Networked Knowledge - Law Report

This version of the report has been prepared by: Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

List of Australian, UK and USA miscarriage of justice cases
Go to: Networked Knowledge - the Henry Keogh homepage
Go to: A state of Injustice - table of contents
Go to: Losing Their Grip - The Case of Henry Keogh - table of contents

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

Majority judgments: Prior, Mullighan, Debelle allowed the appeal

Minority judgments: Doyle CJ and Gray J said the appeal should be refused

Prior J

In Panagiotidis v Jakacic [(1986) 41 SASR 591], this Court held that no appeal lies to the Full Court against a refusal of bail by a judge of the Supreme Court. The Court held that decisions of a judge of this Court with respect to bail are not subject to review. In so deciding, the Court held that the Bail Act 1985 is a code for the grant and refusal of bail. The Act was said to be “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” [41 SASR 591 at 592].

King CJ pointed out that it was not contemplated that the ultimate disposal of the question of bail should be delayed by an appeal process. His Honour said there were sound reasons for this. Amongst other things, an appeal procedure is inappropriate in relation to bail decisions, which can often be overtaken by events while an appeal is pending. It was the view of this Court 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” [41 SASR 591 at 592 and 593].

By these proceedings, the decision of a Supreme Court judge to refuse bail is sought to be the subject of a right of appeal pursuant to s 50 of the Supreme Court Act 1935. It is contended that Panagiotidis was wrongly decided and that recent case law confirms the right of appeal to a Full Court.

The principal authority relied upon in support of this contention is a decision of the High Court. In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[ (2001) 207 CLR 72], the High Court  held that provisions in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) did not expressly provide, within the meaning of s 17(2) of the Supreme Court Act 1986 (Vic) that there was no appeal to the Court of Appeal of that State from an order made by a single judge of the Supreme Court refusing or granting leave to appeal from an order made by a non-presidential tribunal.

Subsequently, in Fernandez v DPP[(2002) VSCA 1115], the Court of Appeal in Victoria held that previous authority of that Court excluding a right of appeal to the Full Court from a single judge’s determination on a director’s appeal against the granting of bail was incorrect. It is submitted before this Court that the reasoning of both the High Court in Roy Morgan and the Victorian Court of Appeal in Fernandez calls for this Court to overrule the decision in Panagiotidis and uphold the right of an appeal to the Full Court against the single judge’s decision to refuse bail in this case.

In my view, there is nothing in any recent authority which calls for this Court to overrule the decision in Panagiotidis. In the two cases cited, the provision in s 17(2) of the Supreme Court Act 1986 (Vic) was of critical significance. That 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.”

It was the absence of an express provision in the Victorian Bail Act excluding a right of appeal that meant that, in consequence of s 17(2), there was a right of appeal from a decision of a single judge made pursuant to s 18A of the Bail Act 1997 (Vic). No provision similarly expressed is identifiable in the relevant laws of this State. Neither the Supreme Court Act nor the Criminal Law Consolidation Act 1935 (SA) asserts a right of appeal from any decision of a single judge “unless otherwise expressly provided” by that or any other Act.

Section 50 of the Supreme Court Act 1935 (SA) has no application to the original criminal jurisdiction of this Court [R v Garrett (1988) 49 SASR 435]. It is a provision which has very little application to proceedings of a criminal nature. However, to assume contrary to the compelling reasoning of this Court in R v Millhouse [(1980) 24 SASR 555]  with respect to s 49 of that Act, that s 50 has some application to some criminal matters, besides appeals from the Magistrates Court in criminal proceedings, is not to call for a conclusion that the reference to liberty of the subject within s 50(3)(b)(ii) creates an exception to the code provisions enacted in the Bail Act in 1985.

