Director of Public Prosecutions (NSW) v Nicholson

[2009] NSWCCA 262

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v NICHOLSON [2009] NSWCCA 262

FILE NUMBER(S):
2007/13398

HEARING DATE(S):
20 October 2009

JUDGMENT DATE:
20 October 2009

EX TEMPORE DATE:
20 October 2009

PARTIES:
Director of Public Prosecutions (NSW) - Appellant
Roy William Nicholson - Respondent

JUDGMENT OF:
Basten JA Fullerton J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/1020

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
22 May 2009

COUNSEL:
P Leask - Appellant
J Manuell SC - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Appellant
S O'Connor, Legal Aid Commission - Respondent

CATCHWORDS:
PRACTICE & PROCEDURE - criminal appeal - appeal by Director of Public Prosecutions against sentence - adjournment sought to allow for consideration of Constitutional challenge - [<i>Crimes (Appeal and Review) Act 2001</i>] (NSW), s 68A

LEGISLATION CITED:
[<i>Criminal Appeal Act 1912</i>] (NSW), s 5D
[<i>Crimes (Appeal and Review) Act 2001</i>] (NSW), s 68A
[<i>Judiciary Act 1903</i>] (Cth), s 78B

CASES CITED:

TEXTS CITED:

DECISION:
1. Direct the Respondent, if he seeks to challenge the validity of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), to file and serve a notice of intention to raise a constitutional issue.
2.  Adjourn the matter to the Registrar's list on 29 October 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/13398

BASTEN JA
FULLERTON J
McCALLUM J

20 October 2009

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v Roy William NICHOLSON

Judgment

1. JUDGMENT of the COURT delivered by BASTEN JA: In the matter of Roy William Nicholson there is an application from the Director of Public Prosecutions for leave to appeal in respect of a sentence imposed on the respondent on 25 May 2009 pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). The offence in this matter was committed on 7 June 2006. The respondent pleaded guilty on 17 November 2008 to the offence for which he was sentenced.

2. On 29 June 2009, the Director prepared a notice of appeal which was served on the following day.  On 1 September 2009, the Director provided written submissions setting out grounds of appeal at paragraph 28.  (The notice which had earlier been served contained no grounds of appeal at all.)  On 24 September 2009, an amendment to the Crimes (Appeal and Review) Act 2001, inserting a new s 68A, commenced which potentially affects the manner in which this Court should determine an appeal by the Director against a sentence.

3. This is a matter involving a State offence in State jurisdiction. It is the first time it has been before this Court. Ms Manuell SC, appearing for the respondent, noted that last Friday, namely, 19 October, the Director had filed written submissions seeking to rely upon s 68A and setting out how in his submission that section operated in relation to the principle of double jeopardy in respect of an appeal against sentence.

4. Ms Manuell indicated orally this morning that she would seek an adjournment in order to obtain instructions. Her concern is that there is before the Court another matter of Carroll which was remitted from the High Court earlier this year and in which notices have been served under s 78B of the Judiciary Act 1903 (Cth) indicating an intention to challenge the Constitutional validity of s 68A. The respondent seeks an opportunity to consider whether or not to make a similar application in relation to the matter now before the Court. Ms Manuell says that she can obtain those instructions within a week and asks that the matter be stood over to the Registrar's list on Thursday, 29 October 2009.

5. In the circumstances, that is a course which the Court should take. In the meantime it would be appropriate if the respondent were to file in the registry a notice of the intention to raise a constitutional issue, if those instructions are obtained. That notice should of course be served on the Director. It is anticipated that such a notice may be provided before the directions hearing on 29 October. It is not necessary that there be full written submissions but it is intended that the notice set out the grounds of the Constitutional challenge such that it might form the basis of a s 78B notice if in due course that is required.

6. It is not appropriate for the Court at this stage to give further directions in relation to the filing of written submissions or otherwise dealing with what might be the responses to the 78B notice if such a notice eventuates.  There are other matters in the Court which will need to be co-ordinated with this matter and it would be a matter for the Registrar to give such further directions as are necessary in due course.

7. I direct that the respondent obtain instructions and, if thought appropriate, file a notice of intention to raise a constitutional issue.  The matter is adjourned to the Registrar's list on 29 October 2009.

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LAST UPDATED:
23 October 2009