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Webster v The State Of South Australia [2003] SASC 347

Full Court - dissenting judgments - Doyle CJ, and Gray J said that the appeal should be refused

Majority judgments: Prior, Mullighan, Debelle allowed the appeal

Doyle CJ

The appeal in this case raises the question of whether an appeal lies to the Full Court of the Supreme Court against a decision of a judge of the Supreme Court, reviewing a decision of a bail authority to grant bail, and deciding that the person should not be released on bail.  If the appeal does lie, the question then arises of whether the judge erred.

The review and the appeal

On 2 June 2003 Mr Webster appeared before the Magistrates’ Court charged with a number of offences. At the time, a large number of other charges against Mr Webster were pending in the Magistrates’ Court. Under the provisions of the Bail Act 1985 (SA) (“the Act”) Mr Webster was eligible for release on bail: see s 4. The Magistrates’ Court was a bail authority in relation to the offences: see s 5(1)(b). A Magistrate granted bail.
On 4 June 2003 the Director of Public Prosecutions filed an application for review of the decision to grant bail. That application was filed under s 14 of the Act.
On 5 June 2003 a judge of the Supreme Court heard the review. The judge revoked the bail granted and decided that Mr Webster should not be released on bail.
On 20 June 2003 Mr Webster filed a Notice of Appeal, purporting to appeal to the Full Court against that decision. An amended Notice of Appeal was filed by leave on 24 June 2003. The Director has filed an application for an order dismissing the appeal as incompetent: see r 95.08 of the Supreme Court Rules.

The submissions for Mr Webster supporting the competence of the appeal involve a challenge to the correctness of a previous decision of the Full Court, and a challenge to firmly expressed views in two other decisions of the Full Court. Accordingly, the objection and appeal were heard by a court of five judges.

The Legislation

The Act was enacted in 1985. Section 4 specifies persons who are eligible for release on bail. In s 5 the Act identifies the courts and persons who are, in the circumstances specified, “bail authorities” and able to grant bail. By s 5(1)(a) the Supreme Court is a bail authority. It is so constituted without reference to any particular circumstances, and accordingly is a bail authority in relation to any person eligible for release on bail. Other courts and persons are bail authorities only in the particular circumstances specified in relation to that court and person. The Act regulates the contents of a bail agreement, by which bail is granted, and the contents of a guarantee of bail. Part 3 of the Act regulates how application for bail is to be made, the matters to be considered in deciding whether to grant bail, and the terms on which bail can be granted. Part 4 provides for the review of decisions of bail authorities. Section 14(1) of the Act provides as follows: “14. (1) A decision of a bail authority (not being the Supreme Court) is subject to review under this section.”

The section goes on to make more detailed provision relating to a bail review, and in particular requires the review to be heard “as expeditiously as possible.”  Other incidental provisions are made in relation to a bail review. Part 5 of the Act deals with the enforcement and termination of bail. Part 6 of the Act contains miscellaneous provisions which it is not necessary to mention. As can be seen from this summary, the Act comprehensively regulates eligibility for bail, the power to grant bail, the procedure for the grant of bail, the basis upon which applications for bail are to be determined, and the terms on which bail can be granted. The Act empowers the Supreme Court to review any decision of a bail authority unless the bail authority is the Supreme Court itself.

The Act makes no provision for an appeal against a decision of a bail authority or for an appeal against a decision by the Supreme Court on a bail review. In a number of provisions the Act refers to “the Supreme Court”. There is no definition of that term, and no provision stating whether jurisdiction under the Act is to be exercised by a single judge or by the Full Court of the Supreme Court.

The Supreme Court is continued in existence by s 6 of the Supreme Court Act 1935(SA)(“the SCA”). By s 17 of the SCA the court is a court of law and equity, and has vested in it the jurisdiction that was formerly vested in or capable of being exercised by the courts of England, including the court of Queens Bench; and such other jurisdiction as is vested in or capable of being exercised by the court, and such other jurisdiction as is conferred upon the court by the SCA. Section 48 of the SCA provides in its opening part as follows: “48 Subject to any express enactment, and to the rules of court, the jurisdiction vested in or exercisable by the court, shall be exercisable either by the Full Court or by a single judge sitting in court:…”

The section goes on to provide that certain matters should be heard by the Full Court. They include appeals from a single judge: proviso (1)(b). No other proviso is relevant to the present case.

Section 50 of the SCA is central to the present case. Relevantly, s 50 provides as follows: “50. (1) Subject to the rules of court an appeal shall lie to the Full Court against every judgment, including every declaratory judgment entered pursuant to section 30B of this Act and any final assessment made thereon, order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order: Provided that
(1) No appeal shall lie from…
(c) any judgment or order which is by statute, or by agreement of the parties, final or without appeal...  ……
(3) No appeal shall lie without the leave of the judge or of the Full Court from - (a) an order on appeal from the Magistrates Court:
(b) any interlocutory order or interlocutory judgment except in the following cases, namely: … …
(ii) Where the liberty of the subject or the custody of infants is concerned…” Section 63(1) of the SCA provides as follows:
“63. (1) The practice and procedure in all criminal causes and matters, including the practice and procedure upon appeal, except as expressly altered by this Act, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act.”