In Tobin v Minister for Correctional Services [(1980) 24 SASR 389], the inherent jurisdiction of the court to grant bail was affirmed in the absence of the statutory scheme now enshrined in the Bail Act. That decision cannot generate support for the existence of a right of appeal by reliance upon the general language within s 50(3)(b)(ii) of the Supreme Court Act. Any application of that provision beyond the civil side of this Court’s jurisdiction and into proceedings in a criminal cause or matter cannot qualify the later special Act with respect to bail. Any such possibility is ousted either because the terms of s 14 of the Bail Act are such that any bail decision of the Supreme Court is final and without appeal within (1)(c) of the proviso to s 50(1) or because any possible application of s 50(3)(b)(ii) is denied by Parliament’s later and special provisions.

The reasoning in Panagiotidis is not shown to be plainly wrong. In my view, any right of appeal which might otherwise have existed is excluded by the provisions in the later special Act with respect to bail. As King CJ put it in Panagiotidis, in the legislative scheme of the Bail Act there is “no room, ... for an appeal against the decision on review, or indeed against a decision of a Supreme Court Judge in an original application for bail [Panagiotidis 41 SASR 591 at 592].”  The legislative scheme so enacted confers a right of review in some but not all cases. In the case of bail decisions by Supreme Court Judges, the situation as it was before the enactment of Bail Acts here and interstate is maintained. There is no appellate authority in this Court in respect of the grant or refusal of bail by a Judge of this Court [Jure Maric v R (1981) 2 NSWLR 100 and Tobin v Minister for Correctional Services (1980) 24 SASR

There is nothing in the judgment of the High Court in Roy Morgan or the Court of Appeal in Fernandez to warrant a departure from the longstanding principles proclaimed in Panagiotidis. The appeal should be dismissed as incompetent. If I am wrong about that and the appeal is competent, it should be dismissed for the reasons given by the Chief Justice.

Mullighan J

I agree that this appeal is incompetent for the reasons given by Debelle J and I also agree with the other members of the Court that if the appeal was competent it should fail on the merits.

Debelle J

The facts and the reasons which led to this specially convened Full Court are recited in the reasons of the Chief Justice which I have had the advantage of reading. However, I do not agree with the conclusion of the Chief Justice as to the competence of this appeal. For the reasons which follow, I believe that the appeal is incompetent. However, if I am wrong in that conclusion and the appeal is competent, I agree with the Chief Justice that the appeal should be dismissed. There is no merit in the application for bail. The appellant has an appalling history of re-offending while on bail. In my view, it is clear that Sulan J was entirely correct in deciding not to grant bail to the appellant.

The Issues

There are essentially two questions in this appeal. Each stems from the terms of s 50 of the Supreme Court Act 1935. The first arises under para (c) of the proviso to s 50(1), namely, whether a decision of the Supreme Court as a reviewing authority under the Bail Act is a judgment or order which is final or without appeal. The second stems from s 50(3)(b) which provides, among other things, that there is no appeal except by leave from an interlocutory order or interlocutory judgment except where the liberty of the subject is concerned.

The Scheme of the Bail Act

It is convenient to examine first the relevant provisions of the Bail Act, 1985. It establishes a régime for the expeditious handling of applications for bail and for review of decisions granting or refusing bail. However, to conclude that the Bail Act is a code begs the question whether the Bail Act precludes a right of appeal to the Full Court. The conclusion that it is a code for the grant and refusal of bail is a step in the reasoning but it is not itself conclusive of the issue. The resolution of the question whether the Bail Act precludes a right of appeal turns, I think, on the plain words of s 14 of the Act and on the overall scheme and policy of the Act. Before examining the meaning of s 14, I consider the scheme of the Bail Act.

Section 5 of the Bail Act constitutes bail authorities. It is sufficient for present purposes to note that bail authorities include the Supreme Court and a court before which a person eligible to bail has been charged with the offence in respect of which that person has been taken into custody. Thus, bail authorities include the Supreme Court, the District Court and the Magistrates Court. They also include a police officer in circumstances where the applicant has been arrested but has not appeared before a court charged with the offence that led to the arrest. Section 14 provides for the review of decisions of bail authorities. For present purposes, it is sufficient to note only s 14(1), (2) and (5):

“14. (1) A decision of a bail authority (not being the Supreme Court) is subject to review under this section.

