiefel and Bell JJ).

[4] A custodial supervision order authorises the imprisonment or detention of the person in question in a prison and is therefore an 'order of imprisonment' under s 6(c) of the Corrections Act. As such, the person is in the legal custody of the Secretary to the Department of Justice and Regulation: see s 6A(1). By virtue of that legal custody, the definition of 'prisoner' under s 3(1) of the Corrections Act is satisfied.

[5] Sections 16(1), 38W(1).

[6] See Saraswati v The Queen [1991] HCA 21; (1992) 172 CLR 1, 17 (Gaudron J); Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 134 [4] (Gleeson CJ), 137-8 [18] (Gummow and Hayne JJ), 149-50 [61] (Kirby J); Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126, 136-7 [34]-[35] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ).

[7] See The Bank Officials' Association (South Australian Branch) v The Savings Bank of South Australia [1923] ArgusLawRp 45; (1923) 32 CLR 276, 281-2 (Knox CJ), 289-90 (Isaacs and Rich JJ), 297-9 (Higgins J); Manly Council v Malouf [2004] NSWCA 299; (2004) 61 NSWLR 394, 408 [64] (Tobias JA; Mason P agreeing).

[8] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 (Dawson J), quoted in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 451 [50] (Gaudron, Gummow and Callinan JJ).

[9] [2001] HCA 60; (2001) 209 CLR 165 ('Cabal').

[10] Ibid 180-1 [37]-[38] (Gleeson CJ, McHugh and Gummow JJ) (emphasis in original) (citations omitted). See also Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290, 298 [34], 299 [41] (Refshauge J); R v Quzag [2015] ACTCA 36; (2015) 298 FLR 330, 333-4 [27]-[28] (Penfold, Burns and Wigney JJ) ('Quzag').

[11] Cabal [2001] HCA 60; (2001) 209 CLR 165, 181 [38].

[12] Quzag [2015] ACTCA 36; (2015) 298 FLR 330, 335 [34]-[35], 335 [38] (Penfold, Burns and Wigney JJ).

[13] Symes v Commonwealth (1987) 89 FLR 356, 357-8 (Gallop J), quoting R v Cripps; Ex parte Muldoon [1984] QB 686, 695 (Sir John Donaldson MR for Sir John Donaldson MR, Fox and Stephen Brown LJJ); Victoria Legal Aid v County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686, 694 [15] (Chernov JA; Warren CJ and Dodds-Streeton AJA agreeing), Supreme Court (Criminal Procedure) Rules 2008 r 1.14.