Roos v The Director of Public Prosecutions

The applicant sought bail pending the determination of his application for special leave to appeal from a judgment of the Court of Appeal of New South Wales, and a stay of his sentence pending that determination. The applicant had been convicted in the Children's Court and subsequently appealed to the District Court. During the District Court appeal, the applicant withdrew his plea of not guilty, and the appeal proceeded as to sentence. The District Court judge indicated an intention to increase the sentence, and after refusing leave to withdraw the appeal, imposed a control order.

The High Court was required to consider whether the District Court judge had erred in his sentencing, specifically whether he had denied the applicant procedural fairness by failing to adequately warn him of the intention to increase the sentence, and whether he had failed to apply the provisions of the *Sentencing Act 1989* (NSW) regarding the setting of minimum and additional terms. The Court also had to determine if any such error constituted a jurisdictional error, which would be relevant to the applicant's application for special leave to appeal.

The Court of Appeal had unanimously rejected the procedural fairness argument. However, by majority, it accepted that the District Court judge had failed to apply the *Sentencing Act 1989* (NSW), but considered this not to be a jurisdictional error, and therefore refused prerogative relief. The applicant sought to challenge this majority decision on the basis of jurisdictional error. The High Court noted that while the proposition of jurisdictional error was arguable, success would likely result in the matter being remitted to the District Court for resentencing, a course that might be available to the applicant in any event. The Court's power to grant bail in this context rested upon its inherent power to preserve the futility of its jurisdiction to grant special leave to appeal and to allow an appeal.