Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Potier v Regina [2011] NSWCCA 204
• Hearing dates: 28 July 2011
• Decision date: 06 September 2011
• Before: Basten JA at 1; Simpson J at 33; Garling J at 46

Decision

Direct that:

(1) the folder of materials be amended to remove duplicated material and any material not relied upon (including letters of a procedural kind) and a single typed index identifying each document included;

(2) the applicant file and serve a single document containing written submissions prepared by counsel, not to exceed 15 pages in length and not adopting other documents by reference;

(3) the respondent file and serve submissions in reply, not to exceed 15 pages in length and not adopting other documents by reference;

(4) the matter be listed before the Registrar for directions at 9am on 22 September, 2011. The directions shall include a timetable for the preceding steps.

• Catchwords: APPEAL - criminal - review of bail application - whether primary judge sitting in Court of Criminal Appeal; CRIMINAL LAW - appeal - bail pending appeal; PROCEDURE - criminal - jurisdiction - constitution of Court of Criminal Appeal - whether primary judge sitting in Court of Criminal Appeal - power of the Court to grant bail - power to review the bail determination of primary judge - Bail Act 1979 (NSW), s 30; Criminal Appeal Act 1912 (NSW), ss 3, 22; WORDS & PHRASES - "special and exceptional circumstances" - Bail Act 1979 (NSW), s 30AA
• Legislation Cited: Bail Act 1979 (NSW), ss 3, 4, 9D, 28, 30, 30AA, 44, 45, 46; Constitution, s 73; Criminal Appeal Act 1912 (NSW), ss 3, 6, 22; Migration Act 1958 (Cth), s 189; Supreme Court Act 1970 (NSW), ss 38-41
• Cases Cited: Burrell v The Queen [2008] HCA 34; 238 CLR 218; Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335; 204 FLR 152; Director of Public Prosecutions (NSW) v Moradian; Saliba and Sparos [2010] NSWCCA 27; Elliott v The Queen [2007] HCA 51; 234 CLR 38; Gallagher v The Queen [1986] HCA 26; 160 CLR 392; Grierson v The King [1938] HCA 45; 60 CLR 431; Marotta v The Queen [1999] HCA 4; 73 ALJR 265; Mickelberg v The Queen [1989] HCA 35; 167 CLR 259; Petroulias v R [2010] NSWCCA 95; Potier v R [2010] NSWCCA 231; Potier v Regina [2006] NSWCCA 27; R v Burns (1920) 20 NSWSR 351; R v Potier [2005] NSWCCA 336; R v Wilson (1994) 34 NSWLR 1; Regina v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10; Regina v Potier [2011] NSWCCA 170; Stewart v The King [1921] HCA 17; 29 CLR 234
• Category: Interlocutory applications
• Parties: Malcolm Huntley Potier - Applicant; Regina - Respondent
• Representation: Counsel: Mr D J Brezniak - Applicant; Mr T R Bailey - Respondent; Solicitors: Applicant self-represented; S Kavanagh, Solicitor for Public Prosecutions - Respondent
• File Number(s): CCA 2005/14700

Decision under appeal

• Citation: Potier v R [2010] NSWCCA 234
• Date of Decision: 2010-10-18 00:00:00
• Before: R A Hulme J
• File Number(s): 2005/14700

Judgment

1 BASTEN JA : The applicant seeks bail pending determination of an appeal, presently pending in this Court, against his conviction for soliciting another person to murder his former de facto wife. The matter comes before the Court by way of an application to review the refusal of a request for bail, which was before RA Hulme J, on 8 October 2010, judgment being delivered on 18 October 2010: Potier v R [2010] NSWCCA 234.

2 The background to the proceedings may be dealt with briefly, as it was covered in the judgment referred to above and, even more recently, in a judgment delivered by this Court (differently constituted) on the morning of the hearing of this application: Regina v Potier [2011] NSWCCA 170.

