Justices (Appeals) Amendment Act 1988 (NSW)

JUSTICES (APPEALS) AMENDMENT ACT 1988 No. 99

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3. Amendment of Justices Act 1902 No. 27

4. Amendment of Children (Criminal Proceedings) Act 1987 No. 55

5. Transitional provisions
SCHEDULE 1—AMENDMENTS
SCHEDULE 2—MINOR OR CONSEQUENTIAL AMENDMENTS

SCHEDULE 3—AMENDMENT OF CHILDREN (CRIMINAL PROCEEDINGS) ACT

1987

SCHEDULE 4—TRANSITIONAL PROVISIONS

JUSTICES (APPEALS) AMENDMENT ACT 1988 No. 99

NEW SOUTH WALES

Act No. 99, 1988

An Act to amend the Justices Act 1902 with respect to appeals by the Crown

(Criminal Proceedings) Act 1987 in certain respects; and for other purposes. those and other appeals made to the District Court; to amend the Children against certain sentences imposed by Local Courts and the withdrawal of [Assented to 19 December 1988]

Justices (Appeals) Amendment 1988

The Legislature of New South Wales enacts:

Short title

1.     This Act may be cited as the Justices (Appeals) Amendment Act 1988.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Justices Act 1902 No. 27

3. The Justices Act 1902 is amended as set out in Schedules 1 and 2.

Amendment of Children (Criminal Proceedings) Act 1987 No. 55

4. The Children (Criminal Proceedings) Act 1987 is amended as set out

in Schedule 3.

Transitional provisions

5. Schedule 4 has effect.

SCHEDULE 1—AMENDMENTS

(Sec. 3)

(1) Part 5, Division 4 A —

After Division 4, insert:

Division 4A—Appeal to the District Court by Crown

Definitions

131AA. (1) In this Division—

"appeal" means an appeal under this Division;

"Judge" means a Judge of the District Court;

"proclaimed place" has the same meaning as in the District

Court Act 1973;

"sentence" includes any order made by a Justice or Justices on the conviction of a person, including (but not limited to) an order for compensation or relating to property;

"vary" includes increase or reduce.
(2) Without limiting the definition of "sentence", for the

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Justices (Appeals) Amendment 1988

SCHEDULE	1— AMENDMENTS—continued
(b)	an order or decision under section 558 (1) of the Crimes Act 1900 with respect to a person dealt with for an offence; or
(c)	any other order or decision of any kind whatever made by a Justice or Justices with respect to a person dealt with for an offence—
(i) deferring passing sentence on the person; or (ii) remanding the person in custody; or
(iii) remanding the person and releasing him or her subject to conditions,

whether or not the person has been convicted,

shall be taken to be a sentence imposed on the conviction of the person, and the person shall be taken to have been convicted of the offence.

(3) A reference in this Division to imposing a sentence includes a reference to making an order or decision referred to in subsection (2).

Appeal by Crown to District Court against sentence

131AB. (1) The Director of Public Prosecutions may appeal to

the District Court against any sentence imposed by a Justice or
Justices in—

(a)	proceedings for an indictable offence being dealt with summarily in a Local Court; or
(b)	proceedings for a prescribed summary offence (as defined in the Director of Public Prosecutions Act 1986); or
(c)	proceedings for any other summary offence if instituted or

carried on by the Director of Public Prosecutions.

(2) The District Court may, in its discretion, do any one or more of the following:

(a) confirm, quash, set aside or vary the sentence;

(b)	impose such sentence as may seem proper to the District Court;
(c)	exercise, by order, any power which such a Justice or Justices might have exercised.

(3) Any such sentence varied or imposed by the District Court,

Justices (Appeals) Amendment 1988

SCHEDULE 1— AMENDMENTS—continued

(4) The District Court may not—

(a)	vary a sentence so that the sentence as varied could not have been imposed by the Justice or Justices concerned; or
(b)	impose a sentence that could not have been imposed by the Justice or Justices concerned.

Procedure

131AC. (1) An appeal must be lodged within 28 days from the date the Justice or Justices imposed the sentence.

(2) The District Court may do any one or more of the following:

(a)	specify the proclaimed place at which the hearing of an appeal is to be heard or continued;
(b)	specify the sitting at which an appeal is to be set down for hearing;

(c) adjourn the hearing of an appeal;
(d) dismiss an appeal.

