JW v District Court of New South Wales

[2016] NSWCA 22

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JW v District Court of New South Wales [2016] NSWCA 22

Hearing dates:

18 February 2016

Date of orders:

19 February 2016

Decision date:

26 February 2016

Before:

Simpson JA

Decision:

(1) That the trial listed for hearing in the District Court on indictment charging [JW] with an offence against s 52A of the Crimes Act 1900 (NSW) be stayed pending further order of this Court.

 

(2) Refer proceedings to the Registrar, Court of Appeal, for directions.

 (3) That the proceedings be given such expedition as is necessary.

Catchwords:

JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 69 – order sought to set aside order of magistrate in the Children’s Court committing applicant for trial – order sought to set aside judgment or order of the District Court refusing stay of proceedings – whether Court of Appeal has jurisdiction to grant the orders – effect of Supreme Court Act s 17(1) and Third Schedule – whether proceedings fell into category of exclusion provided by cll (a1) and (a2) of Third Schedule – order concerning the District Court proceedings not excluded

 

JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 48 – proceedings under s 69 concerning orders of a specified tribunal – District Court a specified tribunal under s 48(1) – Children’s Court not a specified tribunal under s 48(1)

 

JURISDICTION – Court of Appeal – single judge sitting alone – jurisdiction of single judge of Court of Appeal to set aside judgment or order of District Court refusing stay of proceedings – Supreme Court Act 1970 (NSW), s 46(2)(b)

  PRACTICE AND PROCEDURE – application for stay of District Court proceedings – deficiencies in committal of applicant to trial in District Court – stay granted

Legislation Cited:

Crimes Act 1900 (NSW), s 52A
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 68
Criminal Records Act 1991 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 12, 31, 44
Supreme Court Act 1970 (NSW), ss 17, 46, 48, 49, 69

Cases Cited:

Adler v District Court of NSW (1990) 19 NSWLR 317
El-Zeyat v R [2014] NSWCCA 298; 88 NSWLR 556
PM v The Queen [2007] HCA 49; 232 CLR 370

Category:

Principal judgment

Parties:

JW (Applicant)
District Court of New South Wales (First Respondent)
Children’s Court of New South Wales (Second Respondent)
Director of Public Prosecutions (NSW) (Third Respondent)

Representation:

Counsel:
I Bourke SC/S Fraser (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)
C A Webster SC (Third Respondent)

  Solicitors:
O’Brien’s Solicitors (Applicant)
N/A (First Respondent)
N/A (Second Respondent)
C Hyland – Office of the Director of Public Prosecutions (Third Respondent)

File Number(s):

2016/51525

Publication restriction:

Non-publication of any information or material that may lead to the identification of the applicant (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

4 February 2016

Before:

Sides DCJ

File Number(s):

2014/177390

Judgment

1. SIMPSON JA: The applicant, who was born in August 1996, is charged with an offence of dangerous driving causing death, brought under s 52A of the Crimes Act 1900 (NSW), allegedly committed on 26 February 2014, when he was under 18 years of age. On 10 April 2015 a magistrate in the Children’s Court committed him for trial in the District Court on that charge. On 30 April 2015 the trial on the indictment was fixed for hearing to commence on 22 February 2016. On 4 February 2016, by Notice of Motion in the District Court, the applicant sought a (temporary) stay of proceedings, on the basis of asserted (and subsequently acknowledged) deficiencies in the committal procedure. On the same day Sides DCJ refused to stay the proceedings.

2. By Summons filed in this Court on 17 February 2016 the applicant seeks, under s 69 of the Supreme Court Act 1970 (NSW):

1. an order setting aside the order of a magistrate in the Children’s Court, committing him for trial on the charge of dangerous driving causing death; and

2. an order setting aside a judgment or order of the District Court (Sides DCJ) refusing to order a stay of the proceedings.

The summons names the District Court of NSW, the Children’s Court of NSW and the Director of Public Prosecutions as, respectively, the first, second and third respondents.

