Dacich v Director of Public Prosecutions

[2020] NSWSC 1179

Supreme Court

New South Wales

Medium Neutral Citation:

Dacich v Director of Public Prosecutions [2020] NSWSC 1179

Hearing dates:

28 August 2020

Date of orders:

28 August 2020

Decision date:

28 August 2020

Jurisdiction:

Common Law

Before:

Basten J

Decision:

To the extent the summons filed on 12 August 2020, case 2020/235818, purports to be a proceeding by way of appeal, dismiss the summons, with no order as to costs.

Catchwords:

CRIME – appeal and review –application under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 –application relating to District Court judgment on appeal from Local Court – coexisting judicial review proceedings – power to defer under s 79(3A) - deferral pending resolution of judicial review proceedings

PRACTICE AND PROCEDURE – crime – appeal and review – powers of Supreme Court under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – application for inquiry by summons – inquiry non-judicial in nature – summons dismissed but content of summons treated as application for inquiry

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 75, 68, 79; Pt 7

Supreme Court Act 1970 (NSW), s 69

Category:

Principal judgment

Parties:

Clare Dacich (Plaintiff)
Director of Public Prosecutions (Defendant)

Representation:

Counsel:
Plaintiff self-represented
Ms J Davidson (Defendant)

Solicitors:
Office of Director of Public Prosecutions (Defendant)

File Number(s):

2020/235818

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 September 2019

Before:

Colefax SC DCJ

File Number(s):

2017/174438

Judgment

1. BASTEN J: On 12 August 2020 the applicant, Clare Dacich, filed a summons in the Common Law Division purporting to commence an appeal from a judgment of Colefax SC DCJ delivered in the District Court at Campbelltown on 9 September 2019. The summons was in the form provided for the purposes of an appeal, otherwise than to the Court of Appeal, under Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The proceedings before Judge Colefax involved an appeal from sentences imposed on the applicant in the Picton Local Court on 28 November 2018, and possibly against conviction for one or more of the offences. There is no right of appeal from such a judgment of the District Court in its criminal appellate jurisdiction. The applicant is aware of that, having filed a summons purporting to commence such an appeal from the same judgment on 17 October 2019. On 15 July 2020, at a time when the applicant had a solicitor and counsel representing her, an amended summons was filed in that matter seeking orders in the nature of mandamus and certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW). That challenge to the judgment of the District Court was required to be dealt with in the Court of Appeal. Accordingly that summons, in case 2019/302523, is being heard in the Court of Appeal.

3. The summons filed on 12 August 2020 in the Common Law Division, case 2020/235818, did not, however, purport to seek orders of the kind which would be appropriate on appeal, nor orders under s 69 of the Supreme Court Act. Rather, under the heading “type of appeal”, the summons identified the matter as an appeal under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). The only order sought was in the following terms:

“1. Referral of whole case to the Court of Criminal Appeal to be dealt with under the Criminal Appeal Act”.

4. Section 78 appears in Pt 7 of the Appeal and Review Act which is headed “Review of convictions and sentences”. Section 74(2) provides:

(2)   In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence.

It allows an inquiry which is potentially broad in scope, but the proposed scope should be identified in the application.

5. Section 78 is in the following terms:

78   Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

6. Pursuant to s 75(1), the jurisdiction of the Supreme Court under Pt 7 is to be exercised by the Chief Justice or a judge authorised by him. The Chief Justice has authorised me to exercise the jurisdiction under Pt 7 in this matter.

7. One of the steps the Court may take after conducting an inquiry, or on its own motion, is to refer the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): Appeal and Review Act, s 79(1)(b). That appears to be the outcome sought by the applicant. The court may also refuse to consider or otherwise deal with an application. As s 79(4) states, such proceedings are not judicial proceedings; they are not commenced by filing a summons.

8. Further, the court may “defer” consideration of an application if “the conviction or sentence is the subject of appeal proceedings … that are yet to be finally determined”: s 79(3A)(b). It may be doubted whether, given the administrative nature of the process, a specific power of deferral is necessary, where immediate consideration of an application is not appropriate. However, the fact that there are pending proceedings for judicial review of the judgment of the District Court engages the power to defer pursuant to s 79(3A)(b) as the conviction and sentence are presently subject to a form of appeal proceeding. If deferral were not available, it would be appropriate to refuse to consider or otherwise deal with the application, pursuant to s 79(3). That would not preclude a further application being made under s 78 after the judicial review proceedings had been disposed of, if the outcome were considered unsatisfactory by the applicant. The existence of an earlier application which had not been considered on its merits would not preclude a further application under s 78.

9. Accordingly the proper course to take in this case is to dismiss the summons purporting to commence an appeal, but treat the document as an application for the purposes of s 78 of the Appeal and Review Act, but defer consideration of the application until the judicial review proceedings have been determined. I propose to take that course.

10. Because an application under Pt 7 of the Appeal and Review Act is not a judicial process, there is no power to stay any court orders, or grant bail pending the outcome of the inquiry.

11. The court need only make the following order:

1. To the extent the summons filed on 12 August 2020, case 2020/235818, purports to be a proceeding by way of appeal, dismiss the summons, with no order as to costs.

12. Acting non-judicially, I propose to treat contents of the document referred to as a summons as an application under s 78 of the Appeal and Review Act, but I defer consideration of the application until the judicial review proceedings have been determined. If at that stage the applicant seeks to pursue an inquiry under Pt 7 of the Appeal and Review Act, she may notify the Registrar of the Common Law Division of that fact and provide to the Registrar any material she seeks to rely on.

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Decision last updated: 01 September 2020