3 In 1999, Mr Potier came to this country with his daughter, using a false passport or passports. He was arrested and placed in immigration detention as an unlawful non-citizen: Migration Act 1958 (Cth), s 189. Whilst being held in the Villawood Detention Centre in Sydney, according to the prosecution case, he took steps to arrange for the murder of his former de facto wife, then in Queensland with his daughter, and her new partner. In October 2001 he was convicted and later sentenced for two such offences. Before being sentenced, he was charged with a third similar offence.

4 An appeal against his conviction on the first two offences was dismissed by this Court on 17 February 2006: Potier v Regina [2006] NSWCCA 27 (McClellan CJ at CL, Hislop and Rothman JJ agreeing) ("the first conviction appeal"). Critical evidence against the applicant, set out in that judgment, involved a number of conversations by telephone to an acquaintance in Melbourne, Ms Conway. Evidence was given of nine such conversations. At his trial, the applicant contended that the tapes of the intercepted conversations were either false or had been altered. As explained in the first conviction appeal, there were problems in respect of the telephone call records:

"35 There was an issue at the trial as to whether the recordings that were tendered were of phone calls that had actually been made. Apparently, telephone providers are able to provide what is referred to as 'web trace' of a particular telephone service, which provides details of phone calls made to and from a particular number. The web trace of Ms Conway's telephone service did not contain a record of some of the calls.

36 This matter was addressed in evidence given by David Finlay, an officer of the Optus telephone company. His evidence indicated that, on occasions, the Optus trace may not be complete because it would not record calls from a Telstra service, that are forwarded through more than one exchange."

5 The applicant submits that Mr Finlay answered more precisely that the web trace might have failed to identify calls for one of two reasons, the first being that they had been routed through a Telstra service, the second being that the calls were not made. Importantly, Mr Finlay's explanation apparently led the police to make inquiries of Telstra, but not until late in the trial. Thus, Acting Superintendent Laidlaw, the officer in charge of the case, wrote to Telstra seeking information and noting the urgency of the requirement, saying "the defense [sic] likely to conclude their case tomorrow, Thursday, 11 th October 2001". The primary judge noted that the document provided by Telstra was in fact dated 11 October 2001: at [12].

6 The first conviction judgment stated at [49]:

"I have already referred to the position in relation to Mr Finlay's evidence. With respect to the Telstra material, the Crown tendered evidence on the appeal, which indicates that the relevant material was included in the Crown brief, which was provided to the appellant's solicitors before the trial. Accordingly, any submission that the material is fresh evidence, which could now be of assistance to the appellant, must be rejected."

7 That statement, the applicant suggested, demonstrated a misunderstanding of the facts. On that basis, he contended that an application for leave to appeal to the High Court should result in the judgment of this Court being set aside and the matter remitted to this Court for rehearing: cf Burrell v The Queen [2008] HCA 34; 238 CLR 218.

8 RA Hulme J considered that Burrell was distinguishable. Further, and importantly for present purposes, he explained the relevance of the challenge to the appeal against the first convictions (two offences) in respect of the second conviction (the third offence) in the following terms at [9]:

"In the trial that occurred in the District Court in 2006 [the trial for the third offence] the Crown placed evidence before the jury of the applicant's conduct that brought about the convictions in 2001 and, indeed, placed evidence before the jury of the fact of those convictions. The evidence of his conduct in respect of the two counts of solicit to murder in May 2000 was relied upon by the Crown as tendency and coincidence evidence. With Mr Potier being vindicated in respect of the May 2000 offences, he will then argue that placing such evidence before the jury in his second trial in 2006 led to a miscarriage of justice."

9 The other judgment handed down by the primary judge on 18 October 2010 dealt with two matters, one being an application for the attendance of a juror from his first trial, who had written a book about the trial, indicating that the absence of the Telstra records was a factor taken into account by the jury in assessing the prosecution case. The application to subpoena the juror, though on a somewhat different basis, had been rejected in R v Potier [2005] NSWCCA 336. The fresh application was rejected on the basis that it was the responsibility of the Court to make its own assessment of the evidence and the impact which the fresh evidence might have had on the trial: [2011] NSWCCA 170 at [28], referring to Gallagher v The Queen [1986] HCA 26; 160 CLR 392 and Mickelberg v The Queen [1989] HCA 35; 167 CLR 259.