The issues

The first issue arises under s 50(1) of the SCA. The issue is whether the decision by the judge determining the bail review under s 14 of the Act is, for the purposes of s 50(1) of the SCA a “judgment…order or direction of a judge…”

The second issue arises under proviso (1) to s 50. It is whether, if the answer to the first issue is in the affirmative, the decision of the judge falls within proviso (1)(c) as a “judgment or order” that by the provisions of the Act (by implication, as there is no express provision in the Act) is “final or without appeal.”

There is a third issue. It is whether, if an appeal does lie, the decision of the judge is an “interlocutory order or interlocutory judgment” for the purposes of proviso (3)(b), but one in which “the liberty of the subject...is concerned” and hence appealable without leave. It did not seem to be disputed that if an appeal lay, the order of the judge was either a final order or an interlocutory order or judgment that concerned the liberty of the subject, and accordingly the leave was not required. Finally, there are two subsidiary issues that need to be noticed.

The first is whether a decision by the Supreme Court acting as a bail authority under s 5 of the Act, as distinct from a decision made on a bail review, is appealable under s 50 of the SCA. That issue does not arise directly.

The second is whether the Full Court is a bail authority for the purposes of s 5 of the Act, and accordingly able to hear an application for bail, notwithstanding a prior decision by a judge of the court, whether the judge exercised power as a bail authority under s 5 of the Act or exercised the power to conduct a bail review under s 14 of the Act. That is, could the Full Court exercise an original jurisdiction as a bail authority notwithstanding a prior decision by a judge of the court on an application for bail or on a bail review?

Is the decision a judgment or order for the purposes of s 50(1)?

It was not suggested in submissions before us that the decision by the Supreme Court on an application for bail, or on a bail review, is other than a judicial act done in the exercise of judicial power. When a judge of the Supreme Court considers an application for bail or a bail review, the judge is exercising the jurisdiction of the Supreme Court: s 5(1)(a) of the Act. Accordingly, the decision in Gray v Sweatman (1987) 45 SASR 517 holding that in the particular circumstances a magistrate was not sitting as a court of summary jurisdiction when making a decision under the Act, and holding accordingly that there was no appeal from that decision under the relevant provision of the Justices Act 1921 (SA) is distinguishable and can be put to one side.

It follows that the judge’s decision on the bail review is capable of being regarded as a judgment or order for the purposes of s 50(1) of the SCA, unless there is some reason to read those words in s 50 as not extending to such a decision. Two such arguments were advanced.

The first is that s 50 of the SCA has not been treated, and should not be treated, as applying to a decision on an application for bail, or on a bail review. It is argued that such a decision involves the exercise of criminal jurisdiction of a kind falling outside the reach of s 50. Implicit in this argument is a submission that s 50 should not be read as applying to decisions in “criminal causes and matters”, the language used in s 63 of the SCA, or perhaps more generally to decisions made in matters that are linked to the exercise of criminal jurisdiction.

The Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) regulates appeals and the reservation of relevant questions, arising out of a trial on information in the Supreme Court: see ss 350, 352 and 354A of the CLCA. It is clear that a decision by a Supreme Court judge on an application for bail, or on a bail review, cannot be the subject of an appeal under s 352 or s 354A, and will not give rise to a “relevant question” for the purposes of s 350.  The submission is that while it is accepted that s 50 of the SCA does not refer to judgments and orders referred to in these provisions of the CLCA, nor does it refer to a wider category of judgments and orders.

The second submission, to which I will come later, is that the Act by implication in any event, excludes a right of appeal, and is to be read as making the decision of the judge “final or without appeal” for the purposes of proviso (1)(c) to s 50(1) of the SCA. On this submission, even if the decision of the judge on an application for bail or on a bail review is a judgment or order for the purposes of s 50(1), a right of appeal is excluded by proviso (1)(c).

My starting point is that, on its face, s 50(1) of the SCA is expressed in broad terms. The expressions “judgment”, “order” and “direction” are evidently intended to cover a wide range of judicial decisions. A provision that confers jurisdiction on a court is to be construed “with all the amplitude that the ordinary meaning of its words admits”: Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72 at [11]. Accordingly, there is no reason to give a narrow reading to the expressions found in s 50(1) of the SCA. This is the case even though s 63 of the SCA (set out above) and the provisions of the CLCA referred to above make it clear that s 50(1) has little or no application to decisions made in connection with a trial on information in the Supreme Court, and is of limited application to “criminal causes and matters”.

Before the Act was enacted the Supreme Court exercised an original inherent jurisdiction in relation to the grant of bail to persons charged with an offence before any court of the State. An application for bail could be made to the Supreme Court, even if the court before which the person was charged had jurisdiction to grant bail. Such an application could be made to a single judge of the Supreme Court or to the Full Court, and in the latter event the Full Court was exercising the same original inherent jurisdiction, and not an appellant jurisdiction: see Tobin v Minister for Correctional Services (1980) 24 SASR 389 at 390-393. At least in South Australia, the application could be made by issuing an originating summons (or under the later Rules a summons) supported by an affidavit. The procedure of habeas corpus remained available but the simpler procedure of a summons supported by affidavit had supplanted habeas corpus as a matter of practice: Tobin at 392.

