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Devitt v Ross

Devitt v Ross

Case [2018] NSWSC 1675 6 November 2018

Appeal

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Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Devitt v Ross [2018] NSWSC 1675
Hearing dates: 25 October 2018
Date of orders: 06 November 2018
Decision date: 06 November 2018
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
(1) The Amended Summons dated 2 October 2018
is dismissed.
(2) There should be no order as to costs.

Catchwords: CRIMINAL LAW – procedure – application for leave to appeal out of time against sentence imposed in the Local Court on a ground involving a mixed question of law and fact – appeal incompetent since plaintiff sought to challenge order of Local Court which was no longer operative, District Court having dismissed application for leave to appeal – summons dismissed.
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) – ss 3, 11, 13, 14, 16, 17, 20, 52, 53, 54, 55, 61
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 9, 10, 44
Supreme Court Rules 1970 (NSW) Pt 51B rr 5, 6
District Court Rules 1973 (NSW) Pt 53 r 12
Cases Cited: Director of Public Prosecutions (NSW) v Dodds and Anor [2005] NSWCA 115
Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156
JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
Kapral v Bunting [2009] NSWSC 749
Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85
R v Doan (2000) 50 NSWLR 115
R v PL [2009] NSWCCA 256
Wishart v Fraser (1941) 64 CLR 470
Category: Principal judgment
Parties: Christopher Devitt – Plaintiff
Paul Ross (NSW Police) – Defendant
Director of Public Prosecutions (NSW) as Amicus Curiae
Representation:
Counsel:
P Skinner – Plaintiff
N Regener (Solicitor) – Defendant
Ms CA Webster SC – Director of Public Prosecutions (NSW) as Amicus Curiae
Solicitors:
Armstrong Felton – Plaintiff
Makinson d’Apice Lawyers – Defendant
Director of Public Prosecutions (NSW) as Amicus Curiae

File Number(s): 2018/218164
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

15 February 2017

Before:

Magistrate Freund

File Number(s):

2018/218164

Judgment

HIS HONOUR:

Nature of proceedings

The plaintiff moves on an Amended Summons, dated 2 October 2018, as follows:

“The plaintiff claims:
1.   An extension of time in which to appeal.
2.   An order setting aside the sentence imposed upon the applicant by the learned Magistrate below on 15 February 2017.
3.   Such further or other order as to this Honourable Court may seem fit.
Grounds
1.   The sentence imposed upon the applicant by the learned Magistrate in relation to sequence 4 is manifestly excessive.
2 The learned Magistrate erred in failing to consider s 44 of the Crimes (Sentencing Procedure) Act 1999 and as a result not setting a non-parole period for the sentence of imprisonment that she imposed.
3.   The learned Magistrate erred in her application of the principles of R v Doan (2000) 50 NSWLR115.
4.   The applicant was denied procedural fairness in that a large part of the sentencing proceedings were conducted in his absence.”

At the hearing of this matter, Ground 4 was withdrawn.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Devitt v Ross

Details

AGLC: Devitt v Ross [2018] NSWSC 1675
Case: [2018] NSWSC 1675
Decision Date: 06 November 2018

CaseChat Overview and Summary

The case of Devitt v Ross involved an application for leave to appeal against a sentence imposed by the Local Court. The plaintiff, Devitt, sought to challenge the sentence on a ground that involved a mixed question of law and fact. The District Court was asked to grant leave for an appeal out of time. The plaintiff's appeal was dismissed as it was determined that the appeal was incompetent due to the plaintiff's attempt to challenge an order of the Local Court that was no longer operative. The District Court had previously dismissed the plaintiff's application for leave to appeal.

The central legal issue before the court was whether the plaintiff could successfully appeal the sentence imposed by the Local Court, particularly since the appeal was out of time and involved mixed questions of law and fact. The court had to consider the procedural rules governing appeals and whether the appeal was competent given the circumstances. The court needed to determine if the plaintiff's application for leave to appeal out of time was valid, considering that the Local Court's order was no longer operative following the dismissal of the plaintiff's prior application for leave to appeal by the District Court.

In dismissing the summons, the court found that the plaintiff's appeal was incompetent because it sought to challenge an order of the Local Court that had ceased to be effective. The court noted that the plaintiff's application for leave to appeal out of time was invalid since the District Court had already dismissed a similar application. As a result, the plaintiff's attempt to challenge the Local Court's sentence on a mixed question of law and fact was not permissible. Consequently, the court dismissed the summons, affirming the incompetency of the appeal.

Orders