(2) A review may be carried out under this section on the application of the Crown, the person applying for release on bail or, where the person applying for release on bail is a child, the child or a guardian of the child —

(a) by the Supreme Court; or

(b) where the decision subject to review is a decision of a member of the police force or a court constituted of justices — by a magistrate. …

(5) The reviewing authority must hear and determine an application under this section as expeditiously as possible.”

Thus, the Bail Act provides for two reviewing authorities only. They are the Supreme Court and a magistrate. It is not apparent why s 14(2) refers to the Supreme Court in para (a) but to a magistrate in para (b). However, I do not think anything turns on that difference in expression. Thus, the Supreme Court and a magistrate are both bail authorities and reviewing authorities.

When considering the meaning and operation of s 14, it is necessary to note also s 15A of the Bail Act which provides a means of reviewing a decision of a magistrate where the magistrate has acted as a reviewing authority.

“15A. (1) Subject to this section, a decision of a magistrate on a review of a decision of a bail authority is subject to review by the Supreme Court.

(2) A review may be carried out under this section on the application of the Crown, the person applying for release on bail or, where the person applying for release on bail is a child, the child or a guardian of the child.

(3) A review under this section may only occur with leave of the Supreme Court (which should only be granted where it appears that there may have been some error of law or fact).”

Thus, the Bail Act provides for two sets of circumstances in which the Supreme Court has jurisdiction to review bail decisions by a magistrate. The first is where the magistrate has made a decision as a bail authority in which case there is a right to apply pursuant to s 14 for review of the magistrate’s decision. The second is where the magistrate has made a decision as a reviewing authority pursuant to s 14 in which case the applicant for the review must obtain leave of the Supreme Court to do so.

Two other aspects of the scheme of the Bail Act may be identified.

(1) The first is that the refusal of an application for release on bail does not preclude further applications for bail: s 12(2). Ordinary prudence dictates that a fresh application would not be made unless circumstances have changed in a way which would justify a fresh application. Nevertheless, there is nothing to prevent a fresh application even in the absence of a change in circumstances.

(2) The second is that the scheme is intended to create an expeditious process. Section 14(5) provides that the reviewing authority must hear and determine an application under s 14 as expeditiously as possible. For example, an application for release on bail may be made to a police officer by a person who has been arrested and, if bail is refused, the applicant may promptly apply to a magistrate to review that decision. The decision of the magistrate may be reviewed by the Supreme Court. Both the magistrate and the Supreme Court must act expeditiously by reason of the terms of s 14(5). The prompt handling of applications for bail is also made possible by s 15 which provides for applications for review to be made to magistrates by telephone.

It is apparent, therefore, that the Bail Act is a code. Shortly stated, the code provides a scheme by which persons may apply for bail, for bail authorities to decide whether to grant or refuse bail, and for the review of those decisions. The essential aspects of the scheme are that persons who are in custody may apply for bail; according to circumstances, the application for bail may be made to a police officer, to a magistrate, to a judge of the District Court, or to a judge of the Supreme Court; two only reviewing authorities exist – a magistrate and a judge of the Supreme Court; magistrates have jurisdiction to review decisions of police officers or of a court constituted by Justices of the Peace;
the Supreme Court has jurisdiction to review decisions of all bail authorities, a jurisdiction usually exercised by a single judge; an application for review of a bail decision may be made by either the Crown or by the person applying for bail; applications to review a bail decision must be heard and determined as expeditiously as possible; the refusal of a bail application does not preclude further applications with the consequence that, if the fresh application is made to a bail authority other than the Supreme Court, there is a right to apply to the Supreme Court for review of that decision.