Before the enactment of the Act there was no decision in South Australia supporting the view that a decision by a Supreme Court judge on an application for bail was subject to appeal under s 50 of the SCA. The possibility of an appeal was referred to but not considered by the Full Court in Tobin at 392. In Panagiotidis v Jakacic (1986) 41 SASR 591 at 592, the Full Court again noted that when the Bail Act was passed the question of whether s 50 gave rise to a right of appeal to the Full Court was “unresolved”.

Observations have been made in decisions in other states, suggesting that a decision to grant or refuse bail, in the exercise of the inherent jurisdiction of the Supreme Court, is not subject to appeal under the provisions in other states equivalent to s 50 of the SCA.

In Jure Maric v The Queen [1981] 2 NSWLR 100 at 102 Street CJ, with whom the other two members of the court agreed, said: “The position, in my view, is clear that prior to the recent Bail Act there was no jurisdiction in the Supreme Court to entertain an appeal from a bail application.” 

He referred with apparent approval to an observation that an expression such as “criminal causes and matters” in s 63 of the SCA was to be read widely, and apparently considered that a provision similar to s 63 indicated that no appeal lay.

In Beljajev and Anor v Director of Public Prosecutions (Victoria) and Anor, (unreported, Supreme Court of Victoria, Appeal Division, 8 August 1991) the court said (at 10) that “at common law an accused person seeking bail had no right of appeal against refusal of bail, or grant of bail on unacceptable conditions”. On the other hand in Lim v Gregson [1989] WAR 1 the Full Court of the Supreme Court of Western Australia held that s 58 of the Supreme Court Act 1935 (WA), a general appeal provision different from but not unlike s 50 of the SCA, conferred a right of appeal against a decision made under of a provision of the Criminal Code, which empowered the Supreme Court or a judge thereof to admit a person to bail: at 11, 23 and 34. The court so decided even though a contrary assumption had long been made: see at 7, 34. There was no local provision similar to s 63 of the SCA. In Jemielita v The Queen (1994) 12 WAR 362 the Full Court, in holding that a right of appeal existed in relation to a decision made under the Bail Act, 1982 (WA) followed the decision just referred to.

In Fernandez v Director of Public Prosecutions [2002] VSCA 115; (2002) 5 VR 374 the Court of Appeal of the Supreme Court of Victoria, while reversing the decision in Beljajev in part, referred to appeal rights as being “anomalous” in the context of the common law history of bail, bearing in mind the ability of the person in custody to make successive applications for bail: at [19].

While this survey of the case law suggests that, prior to the Act, s 50 of the SCA did not confer a right of appeal against a decision by a Supreme Court judge on an application for bail, existing authority is certainly not decisive on the question.

It is clear, as I have earlier indicated, that s 50 of the SCA has no application to an order made or refused in proceedings by way of information in this court, which proceedings involve the exercise of the original criminal jurisdiction of the court referred to in s 17 of the SCA: R v Garrett (1988) 49 SASR 435 at 439 Cox J, with whom the other two members of the court agreed. Decisions in such matters are regulated exclusively by the CLCA. On this point see also the analysis by Zelling J of the history of the Supreme Court appellate jurisdiction in criminal matters in the The Queen v Millhouse (1980) 24 SASR 555 at 560-566. In that decision the Full Court also held that s 49 of the SCA, which gives a judge “sitting in the exercise of any jurisdiction” power to reserve a case or point for consideration of the Full Court, did not apply to proceedings tried by way of information in the Supreme Court. The court relied in part on the provision in s 63 of the SCA to the effect that practice and procedure “in all criminal causes and matters” was to be unaltered by the passing of the SCA.

But it has also been recognised that s 63 does not operate to exclude all application of s 50 of the SCA to matters that might be regarded as criminal. In particular, the provisions of s 50 of the SCA apply to orders made by a judge of the Supreme Court on appeal from decisions made by magistrates in the exercise of summary criminal jurisdiction: Millhouse at 559, Mitchell J; Garrett at 445 and Panagiotidis at 591-592.

But Millhouse and Garrett were each concerned with a case in which the original criminal jurisdiction of the court was clearly being exercised, not with a decision in relation to bail. And in Millhouse the court was not concerned to decide whether or not the reference to “criminal causes and matters” in s 63, which was clearly treated as influential, extended to applications for bail.

Finally, I should add that in Panagiotidis at 592 King CJ expressed the view that it was undesirable “… that the ultimate disposal of the question of bail should be delayed by the appeal process.”

He said that decisions as to bail relate to a “temporary and often fluid situation”, and that decisions could often be overtaken by events while an appeal was pending. I agree generally with that. These observations were made in the context of concluding that the procedure for bail review provided by the Act was intended as the exclusive remedy, and reflected an intention to exclude review by way of appeal. Clearly enough, in most situations an expeditious review involving a fresh consideration of the facts will be more appropriate than an appeal.

