Secretary to the Department of Human Services v Magistrates' Court of Victoria [2002] VSC 257

Supreme Court of Victoria|2002-06-27|Before: Ashley J

Bail - refusal of bail - adjournment of proceeding - man aged 20 - whether Magistrates' Court empowered in the particular circumstances to order or direct that defendant be held in Youth Training Centre during period of adjournment. Bail Act 1977 ss. 12(1), (1A), (2). Magistrates' Court Act 1989 ss. 49, 57, 79, 81, 128. s. 249(c).

Before me is an application for orders in the nature of certiorari, and for a declaration.

The plaintiff, Secretary to the Department of Human Services, is by s. 253(1) of the Children & Young Persons' Act 1989 ("the Children's Act") deemed to have custody of a person detained in a Youth Training Centre ("YTC") established pursuant to s. 249(c) of that Act.

The first defendant is the Magistrates' Court of Victoria. As might be expected, it has indicated that it will abide by the Court's decision.

The second defendant is Philip Kass ("Mr Kass" or, simply, "the defendant"), a man born on 18 October 1981, and thus 20 years of age. He is presently detained (I do not use that word as a term of art) at a YTC known as the Juvenile Justice Centre, Parkville.

The defendant is detained at the YTC in consequence of an order made and a remand warrant issued by the Magistrates' Court at Melbourne on 8 April 2002. The substantive effect of the order and warrant, in all, was as follows:

* the defendant was "remanded" to the Melbourne Magistrates' Court on 28 June 2002;

* the defendant was to be "held" - "detained" was also a verb used - in a YTC.

The question which arises is whether the learned Magistrate was empowered to order or direct that the defendant be held in a YTC. The plaintiff, into whose custody the defendant was transferred by operation of that order or direction, contends that the answer to that question is "no". The defendant contends to the contrary. Whether the matter be viewed as one of alleged jurisdictional error or as one of alleged error on the face of the record - if error it was, I consider in fact that it was of the former kind - does not seem to matter in the particular case. The alleged error is one which, if made out, regardless of characterisation, could attract an order in the nature of certiorari; and justify the making of a declaration.

Before dealing with the arguments advanced by counsel for the plaintiff and the defendant I should set out some of the circumstances of this matter.[1]

First, on 5 April 2002, the defendant was charged with seven offences. All were allegedly committed on 31 March 2002. The charges were (a) attempting to commit an indictable offence, namely to rob a person, whilst armed; (b) attempting to commit an indictable offence, namely kidnap; (c) unlawful assault with a weapon - two charges; (d) unlawful assault - two charges); (e) assault A with intent to rob B.

Second, the defendant was arrested on 5 April 2002, taken into custody and brought before the Magistrates' Court. Application was made by the Informant that the defendant be remanded in custody until 28 June 2002, to which date the Informant sought adjournment of the criminal charges. The defendant sought bail. The learned Magistrate adjourned the proceedings to 28 June 2002, refused bail, and directed that the defendant be detained in a YTC in the period up to 28 June 2002. He did so in reliance upon s. 49(1)(a)-(c) of the Magistrates' Court Act 1989.

Third, the parties returned to the Magistrates' Court on 8 April 2002. It was by then common ground that the circumstances were not such as to call s. 49(1)(a)-(c) into play. As at 31 March 2002 the defendant had not been undergoing a sentence of detention in a YTC. He had been on parole.

Fourth, on this occasion the defendant again sought bail. The application was opposed. Further, the defendant's counsel submitted that, if the learned Magistrate refused bail, he was empowered by s. 12(1) of the Bail Act 1977 ("The Bail Act" or "the Act") to order or direct that the defendant be held at a YTC during the period up to 28 June 2002. That was because s. 12(1) contemplated commitment to prison; and by s. 3(1) of the Act "prison" included a YTC.

Fifth, on 8 April 2002 the learned Magistrate relevantly refused bail and made the order and issued the warrant about which the plaintiff now makes complaint. The certified extract of Order shows that the defendant was "remanded" to the Magistrates' Court on 28 June 2002; and that there was an order or direction that the "defendant... be held in YTC". The "remand warrant", so headed, ordered or directed that the defendant be conveyed to and then held (or detained) in a YTC.

