Lyon v The Queen - [2001] WASCA 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LYON -v- THE QUEEN [2001] WASCA 197

CORAM: MALCOLM CJ
ANDERSON J
STEYTLER J

HEARD: 21 JUNE 2001

DELIVERED : 21 JUNE 2001

FILE NO/S: CCA 269 of 2000

BETWEEN: JAMES LYON
Applicant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 270 of 2000

BETWEEN :DARREN STUART SMITH
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Jurisdiction - Practice and procedure - Bail - Application for bail pending application for special leave to appeal to High Court - Court of Criminal Appeal has no jurisdiction

Legislation:

Bail Act 1982 (WA)

Bail Act 1978 (NSW) s 30AA

Result:

Applications refused

Representation:

CCA 269 of 2000

Counsel:

Applicant: Mr M R Gunning
Respondent: Ms J A Girdham

Solicitors:

Applicant: Gunning
Respondent: State Director of Public Prosecutions

CCA 270 of 2000

Counsel:

Applicant: Mr L M Levy
Respondent: Ms J A Girdham

Solicitors:

Applicant: Laurie Levy
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Sinanovic v R (No 1) [2001] HCA 35

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: The Court has before it two applications for bail by the applicants. The grant of bail is sought pending the determination of applications to the High Court for special leave to appeal against the decision of this Court in relation to appeals by the applicants against sentence. The basis of the applications seem to be found in an obiter dictum of Kirby J of the High Court in par [7] in Sinanovic v R (No 1) [2001] HCA 35. Those remarks were made in the context of the Bail Act 1978 (NSW) which provides that in order to succeed in an application, the applicant has to satisfy the provisions of s 30AA of that Act, namely:
"Notwithstanding anything in this Act, if:
(a)an appeal is pending in the Court of Criminal Appeal against:
(i)a conviction on indictment, or
(ii)a sentence passed on conviction on indictment; or
(b)an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in para (a),
bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail."
The Bail Act 1982 (WA) makes no such provision. There is a definition of "court" in s 3 of the Act. That definition does not extend to the High Court of Australia. It follows that in the absence of any statutory provision in legislation such as the Criminal Code or the Supreme Court Act 1935 (WA), this Court has no jurisdiction in relation to the applications which have been made. As a consequence, they must be refused.

Details

AGLC: Lyon v The Queen [2001] WASCA 197
Case: [2001] WASCA 197
Decision Date: 21 JUNE 2001

CaseChat Overview and Summary

The case of Lyon v The Queen involves two applicants seeking bail pending their applications for special leave to appeal to the High Court against their sentences. The applicants' applications were heard by the Court of Criminal Appeal, which found that it lacked jurisdiction to grant the bail due to the absence of statutory provisions that would permit such a grant. The applicants' arguments were based on an obiter dictum from Kirby J in Sinanovic v R (No 1) [2001] HCA 35, which was made in the context of the Bail Act 1978 (NSW). The Court of Criminal Appeal considered the Bail Act 1982 (WA) and found that it did not include a definition of "court" that extended to the High Court, and thus, there was no statutory basis for granting bail in this situation.

The primary legal issue before the Court of Criminal Appeal was whether it had the jurisdiction to grant bail to the applicants pending their applications for special leave to appeal to the High Court. This issue arose from the lack of specific statutory provisions in the Bail Act 1982 (WA) that would allow for the granting of bail in such circumstances. The Court had to determine whether the definition of "court" in section 3 of the Bail Act 1982 (WA) extended to include the High Court, and whether there was any other statutory authority that would permit the grant of bail in the absence of such a provision.

In resolving the issue, the Court of Criminal Appeal noted that the Bail Act 1982 (WA) did not include a definition of "court" that extended to the High Court. Additionally, the Court found that there was no other statutory provision, such as in the Criminal Code or the Supreme Court Act 1935 (WA), that would permit the grant of bail in this situation. Consequently, the Court held that it lacked the jurisdiction to grant the bail sought by the applicants. The Court emphasised that the absence of statutory provisions meant that the grant of bail was not permissible, and as a result, the applications for bail had to be refused.

The Court of Criminal Appeal's decision was that it did not have jurisdiction to grant bail to the applicants pending their applications for special leave to appeal to the High Court. The Court's reasoning was based on the absence of any statutory provisions that would allow for such a grant. As a result, the applications for bail were refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

JUDGMENT OF THE COURT: The Court has before it two applications for bail by the applicants. The grant of bail is sought pending the determination of applications to the High Court for special leave to appeal against the decision of this Court in relation to appeals by the applicants against sentence. The basis of the applications seem to be found in an obiter dictum of Kirby J of the High Court in par [7] in Sinanovic v R (No 1) [2001] HCA 35. Those remarks were made in the context of the Bail Act 1978 (NSW) which provides that in order to succeed in an application, the applicant has to satisfy the provisions of s 30AA of that Act, namely:"Notwithstanding anything in this Act, if:(a)an appeal is pending in the Court of Criminal Appeal against:(i)a conviction on indictment, or(ii)a sentence passed on conviction on indictment; or(b)an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in para (a),bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail." The Bail Act 1982 (WA) makes no such provision. There is a definition of "court" in s 3 of the Act. That definition does not extend to the High Court of Australia. It follows that in the absence of any statutory provision in legislation such as the Criminal Code or the Supreme Court Act 1935 (WA), this Court has no jurisdiction in relation to the applications which have been made. As a consequence, they must be refused.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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