On the other hand, there are matters supporting the conclusion that s 50(1) of the SCA should be read as applying to decisions made by a judge on an application for bail or on a bail review. Although an application for bail usually arises in the context of criminal proceedings, the application itself does not appear to invoke the traditional criminal jurisdiction conferred by s 17 of the SCA and reflected in the provisions of the CLCA. In particular, in deciding an application for bail, prior to the enactment of the Act, the Supreme Court was not exercising its jurisdiction to try an information. It was exercising a distinct inherent common law jurisdiction. Since the enactment of the Act, the Supreme Court is exercising a statutory jurisdiction conferred by the Act. As well, as the court noted in Tobin, the procedure of applying for bail in the Supreme Court, by issuing a summons supported by affidavit, was the successor to the earlier procedure of habeas corpus. The issue of the writ of habeas corpus has not been regarded as involving an exercise of criminal jurisdiction unless it acquired that character from the kind of proceedings that led to it being used. Nor is the grant of bail always linked to the exercise of a court’s general criminal jurisdiction. Bail can be granted to a person who is a witness in civil proceedings, and is arrested to ensure his or her attendance: see s 35 of the SCA and s 4 (1)(e) and (f) of the Act. On the other hand I note that in Lim v Gregson Malcolm CJ treated the jurisdiction to grant or refuse bail under the Criminal Code as a proceeding which was a “criminal proceeding” because it involved the exercise of “miscellaneous criminal jurisdiction” under the relevant rules: at 5-6. Similarly, in Fernandez Winneke P, with whom the other members of the court agreed, treated a decision under s 18A of the Bail Act 1977 (Vic), allowing an appeal by the Director of Public Prosecutions against a grant of bail, as “a matter of criminal practice and procedure” and, apparently, as a “criminal matter’ for the purposes of s 17 of the Supreme Court Act 1986 (Vic).

I now attempt to draw these threads together. In this State, there is no decision holding that the reference to “judgment” and “order” cannot apply to a decision made on an application for bail under the inherent jurisdiction of the court, or to such a decision or a decision on a bail review under the Act. The question remains open. Judges of this court have made observations suggesting that s 63 of the SCA, which preserves existing practice and procedure “in all criminal causes and matters” has a fairly wide reach, but none of those observations were directed to the situation now before the court. Observations have been made in this State and elsewhere to the effect that, at least in relation to the common law position, the concept of a right of appeal against a decision relating to bail is anomalous, having regard to the ability of a person in custody to make repeated applications for bail, going from judge to judge. It has also been said that the situation in matters relating to bail is fluid, and that a remedy by way of appeal is inconvenient and inappropriate.

On the other hand, the decision of the High Court in Roy Morgan reminds us that, as a starting point, the words of a provision like s 50(1) of the SCA are to be read without any tendency towards restriction. It should also be said that while the ability to renew an application for bail at (common law), and the ability to seek a review under the Act, would in most situations make resort to an appeal unnecessary, there may well be situations in which the availability of a remedy by way of appeal would be beneficial. For example, if judges of the court were to take a different view on an issue of principle relating to the grant of bail, the appropriate way to resolve that, and possibly the only satisfactory way, would be by way of appeal under s 50, unless it were possible to reserve a case or point of law for consideration of the Full Court under s 49 of the SCA. If it is possible to invoke s 49, it is difficult to see why it should not be equally possible to invoke s 50. In short, the occasion to invoke a right of appeal in relation to a decision on bail might be rare, but one should be slow to conclude from that that such a right does not exist. My conclusion is that at common law and under the Bail Act a decision by a judge of the Supreme Court in relation to bail can be a “judgement” or “order” for the purposes of s 50(1) of the SCA.  I so conclude on the basis that the words used are wide in their reach, and there is no good reason to read them down so as to exclude a decision of the kind referred to. This conclusion may conflict with the tenor of observations previously made by judges of this court, but so far as I am aware my conclusion is not contrary to any decided case.

Does the Bail Act nevertheless make the decision “final or without appeal”?

In Panagiotidis this Court held that the Act excluded a right of appeal, because no right of appeal was provided by the Act, and because in the circumstances the inference should be drawn that Parliament’s intention was to exclude any right of appeal. Accordingly, the Bail Act was to be read as making a decision by a Supreme Court judge in relation to bail “final or without appeal” for the purposes of proviso (1)(c) to s 50(1) of the SCA: Panagiotidis at 592-593. Reduced to its essentials, the reasoning of King CJ was as follows. First the Act is a code in relation to bail. It makes no provision for appeals. It gives a quick and expeditious remedy by way of review. The Act provides specifically that there can be no review when the bail authority is the Supreme Court. Therefore, by implication, the remedy of review is intended to replace or negate any possible appeal, and the exclusion of a right of review in relation to a decision of the Supreme Court implies that there is to be no remedy in relation to such a decision. Accordingly, King CJ held that even if a right of appeal would otherwise arise under s 50 of the SCA, the Act intended to exclude any such right.

The first question that arises is whether the Act is a code. In particular, what precisely does it mean to say that the Act is a code?  A conclusion that the Act is a code is a conclusion that it governs exclusively the topic or subject matter that it regulates, and relevantly that the only remedies to be permitted in relation to that matter are the remedies provided by the Act.