It is quite clear, I add, that the learned and very experienced Magistrate had considerable difficulty in telling the Court computer, rather than the computer telling him, what the sequence of orders and/or directions should be; and entered upon what form.[2] It seems certain that the form of "remand warrant" which issued was generated by the computer and not by the considered action of the learned Magistrate. Such is modern life in the courts.

Sixth, I was informed from the Bar Table that on 28 June there will be a committal mention of the charges brought against the defendant. That is the date to which the Order and warrant now under challenge run. It cannot be predicted what will happen on 28 June. It is no more than speculation whether the magistrate at that time will be faced with any issue concerning bail; and whether, if such issue does arise, and bail is refused again, an order will be made and remand warrant issued. These circumstances bear upon grant or refusal of discretionary relief.

In connection with a possible exercise of discretion I note a countervailing consideration. I was informed from the Bar Table, and it is consistent with affidavit material filed in the proceeding[3], that there are other instances where like orders have been made and warrants issued; and that at least one person other than the defendant is presently held in a YTC in consequence of such an order.

Counsel for the plaintiff approached the disputed question by referring to certain provisions of the Magistrates' Court Act and the Children's Act. Counsel for the defendant relied almost entirely upon s. 12(1) of the Bail Act. According to counsel for the plaintiff, even if s. 12(1) was to be read as counsel for the defendant submitted, it could not overcome the want of power in a magistrate, by virtue of the Magistrates' Court Act, to make an order and issue a warrant obliging the holding or detention of the defendant in a YTC in the particular circumstances of the case.[4] Counsel for the plaintiff submitted also that if s. 12(1) meant what counsel for the defendant submitted then (apart from conflicting with provisions of the Magistrates' Court Act) it would run counter to the purpose for which a YTC may be established: see s. 249(c) of the Children's Act; and that it would open up the prospect of a magistrate directing that a 50 year old man[5] be held in a YTC during an adjournment period.

If s. 12(1) carries the meaning contended for by counsel for the defendant, then a question arises whether the subsection can operate in harmony with provisions of the Magistrates' Court Act and the Children's Act; and, if not, then how the conflict should be resolved. But if s. 12(1) does not carry the meaning contended for, then the defendant's case as argued fails at the outset. For that reason it is convenient to begin by construing s. 12(1). Its context must be set. The following matters should be mentioned:

First, the Act is general in its application. "Court" is defined to mean (any) court or judge; and also a member of the police force or other person where so authorised. That definition applies unless inconsistent with the context or subject matter.

Second, the Act sets out the general principle that an accused person being held in custody shall be granted bail. Exceptions are then set out - outlining circumstances in which a court as defined shall or may refuse bail. Those circumstances will apply to consideration of any application for bail. They were undoubtedly applicable in the case of application for bail by the defendant on 8 April 2002.

Third, the Act sets up an elaborate substantive and procedural structure which is, for the most part, of general application. I will not refer to all the provisions. I mention, particularly ss. 12, 13(1), 18. In some circumstances, however, a particular "court" is invested with jurisdiction. See, for instance, ss. 13(2)(a) and (b), 18(1)(b), (5), (6A), (6B)(b) and 18A(1).

Fourth, the Act contemplates at many points that a person in custody may seek bail. It does not say a great deal, however, about the initiation of such an application - though see ss. 18(1)(2)(5)(6) and 22.

I turn to s. 12(1). On its face it is a provision of general application. It reads:

"12. Court or bail justice to grant or refuse bail (1) Where a person is apprehended, whether by virtue of a warrant or otherwise, and brought before a court or bail justice and application is made by or on behalf of the informant to remand the person or to commit him to prison during an adjournment the court or bail justice before which he is first brought shall either grant bail for the appearance of the person on the day to which he is remanded or the case adjourned or shall refuse bail and shall certify on the warrant of remand or the warrant of commitment (as the case may be) - (a) where bail is granted - consent to the person being bailed, stating also the amount of any surety or sureties to be required, and any special conditions applicable to the release of that person; or (b) where bail is refused - a statement of such refusal and of the grounds for refusal."

The circumstances in which a court is called upon to act under sub-s. (1) are clear:

[diamond] The person must have been brought before a court.

[diamond] An adjournment of a proceeding brought against the person must have been sought.

[diamond] Application must have been made by or on behalf of the Informant either to remand the person or commit him to prison during the period of the adjournment.