3. The applicant has initiated other proceedings. He has filed:

• on 5 February 2016, a Summons in the Common Law Division of the Supreme Court seeking leave to appeal against the order made by the magistrate in the Children’s Court committing him for trial on the charge of dangerous driving causing death; and

• on 17 February 2016, an application, under s 5F of the Criminal Appeal Act 1912 (NSW), seeking leave to appeal against an interlocutory order of the District Court (the order of Sides DCJ set out above.)

The Summons filed in the Common Law Division names as first, second and third respondents, respectively, the Parramatta Children’s Court, the Parramatta District Court, and the Director of Public Prosecutions.

4. On 17 February 2016 the Summons seeking leave to appeal to the Common Law Division came before Button J as duty judge. His Honour ordered that those proceedings be transferred to the Court of Appeal.

5. On 17 February 2016 the applicant filed a Notice of Motion in the s 69 proceedings. The only substantive order sought was an order, on an interim basis, staying the criminal proceedings initiated by the indictment mentioned above.

6. On the same day, in the proceedings under s 5F of the Criminal Appeal Act, the applicant filed a Notice of Motion, similarly seeking interim orders. The orders sought are:

1. an order setting aside the order of Sides DCJ refusing to grant a stay of the criminal proceedings;

2. an order granting a stay of the District Court criminal proceedings;

3. an order setting aside the order of the Children’s Court of 10 April 2015 committing the applicant for trial;

4. an order remitting the criminal proceedings to the Children’s Court for redetermination in accordance with the Children (Criminal Proceedings) Act1987 (NSW).

7. The proceedings came before me (constituting both the Court of Appeal and the Court of Criminal Appeal), as a matter of urgency, on Thursday, 18 February. The urgency arose because the trial of the applicant on the dangerous driving charge was fixed to commence in the District Court on the following Monday (22 February). The applicant sought to proceed, on an interlocutory basis, on each of the two Notices of Motion that I have mentioned. He did not seek to proceed on the application for leave to appeal (transferred to the Court of Appeal by Button J).

8. Of the named defendants/respondents, only the Director of Public Prosecutions (“the Director”) played any active part in the proceedings. He resisted all orders sought. On 19 February, (in my capacity as Judge of Appeal) I made the following orders (reserving reasons):

In proceedings 2016/51525

1. That the trial listed for hearing in the District Court on indictment charging [JW] with an offence against s 52A of the Crimes Act 1900 (NSW) be stayed pending further order of this Court.

2. Refer proceedings to the Registrar, Court of Appeal, for directions.

3. That the proceedings be given such expedition as is necessary.

4. Reasons reserved.

9. What follows are my reasons for those orders.

10. All proceedings arise out of the same set of facts, which are, for present purposes, uncontroversial.

The relevant facts and circumstances

11. The applicant was born in August 1996. As at February 2014 he was 17 and a half years of age. Pursuant to s 3 of the Children (Criminal Proceedings) Act1987 (NSW) (“the CCP Act”) he was, for the purposes of that Act, a child. He was the holder of a “P” class driver’s licence. On 26 February 2014 he was driving on a road in Bankstown. His vehicle collided with a pedestrian, Yasser Alkheder. As a result of the injuries he suffered in the collision Mr Alkheder died. The applicant was charged under s 52A(1)(c) of the Crimes Act with dangerous driving causing death. That offence carries a maximum penalty of imprisonment for 10 years.

12. Because the applicant was a child at the time, criminal proceedings against him were governed by the CCP Act.

13. Before proceeding further with the statement of facts, it is necessary to set out some statutory provisions.

14. Section 12 of the CCP Act provides:

“(1)  If criminal proceedings are brought against a child, the court that hears those proceedings must take such measures as are reasonably practicable to ensure that the child understands the proceedings.

…

(3)  The Children’s Court shall, if requested by the child or by some other person on behalf of the child, explain to the child:

(a)  any aspect of the procedure of the Children’s Court, and

(b)  any decision or ruling made by the Children’s Court,

in or in relation to the proceedings.

