Gibson v Director of Public Prosecutions

[2021] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gibson v Director of Public Prosecutions [2021] NSWCA 176

Hearing dates:

9 August 2021

Decision date:

09 August 2021

Before:

Basten JA

Decision:

(1)   Dismiss the applicant's motion filed 5 August 2021 seeking to vacate the hearing date of 20 August 2021.

(2)   While there is no obligation on the applicant to file written submissions in reply, if he wishes to do so, they should be filed by no later than 5pm Monday 16 August 2021.

(3)   Costs of the motion to be in the proceedings.

Catchwords:

PRACTICE AND PROCEDURE – judicial review – refusal by District Court to state case to Court of Criminal Appeal – application to vacate hearing date – further charge pending in Local Court – stress – lack of medical evidence – no basis to delay hearing by several months

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5B

Category:

Procedural rulings

Parties:

Scott Gibson (Applicant)
Director of Public Prosecutions (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
Applicant self-represented
Ms K Parouchais (Solicitor) (First Respondent)

Solicitors:
Director of Public Prosecutions (First Respondent)

File Number(s):

2021/77088

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

26 November 2020

Before:

Baly SC DCJ

File Number(s):

2019/260542

Judgment

1. BASTEN JA: Listed before the Court for hearing on 20 August 2021 is an application for judicial review of a decision of a judge in the District Court not to state a case under s 5B of the Criminal Appeal Act 1912 (NSW). The Director of Public Prosecutions accepts that the reason conveyed by the District Court registry for the judge’s refusal to state a case may not have been a legitimate reason. The proposition that there was jurisdictional error in the failure of the judge to state a case is a matter for determination by this Court.

2. Mr Gibson, who is the applicant for judicial review, seeks to vacate the hearing date on a number of bases. The Director neither opposes nor agrees to the vacation of the hearing date. It is a matter for this Court to determine whether the matters currently listed for hearing should be heard in the order in which they have been listed, or whether some later date should be fixed.

3. Mr Gibson indicated in submissions and in an affidavit in support of his motion that he is subject to ongoing mental health issues, being problems which have afflicted him for some years. He says that the problems are aggravated by the conduct of police officers, which he refers to as "harassment and intimidation". The applicant claims that he was the victim of domestic violence and not the perpetrator and, therefore, that proceedings brought against him for breach of an apprehended violence order in the Local Court at Moss Vale, were an abuse of process. He also asserts that there is a public interest in having the matters about which he is concerned in relation to police harassment dealt with in open Court and transparently.

4. In general one can understand the public interest in addressing such complaints, but that factor has limited relevance to the proceeding in this Court, which is restricted to determining whether there was jurisdictional error on the part of a District Court judge in refusing to state questions for a Court of Criminal Appeal to consider. Further, it is not directly relevant to the present application.

5. He further states that there is another case pending which is listed for hearing on 4 September at Moss Vale. The nature of the hearing listed for 4 September, that is whether it is in for directions or for a hearing on the merits, is unclear. Mr Gibson thinks it will be a short case with no witnesses to be called. Nevertheless, he says he is defending it, and he has a lawyer who hopes to have the charges dropped, which suggests the hearing on 4 September may not proceed. He indicates that, in his view, the stress which will be caused in preparation for that case, given his mental health problems, will not allow him to deal with the matters in this Court and in the Moss Vale Local Court, although he has a solicitor acting in the Local Court proceedings.

6. The only step to be taken before the hearing on 20 August is the filing, if he wishes to do so, of a written submission in reply to the submissions filed by counsel for the Director of Public Prosecutions. There is no obligation to file a reply. The matter is otherwise ready to proceed. No medical evidence has been provided to this Court, and this Court is in no position to determine whether or not Mr Gibson will be any better placed to pursue these proceedings, commenced by him several months ago, on his preferred date in November. Accordingly, no sufficient basis has been established to vacate the hearing in this Court, by which the applicant seeks to reopen proceedings which, I infer, long predated the charges now pending in the Local Court.

7. The orders of the Court are:

1. Dismiss the applicant's motion filed 5 August 2021 seeking to vacate the hearing date of 20 August 2021.

2. While there is no obligation on the applicant to file written submissions in reply, if he wishes to do so, they should be filed by no later than 5pm Monday 16 August 2021.

3. Costs of the motion to be in the proceedings.

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Decision last updated: 12 August 2021