Stopping there, three points should be made. First, so far as the application is concerned, remand and commitment to prison appear to be treated as alternatives. Second, the subsection may apply only to a first appearance before a court or bail justice. Though it need not be finally decided, for the issue did not arise in the present case, I think it is doubtful that the words "first brought" should be taken to mean that the subsection applies to subsequent applications to adjourn and to commit or remand made in the same court. Third, it is of lesser importance, the subsection appears to contemplate that it is the Informant who will both seek the adjournment and the remand or commitment to prison.

Given the circumstances identified above, what may be done by the Court or bail justice before which or whom a person is first brought? Two alternatives are specified. Mr Holdenson of Queen's Counsel, who with Mr Dennis appeared for the plaintiff, submitted that they are to grant or refuse bail; and that this is the only power invested in a court by the subsection.

I agree that the subsection confers power to grant or refuse bail. I do not agree with the submission that this is the extent of the power which it confers. In my view the subsection empowers a court or bail justice to issue a "warrant of remand" or a "warrant of commitment", certified in one or other of two ways. True it is that a warrant in either form interlinks with the power to grant or refuse bail; but that is not to deny the existence or the significance of the power to issue such warrants.

The structure of the subsection strongly suggests that there is a relationship between a warrant of commitment and prison; and that there is no such relationship between a warrant of remand and commitment to prison. Of this, more later. If it be so, the defendant's argument really depended upon the Magistrates' Court, an adjournment being sought, being empowered and bound to issue a warrant of commitment (to prison) on refusing bail; and upon it not then being open to the Magistrates' Court to issue a warrant of remand on refusing bail. For if it be open to the Magistrates' Court, pursuant to s. 12(1), to remand a person on refusing bail, and if the remand should be described as a remand in custody, it is well arguable that custody should be understood not to include detention in "prison" as defined by the Bail Act; specifically, detention in a YTC.

In the present case the learned Magistrate, having refused bail, issued a remand warrant, not a warrant of commitment. For that reason the question whether under s. 12(1) of the Bail Act the Magistrates' Court had power to issue a warrant of commitment to prison does not, on the particular facts, arise. To the contrary, the immediate questions are whether, having refused bail, the learned Magistrate was empowered by s. 12(1) to issue a warrant of remand; and, if he was so empowered, whether he was also empowered to remand the defendant in custody to a prison as defined by the Bail Act.

The answers to those questions would not resolve the issue of central importance - that is, whether s. 12(1) authorises a magistrate by an appropriate warrant to commit a person such as the defendant to a YTC. To that broader question I first turn.

It is in my opinion inescapable that s. 12(1) empowers a court or bail justice to commit a person to prison upon an application made under that subsection. A court or bail justice may do so by issuing a warrant of commitment. Whether a court or bail justice may also do so when issuing a warrant of remand is another matter, to which I shall return.

The Bail Act does not by itself or by regulations made thereunder specify a form of warrant of commitment; or for that matter, a form of warrant of remand. It does, to the contrary, specify forms of consent to bail, and of refusal of bail[6].

For a long period up to 1977 bail provisions were part of Justices legislation. In legislation of that type as early as the Justices of the Peace Act 1865[7] provision was made for the issue of warrants of commitment; and there were many prescribed forms of warrants of commitment[8]; just as there were forms of warrants of remand[9]. That same pattern appears again and again. So, in the Justices Act 1958, s. 27(4) specified the import of a warrant of commitment; and there were no less than 12 forms of such a warrant in Schedule 2 of that Act. Further, although there was no provision similar to s. 27(4) concerning a warrant of remand, the 1958 Act at a number of points referred to a warrant remanding a person in custody; and there was an appropriate form[10].

The Bail Act, enacted in 1977, removed provisions concerning bail from a successor to the Justices Act 1958 - that is, the Magistrates (Summary Proceedings) Act 1975 [11]. From that time forward, although the Bail Act has continued to use the phrases "warrant of commitment" and "warrant of remand", no forms have been prescribed by that Act; and no other Act, so far as I am aware, has provided for the issue of warrants precisely so described. Presently the Magistrates' Courts Act, successor to the Magistrates (Summary Proceedings) Act 1975, provides by s. 57 for the issue of, inter alia:

"(b) remand warrant; and (e) warrant to imprison."