(4)  A court shall give the child the fullest opportunity practicable to be heard, and to participate, in the proceedings.”

15. Section 31 of the CCP Act regulates proceedings for the prosecution of children in the Children’s Court. Section 31 relevantly provides:

“(1)  If a person is charged before the Children’s Court with an offence (whether indictable or otherwise) other than a serious children’s indictable offence, the proceedings for the offence shall be dealt with summarily.

(2)  Notwithstanding subsection (1):

(a)  if a person is charged before the Children’s Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and

(b)  if the person informs the Children’s Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law,

the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2–4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act.

(3)  Notwithstanding subsection (1):

(a)  if a person is charged before the Children’s Court with an indictable offence, and

(b)  if the Children’s Court states that it is of the opinion, after all the evidence for the prosecution has been taken:

(i)  that, having regard to all the evidence before the Children’s Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and

(ii)  that the charge may not properly be disposed of in a summary manner,

the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2–4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act and as if the Children’s Court had formed the opinion referred to in section 62 of that Act.

(4)  …

(5)  …” (italics added)

16. Put shortly, where the circumstances set out in either sub-ss (2) or (3) exist, a child charged with an indictable offence is to be dealt with in accordance with the procedures laid down for dealing with adult accused. That is, if the child expresses a wish to be tried according to law, or if the Children’s Court, having heard all the prosecution evidence, forms the view that the evidence is capable of satisfying a jury that the child is guilty of an indictable offence, and that the charge may not properly be disposed of summarily, the charge is to be dealt with in accordance with the Criminal Procedure Act 1986 (NSW).

17. By sub-s (1) a child charged with a “serious children’s indictable offence” does not have the benefit of the presumption of summary proceedings provided by sub-s (1). Nor does such a child have the benefit of the potential of the Children’s Court not forming the opinion that the charge may not properly be disposed of summarily, and, accordingly, dealing with it under the provisions of the CCP Act.

18. A “serious children’s indictable offence” is defined in s 3 of the CCP Act. It does not include offences under s 52A of the Crimes Act. Accordingly, the procedures laid down by ss 31(1)-(3) ought to have been applied to the proceedings against the applicant.

19. Those proceedings came before the Children’s Court on 10 April 2015. The applicant was represented by a solicitor of the Legal Aid Commission of NSW. That solicitor misapprehended the meaning of “serious children’s indictable offence”. He considered that a charge under s 52A was such an offence; accordingly, he did not appreciate that s 31 applied. He advised the applicant that a charge of dangerous driving causing death was a serious children’s indictable offence.

20. The consequence of that misunderstanding was that the solicitor assumed, erroneously, that the relevant provisions of the Criminal Procedure Act applied. Section 68 thereof (which appears in Div 2 Pt 2, and is accordingly within the exclusion set out in s 31(2)) provides for waiver by a person of committal procedures. Acting on the advice of his solicitor, the applicant signed a document entitled “Application to waive committal hearing” under s 68. In accordance with that document, the Children’s Court magistrate committed the applicant for trial in the District Court.

21. The matter was listed in the District Court at Parramatta on 30 April 2015. An indictment was filed. A trial date was fixed for 22 February 2016. In October 2015 the solicitor who had acted for the applicant to that date referred him to a private firm of solicitors. By this time the solicitor had discovered his error, and notified the private solicitors accordingly.

22. On 11 December 2015 on behalf of the applicant a Notice of Motion was filed in the District Court seeking a stay of the proceedings, and an order that the trial date be vacated. No consequential order, such as an order for remittal to the Children’s Court, was identified in the notice. However, it seems that remitter would be a logical consequence if either of the orders sought was made. This was because the only basis for the orders sought was that the required procedures had not been followed. The application was opposed by the Director. The Notice of Motion was heard on 4 February 2016 by Sides DCJ, who refused to make the orders sought. His Honour’s reasons for that decision are not yet available, although a solicitor then representing the applicant took detailed notes of the reasons given orally.

23. Thereafter, the various proceedings outlined in [2]-[3] above were filed.

24. It was in these circumstances that the two Notices of Motion came before me, exercising the jurisdiction of the Court of Appeal and also of the Court of Criminal Appeal.

