JSM v The Queen - [2010] NSWCCA 255

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
JSM v R [2010] NSWCCA 255

FILE NUMBER(S):
2009/8421

HEARING DATE(S):
30 September 2010

JUDGMENT DATE:
11 November 2010

PARTIES:
JSM (applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Hoeben J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/8421

LOWER COURT JUDICIAL OFFICER:
Berman DCJ

LOWER COURT DATE OF DECISION:
16 September 2010

COUNSEL:
P Hamill SC/G Bashir (applicant)
P G Ingram (Crown)

SOLICITORS:
Uther Webster Evans (applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal
leave to appeal against interlocutory orders
discussion of the legislative amendments to Division 3 Part 3 of the Criminal Procedure Act 1986 (NSW)
whether indictment could be presented out of time
trial can proceed given statutory effect of s 129(4) of Criminal Procedure Act 1986 (NSW)
CRIMINAL LAW
consideration of public interest in charge negotiation between accused and the prosecution

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986

CASES CITED:
R v M [2010] NSWDC 200

TEXTS CITED:

DECISION:
Leave to appeal granted but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/8421
McCLELLAN CJ at CL
HOEBEN J
JOHNSON J
THURSDAY 11 NOVEMBER 2010

JSM v R

Judgment

McCLELLAN CJ at CL: The applicant seeks leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against interlocutory orders made by Berman DCJ. The applicant was charged with a number of offences on 27 July 2007. Other persons were also charged and their trial is fixed to commence on 5 October 2010. One of the co-accused has been in custody bail refused for in excess of 3 years and accordingly it is important that the trial not be delayed. For this reason the present application has been dealt with expeditiously.
The appeal was heard on 1 October 2010, and on 2 October 2010, the Court made orders granting leave to appeal but dismissing the appeal. These are my reasons for joining in the orders of the Court.
The judgment in the District Court relates the history of the matter drawing upon the affidavit of Ms Vivian Evans, the solicitor for the applicant. As I have indicated below a substantial complaint of the applicant has now been overcome diminishing the applicant’s concern with respect to his prosecution.
On 27 July 2007, the applicant was charged with the offences of solicit to murder, make false accusation, two counts of supplying a prohibited drug, two counts of possessing a firearm and a count of possessing ammunition. He was granted bail on 21 December 2007.
The matter was listed before the Local Court in February 2008 when the Director of Public Prosecutions sought an adjournment. That adjournment was granted in the expectation that negotiations would take place between the applicant’s legal representatives and the Director of Public Prosecutions. Negotiations did take place with the matters being mentioned before the court on a number of occasions.
In April 2009 the solicitor for the Director of Public Prosecutions who…

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 JSM v The Queen

Details

AGLC: JSM v The Queen [2010] NSWCCA 255
Case: [2010] NSWCCA 255
Decision Date: 11 November 2010

CaseChat Overview and Summary

The appeal in the case of JSM v The Queen involved the appellant, JSM, contesting interlocutory orders made by a lower court. The dispute centred on whether an indictment could be presented outside the statutory time limit prescribed by the Criminal Procedure Act 1986 (NSW). This case reached the court as JSM sought leave to appeal against the decision that allowed the indictment to proceed despite being presented beyond the stipulated time frame.

The central legal issue before the court was the interpretation and application of the legislative amendments to Division 3 Part 3 of the Criminal Procedure Act 1986 (NSW). Specifically, the court needed to determine whether the statutory effect of section 129(4) of the Act permitted an indictment to be presented outside the prescribed time limit and whether such a presentation would affect the ability to proceed with the trial. The court was also required to consider the public interest in negotiating charges between the accused and the prosecution, which was pertinent to the statutory scheme's overall purpose and intent.

In delivering the judgment, the court thoroughly examined the legislative language and its amendments, as well as the legislative intent behind the provisions in question. The court found that the statutory language did not explicitly prohibit an out-of-time presentation of an indictment, and that the public interest in charge negotiation did not preclude the indictment from proceeding. Consequently, the court held that the trial could proceed given the statutory effect of section 129(4) of the Criminal Procedure Act 1986 (NSW). The appeal was dismissed, and leave to appeal against the interlocutory orders was denied.

The final orders of the court were that the interlocutory orders allowing the indictment to proceed would stand, and JSM's appeal was dismissed without leave to appeal. The court's decision affirmed the statutory framework governing the timing of indictment presentations and underscored the importance of the public interest in charge negotiation within the criminal justice system.

Orders