Clearly enough the Act regulates the ability to grant bail, the procedure for seeking bail, the basis upon which applications for bail are to be considered, the enforcement and termination of bail and some miscellaneous matters. The intention of Parliament appears to be to regulate those fields comprehensively and exclusively. That would imply that the inherent jurisdiction to entertain an application for bail has been replaced or displaced, although, somewhat surprisingly, the Act is silent on the point. It would be odd if that earlier inherent jurisdiction survived the enactment of detailed provisions such as are found in the Bail Act. It would be equally odd and inconvenient if the earlier inherent jurisdiction were treated as surviving, modified in particular aspects of its exercise only to the extent necessary to give effect to the provisions of the Act.

For those reasons, I respectfully agree that, generally, the Act is a code on the topic of bail. By this I mean that the Act is a code on the topic of the power to grant bail, and the procedure to be followed in connection with the grant of bail, on the terms on which bail is to be granted and on enforcement and termination of bail.

However, to my mind at least, that leaves the question of whether any and what implication is to be drawn from the fact that the Act confers an expeditious remedy by way of review in s 14, and is silent on the question of a right of appeal to the Full Court from a decision of a judge of the Supreme Court.

It does not follow from the fact that the Act regulates exclusively some aspects of the law relating to bail, that it regulates exclusively all aspects of the law relating to bail.

In my opinion no particular inference should be drawn from the bare fact that the Act makes no reference to a  right of appeal. There is no need for it to do so. The general provisions of s 50 are intended, surely, to make it unnecessary in a case like this to provide specifically for a right of appeal.

If Parliament intended that a decision by the Supreme Court under the Act is to be “final or without appeal”, that intention must be inferred from the provision of a remedy by way of bail review, and from the further provision that that remedy is not available when the bail authority is the Supreme Court. As I have already indicated, the conclusion by King CJ that these provisions did exclude any remedy by way of appeal, was influenced by his conclusion that a right of appeal in this area would be inappropriate and anomalous.

I must say, with respect, that I do not share that conclusion, although I unhesitatingly accept that the situations in which an appeal rather than a review would be an appropriate remedy will be very few indeed. However, I acknowledge that there is force in it, and that this is an issue on which minds can easily differ.

It is not difficult to conclude that Parliament intended the Statutory Review under s 14 of the Act to be the sole means of reviewing or correcting a decision on bail by a bail authority other than the Supreme Court. Although we did not hear detailed submissions on this point, my tentative conclusion from a survey of the relevant legislation is that there are situations in which a decision by a magistrate on an application for bail by a person charged with an offence would not be open to appeal under the Magistrates Court Act 1991 (SA), and that a decision on an application for bail by an arrested witness in a civil action or criminal action would not be appealable under s 40 or s 42 of the Magistrates Court Act. Nor does there appear to be a right of appeal against a decision by a District Court judge on an application for bail by a person being tried on information before that court, or by a witness arrested to compel that person’s attendance for the purpose of a civil action or a criminal action: see s 43 of the District Court Act 1991 (SA), and the provisions of the CLCA. In that setting it is easy to conclude that Parliament enacted s 14 of the Act to provide a prompt remedy in relation to a decision by a bail authority other than the Supreme Court. It is equally easy to conclude that Parliament intended it as the only remedy in relation to such a decision.

The exclusion of a decision of the Supreme Court acting as a bail authority from s 14 is understandable. There appears to be nothing in the Bail Act to prevent a second or later application to the Supreme Court to review a decision of the bail authority, and so any change in circumstances can be accommodated by a further review application. This possibility was contemplated by King CJ in Panagiotidis: at 592. As well, and this is the more likely course of events, a further application for bail can always be made to the original or primary bail authority. Another reason why Parliament would not have provided for a review of a decision by the Supreme Court acting as a bail authority is that it would not be appropriate for one judge of the court to review the decision of another judge of the court. Bearing all that in mind, is it appropriate to conclude that Parliament intended not only to exclude a review of a decision by the Supreme Court as a bail authority, but also to exclude a right of appeal that would otherwise be available under s 50(1) of the SCA?

If the provisions made by s 14(1) of the Act are explicable on the basis outlined above, there is no obvious reason for inferring an intention to exclude a right of appeal. Nor, as I have said, am I persuaded to the view that a remedy by way of appeal would be inappropriate or anomalous in this area. There are situations in which an appeal would be an appropriate remedy. As I have said, no inference at all can be drawn from the bare fact that there is no express provision for an appeal. There was no need to do so.

Taking all those matters into account, my view is that it is not right to conclude that Parliament, by implication, intended to exclude a right of appeal otherwise available under s 50(1) of the SCA and intended to make a decision by the Supreme Court as a bail authority “final or without appeal”.

There remains the question of whether the court should now depart from the decision in Panagiotidis. The decision has stood for some time. The conclusion that there is no right of appeal has not, so far as I am aware, been productive of inconvenience or of injustice. No doubt this is because, in most situations, the ability to make a fresh application for bail or a fresh review application has provided sufficient protection. It can also be said that the point at issue is one on which minds might differ.

The practice of this court is not to depart from its earlier decisions unless satisfied that the decision is plainly wrong or that the interests of justice clearly require a departure from the earlier decision. See Nguyen and Others v Nguyen (1990) 169 CLR 245 at 258-269; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd, McAuley and Another (1989) 52 SASR 148.