25. At the outset, questions of jurisdiction arose. As I perceived it, the jurisdictional questions involved:

(a)  the jurisdiction of the Court of Appeal to make orders of the kind sought;

(b)  if that jurisdiction existed, whether it was exercisable by a single judge;

(c)  the jurisdiction of the Court of Criminal Appeal to make orders of the kind sought in the Notice of Motion;

(d)  if that jurisdiction existed, whether it was exercisable by a single judge.

Jurisdiction of the Court of Appeal – the s 69 Summons

26. The Summons filed in the Court of Appeal claimed orders under s 69 of the Supreme Court Act. The jurisdiction so conferred is commonly referred to as the “supervisory jurisdiction” of the Court of Appeal: Adler v District Court of NSW (1990) 19 NSWLR 317 per Mahoney JA. If s 69 were the only relevant provision, I would have no difficulty in concluding that the court has jurisdiction to make interlocutory orders of the kind sought in respect of an application. However, s 69 does not stand alone. Section 17(1) of the Supreme Court Act provides:

“(1)  Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.”

Clauses (a), (a1) and (a2) of the Third Schedule are as follows:

“(a)  Proceedings in the Court for the prosecution of offenders on indictment (“indictment” including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted,

(a1)  proceedings (including committal proceedings) for the prosecution of offenders on indictment (“indictment” including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court,

(a2) proceedings (whether in the Court or the District Court) under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 …” (italics added)

27. It can be seen that s 17(1) excludes two classes of proceedings from the operation of the Supreme Court Act and Rules. The first class is proceedings in the Supreme Court specified in par (a) of the Third Schedule. Relevantly, these are proceedings in the Supreme Court for the prosecution of offenders on indictment (as defined) including sentencing “or otherwise dealing with persons convicted”. (There are other Supreme Court proceedings also identified in the Third Schedule; it is not necessary to take time to notice what they are.) The second class of excluded proceedings is proceedings on which relief is claimed against “an interlocutory judgment or order” given or made in proceedings referred to in pars (a1) or (a2) of the Third Schedule. Those proceedings are proceedings for the prosecution of offenders on indictment (as defined) in either the Supreme Court or the District Court. It may broadly be said that s 17 and the Third Schedule exclude from the operation of the Supreme Court Act and Rules criminal proceedings for indictable offences in either the Supreme Court or the District Court, it may be surmised in order to segregate the functions of the Supreme Court (including the Court of Appeal) from the functions of the Court of Criminal Appeal. If the relief claimed by the applicant is properly to be categorised as falling into the category specified in s 17 and the Third Schedule, then this Court is without jurisdiction.

28. A similar question was considered by this Court in Adler v District Court of NSW. Kirby ACJ concluded that the exclusion effected by s 17 and par (a1) was not intended to extend to claims for prerogative relief (that is, claims of the kind for which s 69 of the Supreme Court Act provides). Further, he noted that the internal definition of “indictment” in pars (a) and (a1) of the Third Schedule included the requirement that the “indictment” be presented and filed “as provided by law”. In that case (as in this), at the heart of the argument in the principal proceedings was a contention that the indictment was not presented “as provided by law”.

29. In reasoning I do not perceive to be dissimilar to that of Kirby ACJ, Mahoney JA concluded that s 17(1) could not prevent a claim being made to the Supreme Court (Court of Appeal) to “prohibit or quash, not an interlocutory judgment or order, but the proceeding itself” (p 341).

30. There is a discussion of s 17, the Third Schedule and Adler in the judgments of this Court in El-Zeyat v R [2014] NSWCCA 298; 88 NSWLR 556. However, the circumstances of that case were very different to those of the present. The relevant s 17 exclusion under consideration was the first exclusion, that provided in par (a) of the Third Schedule, of proceedings in the Supreme Court. This Court held that the exclusion applied to an interlocutory order made in the course of an application in the Supreme Court for costs under the Costs in Criminal Cases Act 1967 (NSW). The proceedings did not involve consideration of the exclusions provided by cll (a1) or (a2).

