In the recent decision of Noufl v Director of Public Prosecutions (NSW)[i] the Supreme Court ruled it did not have the jurisdiction to hear a bail application while an appeal was pending in the Court of Criminal Appeal.
The decision was an appeal against conviction, with the appellant applying for bail whilst the matter was heard for appeal.
How did this happen?
In a novel argument by the Director of Public Prosecutions (DPP), it was submitted that a single judge of the Supreme Court did not have jurisdiction to hear a bail application. It was submitted that this was an ‘unintended consequence’ of the repeal of the Bail Act 1978 and the introduction of the Bail Act 2013. Namely, that section 28 of the Bail Act 1978, the section responsible for granting Supreme Court jurisdiction, was not transferred into the Bail Act 2013.
Judge Hamill concluded:
[T]he Supreme Court is no longer empowered to hear a bail application while an appeal is pending in the Court of Criminal Appeal unless:
- The proceedings for the offence were dealt with in the Supreme Court and the applicant is yet to make their first appearance before the Court of Criminal Appeal (s 62); or
- A release application has been refused by another court, police or authorised officer (s 66).
This decision is in conflict with the general understanding of the powers conferred upon a single judge of the Supreme Court and, as such, potentially presents a very significant decision.
What are the implications for practitioners and their clients?
If you propose to seek bail pending an appeal against conviction or sentence to the Court of Criminal Appeal you should first make a release application to the District Court, unless the proceedings were conducted in the Supreme Court.
Was this an intention of the Bail Act 2013 amendments?
Hamil J provided commentary as to what the future may hold for the Bail Act 2013. He stated that if this was an unintended consequence of the amendments, that the Act should be amended to reflect the original content of s 28 of the Bail Act 1978.
He also commented that if the revocation of Supreme Court powers was intended by legislature then the Act should more clearly reflect this.
What does it mean for other courts?
It is now a concern, as mentioned by Hamil J, that an even greater number of bail applications will come before the Court of Criminal Appeal. He also commented that the Court of Criminal Appeal is already met with a number of bail applications, of which, judges have previously voiced their concern: Beech-Jones J in Director of Public Prosecutions (NSW) v Tony Mawad  NSWCCA 227.
[i]  NSWSC 1238.