JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911

JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911

The Magistrate had no jurisdiction or power to determine in isolation that the plaintiff breached a residence condition of bail after the five matters for which bail had been granted had been finally determined. A breach of a bail condition other than failure to appear is not a discrete offence and, absent a live variation application capable of producing a statutory remedy under s 78 of the Bail Act 2013 (NSW), the Act did not authorise the determination. The Magistrate also erred by applying a prima facie standard rather than the balance of probabilities required by s 32. Leave to appeal was appropriate and the breach determination was set aside.

Jurisdiction
Australia
Judgment Date
08 July 2022
Procedural Posture
Application for Prerogative and Declaratory Relief, Alternatively Application for Leave to Appeal From an Interlocutory Decision of the Children's Court Under S 53(3)(b) of the Crimes (appeal and Review) Act 2001 (nsw) / Supreme Court Determination of Application Concerning Children's Court Breach of Bail Determination
Outcome
Leave to appeal granted; jurisdictional error established; appeal upheld; Children's Court breach of bail order set aside.
Legal Topics
['jurisdiction to Determine Alleged Breach of Bail Condition After Substantive Proceedings Concluded' 'meaning of Bail Decision Under the Bail Act 2013 (nsw)' 'standard of Proof for Bail Determinations' "leave to Appeal From Interlocutory Decision of Local Court or Children's Court"]
['criminal Law' 'bail' 'administrative Law' 'appeal and Review'] ['jurisdiction to Determine Alleged Breach of Bail Condition After Substantive Proceedings Concluded' 'meaning of Bail Decision Under the Bail Act 2013 (nsw)' 'standard of Proof for Bail Determinations' "leave to Appeal From Interlocutory Decision of Local Court or Children's Court"]

Case Brief

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Procedural Posture

Application for Prerogative and Declaratory Relief, Alternatively Application for Leave to Appeal From an Interlocutory Decision of the Children's Court Under S 53(3)(b) of the Crimes (appeal and Review) Act 2001 (nsw) / Supreme Court Determination of Application Concerning Children's Court Breach of Bail Determination

Legal Issues

  1. 1 ['Whether the Magistrate had jurisdiction to determine that the plaintiff failed to comply with a bail condition after the substantive charge proceedings had concluded and no further proceedings were pending.' 'Whether a determination that a person failed to comply with a bail condition is a bail decision for the purposes of s 8(2) of the Bail Act 2013 (NSW).' 'Whether the Magistrate applied the incorrect standard of proof by finding the breach established on a prima facie basis rather than on the balance of probabilities.' 'What form of relief was appropriate where a statutory appeal was available.']

Ratio Decidendi

The Magistrate had no jurisdiction or power to determine in isolation that the plaintiff breached a residence condition of bail after the five matters for which bail had been granted had been finally determined. A breach of a bail condition other than failure to appear is not a discrete offence and, absent a live variation application capable of producing a statutory remedy under s 78 of the Bail Act 2013 (NSW), the Act did not authorise the determination. The Magistrate also erred by applying a prima facie standard rather than the balance of probabilities required by s 32. Leave to appeal was appropriate and the breach determination was set aside.

Court Disposition

Leave to appeal granted; jurisdictional error established; appeal upheld; Children's Court breach of bail order set aside.

Orders

  • ['Time to file the summons is extended to 14 February 2022;' "The order made in the Children's Court on 19 October 2021, that the plaintiff breached a condition of bail, is set aside;" 'Each party to pay its own costs.']