27. On the authority of Adler, I was satisfied that the Court of Appeal has jurisdiction to make orders of the second kind sought in the Summons brought under s 69 (the proposed order concerning the District Court proceedings). If the Court has that jurisdiction, then it also has jurisdiction to make interlocutory orders that preserve the subject matter of the proposed litigation. Should the applicant’s trial go ahead on 22 February as proposed, the subject matter would be destroyed.

28. However, a further jurisdictional issue then arises. Section 48(1) of the Supreme Court Act identifies certain tribunals as “specified tribunals”. These include the District Court, but do not include the Children’s Court. Section 48(2) assigns to the Court of Appeal proceedings under s 69 concerning orders of a specified tribunal. Section 49 assigns all other such applications to the Divisions (that is, the Common Law Division or the Equity Division) of the Supreme Court.

29. Accordingly, the challenge to the order made by Sides DCJ is within the jurisdiction of the Court of Appeal. The challenge to the order made by the magistrate is not.

30. The next question was whether, sitting as a single judge, I was able to exercise that jurisdiction of the Court of Appeal. Section 46(2)(b) provides, inter alia, that a (single) Judge of Appeal may exercise the powers of the Court of Appeal:

“to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.”

I was satisfied that Order (2) as sought in the Notice of Motion is within s 46(2)(b).

The application for stay of the District Court proceedings

35. Accordingly, being satisfied that I had jurisdiction, I proceeded to consider the application for interlocutory relief.

36. It was common ground that the s 52A offence with which the applicant was charged was not a serious children’s indictable offence. Accordingly, the provisions of s 31 of the CCP Act applied, and were mandatory. Sub-section (1) provides that (prima facie, and subject to sub-ss (2) and (3)) such proceedings be dealt with summarily. Summary disposal of criminal proceedings has at least two important consequences. First, there is a statutory ceiling on the penalty that can be imposed: in the case of the applicant, as a person under 21 years of age, the most severe penalty that could be imposed is a control order for 2 years (s 32(1)(g)). That is be contrasted with the maximum penalty of imprisonment for 10 years available in the event of conviction after trial.

37. Second, the Criminal Records Act 1991 (NSW) provides that, after a period of 3 consecutive years without imposition of a control order, conviction or imprisonment, the applicant would be entitled to be treated in accordance with s 12 of the Criminal Records Act – essentially, as a person without a criminal record (s 10). This is to be contrasted with a period of 10 years that applies to conviction in an adult court (s 9).

38. There can be no doubt that errors attended the committal process. The explanations required by s 12 of the CCP Act were not given to the applicant. More importantly, he was not given the opportunity to be dealt with summarily. It is correct, that, pursuant to sub-s (3) of s 31 of the CCP Act, the magistrate would be entitled, after hearing all of the prosecution evidence, to determine that the proceedings be dealt with in accordance with the provisions of the Criminal Procedure Act. But the applicant would be entitled to be heard in respect of those of such a decision.

39. Senior counsel for the Director resisted the orders sought on a number of bases. One of these was that, the indictment having been presented, the decision of the Director to find a bill overtook the deficiencies in the procedure in the Children’s Court. In this respect, senior counsel relied upon the decision of the High Court in PM v The Queen [2007] HCA 49; 232 CLR 370. In order to consider this argument, it is necessary to state with clarity the orders sought (in the Summons) on behalf of the applicant. The first is an order setting aside of the Children’s Court magistrate committing him for trial. The second is the order of Sides DCJ refusing an application for stay of the trial.

The order made by Sides DCJ

40. The only order that seems to have been made by Sides DCJ was an order refusing to stay the trial. Had he taken a different view of the matter, and stayed the trial, and vacated the trial date, he would inevitably have made a consequential order, remitting the matter to the Children’s Court for the implementation of the procedures required by s 31. If that course were not available, it is difficult to see what could have followed from the making of an order. Section 44 of the CCP Act provides as follows:

“44  Remission of cases on account of defendant’s age

If a court before which a person is charged with an offence is satisfied that, because of any provision of this Act, it did not or does not have jurisdiction to deal with the charge, it may remit the case to such other court as has jurisdiction to deal with the charge.”