(3) On an appeal, new evidence or information may be given

with the leave of the District Court, but may only be given by the
prosecution in exceptional circumstances.

(4) A Judge may issue a warrant for the apprehension of a defendant who is not present at the proceedings for an appeal relating to the defendant's sentence.

(5) The criminal procedure rules of the District Court may
make provision for or with respect to the procedure to be followed

as regards appeals, and in particular as to the service on

defendants of notices relating to appeals.

(2) Section 1 3 2 B —

After section 132A, insert:

Withdrawal of appeals

132B. (1) An appeal under Division 4 or 4A may at any stage

be withdrawn by the appellant with the leave of the District Court.
(2) In giving leave in respect of an appeal by a defendant, the
District Court may make such orders as are necessary to place the
defendant as nearly as possible in the same position as if the

appeal had not been made.

(3) Any order made by the District Court in respect of an

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Justices (Appeals) Amendment 1988

SCHEDULE 1 —AMENDMENTS—continued

(3) Section 132c—

Before section 133, insert:

Limitation on appeals to District Court

132c. (1) No application to quash or vary any conviction or

order of a Justice or Justices may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of appeal as provided by Division 4 or 4A.

(2) No appeal may be made to the District Court under Division 4 or 4A from a decision of the District Court under either of those Divisions.

SCHEDULE 2—MINOR OR CONSEQUENTIAL AMENDMENTS

(Sec. 3)

(1) Section 3 (Definitions)—

Insert, in alphabetical order, in section 3(1):

"District Court" means the District Court of New South Wales in its criminal jurisdiction (except where used in connection with registrars of the District Court).

(2) Section 25 (Issue of warrant where indictment filed)— jurisdiction", insert instead "the District Court". Section 25 (1)—

(3) Section 51A (Effect of plea of guilty in committal proceedings)—

Section 51A (1) (c)—

Omit ", or such sittings of the District Court in its criminal and special jurisdiction,", insert instead "or the District Court".

(4) Section 111 (Persons appealing under this Division not to appeal to

District Court)—

Section 111 (1 )—

Omit "in its criminal and special jurisdiction,".

(5) Part 5, Division 4, heading—

Justices (Appeals) Amendment 1988

SCHEDULE 2—MINOR OR CONSEQUENTIAL AMENDMENTS—

continued

(6) Section 121A—

Omit the section, insert instead:

Definitions

121A. In this Division—

"appeal" means an appeal under this Division;
"Judge" means a Judge of the District Court;

"proclaimed place" has the same meaning as in the District

Court Act 1973;

"registrar" means a registrar of the District Court.

(7) Section 122 (Appeal allowed in every case of conviction or order made

by Justices)—

Omit section 122 (3).

(8) Section 127A (Vacating order of dismissal of appeal)—

Omit section 127A (1).

(9) Section 140 (Where action may be brought)—

(a) After "District Court" where firstly occurring, insert "in its civil jurisdiction".

(b) Omit "a District Court", insert instead "the District Court".

(10) Section 146 (No certiorari)—

Omit "in its criminal and special jurisdiction".

SCHEDULE 3—AMENDMENT OF CHILDREN (CRIMINAL

PROCEEDINGS) ACT 1987

(Sec. 4)

Section 42 (Appeals)—

After section 42 (4), insert:

(5) Division 4A (Appeal to the District Court by Crown) of Part 5 of the Justices Act 1902 does not apply to a decision of the Children's Court.

SCHEDULE 4—TRANSITIONAL PROVISIONS

(Sec. 5)

Appeal to the District Court by Crown

1. Appeals may be made under Division 4A of Part 5 of the Justices Act 1902 in relation to sentences imposed after, but not before, the commencement of that Division.

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Justices (Appeals) Amendment 1988

SCHEDULE 4—TRANSITIONAL PROVISIONS—continued

Withdrawal of appeals

2. Section 132B of the Justices Act 1902 applies in relation to appeals pending at the commencement of that section, as well as to appeals made after that commencement.

[Minister's second reading speech made in—

Legislative Assembly on 10 November 1988

Legislative Council on 7 December 1988]