Re An Application of Bail By Miroslav Jovanovic [1991] ACTSC 23; (1991) 101 ACTR 1; (1991) 103 FLR 324 (19 March 1991)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION FOR BAIL BY MIROSLAV JOVANOVIC
S.C. No. 789 of 1990
Criminal Law
[1991] ACTSC 23; (1991) 101 ACTR 1
(1991) 103 FLR 324

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Criminal Law - Estreatment of bail - Failure of person released on bail to comply with conditions - Whether forfeiture automatic - bail granted pursuant to inherent jurisdiction of Supreme Court - No statutory power to remit liability of forfeiture - Whether Court has power to remit forfeiture in whole or in part - consideration of authorities.

Magistrates Court Act 1930 4 Geo III c.10 (1763), 4 Geo IV c.83, s.24

Imperial Acts (Repeal) Act 1988 (ACT), s.3

Western Australia Criminal Code, s.746A

Australian Capital Territory Supreme Court Act 1933 (Cth), s.11

Re King and Scott (1931) NZLR 162

R v Baker (1971) VR 717

R v Southampton Justices (1976) 1 QB 11

R v Tomb (1714) 10 Mod. 278

In re Perrott (1864) 3 SCR (NSW) 372

R v McGrath (1928) SASR 496

R v Ralston (1952) QWN 46

Re Mountaha Doueihi (1986) 2 Qd R 352

Mesiti (1983) 12 A Crim R 249

Re Fox and Fox (1949) NZLR 722

R v Michael (1949) NZLR 1020

R v Spiers (No. 115/87; 27/9/88; Olsson J.; SCWA)

HEARING

CANBERRA
19:3:1991

Counsel for the Plaintiff: Mr Chilcott

Instructing solicitors: Director of Public Prosecutions

Counsel for the Defendant: Mr M. Hockridge

Instructing solicitors: Legal Aid Office of the A.C.T.

ORDER

The recognizance of 4 January 1991 be estreated into this court.

The execution thereon be stayed until further order.

DECISION

The accused has breached his bail conditions. There was a recognizance in the sum of $5,000.00 and one surety (his wife) in the sum of $5,000.00.

2. There are circumstances which may ameliorate the prima facie view that the agreed sum should be forfeited. However, a preliminary issue has been raised. If bail is granted by a Magistrate pursuant to the Magistrates Court Act 1930, an express statutory power exists to remit the forfeiture in whole or part. I could exercise the same power on appeal from a Magistrate. However, the bail here was granted by me pursuant to the inherent jurisdiction of this Court.

3. There is no statutory power to remit the liability to forfeiture. Two questions arise. The first is whether there needs to be an application to forfeit the sum due or whether it is liable to forfeiture automatically or, at least, on proof of the breach. The second is whether, if a forfeiture is ordered, this Court has power to remit the forfeiture in whole or in part.

4. In my opinion, the recognizance is like any other deed. If breached, the sum promised is, prima facie, due to the Crown (see Re King and Scott (1931) NZLR 162; R v Baker (1971) VR 717; R v Southampton JJ. (1976) QB 11).

5. What is surprising is the lack of authority on the second question.

6. The only direct case in point is R v Tomb (1714) 10 Mod 278. I will quote it in full:-
"Where recognizances may be compounded after they have been

estreated.
The Court. If recognizances are estreated into the
Exchequer, because not punctually complied with, yet if the
party appear and take his trial at the next session, he may
compound for a very small matter in the Court of Exchequer;
because the effect, though not the exact form, of the
recognizance is complied with.
Secondly, that Judges of Oyer and Terminer are the proper
Judges whether recognizances ought to be estreated or
spared. It is for the advantage of public justice, that it
should be in the power of Justices of Oyer and Terminer to
spare the recognizance, if upon the circumstances of the
case they see fit.
Thirdly, no instance can be produced of any certiorari to
remove a recognizance for appearance, from Judges of Oyer
and Terminer; and it would be to take away a jurisdiction
that properly belongs to them."

7. Subsequently, an enactment 4 Geo III c.10 (1763) provided:-

"...it shall be lawful for the Barons of his Majesty's
Court of Exchequer, upon Affidavit and Petition to be
presented to them by or on the Behalf of the Person or
Persons imprisoned, or liable to be imprisoned, on the
Forfeiture of any such Recognizances, to discharge such
Person or Persons, by Order from the said Barons, without
any Quietus to be sued out for that Purpose..."

8. The statute was held to be in force in New South Wales (see In re Perrott (1864) SCR (NSW) 372). It was held applicable also in South Australia (R v McGrath (1928) SASR 496).