Having reflected on the matter, I consider, with respect, that the decision in Panagiotidis is plainly wrong. On reflection, I can find no reason at all to imply that Parliament intended to exclude a right of appeal. I accept that the matter is, in one sense, a matter of impression, but nevertheless I have formed a firm view. Moreover, although (as will appear) this is not a case in which the interests of justice require that a right of appeal be available, I can envisage situations in which an injustice might be done if the right of appeal were not available. The decision in Panagiotidis is not one on which people would have relied in organising their affairs. Departing from it should not cause any inconvenience.

For those reasons I would hold the decision in Panagiotidis wrong and conclude that an appeal lies. Accordingly, the objection to the competence of the appeal must fail. I should also make the point that the present case is distinguishable from the circumstances before the High Court in Roy Morgan and before the Court of Appeal of the Supreme Court of Victoria in Fernandez. In each of those cases a right of appeal was available under the Victorian legislation unless a statute “expressly provided” otherwise. Those cases reflect a conclusion that, in particular circumstances, the absence of any reference to a right of appeal was not sufficient to conclude from that silence, that the relevant statute “expressly provided” that there should be no right of appeal.

Gray J

Introduction

This is an appeal from a decision of a Supreme Court judge to revoke bail. The competence of this appeal has been challenged. The question raised is whether an appeal lies to the Full Court of the Supreme Court against a Supreme Court judge’s decision allowing an application to review a decision of a bail authority to grant bail. The determination of this challenge raises the question of the proper construction of provisions of the Supreme Court Act 1935 (SA) and the Bail Act 1985 (SA). The appellant, Andrew Gary Stanley Webster was granted bail by a magistrate. The Crown made application to review that decision. Bail was revoked by a Supreme Court judge. Mr Webster now seeks to set aside the order revoking bail by way of appeal. The facts and background to this case are set out in the judgment of Doyle CJ. They are repeated only to the extent necessary for an understanding of my reasons for concluding that this court has jurisdiction to hear the appeal and for my concurrence with an order that the appeal be dismissed.

Bail

The concept of bail evolved to give effect to the presumption of innocence and the right to liberty:

“When the administration of justice was in its infancy, arrest meant imprisonment without preliminary inquiry till the sheriff held his tourn at least, and, in more serious cases, till the arrival of the justices, which might be delayed for years, and it was therefore a matter of the utmost importance to be able to obtain a provisional release from custody…The sheriff was the local representative of the Crown, and in particular he was at the head of all the executive part of the administration of criminal justice. In that capacity he,  … arrested and imprisoned suspected persons, and, if he thought proper, admitted them to bail. The discretionary power of the sheriff was ill defined, and led to great abuses, which were dealt with by the Statute of Westminster.” [Stephen JF. A History of the Criminal Law of England. London: Macmillan & Co, 1883. Vol 1 at 233 –234].

The earlier process of the release of a subject into the custody of a surety has been replaced by an accused having conditional liberty upon giving an undertaking on appropriate terms to appear before the court when called on to do so.[ Bail Act, section 6] Bail has been more recently defined as: “the right to be released from custody granted to a person charged with an offence, on the condition that he or she undertakes to return to the court at some specified time, and any other conditions that the court may impose.” [Nugh P, Butt P (eds). Butterworths Australian Legal Dictionary. Sydney: Butterworths, 1997.]

Common law and statutory rights to bail implicitly acknowledge that the liberty of the person is one of the cornerstones of a free democratic society. In R v Hall [(2002) 217 DLR (4th) 536]   Iacobucci J of the Canadian Supreme Court observed: “… Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent until proven guilty, and further in the specific right to bail. When bail is denied to an individual who is merely accused of a criminal offence, the presumption of innocence is necessarily infringed. This is the context of this appeal, one in which the “golden thread” that runs through our system of criminal law is placed in jeopardy. And this is the context in which laws authorizing pre-trial detention must be scrutinized. Section 11(e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure that pre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest.

The duty to protect individual rights lies at the core of the judiciary’s role, a role which takes on increased significance in the criminal law where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused. Courts must not, therefore, take lightly their constitutional responsibility to scrutinize the manner by which the legislature has authorized the detention of the accused in the absence of a conviction.

These observations although made in the context of a particular statutory regime, restate the rationale underlying the approach of common law jurisdictions to bail. The same fundamental principles have been recognised in International Covenants.” [See the International Covenant on Civil and Political Rights Article 9 – see also United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules)  Rule 6]

These observations are relevant to a consideration of the issues arising in the present case. There has been debate about the source of the power of the Supreme Court to grant bail prior to the enactment of the Bail Act. It has been suggested that bail originated in the Habeas Corpus Acts of 1640 and 1679. It has also been said that the power formed part of the inherent power of the Supreme Court. The issue was settled in Forrest v Huffa  [(1968) SASR 341 at 342-343. See also Ex Parte Lewis (1972) 3 SASR 145] where Bray CJ observed: “It therefore becomes necessary to examine the true nature and origin of the power of this court to bail persons refused bail in the Magistrate’s Court. Is it merely an incident of the criminal jurisdiction of this Court and restricted to cases which will or may ultimately come before it, as Mr Scarfe contends? I entertain no doubt that it is not. This Court has the jurisdiction formally vested in or capable of being exercised by the Court of Queen’s Bench (Supreme Court Act 1935-1967, s 17(2) (II)). Amongst the powers of the court of Kings Bench, exercise from at least the seventeenth century, is the power to bail. Coke says in his chapter on the Court of King’s Bench, 4 Inst., c.7, p.71: ‘Also this court may bail any person for any offence whatsoever’. The terms of the Habeas Corpus Act (1679) 31 Car. II, c.2, are wide enough to include a power to bail persons committed in respect of any offence including summary offences. … The jurisdiction of this Court to entertain this application is, in my view, inherent, and is not a mere incident of its criminal jurisdiction, but proceeds from its general power to protect the liberty of the subject, and no argument against that jurisdiction in the present case based on the provisions of the Justices Act can succeed which would not also destroy it in the case of persons charged with indictable offences.”