The review procedure provided by the Bail Act is a special procedure which stands separate and apart from the rights of appeal which already exist from decisions of magistrates and decisions of judges of the District Court to the Full Court of this Court: see s 40 of the Magistrates Court Act and s 43 of the District Court Act. The Bail Act provides a more certain and a quicker process of review. It is more certain in that it removes questions as to whether a decision on a bail review application is an interlocutory order or judgment. It also removes questions as to whether an appeal from the grant or refusal of bail is a civil or criminal proceeding. It is quicker in that the Act expressly requires bail review applications to be handled expeditiously. Bail review applications are heard as soon as the parties are ready whereas appeals under either the Magistrates Court Act or the District Court Act may take some time to be heard.

This unduly lengthy examination of the scheme of the Bail Act assists in determining the meaning and effect of s 14(1). It is convenient to repeat that provision.

“14. (1) A decision of a bail authority (not being the Supreme Court) is subject to review under this section.”

In my view, the expression “(not being the Supreme Court)” is intended to exclude from review decisions of the Supreme Court as a bail authority. The intent of s 14(1) could equally well have been expressed in these terms: “A decision of a bail authority (other than the Supreme Court) is subject to review under this section.”

Or it might have been in the following terms:“A decision of a bail authority, except where the bail authority is the Supreme Court, is subject to review under this section.”

Each of those alternatives is to the same effect. The clear intent of s 14(1) is that, when the Supreme Court is sitting as a bail authority, its decision is not subject to review. That is expressly stated. The Act does not provide any other form of review nor does it provide that an appeal lies to the Full Court from the decision of a single judge. Even if I am wrong in stating that s 14(1) expressly states that there is no appeal from a decision of the Supreme Court as a bail authority, it is manifestly clear that the necessary implication of s 14 is that decisions of the Supreme Court, when sitting as a bail authority, cannot be the subject of appeal.

It is also the clear intent of the Bail Act that decisions of a judge of the Supreme Court acting as a reviewing authority are not the subject of appeal. It would be manifestly absurd if the decision of a judge of the Supreme Court acting as a bail authority was final and not subject to appeal but the decision of the same judge acting as a reviewing authority was subject to appeal.

That is the plain meaning and effect of the words used in s 14. That conclusion is reinforced by the underlying policy of the Act to provide for prompt and expeditious handling of bail applications and prompt and expeditious disposition of applications to review decisions made by bail authorities. I have already noted how the process of review of decisions on bail applications stands separate and apart from the usual appellate process. I do not think that Parliament intended that there should be a further right to appeal to the Full Court after a magistrate has reviewed the decision of a police officer refusing bail and after a Supreme Court judge has reviewed the decision of the magistrate. Similarly, I do not think it was intended that, after the Supreme Court has reviewed a bail decision of a magistrate or of a District Court judge on a bail application, that a further right of appeal should lie to the Full Court.

This conclusion is also reinforced by the fact that s 12(2) preserves the common law right to make a fresh application for bail: see R v Adam [1924] SASR 252; R v Snow [1950] St R Qd 1; R v Pett (1957) 75 WN(NSW) 434n decisions referred to with approval in Beljajev v Director of Public Prosecutions (Vic) (unreported, Full Court of Supreme Court of Victoria, 8 August 1991). As the Full Court demonstrated in Beljajev, rights of appeal are anomalous in the context of bail where the facts are dynamic and frequently changing. The Full Court observed that the right to make a fresh application is “entirely consistent with the needs of a factual situation, that, to a greater or lesser extent, will be undergoing change. It is self-evident that an appellate process, which necessarily involves a lapse of time, is not readily compatible with a dynamic situation which has its remedy available in the form of a fresh application on short notice”. The capacity to make a fresh application is, therefore, a more satisfactory means of dealing with changed circumstances than the appellate process. In short, the Bail Act provides both the capacity for review and the right to make a fresh application. Given those facts, it is I think beyond argument that Parliament would have intended that there should be available, in addition to all of this, a right of appeal to the Full Court which does not enable as prompt a resolution as a fresh application or an application for review.