41. The question is important.

42. In PM, the High Court had under consideration a case in which the facts had significant parallels with the present. A child was charged with a sexual offence that was not a serious children’s indictable offence. A little later, he was charged with another sexual offence, against the same victim. This offence was a serious children’s indictable offence. There followed considerable confusion about the charges laid against the child. When the matter came before the Children’s Court, the prosecution sought to proceed only in relation to the count that was a serious children’s indictable offence. That rendered s 31 redundant. The proceeding was treated as a committal procedure under the Criminal Procedure Act, and the child was committed for trial. Thereafter, the prosecution filed an indictment containing three counts, none of which was a serious children’s indictable offence. A trial on this indictment commenced, but was aborted when the question arose concerning the jurisdiction of the District Court to deal with the charges contained in the indictment, in circumstances where the s 31 procedures had not taken place. The basis for aborting the trial was that, (in the view of the trial judge) in the absence of compliance with s 31, the District Court lacked jurisdiction to hear and determine the charges. The trial judge remitted the charges to the Children’s Court for compliance with s 31.

43. The Court of Criminal Appeal set aside the order for remitter. The majority held that the District Court had jurisdiction to deal with the indictment presented, notwithstanding the absence of compliance with s 31, and, accordingly, s 44 provided no basis for remitter.

44. That decision was upheld in the High Court. The focus of the High Court was on the remitter, purportedly under s 44 of the CCP Act, to the Children’s Court. Section 44 allows for remitter only when the remitting court lacks jurisdiction to deal with the charge in question. The High Court held that the Children’s Court’s failure to comply with s 31 did not deprive the District Court of jurisdiction. Essentially, that was because s 46(2) of the Criminal Procedure Act conferred jurisdiction on the District Court in respect of all indictable offences, other than those that may be prescribed by regulation. The provisions of the CCP Act did not deprive the District Court of jurisdiction. Accordingly, there was no power to remit the proceedings to the Children’s Court.

45. PM stands strongly against the order sought by the applicant. As in PM, the offence with which the applicant is charged is one within the jurisdiction of the District Court. Section 44 therefore confers no power of remitter. It may well be that, on final hearing, the decision in PM forecloses the issue the applicant now seeks to litigate.

46. However, this is an interlocutory application, and there is one point of distinction between the facts of PM and the facts of the present case. PM had gone through a process of committal, although it was committal under the Criminal Procedure Act, not under s 31 of the CCP Act. But the High Court left open a question that might arise in circumstances such as the present. The majority (Gleeson CJ, Hayne, Heydon and Crennan JJ) said:

“30  … if, unlike this case, criminal proceedings against a child were instituted by filing an indictment in the District Court alleging indictable offences unrelated to any charges that had been laid in a court attendance notice and had been the subject of examination in prior committal proceedings in the Children’s Court, there may be some question whether the prosecution of that indictment should be stayed …

The Court went on to say that that would be a question about the exercise of jurisdiction, as distinct from the existence of jurisdiction. This, as I understand it, raises a question about the consequences of a stay if granted.

47. I came to the view that this was sufficient, on an interlocutory basis, to preserve the position of the applicant.

48. The deficiencies attending the committal of the applicant were procedural, and of considerable magnitude. The applicant is entitled to have his claim fully heard by the Court of Appeal.

49. Other arguments raised on behalf of the Director were, essentially, of a discretionary nature. Since it is unarguable that, if the trial were to proceed as planned on 22 February, any prospect the applicant has of success in these proceedings would be destroyed, I proceeded to make the orders above.

50. For reasons given in a separate judgment in the Court of Criminal Appeal, I was satisfied that, as a single judge I did not have power to make interim orders of the kind sought in the s 5F proceedings.

**********

Decision last updated: 26 February 2016