The importance of the liberty of the subject has been recognised by the Bail Act. The Act creates a presumption in favour of a grant of bail for an accused person. [Bail Act, section 10] The Act provides a comprehensive scheme regulating bail including the review of decisions of magistrates and District Court judges. [Bail Act, Part  IV ] The Act does not provide for a review of a decision of a Supreme Court judge.  [Bail Act, section 14(1)] A question that arises in the present case is whether the Bail Act on its proper construction excludes any right of appeal from a decision of a Supreme Court judge revoking bail on the hearing of an application for review.

The Legislation

Section 50 of the Supreme Court Act invests the Supreme Court with appellate jurisdiction: Subject to the rules of court an appeal shall lie to the Full Court against every judgment, … order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order:

Provided that—

No appeal shall lie from— …

(c) any judgment or order which is by statute, or by agreement of the parties, final or without appeal.   …
(3) No appeal shall lie without the leave of the judge or of the Full Court from— …

(b) any interlocutory order or interlocutory judgment except in the following cases, namely:

(ii) Where the liberty of the subject … is concerned:

(iii) Where an injunction … is granted or refused:        …

In Roy Morgan v State Revenue (Vict) [(2001) 207 CLR 72 at 78] Gaudron, Gummow, Hayne and Callinan JJ observed: Section 17(2) [of the Supreme Court Act 1986 (Vict)] is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal to hear an appeal from any determination of the Trial Division when constituted by a judge. [Section 17(2) of the Supreme Court Act 1986 (Vict) provides: “Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge”]

As section 50 of the Supreme Court Act is a provision which confers jurisdiction upon a court it is not “on that account alone” to be given a narrow construction.

Counsel for Mr Webster submitted that the Supreme Court judge’s order revoking bail was an order within the meaning of section 50 of the Supreme Court Act. It was said that there was a right of appeal from that order. It was emphasised that Mr Webster was presumed innocent and that his liberty was directly affected by the order of the judge. It was contended that the Bail Act did not expressly or by necessary implication exclude an appeal from the decision of a Supreme Court judge refusing bail or revoking a grant of bail.

The order of the judge in the present case revoking bail would appear to be an order within the meaning of section 50 of the Supreme Court Act. Regardless of whether the order is characterised as interlocutory or final, because it affected the liberty of the subject, in the ordinary course an appeal would lie as of right. However consideration must also be given to the proviso to section 50 that no appeal shall lie from an order which is by statute “without appeal”.

Counsel for the Crown submitted that the Bail Act was a complete code regulating bail. It was contended that the Bail Act excluded any right of appeal. It was said that by necessary implication an order of a Supreme Court judge was not subject to appeal.

Counsel for the Crown contended that the issue of competence had been foreclosed against Mr Webster by an earlier decision of the Full Court in Panagiotidis v Jakacic [(1985-1986) 41 SASR 591]  Attention was drawn to the practice of this court to only depart from an earlier Full Court decision when satisfied that the interests of justice require a departure or if it is satisfied that the earlier decision is plainly wrong [Nguyen v Nguyen (1990) 169 CLR 245, Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1988-1989) 52 SASR 148.] In Panagiotidis King CJ, with whom White and O’Loughlin JJ agreed, observed: “The Bail Act, 1985, is, in my opinion, a code for the grant and refusal of bail. It makes elaborate provision as to the persons eligible for bail, the authorities which may grant bail, applications for bail, procedures to apply in relation to such applications, the criteria to be applied in determining such applications, and bail agreements and guarantees. The Act is clearly intended to cover the whole field of law in relation to such matters and to exclude and supersede all other legal provisions relating to bail.”
“The Act makes careful provision for review of bail decisions (Part IV), but makes no provision for appeals. The decisions which are made subject to review are decisions of bail authorities other than the Supreme Court. Decisions made by the Supreme Court are not subject to review. A bail decision of the Supreme Court is ordinarily made, of course, by a single judge and this must be taken to have been within the contemplation of the legislature. The reviewing authority is enjoined to hear and determine an application for review "as expeditiously as possible" (s 14(5)) and s 16 provides for release on bail to be deferred for up to 72 hours pending such review. It will be seen then that the Act provides a code for the review of decisions as to bail. Decisions of a judge of the Supreme Court are not subject to review. Other decisions are subject to review by a judge of the Supreme Court and such review is intended to be conducted expeditiously.”