The fact that the Bail Act does not prescribe a form of warrant of commitment could not deprive the operative section of its efficacy. Nor could s. 12(1) be deprived of the effect that it would otherwise have because a warrant somewhat similarly described - that is, a "warrant to imprison" under the Magistrates' Court Act - would not permit commitment to a prison as defined by the Bail Act [12]. The Court or Bail Justice which issues a warrant of commitment under s. 12(1) will need, in short, to fashion the warrant to comply with the provision which authorises its issue.

The import of s. 12(1) is, as I have said, that a warrant of commitment will be a warrant of commitment to prison. The definition of prison in the Act applies unless inconsistent with the context or subject matter.

I am unimpressed by the submission that to read prison in s. 12(1) to include a YTC would open up a jurisdiction to commit a 50 year old man to a YTC. It might be said with greater force that not to so read it would mean detaining a young man in the adult prison system before trial notwithstanding that, in the event of conviction, he might be ordered to be detained in a YTC. Moreover, simply to say that if "prison" was read to include a YTC a 50 year old man might be committed to such a centre ignores not only the common sense of courts and bail justices, but the jurisdiction to review an aberrant exercise of power.[13]

Concerning the meaning of "prison" in s. 12(1) I should next refer to s. 249(c) of the Children's Act. It was argued for the plaintiff, in effect, that s. 249(c) only permits the detention in a YTC of a person ordered to be detained under the Children's Act or the Sentencing Act 1991; "detention" being a word apt only in the case of a person convicted and given a custodial sentence. In that connection, a sentence imposed under the Children's Act may lead to detention: s. 188; and by Subdivision 4 of Division 2 of Part 3 of the Sentencing Act a young offender - being a person aged between 15 and 21 years at time of sentence - may be sentenced to such detention. Further, counsel argued, whilst by a combination of ss.128(2)(b), 81(a)(iii) and 49(1)(c) of the Magistrates' Court Act a person may be returned to a YTC, that person must already be undergoing a sentence of detention in a YTC - implicitly by operation of the Children's Act or the Sentencing Act.

I do not accept the submission that s. 249 of the Children's Act, which empowers the Governor in Council to establish different types of centre for described functions, should lead to "prison" in s. 12(1) being given something less than its prima facie meaning as defined by the Bail Act. It would be strange if the apparent meaning of the word "prison" in s. 12(1), an operative provision concerned with the nature of a person's custody (to use a neutral word) in the event of refusal of bail, should be read down by reason of a provision authorising the establishment of premises. That is so whether the plaintiff's argument as to the meaning of "detention" where used in s. 249 (c) be right or wrong. Note also that the definition of "prison" into its present form in the Bail Act reflects an amendment effected by the Children's Act itself - an amendment which preserved the substance of a definition of "prison" contained in the Bail Act from its inception.

Finally concerning the meaning of "prison" where used in s. 12(1), it was perhaps suggested that the meaning should be confined because the Department does not have enough beds available in Youth Training Centres for persons such as defendant; or because there are no means of keeping persons such as the defendant separated from other persons in such centres. These may be significant practical considerations. But in my view they do not bear upon the issue of statutory construction which arises.

In the event, I consider that, speaking generally, a court or bail justice is authorised by s. 12(1) of the Bail Act to commit a person to prison in the circumstances there described; prison including a youth training centre. That conclusion applies at least in the case of this Court, the County Court and a bail justice. In the case of a bail justice the power appears to extend the jurisdiction which is conferred by s. 57(6) of the Magistrates' Court Act. There is no reason why it should not do so.

Section 12(1) of the Bail Act and the Magistrates' Court

The question which arises is whether the power to commit to prison - this including a youth training centre - vested generally in courts and bail justices by s. 12(1) is a power vested in the Magistrates' Court. If that is not the case, it is an anomaly; but it is not a basis for denying the existence of the power in other courts, and in bail justices.

According to the argument for the Plaintiff, if the Magistrates' Court adjourns the hearing of a criminal proceeding it has three options, and three options only. By s. 128(2) of the Magistrates' Court Act it may

"(a) allow the Defendant to go at large; or (b) remand the Defendant in custody; or (c) grant the Defendant bail or extend the bail of the Defendant."

Then the reader goes to s. 81 via s. 79(1), the latter of which specifies the circumstances in which a "remand warrant" may be issued. Those circumstances include the situations where a defendant who has been charged has been arrested, and is refused bail; and where the court orders a defendant to be remanded in custody during the adjournment of any criminal proceeding.