10 The second matter involved a request to cross-examine an officer of police responsible for the adequacy of the Commissioner's compliance with a subpoena issued on 29 June 2008, at the request of the applicant. That application was also dismissed. There is, accordingly, no further material potentially available to the applicant in support of his challenge to the convictions and the 2006 determination of this Court on the appeal against the convictions for the first and second offences.

Jurisdiction of Court

11 Before addressing the merits of the application, it is necessary to consider the power of this Court to grant bail and the basis on which it may have jurisdiction to review the determination of the primary judge. This was not an issue raised by the parties, but was raised by the Court with the parties at the hearing on 28 July 2011. Each party was given leave to make further submissions in respect of the jurisdictional issue. The Court proposed to determine it before addressing substantive issues.

12 The power of this Court to grant bail is to be found in s 30 of the Bail Act 1979 (NSW), which relevantly states:

" 30 Power of Court of Criminal Appeal to grant bail

The Court of Criminal Appeal may grant bail in accordance with this Act to any person accused of an offence if, in connection with the offence:

(a) an appeal is pending in the Court,

...

(e) an appeal from the Court is pending in the High Court."

13 It is, of course, inapt to refer to the applicant as a "person accused of an offence", ignoring his present status as a convicted person. However, that language is defined to include a reference to a person convicted of an offence: s 4(2)(a). That expanded definition operates generally to references in the Bail Act . Accordingly, the power conferred on the Supreme Court to grant bail to any person accused of any offence includes the power to grant bail to a person who has already been convicted of an offence.

14 Section 4 of the Bail Act contains a number of definitions; relevantly for present purposes, the definitions of "Court of Criminal Appeal" and "Supreme Court" in each case are stated to include "a Judge of that Court". The definition is important in respect of the Court of Criminal Appeal because, absent that provision, there is no basis for concluding that a single judge of this Court has power to grant bail. Whether the definition was intended to impose on the intra-curial arrangements for the administration of the Court a new power, to be exercised by a single judge of the Court, may be doubted. In relation to the Supreme Court, there is specific provision for the organization of the Court in Divisions and for a single judge to constitute the Court for the dispatch of all business: Supreme Court Act 1970 (NSW), ss 38-41.

15 In the Criminal Appeal Act 1912 (NSW), there is provision for certain powers to be exercised by "any judge of the court in the same manner as they may be exercised by the court": s 22(1). That language is not readily accommodated within the statutory constitution of the Court, as provided by the Criminal Appeal Act , s 3:

" 3 Constitution of court

(1) The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct."

16 There is authority for the proposition that the Court is not the Supreme Court and has no power except that conferred upon it by the Criminal Appeal Act : see R v Burns (1920) 20 NSWSR 351 at 358 (Gordon J, Pring J agreeing). That statement should, however, be understood in its context. The question there considered was whether, the proviso to s 6 of the Act having been held inapplicable, the Court could amend an indictment so as to cover the case actually made by the evidence adduced at the trial: p 359. The Court held that it had no such power under the Criminal Appeal Act . However, that statement cannot be read as precluding the conferral of powers by other statutes, if the Parliament thinks appropriate. There is no reason to read down the powers apparently conferred by the Bail Act on this Court; nor, that Act being a later statute dealing with a specific aspect of the criminal jurisdiction, should it be seen to be inconsistent with s 22 of the Criminal Appeal Act . No doubt the legislature could have amended s 22 to include the power of a single judge to grant bail, but a conferral of power under the Bail Act itself was equally effective: Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335; 204 FLR 152 at [12]-[13]; applied in Regina v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10 at [5] (Spigelman CJ, Mason P, McClellan CJ at CL and Hidden and Howie JJ agreeing).