“There is in the above scheme of things no room, in my opinion, for an appeal against the decision on review, or indeed against a decision of a Supreme Court judge on an original application for bail. It is not contemplated that the ultimate disposal of the question of bail should be delayed by the appeal process. There are sound reasons for this. There is at stake the liberty of a citizen who is likely to have a presumption of innocence in his favour. Bail decisions necessarily relate to a temporary and often fluid situation. The present case is an example. The decision as to bail by the Magistrate, and the review thereof by the Judge, were made before there had been a preliminary hearing of the charges. Subsequently Panagiotidis was committed for trial to the Supreme Court and he was to be arraigned on the day following the hearing of the appeal. This sequence of events illustrates how inappropriate an appeal procedure is in relation to bail decisions. Such decisions would often be overtaken by events while the appeal was pending. It appears to me that, for sound reasons, the legislature has decided to rely upon speedy review procedures in relation to bail decisions by the lower courts and to treat bail decisions by a Supreme Court judge as final unless varied in consequence of a fresh application. The Act is intended to be a code as to the circumstances in which bail decisions may be reviewed. There being no provision for review by way of appeal, any rights of appeal which might otherwise have existed are excluded.”

“I am of opinion that no appeal lies to the Full Court against the decision complained of. The appeal should therefore be dismissed as incompetent.”

Counsel for the Crown adopted this reasoning as the substance of the respondent’s submission to this court.

In Roy Morgan Kirby J discussed the intersection of the two Acts there in question. He said: “Therefore, the main task of an Australian court, required to examine the intersection of s 148 (1) of the VCAT Act and s 17(2) of the Supreme Court Act, is to discover how, from the language, purpose, history and practical operation of the two Acts (viewed in the context of constitutional and other legal norms), they were meant to operate together.” [(2001) 207 CLR 72 at 90] Kirby J then turned to an examination of the provisions of the relevant Victorian statutes. A similar approach is helpful in the present case.

There is an intersection between the Supreme Court Act and the Bail Act. The Bail Act addresses the liberty of the person. It contains detailed provisions for the dealing with applications for bail and for the review of decisions of magistrates and District Court judges. It does not seek to extend the review process under the Bail Act to decisions of Supreme Court judges [Bail Act – section 14].  Section 50 of the Supreme Court Act grants jurisdiction to this court to hear appeals from orders of a judge of this court.

The Bail Act can operate as a code addressing all aspects of bail including rights of review from decisions of magistrates and District Court judges but leave open a right of appeal against the decision of a Supreme Court judge. Viewed in this way both the Bail Act and the Supreme Court Act allow a reconsideration of a decision giving rise to a loss of liberty of a person accused of a crime. No tension arises between section 50 of the Supreme Court Act and the Bail Act.

The Bail Act is designed to protect and support the liberty of the person not to unduly or unnecessarily restrict that protection or support. It is accepted that a loss of liberty as a result of a decision of a magistrate or a District Court judge is reviewable by a Supreme Court judge pursuant to the terms of the Bail Act. A conclusion that a loss of liberty as a result of a decision of a Supreme Court judge is subject to an appeal is not inconsistent with the provisions of the Bail Act. This conclusion would operate to protect the presumption of innocence, protect the liberty of a subject, and would ensure that no disparity of treatment or injustice results.

An analysis of the Bail Act does not disclose any express provision denying a right of appeal from a decision of a Supreme Court judge on an application for bail or an application to review a grant or refusal of bail. Such a denial does not arise by necessary implication from the provisions of the Bail Act.

The Supreme and District courts exercise an extensive concurrent criminal jurisdiction. Within that concurrent jurisdiction accused persons in comparable circumstances may seek bail in different courts. On the Crown’s contention in one case a loss of liberty could be reconsidered by way of review and in the other no review or appeal would be available. There would be no reconsideration. This situation may give rise to disparity and a consequent injustice.

A situation may arise where bail has been granted and on review in the Supreme Court the grant of bail is set aside. Bail may be refused in the first instance by a Supreme Court judge. In either circumstance a person presumed innocent will have lost their liberty and on the Crown’s contention have no right of appeal or other review. Further applications for bail may be made but absent a change of circumstance there will be in practice little or no prospects of success. This situation may be contrasted to that of another person in comparable circumstances but convicted of the offence charged. That person would have appeal rights with respect to any loss of liberty arising from the sentence imposed. This too may give rise to disparity. A person who is presumed innocent should at the very least be accorded equivalent rights to review any loss of liberty.

In Panagiotidis King CJ drew attention to the summary nature of bail proceedings and the need for the prompt disposal of applications for bail. However matters of procedure must not be allowed to inhibit the proper protection of the liberty of a person who is presumed innocent. The disposal of appeals from decisions of Supreme Court judges would cause no particular inconvenience or difficulty. The appellate process can be “streamlined” by appropriate rules of court. The preparation and hearing of the appellate process is likely to be straightforward.

As earlier observed the loss of liberty of a person presumed innocent is a matter of grave importance. To conclude that no appeal lies from such a decision of a Supreme Court judge would appear to run counter to principles underlying the protection of fundamental human rights. The interests of justice require a departure from the decision in Panagiotidis. I am satisfied that the decision is plainly wrong. The appeal is competent.

On the issue of the merits of the appeal I agree with the reasons of Doyle CJ that the appeal should be dismissed.

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