Section 81 relevantly says this:

"A remand warrant - (a) directs and authorises the person to whom it is directed to take and safely convey the person named in the warrant - (i) to a prison; or (ii) to a police gaol; or (iii) if the court has given a direction under section 49(1)(c), to a youth training centre - "

The only circumstance in which a remand warrant may direct that a person be detained in a youth training centre, on this analysis, is where s. 49(1)(a)-(c) apply.[14] I should add that "prison", referred to in s. 81(a)(i), is defined by the Magistrates' Court Act so as not to include a YTC.

I next have no doubt that ss. 128(2)(b), 79(1)(a) and (c), 81(a)(iii), 49(1)(c) and s. 3(1)[15], of the Magistrates' Court Act fit together. Whilst I set no store by it, they also sit comfortably with s. 249 of the Children's Act.

The questions which arise are whether those sections, specifically applicable to the Magistrates' Court, partly abrogate the effect of s. 12(1) of the Bail Act in the case of an application which fits the requirements of that subsection. Do they impliedly repeal s. 12(1) insofar as it would otherwise apply to the Magistrates' Court? Is this an instance of particular legislation displacing earlier or more general legislation?

The answer to those questions depends, in my opinion, upon whether s. 128(2) should be taken to exhaustively state the powers available to the Magistrates' Court in the case of an application not only falling within s. 128(2) but also cognisable within s. 12(1) of the Bail Act. In my opinion for the following reasons s. 128(2) should not be taken do so.

First, it is true to say that the Magistrates' Court is a creature of statute. Its jurisdiction must appear from statute.[16] But it does not follow, and it is obviously not the case, that its jurisdiction is confined to that specifically conferred by the Magistrates' Court Act [17].

Second, s. 128(2) on its face outlines powers available to the Magistrates' Court in the particular circumstances. But the subsection is not cast so as to confine the court's powers in those circumstances only to the powers there specified. It is, for example, clear that recourse must be had to the Bail Act even with respect to consideration of the options set up by the subsection. I do not consider that s. 128(2) should be read, when its language does not require it, and in the face of s. 12(1), to circumscribe the powers of the Magistrates' Court.

Third, the circumstance that the Magistrates' Court Act does not provide for the issue of a warrant of commitment is not to the point. The authority to issue such a warrant derives from the Bail Act. The absence of a form of warrant of commitment is likewise inconsequential.

Fourth, the Bail Act empowers a court to issue a warrant of commitment. It is the fact that the Magistrates' Court Act empowers that court to issue a warrant to imprison, and that by such a warrant imprisonment cannot include imprisonment in a youth training centre. But that is beside the point. There is no need to seek to press a warrant to imprison into use, then saying that such a warrant will not permit what s. 12(1) authorises.

The conclusion which I have reached, by reading s. 128(2) of the Magistrates' Court Act not to prescribe an exclusive code of permitted action, has the benefit that all courts in Victoria, and bail justices, are to be taken to have the same power to issue a warrant of commitment to prison. But that has not been a factor in my construing s. 128(2).

This must be emphasised: section 12(1) of the Bail Act deals with a discrete situation. The boundaries of that situation[18] need not be explored in these Reasons. In respect of circumstances not falling within s. 12(1), I say nothing upon the question whether, on refusing bail, the Magistrates' Court has power to commit an accused person to a youth training centre other than in the circumstances set out in s. 49(1)(c) of the Magistrates' Court Act.

The warrant which the Magistrates' Court issued

In the present case, as I said much earlier, the learned Magistrate did not issue a warrant of commitment. The transcript of the proceedings held on 8 April strongly suggests that if his Worship had asked the computer to produce such a document he was likely to have had a long wait for a reply. Be that as it may, the document which the computer produced and which his Worship signed was purportedly in a form prescribed by the Magistrates' Court General Regulations 2000. In fact, it differed somewhat from the prescribed form. But nothing turns on that.

Counsel for the Plaintiff submitted that, even assuming the learned Magistrate had power to and had wished to issue a warrant of remand under s. 12(1) he had not done so. The warrant he had issued was a warrant comprehended by ss. 128(2), 79 and 81 of the Magistrates' Court Act; and such a warrant could not direct that a person be detained in a youth training centre.