17 In addition, as was explained in Director of Public Prosecutions (NSW) v Moradian; Saliba and Sparos [2010] NSWCCA 27, at [6], this Court constitutes "the Supreme Court" for the purposes of s 73(ii) of the Constitution: see Stewart v The King [1921] HCA 17; 29 CLR 234 at 240. Section 3 may also have consequences with respect to the privileges and immunities enjoyed by the Supreme Court and its judges who may from time to time, constitute this Court. However, as appears from the second limb of s 3(1), the Court is not "constituted" by any judge or judges of the Supreme Court unless and until the Chief Justice so directs.

18 The practice of the Chief Justice, at least in recent years, has been to constitute the Court by written direction for a specific period, usually being particular dates. As was explained in Cassaniti , unless a particular judge who granted (or refused) bail was a member of this Court as constituted on that day, he or she would not be sitting as this Court and therefore could not exercise the power conferred on the Court by s 30 of the Bail Act : at [14]. The Court further noted at [15]:

"The practice of constituting the bail judge as a judge of the Court of Criminal Appeal for the purpose of dealing with a bail application by an appellant is not known to this Court."

19 In Cassaniti , the Court was content to assume that the single judge had been sitting as a judge in the Common Law Division. (Comments in Cassaniti in relation to the operation of ss 45 and 46 no longer apply, since those provisions were replaced and repealed, respectively, in 2008.)

20 The heading on the transcript of 8 October 2010 referred to the primary judge sitting in the Common Law Division. However, the judgments of the primary judge of 18 October 2010 were both intituled "in the Court of Criminal Appeal". Further, his Honour's other judgment of 18 October 2010 - Potier v R [2010] NSWCCA 231 - commenced at [1]:

Mr Potier has made three applications that I heard on 8 October 2010. There are two applications that persons be required to attend and give evidence and in relation to those I was sitting as a single judge pursuant to s 22 of the Criminal Appeal Act 1912. The third application was for bail, a matter I deal with in a separate judgment.

21 There is no issue in this Court as to the correctness of the statement with respect to the first two applications. In respect of the bail application, his Honour, correctly, did not suggest that he was determining the application pursuant to s 22 of the Criminal Appeal Act . Accepting that a judge of this Court, sitting alone, can make a bail determination under the Bail Act, it does not follow that the primary judge sat as the Court of Criminal Appeal in considering the application for bail. To do so, he would have had to be constituted, contrary to the practice noted in Cassaniti , by a direction of the Chief Justice. This Court, having made appropriate inquiries of the Registrar, should take judicial notice of the fact that there was no direction of the Chief Justice constituting the primary judge as a judge of the Court of Criminal Appeal, for the day in question. Accordingly, despite the manner in which the judgment in the proceedings was intituled, it was a judgment given by the primary judge sitting in the Common Law Division of the Supreme Court. There is no doubt that he had power to deal with the application for bail in that capacity. The form in which the judgment appeared probably reflected a belief that, because the substantive proceedings were the appeal or application for leave to appeal in the Court of Criminal Appeal, the bail determination constituted an interlocutory judgment in those proceedings. That was not so: the bail application was a separate proceeding determined otherwise than in the course of the criminal appeal.

22 It should therefore be accepted that RA Hulme J, as a judge of the Supreme Court, was properly exercising power conferred by the Bail Act in determining the applicant's request for bail pending determination of his appeal. It is not in doubt that this Court has power to review "any decision in relation to bail of the ... Supreme Court (however constituted)": Bail Act , s 45(1)(b). Such a review may only be carried out by this Court constituted otherwise than by a judge sitting alone: s 45(3). Accordingly, the Court has power to entertain the application of Mr Potier.

Further steps in proceedings

23 Because the hearing on 28 July 2011 was diverted into consideration of the jurisdiction of this Court to review the decision of the primary judge, the applicant did not have a proper opportunity to present, through counsel, his submissions on the merit of the application. Determination of the application must therefore await a further hearing. So that the matter may be dealt with efficiently on the next occasion, it is desirable to give directions as to how the matter will then proceed.

