JW v The Queen

[2016] NSWCCA 26

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	JW v R [2016] NSWCCA 26
Hearing dates:	18 February 2016
Date of orders:	19 February 2016
Decision date:	26 February 2016
Before:	Simpson JA
Decision:	Notice of Motion dismissed.
Catchwords:	JURISDICTION – Court of Criminal Appeal – Criminal Appeal Act 1912 (NSW), s 5F – order sought for stay of criminal proceedings in the District Court – order sought to set aside interlocutory judgement or order of District Court – order sought to remit criminal proceedings to the Children’s Court – single judge sitting alone – Criminal Appeal Act 1912 (NSW), s 22 – whether a single judge sitting alone in the Court of Criminal Appeal has jurisdiction to make the interim orders sought – orders sought do not come within the powers under s 22 – Notion of Motion dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW), s 52A Criminal Appeal Act 1912 (NSW), ss 3(1), 5F, 22
Cases Cited:	JW v District Court of New South Wales [2016] NSWCA 22
Category:	Principal judgment
Parties:	JW (Applicant) Regina (Respondent)
Representation:	Counsel: I Bourke SC/S Fraser (Applicant) C A Webster SC (Respondent)     Solicitors: O’Brien Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2014/177390
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: Pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), the applicant seeks orders setting aside the judgment or order of Sides DCJ of 4 February 2016, refusing to grant a stay of proceedings on an indictment pursuant to which the applicant is charged with an offence against s 52A of the Crimes Act 1900 (NSW). The applicant also seeks an order granting a stay of the proceedings on the indictment.

2. By Notice of Motion filed in court on 17 February 2016, the applicant seeks interim orders for stay of the proceedings in the District Court. The applicant also seeks an order setting aside an order of the Children’s Court of 10 April 2015, committing him for trial to the District Court on a charge brought under s 52A of the Crimes Act, and an order remitting the criminal proceedings to the Children’s Court for redetermination under the Children (Criminal Proceedings) Act 1987 (NSW) (“the CCP Act”). The relevant facts and circumstances are fully set out in the reasons for judgment delivered today in related proceedings in the Court of Appeal: JW v District Court of New South Wales [2016] NSWCA 22.

3. Section 5F of the Criminal Appeal Act provides for appeals to the Court of Criminal Appeal against certain interlocutory judgments or orders, by leave.

4. Section 3(1) of the Criminal Appeal Act provides:

“(1)  The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct.”

5. No direction as to the constitution of the court has been made by the Chief Justice. Section 22 of the Criminal Appeal Act identifies certain powers that may be exercised by a single judge of the court. It does not appear that that section requires a direction of the Chief Justice.

6. The orders sought in the applicant’s Notice of Motion do not come within any of the powers mentioned in s 22. Accordingly, it is not within my power to grant the orders sought. The Notice of Motion is dismissed.

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Decision last updated: 26 February 2016