Jamal v Director of Public Prosecutions (No 2)

[2013] NSWCA 420

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jamal v Director of Public Prosecutions (No 2) [2013] NSWCA 420

Hearing dates:

On the papers

Decision date:

10 December 2013

Before:

Meagher JA at [1];
Gleeson JA at [2];
Latham J at [13]

Decision:

Note that the Court makes no further order.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - where court is exercising civil jurisdiction - where no signed copy of the conditional good behaviour bond is held by the sentencing Court - s 97 Crimes (Sentencing Procedure) Act 1999 - whether proceedings should be remitted to the District Court to exercise its criminal jurisdiction - where order for remission no longer sought

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 9, 97

Category:

Consequential orders

Parties:

Jon Jamal (Applicant)
Director of Public Prosecutions (NSW) (First respondent)
District Court of New South Wales (Second respondent)

Representation:

Counsel:
S Cairns (Applicant)
J Pickering SC (First respondent)
Solicitors:
S C Kavanagh, Solicitor for Public Prosecutions (First respondent)
I V Knight, Crown Solicitor (Second respondent)

File Number(s):

2012/204468

 Decision under appeal 

Jurisdiction:

9101

Citation:

R v Jon Jamal

Date of Decision:

2012-06-01 00:00:00

Before:

Nicholson DCJ

File Number(s):

2011/184561

Judgment

1. MEAGHER JA: I agree with Gleeson JA.

1. GLEESON JA: On 25 October 2013, the Court published reasons for its decision dismissing Mr Jamal's application in the nature of prerogative relief with respect to a judgment of the District Court, which was an appeal from a conviction in the Local Court (see Jamal v Director of Public Prosecutions [2013] NSWCA 355).

1. The Court reserved the question of whether the proceedings should be remitted to the District Court for Mr Jamal to be dealt with under s 97 of the Crimes (Sentencing Procedure) Act 1999. The Director of Public Prosecutions first sought this order after the hearing had concluded and before judgment was given. The order was sought on the ground that evidence of inquiries made by the Office of the Director of Public Prosecutions subsequent to the hearing of this application in this Court, revealed that neither the District Court Registry at Parramatta nor the Registry at Burwood Local Court held a copy of a signed bond under s 9 of the Crimes (Sentencing Procedure) Act entered by Mr Jamal.

1. Mr Jamal had been found guilty on 10 November 2011 in the Local Court of common assault of his wife and sentenced to a conditional good behaviour bond for 12 months: s 9, Crimes (Sentencing Procedure) Act. His appeal on conviction was dismissed by the District Court on 1 June 2012.

1. Section 97 of the Crimes (Sentencing Procedure) Act provides:

"If:

(a) a court makes an order that provides for an offender to enter into a good behaviour bond, and

(b) the offender fails to enter into such a bond in accordance with the order,

the court may sentence the offender, or convict and sentence the offender, as if the order had not been made."

1. The Court considered that it was not appropriate to remit the proceedings as requested by the Director of Public Prosecutions, without first affording Mr Jamal an opportunity to address this issue. The Court invited Mr Jamal to make written submissions on this issue, the time for which was subsequently extended, at the request of Mr Jamal, to 29 November 2013.

1. The Court also directed the Director of Public Prosecutions to specify the basis on which it was contended that this Court had power to remit these proceedings to the District Court (exercising its criminal jurisidction).

1. The Court did not receive any submissions on behalf of Mr Jamal. The absence of submissions from Mr Jamal was possibly a consequence of the change of position of the Director of Public Prosecutions as referred to below.

1. The Court received further written submissions from the Office of the Director of Public Prosecutions on the issue of remission of the proceedings to the District Court. Contrary to the position previously taken, the Office of the Director of Public Prosections no longer seeks to have the proceedings remitted to the District Court.

1. The position now taken by the Director of Public Prosecutions is that the Local Court remains the sentencing court in respect of Mr Jamal, and it is that Court which has power to exercise the discretion conferred by s 97 of the Crimes (Sentencing Procedure) Act with respect to Mr Jamal's alleged failure to enter the conditional bond under s 9 of that Act. The Director of Public Prosecutions has foreshadowed making an application to the Local Court to exercise the discretion conferred by s 97.

1. It is unnecessary to express any view on the position now taken by the Director of Public Prosecutions, or the question whether this Court (which is exercising civil jurisidiction) has power to remit proceedings of the present type (being an unsuccessful claim for perogative relief) to the District Court for the purpose of exercising that Court's criminal jurisdiction in respect of the applicant for perogative relief.

Conclusion

1. As the Director of Public Prosecutions no longer seeks an order for remittal of these proceedings, I propose that the Court note that it makes no further order in this matter.

1. LATHAM J: I agree with Gleeson JA.

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Decision last updated: 10 December 2013