(a) pre-conditions to grant of bail

24 First, it is desirable to indicate the parameters of the exercise. As the primary judge correctly noted, bail could not be granted, "unless it is established that special or exceptional circumstances exist justifying the grant of bail": Bail Act , s 30AA.

25 In R v Wilson (1994) 34 NSWLR 1, consideration was given to the circumstances which would warrant a grant of bail to a person convicted of a serious offence, pending determination of his appeal. Kirby P (with whom Sheller JA agreed) considered that something more than an arguable point was required, the applicant needing to establish that his appeal was "most likely to succeed" on the merits: p 6C-D. Hunt CJ at CL suggested an arguably higher test, namely "an extraordinarily high prospect of success" or a ground "which is certain to succeed": p 7E. Those remarks must, however, be read in context: they are directed to a case where reliance on the prospects of success is put forward as the relevant special or exceptional circumstance. Further, it is inappropriate to abandon the words of the statute (special or exceptional circumstances) in favour of some different test.

26 The importance of considering all aspects of the case in determining whether special and exceptional circumstances have been made out, is revealed in the judgment of Callinan J in Marotta v The Queen [1999] HCA 4; 73 ALJR 265 at [18]. That approach was followed by this Court in R v Velevski [2000] NSWCCA 445; 117 A Crim R 30 at [23]-[33] (Barr J, Spigelman CJ and RS Hulme J agreeing).

27 One factor which might give rise to a special or exceptional circumstance would be that, through no fault of the applicant, fresh evidence had become available towards the end of the non-parole period. In circumstances where an applicant was likely to get parole when first eligible, it may well be that prospects of success assessed at something less than a certainty may suffice. Thus, in Petroulias v R [2010] NSWCCA 95, Barr AJ (Hodgson JA and Rothman J agreeing) stated at [34]:

"While I appreciate that the Court must look at the aggregate effect of all the matters relied on as constituting special or exceptional circumstances justifying the grant of bail, it is worth noting that, at least where the grounds of appeal are put forward as the only or the principal factor to demonstrate special or exceptional circumstances, an applicant has to show much more than that the grounds seem arguable. It was said in R v Wilson (1994) 34 NSWLR 1 that the applicant must appear 'most likely to succeed' (at 6)."

(b) the approach of the primary judge

28 Before the primary judge the applicant asserted that Burrell demonstrated he enjoyed a high prospect of success in the High Court. This reliance appears to misunderstand what was decided by the High Court in Burrell . The procedural background involved two judgments of this Court. The second sought to reopen the first, on the basis of acknowledged factual errors. The first decision was, however, confirmed by the second judgment. In the High Court, the second judgment was set aside on the basis that the Court had no power to reopen its earlier perfected judgment, applying Grierson v The King [1938] HCA 45; 60 CLR 431, and Elliott v The Queen [2007] HCA 51; 234 CLR 38 at [7]. The High Court made no assessment of the factual errors, simply noting that there being "no dispute that the first orders were pronounced on an infirm factual foundation, those orders must also be set aside": at [29].

29 After referring to the error in the judgment of the Court of Criminal Appeal and noting a possible explanation, which appeared to be inconsequential, the primary judge then stated at [14]:

"Before any conclusion could be reached that Mr Potier's confidence in success on appeal is well founded, he would need to establish a high likelihood that a number of things would occur, including that (a) the High Court would grant an extension of time in which to apply for special leave to appeal after so much time has elapsed since delivery of the judgment of this Court; (b) it would regard the matter as being of sufficient significance that it would grant special leave to appeal; (c) that it would allow the appeal and remit the matter to this Court for rehearing; (d) that this Court would accept that the Telstra material had not been disclosed as Mr Potier contends and that it would treat it as 'fresh evidence'...; and (e) that this Court would conclude that there had been a miscarriage of justice."

