Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238

Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 · Read the judgment on AustLII

Catchwords: Bail – jurisdiction of single judge – where Notice of Intention to Appeal lodged

The Supreme Court has determined that a single judge cannot hear a bail application for a person sentenced in the District Court unless the applicant has first been refused bail in the District Court.

The applicant was convicted of two counts of supplying a prohibited drug, each of about 27.5g of methylamphetamine. He was sentenced in the District Court to a term of 2 years, 1 month and 14 days, with a non-parole period of 1 year, 2 months and 9 days. He lodged a Notice of Intention to Appeal to the CCA, but had not yet appeared in that court. He also applied for bail in the Supreme Court. Crucially, he had not made an application for bail in the District Court. By convention, the application came before a single judge of the Supreme Court. The Crown raised an antecedent question about whether a single judge actually has jurisdiction to hear an application where an appeal is pending (or at least notified) to the CCA but no application has been made to the District Court. Hamill J, sitting alone, held that he (that is, a single Supreme Court judge) did not have jurisdiction.

This question arose in the context of the amendments to the Bail Act originally enacted in 2013. Since those amendments, s68 restricts the powers of (relevantly) the Local and District Courts to hear bail applications where proceedings are pending in another court to certain circumstances. It does not restrict the Supreme Court from hearing a bail application if proceedings are pending before the CCA. However, s66(1) grants the Supreme Court jurisdiction to hear a bail application if the applicant has been refused bail by ‘another court’. Accordingly, the issues included whether the CCA and the Supreme Court were strictly the same court, and whether the Supreme Court might have an inherent power to hear applications for bail.

In short, Hamill J determined that there was not jurisdiction, because the applicant had not been refused bail by another court (at [60]). As for the existential crisis about whether the CCA, which is a division of the Supreme Court, is the same court for the purposes of the Bail Act, his Honour held that the legislation provided for a clear demarcation in powers between the two so it could not be said that they were one and the same (at [59]). His Honour also held that the Bail Act codifies the law of bail, so that, despite one judgment to the contrary (also by a single Supreme Court judge), there was no inherent power to hear the bail application (at [58]). In the circumstances, the applicant was required to make a bail application in the District Court before the Supreme Court would have jurisdiction. This was, his Honour considered, an unintended consequence of the 2013 legislation, which ought to be amended to restore the original situation (at [60], and [50]-[51]).

In short, the consequence is that a person sentenced in the District Court, who is appealing, and who does not want to wait until the CCA can hear their bail application, needs to apply for bail in the District Court first. Only if they are refused can they then apply to the Supreme Court.