In the circumstances to which I have referred several times in these Reasons, the provenance of the warrant was very much an accident. The learned Magistrate was persuaded that he had jurisdiction under the Bail Act to issue a remand warrant with a direction concerning the defendant's detention in a youth training centre. There was no debate as to what form the warrant should take; nor any hint that use of a form of warrant prescribed by the Magistrates' Court Regulations could give rise to a problem. Indeed, the representative of the plaintiff then present did not challenge his Worship's jurisdiction to give the direction which is now attacked.

The plaintiff's submission about the form of the warrant was probably well founded. But whether in all the circumstances that should lead to grant of relief is another matter.

When a s. 12(1) warrant of remand may be issued and what it may do

Broader questions remain: on an application under s. 12(1) of the Bail Act is a court or bail justice empowered, on refusing bail, to issue a warrant of remand; and, if yes, may a court or bail justice direct that a defendant be detained in prison, this including a youth training centre?

In my opinion, the answers to those questions are as follows: as to the first, yes; as to the second, no.

I have no doubt that the language of s. 12(1), most particularly so much of the subsection as reads:

"...grant bail for the appearance of the person on the day to which he is remanded or the case adjourned"[19]

favours a conclusion that grant of bail and remand co-exist; in which circumstances refusal of bail links in with commitment to prison. So, it may be said, a warrant of remand will issue in the one case, attended by a paragraph (a) certificate; whilst a warrant of commitment will issue in the other case, attended by a paragraph (b) certificate.

That symmetry, regrettably, is not as clear as s. 12(1) would suggest. There are a number of indications, presently and in the legislative history of s. 12(1), which suggest that a warrant of remand may be issued upon a refusal of bail.

The first present indication is contained in s. 12(1A), inserted in 1997 by the same Act that amended subsection (1) by inserting the words "or bail justice"[20]. It reads:

"(1A) A bail justice must not remand a person referred to in subsection (1) in custody for a period of more than 8 clear days."

Subsection (1A) plainly contemplates that a person may be remanded in custody. Moreover, the fact that the period of remand in the case of action by a bail justice is limited to 8 clear days implies that the period of remand by order of a court is not so restrained; though see, in the case of remand by the Magistrates' Court, s. 82(1), one of many provisions, present and past, to which counsel did not refer in argument.

The second present indication that s. 12(1) of the Bail Act may permit a remand in custody is found in s. 12(2), which deals with the position where a person is committed for trial. It speaks of a person "being committed to prison to take his trial". Yet it is apparent that a person so committed, there being a warrant of commitment, may be admitted to bail. That throws into doubt a conclusion that in s. 12(1) a warrant of commitment is necessarily related to a refusal of bail, and that a warrant of remand is necessarily related to a grant of bail. Why should the relationship between a warrant of commitment and a grant or refusal of bail shift between one subsection and the other? That said, the other side of the coin is that s. 12(2) may be said to aid a conclusion that a warrant of commitment is a commitment to prison - a conclusion which I have reached in any event.

I go now to matters historical. Section 12(2) of the Act has a very long history. Its distant ancestor can be found as s. 91 of the Justices of the Peace Act 1865, a section falling within Part V of that Act, headed "Procedure on Commitment for Trial". The form of s. 91, which followed 11 and 12 Victoriae C4 s.23, was relevantly this:

"91. Where a person charged with any indictable offence is committed to prison to take his trial for the same time, the justices who have signed the warrant for his commitment at any time afterwards and before the first day of the sitting or session at which he is to be tried or before the date to which such sitting or session is adjourned may in their discretion admit such accused person to bail in manner aforesaid; or if such committing justices be of opinion that for any of the offences hereinbefore mentioned the said accused person ought to be admitted to bail, they shall certify on the back of the warrant of commitment their consent to such accused party being bailed, stating also the amount of bail which ought to be required; and any justice attending or being at the gaol or prison where such accused party is in custody may on production of such certificate admit such accused person to bail in manner aforesaid."

Form XXX1 of the Second Schedule set out a "Certificate of Consent to Bail by the Committing Justice Endorsed on the Commitment".