30 It was conceded in the course of argument before this Court that the applicant had made no application to the High Court in respect of the first conviction appeal: Tcpt 28/07/11, p 1(36). Accordingly, no question arises of any grant of bail pending determination of any proceedings in the High Court. Furthermore, even had he done so, the applicant would not require bail in respect of the convictions and sentences for the first and second offences. Following an appeal to this Court, the orders of the sentencing judge were varied to make the sentence on the second offence partly cumulative upon the sentence of the first offence. In the result, the later of the two non-parole periods expired on 7 August 2006; the full term of the sentence expired on 7 January 2009. Accordingly the applicant is not serving any sentence in respect of the first two offences. His custody relates solely to his conviction for the third offence. Any issue of bail arises only in respect of that offence.

31 It follows that, if the applicant seeks to pursue his bail application, he needs to identify the following matters:

(1) the terms of the sentence which he is presently serving;

(2) the pending proceeding in respect of which bail is sought ( Bail Act , s 30);

(3) the relevant grounds of appeal;

(4) the reasons for delay in having the pending proceedings determined;

(5) the date when the pending proceedings are likely to be heard;

(6) any other circumstances relied upon as "special or exceptional" for the purposes of s 30AA.

32 So that the matter may be dealt with expeditiously, and now that, as it appears, the applicant has access to a computer and to counsel:

(1) the folder of materials should be amended to remove duplicated material and any material not relied upon (including letters of a procedural kind) and a single typed index identifying each document included;

(2) the applicant should file and serve a single document containing written submissions prepared by counsel, not to exceed 15 pages in length and not adopting other documents by reference;

(3) the respondent should file and serve submissions in reply, not to exceed 15 pages in length and not adopting other documents by reference;

(4) the matter will be listed before the Registrar for directions at 9am on 22 September, 2011. The directions shall include a timetable for the preceding steps.

33 SIMPSON J : I have read in draft the judgments of Basten JA and Garling J.

34 In my opinion, the jurisdictional issue in this matter can be determined by no more than reference to the application filed by the applicant, dated 18 September 2010, for bail. It is a handwritten document, apparently prepared by the applicant himself. It is on a pro forma that is designed for use in various applications, that is headed:

"APPLICATION FOR REVIEW OF BAIL DETERMINATIONS"

35 In the applicant's application, the words "review of" and "determinations" are struck out, leaving the words " Application for Bail ". The pro forma contains provision for identification of the court in which the application is made. In that space, the applicant has written the word "Supreme". Below that, he has completed a space provided for identification of his next court appearance as "Court of Criminal Appeal" on 23 September 2010. The latter insertion indicates (as would be expected from the applicant's history) that he was familiar with the distinction between the Court of Criminal Appeal and the Supreme Court. He made his application in the Supreme Court.

36 That is supported by his application for review of the bail determination of R A Hulme J. There, he asserted that he had been last refused bail by:

"Supreme Court, Common Law Division"

37 The judgment of R A Hulme J is entitled, and given a medium neutral citation number appropriate to, a judgment of the Court of Criminal Appeal. It seems that his Honour was under the misapprehension that he was dealing with the application as a judge of the Court of Criminal Appeal. That, no doubt, came about because the application was one of three dealt with by his Honour on the same day. In Potier v R [2010] NSWCCA 231, his Honour said:

"Mr Potier has made three applications that I heard on 8 October 2010. There are two applications that persons be required to attend and give evidence and in relation to those I was sitting as a single judge pursuant to s 22 of the Criminal Appeal Act 1912. The third application was for bail, a matter I deal with in a separate judgment."

38 In his judgment on the bail application (entitled Potier v R [2010] NSWCCA 234) his Honour noted that the applicant had applied for bail in respect of a matter in which an appeal was pending in the Court of Criminal Appeal, and said that the power of the court to grant such an application is provided by s 30 of the Bail Act 1978. Section 30 confers jurisdiction on the Court of Criminal Appeal to grant bail in specified circumstances.

39 Notwithstanding that, there being no evidence that the application was transferred from the Supreme Court to the Court of Criminal Appeal, I am satisfied that the reality is that his Honour was sitting as a judge of the Supreme Court. That leaves beyond doubt the jurisdiction of this Court to review the determination: Bail Act s 45(1)(b).

