Hall v CL (No 2)

[2015] ACTSC 294

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hall v CL (No 2)

Citation:

[2015] ACTSC 294

Hearing Date:

8 September 2015

DecisionDate:

18 September 2015

Before:

Refshauge J

Decision:

1.     The sentences and orders made by the Magistrates Court on 19 August 2015 are confirmed.

2.        It is declared that, for the purpose of those sentences and orders, the period of time from 20 August 2015 to 16 September 2015, when CL was in custody, shall count as time served under those sentences and orders.

Catchwords:

APPEAL – Criminal law – jurisdiction, practice and procedure – appeal from the Magistrates Court – Galambany Court – Div 3.10.2 and Div 3.10.3 of the Magistrates Court Act 1930 (ACT) – stay of proceedings – affect of a stay upon sentence – the need to confirm sentences upon dismissal of an appeal

Legislation Cited:

Crimes (Sentence Administration) Act 2001 (ACT), s 116ZM

Crimes (Sentencing) Act 2005 (ACT), ss 12, 13
Magistrates Court Act 1930 (ACT), s, 216, Div 3.10.2, 3.10.3

Cases Cited:

Baily v Marinoff (1971) 125 CLR 529

Burrell v The Queen (2008) 238 CLR 218
DJL v Central Authority (2000) 201 CLR 226
Hadba v The Queen (2004) 182 FLR 472
Hall v CL [2015] ACTSC 286

Parties:

Matthew James Hall (Appellant)

CL (Respondent)

Representation:

Counsel

Ms E Beljic (Appellant)

Ms S Saikal (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

Legal Aid ACT (Respondent)

File Number:

SCA 67 of 2015

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Boss

Date of Decision:         [Redacted for legal reasons]

Case Title:  Matthew Hall and [CL]

Court File Numbers:      [Redacted for legal reasons]

Refshauge J:

1. On 16 September 2015, I dismissed the informant’s appeal against a sentence imposed on the respondent, CL, imposed on him on 19 August 2015.  See Hall v CL [2015] ACTSC 286.

1. In that decision, I raised the issue of whether the appeal had been brought under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (‘the Act’) or under Div 3.10.3. While the process and, probably, the principles for the conduct of the appeals were the same, there were some consequential differences.

1. Without investigating the matter in depth, I considered that it was at least likely that the informant could bring the appeal under either Division of the Act and accepted the assertion of Mr M Fernandez, counsel for the informant appellant, that it was brought under Div 3.10.2. That had the curious consequence that under s 216 of the Act, the filing of the informant’s Notice of Appeal stayed the enforcement of the sentence pending the hearing of the appeal.

1. That section is as follows:

216Stay of execution pending appeal in certain cases

(1)If a person (the appellant) appeals under this division—

(a)the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued; and

(b)if the appellant is in custody—the…