A provision similar in substance to s. 91 of the 1865 Act can be found as s. 57(2) of the Justices of the Peace Act 1887[21], s. 55(2) of the Justices Act 1890 [22], s. 58(2) of the Justices Act 1915 [23] and of the Justices Act 1928 [24] and s. 60(2) of the Justices Act 1957 [25] and of the Justices Act 1958 [26]. The Bail Act as originally enacted in 1977 contained what is now s. 12(2). The sidenote to s. 12 showed its ancestor to be s. 24 of the Magistrates' (Summary Proceedings) Act 1975 [27]. Curiously s. 24 does not appear to have contained an equivalent of s. 12(2). Be that as it may, it is clear that for more than 150 years the issue of a warrant of commitment to prison has been reconcilable - in the context of s. 12(2) - with a grant of bail.

Turning to another matter, whilst there has long been a consistent content to what is now s. 12(2) of the Bail Act the same cannot be said of what is now s. 12(1). The subsection is in essentially the same form as s. 24(1) of the Magistrates' (Summary Proceedings) Act 1975.[28] The progenitor of s. 24(1) is said to have been s. 60(3) of the Justices Act 1958. Its language was quite different:

"60(3). If a justice committing a person to gaol or remanding him in custody under any of the provisions of this Division is empowered to admit such person to bail and is opinion that such person ought to be admitted to bail, such justice shall certify on the warrant of commitment or the warrant of remand (as the case may be) his consent to such person being bailed, stating also the amount of bail which ought to be required."

That subsection contemplated both "committing a person to gaol and remanding him in custody". In either case the committing justice could admit the person to bail, then certifying his consent on the warrant of commitment or warrant of remand. In each case the form of certificate[29] was the same. Its heading followed the heading on the form applicable to the ancestors of s. 12(2).

The progenitor of s. 60(3) of the Justices Act 1958 was, distantly, s. 58(3) of the 1928 Justices Act. It was relevantly indistinguishable. Section 58(3) of the Justices Act 1915 was also in generally the same form. But that subsection referred only to warrants of commitment. That is, there was no mention - contrast s. 58(3) of the 1928 Act - of warrants of remand.

Beyond 1915 the trail is decidedly uncertain. Mr Holdenson referred me to R v McCormick; ex parte Gilbert[30]. I understood him to suggest that it dealt with "similar phraseology" in the Justices of the Peace Act 1865. That case touched upon ss.88 and 89 of the 1865 Act. Those sections dealt, inter alia, with the remanding of an accused person in circumstances where it became necessary to defer a committal hearing. By the earlier section power was given to justices to remand the accused to the nearest convenient gaol; or into other custody. In the later section the word "remand" was used in a way not necessarily consistent with the accused being gaoled to appear on the day of the deferred hearing. According to the Court in McCormick, "remand" where used in the later section was used in a popular sense only[31].

It might be the case that ss.88 and 89 of the 1865 Act evolved into s. 58(3) of the 1915 Act[32]. Even if that be so, I doubt that much can be made of the remarks of the Court in McCormick concerning use of the word "remand" in s. 89.

In the event, I consider that the overall content of s. 12 and the history of s. 12(1) and (2) does not support a reading of s. 12(1) which would oblige an association between grant of bail and remand on the one hand and refusal of bail and commitment to prison on the other. There seems to have been, over a long period, a pertinent legislative recognition of remand in custody. There has also been persistent legislation providing for certification of the consent of a justice (later a court) to bail in the case both of warrants of remand and warrants of commitment.

It can be argued that s. 12(1) must be read as it now stands, stripped of the past. It may also be said that the subsection marks a distinct shift - first evident in the Magistrates' (Summary Proceedings) Act 1975 - from the language of s. 60(3) of the Justices Act 1958. The force of those arguments cannot be denied. But as against the language of the critical portion of s. 12(1) there is s. 12(1A), s. 12(2), and the history of the legislation. I am not persuaded, as I said a few moments ago, that under s. 12(1) a court cannot refuse bail and remand a person in custody.

The circumstance that a court or bail justice is empowered to remand a person in custody under s. 12(1) does not mean that the court or bail justice may direct that such person be detained in a prison as that word is defined by the Bail Act. In my opinion there is no power to give such a direction. That is so, first, because the structure of s. 12(1) is against it. There is an obvious association between an application to commit a person to prison and the issue of a warrant of commitment. The association between commitment to prison and a warrant of commitment can be seen, also, in subsection (2).