40 That being so, and being the common understanding of all members of this Bench, I expressly refrain from embarking on consideration of whether R A Hulme J was properly constituted as the Court of Criminal Appeal pursuant to s 3 of the Criminal Appeal Act 1912. The question is simply irrelevant. Specifically with respect to para [21] of the draft judgment of Basten JA, I have not been party to any inquiries made of the Registrar of the Court of Criminal Appeal concerning the constitution of the court on the days in question. Had I been invited to take part in any such inquiries, I would have declined.

41 I note, however, that s 3 provides that the "Supreme Court shall for the purposes of this Act [ie the Criminal Appeal Act ] be the Court of Criminal Appeal" (emphasis added), and "be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct."

42 On any view, the application made by the applicant was made to the Supreme Court under the Bail Act . It was not made "for the purposes of the [ Criminal Appeal Act ]". By s 4 of the Bail Act , the Court of Criminal Appeal includes a judge of that Court (ie the Court of Criminal Appeal); R A Hulme J is a judge of the Supreme Court; by s 3 of the Criminal Appeal Act he is a judge of the Court of Criminal Appeal.

43 Section 3(1) has been part of the Criminal Appeal Act from its introduction in 1912. It has not kept pace with subsequent amendments: for example s 22, which confers power on single judges of the Court of Criminal Appeal to exercise certain specified powers, (not including the grant of bail) but does not expressly require direction of the Chief Justice as to constitution of the court. Plainly, the requirement of s 3 that the court be constituted by such three or more judges of the Supreme Court does not apply to the exercise of powers under s 22; and it is at least debateable whether the power of the Court of Criminal Appeal under s 30 of the Bail Act to grant bail is limited to the court constituted as prescribed by s 3.

44 Questions of the interaction of the Bail Act and the Criminal Appeal Act may arise for determination at some time. They do not call for consideration or determination in this case, and I expressly refrain from stating a view in relation thereto. Nor do I join in the observations contained in the judgment of Basten JA at [23] - [31]. In respect of the further pursuit of his application for review of the bail determination, the applicant should take such advice as is available to him.

45 Since no orders are proposed, it is sufficient simply that I express my agreement that there is no jurisdictional barrier to the further hearing of the application for review of the determination of R A Hulme J of 18 October 2010.

46 GARLING J : I agree with the conclusion of Basten JA that this Court is engaged on the hearing of a review under s 45(1)(b) of the Bail Act of a decision of the Supreme Court (R A Hulme J) to refuse a bail application made by Mr Potier.

47 I also agree that the directions proposed by Basten JA in [32] above ought to be made in order to facilitate the efficient conduct of the review by this Court.

48 However, I reach that conclusion by a different path, and therefore express my reasons separately.

49 The only extant sentence that Mr Potier is presently serving is that based upon a conviction after his trial for the third offence as the judgment of Basten JA clearly demonstrates. An appeal against conviction has been filed in this Court, and as well an application for leave to appeal against sentence. Those proceedings await hearing.

50 The judgment of R A Hulme J, from which this application for review has been made, is entitled as if his Honour was sitting, albeit as a single judge, in the Court of Criminal Appeal. A question has arisen as to whether that was so. The determination of the question is important because it goes to the power of this Court to engage in a review.

51 Ordinarily, a single judge of the Supreme Court determines all applications for bail: s 28 of the Bail Act . Where that occurs, a party aggrieved by the decision has a right to have the decision reviewed by the Court of Criminal Appeal: s 45(1)(b) of the Bail Act .

52 Thus the statute provides for both an original decision and an appellate review of that decision.

53 The Court of Criminal Appeal is empowered to grant bail in certain circumstances: s 30 of the Bail Act .

54 Where bail is granted (or refused) by the Court of Criminal Appeal, there is no provision for any review of that decision by the Court: ss 44 and 45 Bail Act . In this case, the Court of Criminal Appeal is exercising an original jurisdiction.