9. In the latter case (499), Angus Parsons J. noted that the jurisdiction "to spare or estreat the recognizance" was established by R v Tomb (supra). His Honour also referred to 4 Geo III c.10. He said the Statute was (500) -

"...for the more easy discharge of recognizances estreated
into the Exchequer...hence the new remedy upon
petition...The jurisdiction applicable to the present case
is that conferred by 4 Geo III c.10."

10. With respect, it is more accurate to say that the procedure was altered by 4 Geo III c.10. The jurisdiction was conferred by the instrument investing the Supreme Court of South Australia with the jurisdiction of the Court of Exchequer. That jurisdiction having been conferred, the manner of its exercise is regulated by the relevant Supreme Court Act and Rules (as his Honour notes at 501).

11. It seems to me, therefore, that where the Supreme Court Act and Rules (as they do in this Territory) provide for a simpler procedure for the making of application to the Court the statute 4 Geo III c.10 was otiose.

12. It seems that the legislature agreed with this view. In the general culling of Imperial Statutes by the Imperial Acts (Repeal) Act 1988 (ACT) s.3, the Statute 4 Geo III c.10 was repealed. None of the repeals effected by that Act was intended to change the law in the Territory. It was intended to clear the legislative "dead wood".

13. Nevertheless, in R v Ralston (1952) QWN 46, a discretion to refuse an application to estreat a recognizance was denied. It was later conferred by statute (see Ex p Doueihi (1986) 2 Qd R 352).

14. In Mesiti (1983) 12 A Crim R 249, Kennedy J. (SCWA) followed Re King and Scott (supra) holding that s.746A of the WA Criminal Code empowering estreatment of recognizances gave no power to remit the same.

15. However, his Honour also noted that in the case of Re King and Scott (supra) (251):-

"The Court went on to observe that, in s.7 of the Act, a
remedy was provided for the person affected, in that he
might issue a rule nisi or summons calling upon a law
officer to show cause and he may, if he can, show the Court
by affidavit that, according to equity and good conscience
and the real merits and justice of the case, he ought not
to be required to satisfy the judgment that is entered
consequent upon the estreat."

16. It followed that the legislative provision in New Zealand was intended to give the court the powers referred to in R v Tomb (supra) and 4 Geo III c.10. (See also Re Fox and Fox (1949) 68 NZLR 722, Michael (1949) 68 NZLR 1020.) However, in Western Australia at least, Kennedy J. considered that the legislation in question was inconsistent with the retention in the court of the old powers of the Court of Exchequer.

17. 4 Geo IV c.83, s.24, the third Charter of Justice, established the Supreme Court of New South Wales. It invested it with all the jurisdiction, civil and criminal, of the Courts of Kings Bench, Common Pleas and Exchequer together with all the equitable jurisdiction of the Chancellor, as well as probate jurisdiction. That jurisdiction is conferred on this Court by s.11 Australian Capital Territory Supreme Court Act 1933 (Cth).

18. It follows, in my opinion, that once the Crown (represented here by the DPP), proves a breach of recognizance, an estreatment order must follow. However, the accused or any surety may apply to compound for the sum so estreated. The principles upon which that application is to be dealt with, in the absence of statutory provisions affecting that power, are those referred to in R v Spiers (No. 115/87; 27/9/88; Olsson J.; SCWA).

19. The procedure adopted, Notice of Motion supported by an affidavit, may not be the correct one when what is being done is to "compound for" the forfeited sum in the jurisdiction of the Court of Exchequer.

20. Angas Parsons J. in R v McGrath (supra), 500 does raise the question as to whether a writ of Privy Seal could be or has been issued. If that writ conferred jurisdiction on the Court of Exchequer until 4 Geo III c.10 was enacted then it is surprising that 4 Geo IV c.10 does not purport to confer jurisdiction at all but merely to provide an easier means for its exercise. I assume this was a reference to the Court of Exchequer's contribution to the competition between the common law courts to devise the most elaborate and ingenious fictions to attract jurisdiction in matters which would otherwise be outside of that jurisdiction (for example, the writ of quominus).

21. Even if the jurisdiction of the Court of Exchequer to "compound for" estreated recognizances depended on a writ during the reign of the monarch, nevertheless, at the date of conferral of jurisdiction on the Supreme Court of New South Wales, the statute of 4 Geo III c.10 which conferred that jurisdiction assumed that jurisdiction to have been conferred. It seems to me, therefore, that such jurisdiction was vested in the Supreme Court of New South Wales by the Charter of Justice and so, remains in this Court.

22. It follows that the Crown is entitled to succeed in its application for estreatment, entitling it to levy execution for the debt so found to be due. However, I stay execution to enable the accused and his surety to apply for relief from that debt, wholly or in part. So far as procedural compliance has been lacking, I dispense with that compliance.