Dr Felicity Gerry KC appears in case which clarifies the power to grant bail for Magistrates in allegations of murder in interstate warrants

On 8 October 2025, Magistrate M. H. Thomas decided that the power to grant bail on interstate warrants does not rest only with the Supreme Court, by virtue of s 13 of the Bail Act 1977 (Vic) but the power to grant to bail is available to a Magistrate under section 83 of the Service and Execution of Process Act 1992 (Cth) (‘SEPA’). 

The defendant, Lisa Silson, a vulnerable First Nations woman, had been arrested by Victoria Police in response to warrants issued by the Deniliquin Local Court (NSW) in July 2025, including one in relation to the death of her ex-partner. She was brought before His Honour, Magistrate Thomas pursuant to s 83 of SEPA. She opposed extradition to NSW, sought bail based on ‘exceptional circumstances’ related to serious concerns about her life and health if she is remanded in custody.  At this first hearing, Magistrate Thomas expressed a preliminary view that he was bound by s 13(2) of the Bail Act and ‘accordingly could not order that Ms Silson be remanded on bail’. As such, a referral was made to the Supreme Court of Victoria of the question: 

Should section 13(2) of the Bail Act 1977 (Vic) be read such that in circumstances where section 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) is engaged in relation to a risk of life or serious risk to health the Magistrates’ Court has power to grant bail where a person is charged with murder?

On the referred question, Quigley J determined that, in terms of the opportunity for the accused to seek bail, there was no ‘catch 22’ situation, as the question of bail can be determined by the Supreme Court. The court concluding that section 9 of the Charter does not empower a Magistrate to grant bail under s 13(2) of the Bail Act: ‘the power to grant bail where a person is charged with murder resides in the Supreme Court of Victoria’.

The matter returned to Magistrate Thomas with an intervention from the Attorney-General (Victoria) on potential issues of whether the two pieces of legislation were incompatible. 

In his written reasons of 3^rd October 2025, His Honour stated that ‘it can no longer be safely assumed’ that if read together s 13 of the Bail Act and s 88(1) would deny the Magistrates Court the power to grant bail in relation to murder (as per the obiter in Rose). In fact, Magistrate Thomas’ analysis is that the power of the Magistrates Court to grant bail under the Commonwealth’s SEPA is ‘clear and independent and is not derived from any power’ under a State Act. That is, when exercising the jurisdiction under which it decides on extradition matters, in the defined circumstances arising from the Commonwealth Act, the Magistrates Court has power, under s 88(1) of SEPA to decide whether bail should be granted ‘pending extradition to the first appearance before the interstate court’. It being for the Court in the State where the offence was allegedly committed to decide on whether bail should be granted until trial. 

Therefore, the Magistrates’ power in this context is narrow, but a power nonetheless, to decide on bail in the immediate sense, where a person is before them by virtue of an extradition order under SEPA. It appears however, that this power has not been exercised until now – the assumption being that, pursuant to the Bail Act, the only power for granting bail to those being extradited on murder charges lies with the Supreme Court (see e.g. Rose and more recently, Re Wetzler).

This is not only an issue for Victorian extradition hearings  – Tasmania and Queensland have similar provisions in their respective Bail Acts, empowering the Supreme Court to make decisions on bail in respect of serious offences to the exclusion of the Magistrates Court. In Queensland the Police Powers and Responsibilities Act 2000 explicitly allows that state bail laws apply to a person ‘arrested for an extradition offence as if the offence were committed in Queensland’ (at s 374). However, a cursory review of case law in these states suggests that the issue of whether the Magistrate Court has power to grant bail under SEPA has not yet been dealt with by their courts. In NSW while Local Courts have, in the past, used their powers under SEPA to decide on bail for an accused charged with murder, for murder and other serious offences there is a presumption against bail, with the accused required to ‘show cause’ as to why their detention is unjustified. 

These thorny questions arose for Dr Felicity Gerry KC, appearing for the defendant in a matter before the Magistrates Court of Victoria, leading Joanna Davidson and Louis Andrews and instructed by Women’s Legal Service Victoria. 

The Attorney General was represented by Sarah Keating.