Some further, albeit limited, support for this conclusion is to be found in s 14(5) which requires the reviewing authority to hear an application under s 14 as expeditiously as possible. That injunction does not apply in terms to an appeal to the Full Court pursuant to the Supreme Court Act. The rules of court provide a process for setting down appeals. The Full Court cannot be convened readily to deal with applications as soon as they are made. Even if s 14(5) of the Bail Act is put to one side, it is plainly necessary that bail review applications should be dealt with promptly. While, no doubt, every step would be taken to convene a court as quickly as possible, a number of practical difficulties exist to prevent expeditious hearing of the review applications. This only serves to emphasise that the Bail Act provides a scheme with limited rights of review.

I acknowledge that I have done no more than spell out in greater detail what the Full Court and, in particular, King CJ said more briefly and with greater clarity in Panagiotidis v Jakacic (1986) 41 SASR 591. I respectfully agree with that decision.

The first question in this case turns on the meaning of the proviso to s 50(1) of the Supreme Court Act. The relevant provisions of s 50(1) are in these terms:

“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.”

The terms “judgment”, “order” or “direction” of a judge in s 50(1) are wide enough to include an order made under the Bail Act describing whether or not a person is entitled to bail. The terms of the proviso allow for a statute which either expressly or by necessary implication provides that a judgment or order is final or without appeal. The clear implication of s 14(1), if not its express terms, is that there will be no review of a decision of the Supreme Court when acting either as a bail authority or as a reviewing authority.

I do not think that the decision of the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 75 ALJR 1342 requires a contrary conclusion. In that case, the question for decision was whether s 148(1) of the Victorian Civil and Administrative Tribunal Act (1998) (Vic) expressly excluded a right of appeal. Section 17(2) of the Supreme Court Act 1986 (Vic) provided: “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.”

It was held that s 148(1) did not expressly preclude a right of appeal. Section 50(1) of the Supreme Court Act of this State is different in terms and effect from s 17(2) of the Victorian Supreme Court Act.

I turn to the second question, namely, whether s 50(3)(b)(ii) provides a right of appeal. The relevant provisions of s 50(3) are in these terms:

(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 or the custody of infants is concerned. …”

Once it has been decided that s 14(1) expressly or by necessary implication precludes any appeal to the Full Court, there is nothing upon which s 50(3)(b)(ii) can operate. To the extent that there may be an inconsistency between the two statutory provisions, the Bail Act is a later statute than the Supreme Court Act and its provisions have a special operation in respect of bail whereas the Supreme Court Act is of quite general application. Section 50(3)(b) applies generally to interlocutory orders or interlocutory judgments. There is plenty of work for that provision to do notwithstanding the fact that orders under the Bail Act do not come within s 50(3)(b). This is, I think, an occasion where a later and special statute impliedly repeals an earlier general Act and the maxim, generalia specialibus non derogant applies.

The appellant relied on the decision in the Full Court of the Supreme Court of Western Australia in Lim v Gregson [1989] WAR 1 and in Jemielita v The Queen (1994) 12 WAR 362. The legislative scheme in Western Australia differs from that in this State so that those decisions do not assist in the resolution of the issues in this appeal. In Lim v Gregson, the legislation under consideration was s 573 of the Criminal Code (WA). The Code was silent on appeals against the refusal of an application for bail, neither granting a right of appeal nor denying one. In Jemielita, the relevant legislation was the Bail Act 1982 (WA), which too neither granted nor denied a right of appeal. In both cases therefore, recourse could be had to s 58 of the Supreme Court Act 1935 (WA), which allowed for a general right of appeal from a decision of a judge of the Supreme Court to the Full Court. This stands in stark contrast to the Bail Act of this State, which contains extensive provisions relating to review of bail decisions, whether granting or refusing bail.

The provisions of s 364 of the Criminal Law Consolidation Act are not relevant and do not require a contrary conclusion. Section 364 provides a person appealing against a conviction with a right to apply for bail pending the hearing and determination of the appeal against conviction or, where a new trial is directed, until the commencement of that trial. It is a separate provision enacted before the Bail Act. It does not constitute a review of an earlier decision. Instead, it enables a fresh application to be made. For these reasons, I would dismiss the appeal as incompetent.

Top of Page