Second, on refusal of bail a warrant of remand should be described - unless there is specific provision for a remand to gaol, or prison, as has sometimes occurred in legislation which I have read in connection with this matter - as a remand in custody. Used throughout the Bail Act [33] custody is a non-defined, non-specific noun. It should not be equated with "prison", a fortiori "prison" as defined in the Bail Act. In circumstances where s. 12(1) associates "prison", particularly defined, with a specific form of warrant, I reject a conclusion that a warrant authorising detention in custody replicates the effect of the other warrant.

It follows from what I have said that, the problem of form aside, the learned Magistrate was not empowered by s. 12(1) of the Bail Act to order or direct on a warrant of remand that the Defendant be detained in a youth training centre. He was, however, empowered to issue a warrant of commitment committing the Defendant to prison constituted by a youth training centre.

Having regard to all the circumstances, I will not grant the Plaintiff relief in the nature of certiorari. Neither will I make a declaration in the terms sought by the Plaintiff. On the other hand, I consider that a declaration in another form should be made. Subject to anything that counsel may wish to say as to form I shall declare that:

(1) On the hearing of the application made by or on behalf of the informant on 8 April 2002 the learned Magistrate, on refusing bail, did not have power under s. 12(1) of the Bail Act 1977 to issue a warrant of remand which ordered or directed that the Second Defendant be held in a Youth Training Centre during the adjournment of the charges brought against him to 28 June 2002.

(2) The learned Magistrate, on the hearing of the application referred to in paragraph (1) of this declaration, did have power under s. 12(1) of the Bail Act 1977 on refusing bail to issue a warrant of commitment committing the Second Defendant to prison constituted by a Youth Training Centre.

[1] If, contrary to my provisional opinion, the alleged error was an error of law on the face of the record, most of these circumstances are in any event disclosed by the record.

[2] See exhibit JSB5 to the affidavit of John Bentley sworn 18 April 2002 at p2, line 30 to p.5, line 9.

[3] See, for example, paragraph 9 of the affidavit of John Lee sworn 15 April 2002 and paragraphs 7 and 8 of the affidavit of Penelope Armytage sworn 30 May 2002.

[4] I note that the parties approached the matter on the footing that the application before the Magistrates' Court on 8 April 2002 fitted the circumstances set out in the opening portion of s. 12(1). I deal with the submissions making that assumption.

[5] To emphasise the point, why not a 50 year old man charged with child sex offences?

[6] Bail Regulations 1977, forms 9 and 10. See paragraphs (a) and (b) of s. 12(1).

[8] For example, forms XI, XVIII, XXIV, XXXIV, LII - LLV.

[11] Act No. 8731. By s. 13(e) it replicated, with minor changes, s. 27(4) of the Justices Act 1958. The Magistrates' Court Rules 1976, SR 99/1976, contained a form of warrant of commitment and several forms of warrants of remand.

[12] Under s. 70 of the Magistrates' Court Act a warrant to imprison has the consequence that the person the subject of the warrant will be held in a prison or police gaol as each of those terms is defined by the Corrections Act 1986 no. 117/1986. The definition of "prison" in the latter Act, see s. 10, will not include a YTC.

[13] So also, power of administrative transfer could be relevant.

[14] This was admittedly not such a case.

[16] Subject to there being some room for implication of powers enabling control of the practices and procedures of the court; a consideration which in my opinion is not pertinent in this case.

[17] As to which see, e.g. ss.25(2), 68(1) and 79(1)(e) of that Act.

[19] Nothing was said in submissions to cast light on the reason why the dates of remand and adjournment might be different.

[20] Act No. 84 of 1997, s. 6(1) and (2).

[28] Concerning the 1975 Act, I should add this: that s. 26(3) referred to a person "remanded in custody"; s. 28 spoke of a person "remanded to a prison", and s. 32(1) referred both to commitment to prison and remand in custody. In other words, the 1975 Act, though not in s. 24(1), well-recognised the concept of remand in custody.

[32] Though I think not. Those sections were still present in the Justices Act 1958, as ss.56 and 57. Section 60(3) of that Act is said to be the progenitor of s. 12(1) of the Bail Act.

[33] For example, ss.4(1), 2(b)(c)(d), 5(2)(a), 6, 10(1)(2)(3) and 18(1).

Young Persons Act 1989

(Summary Proceedings) Act 1975

Magistrates' Court General Regulations 2000

Bail Regulations 1977

Magistrates' Court Rules 1976

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Legislation Cited (8)