55 In the circumstances which exist in this case, whether the original bail application is being considered by the Court of Criminal Appeal or the Supreme Court, the effect of s 30AA of the Bail Act , is to limit a grant of bail to cases which depend on exceptional circumstances justifying the grant of bail.

56 The evidence and material placed before the Court demonstrate the following:

(a) The original application for bail was filed by Mr Potier in the Common Law Division of the Supreme Court.

(b) The written submissions filed by Mr Potier in support of his application for bail were also filed in the Common Law Division of the Supreme Court. The submissions sought " the grant of Supreme Court Bail to the applicant ".

(c) The written submissions filed by the Crown did not suggest that it thought that the application was being determined by the Court of Criminal Appeal. Its reliance on s 30AA of the Bail Act , which was a significant part of its opposition to the grant of bail, would be equally applicable to a grant of bail by either the Supreme Court or the Court of Criminal Appeal.

(d) The transcript of the proceedings records that R A Hulme J was sitting in the Common Law Division of the Supreme Court.

(e) The transcript records that at the end of the submissions, R A Hulme J delivered an ex tempore judgment. The uncorrected transcript of that ex tempore judgment is not available, but there is no reason to think that it would record anything other than that the proceedings were being conducted in the Common Law Division.

(f) The published judgment by R A Hulme J is entitled as being in the Court of Criminal Appeal. Although no party referred in the course of submissions to s 30 of the Bail Act , his Honour refers to it in [1] of his judgment as the source of his power to grant bail. Clearly s 28 of the Bail Act was, in the circumstances, also a sufficient source of power because Mr Potier was " a person accused of an offence " within the meaning of s 4(2)(a) and (c) of the Bail Act .

(g) Neither party to this application has brought any evidence to demonstrate that R A Hulme J was, or was not, constituted as a member of the Court of Criminal Appeal for the purpose of sitting on 18 October 2010, nor whether any of the Court's internal administrative processes supported one conclusion or the other with respect to the Court in which his Honour was sitting.

57 In my opinion, if a party to any proceedings in the Court of Criminal Appeal such as this application seeks to challenge the validity of the appointment of a judge to the Court, or the constitution of the court, that party is obliged to do so, by placing evidence before the court. That evidence is then available to be challenged or contradicted, if appropriate, by any other party to the proceedings. A party is not entitled to expect, or else require, the Court itself to undertake factual investigations of this kind.

58 In this case, no evidence was filed by either party directed to this issue. Accordingly, the issue becomes one of resolution of what appears to be inconsistent documents relating the hearing before and judgment of R A Hulme J. Is the transcript (and uncorrected ex tempore judgment) correctly entitled or is the published judgment correctly entitled?

59 I am satisfied that what is likely to have occurred here is a clerical error. A slip has occurred in the title of the published judgment. It ought to have recorded that R A Hulme J was sitting in the Common Law Division.

60 The remark of R A Hulme J at [1] does not seem to me to stand in the way of this conclusion. That his Honour had power to hear and determine the application was not in doubt. The statement of power adds nothing to his judgment. As can be seen, either by application of s 9D of the Bail Act or else by the application of s 30AA of the Bail Act , the parties had to demonstrate exceptional circumstances to warrant a grant of bail. His Honour's approach to the bail application did not depend upon whether he was sitting in the Common Law Division or else the Court of Criminal Appeal.

61 When confronted with a choice of interpretation, as the Court is, between two apparently inconsistent documents, it is not unjust to the applicant to choose the alternative which allows, rather than denies, to him a right of review. It is, I am satisfied, in the interests of justice to interpret the documents in this way.

62 I conclude that the judgment of R A Hulme J on the application for bail by Mr Potier was delivered in the Common Law Division of the Supreme Court. Consequently, this Court has the power to review this decision by way of a review under s 45(1)(b) of the Bail Act .

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Amendments

08 September 2011 - Correcting date from 22 September 2010 to 22 September 2011;Correcting date from 8 October 2010 to 18 October 2010
Amended paragraphs: Coversheet, [32(4)], [45]

Decision last updated: 08 September 2011