Sayer-Jones v The King - [2024] NSWCCA 183

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sayer-Jones v R [2024] NSWCCA 183
Hearing dates: 2 October 2024
Date of orders: 2 October 2024
Decision date: 02 October 2024
Before: Mitchelmore JA; Basten AJA; Wright J
Decision:
Dismiss the applicant’s application for a stay of the execution of his conviction and sentence.

Catchwords:
CRIMINAL PROCEDURE – jurisdiction of Court of Criminal Appeal – application for stay of sentence – pending determination of proposed appeal – effect of filing of notice of intention to appeal – extension of time within which to appeal – notice does not commence proceeding – jurisdiction of Court not engaged
CRIMINAL PROCEDURE – application for stay of sentence – contingent exercise of discretionary power to stay – whether stay of sentence necessary to preserve subject-matter of proposed appeal against conviction – opportunities for early hearing rejected by applicant – extent of prejudice from serving part of non-custodial sentence

Legislation Cited:
Bail Act 2013 (NSW), s 67
Crimes Act 1900 (NSW), s 319
Judiciary Act 1903 (Cth), s 78
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1
Uniform Civil Procedure Rules 2005 (NSW), Pt 51

Cases Cited:
Chamberlain v The Queen (No 1) (1983) 153 CLR 514; [1983] HCA 13
Collins v The Queen (1975) 133 CLR 120; [1975] HCA 60
Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Olsen v Mentink [2019] NSWCA 279
Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 112; (2008) 249 ALR 171
Tait v The Queen (1962) 108 CLR 620; [1962] HCA 57

Texts Cited:
Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2015, The Federation Press)

Category: Procedural rulings
Parties: Robert Lyndon Sayer-Jones (Applicant) (unrepresented)
Rex (Respondent)
Representation:
Counsel:
J Styles (Respondent)
Solicitors:
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00061883

JUDGMENT

THE COURT: On 21 July 2023, the applicant, Robert Lyndon Sayer-Jones, was found guilty by a jury on one count of perverting the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). He was not immediately sentenced, presumably because there was a further outstanding charge. He was not in fact convicted and sentenced until 6 June 2024, when the District Court imposed a community correction order for a period of two years, commencing on that date.
Immediately following his conviction and sentence (namely on 7 June 2024), the applicant filed a notice of intention to appeal, which effectively extended the time within which he was entitled to file a notice of appeal for a period of 12 months.^[1] However, no notice of appeal has yet been filed pursuant to that notice.
1. Supreme Court (Criminal Appeal) Rules 2021 (NSW),…

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 Sayer-Jones v The King

Details

AGLC: Sayer-Jones v The King [2024] NSWCCA 183
Case: [2024] NSWCCA 183
Decision Date: 02 October 2024

CaseChat Overview and Summary

The matter of Sayer-Jones v The King involved a criminal appeal where the appellant sought a stay of their sentence pending the determination of a proposed appeal against their conviction. The Court of Criminal Appeal was tasked with determining whether it had the jurisdiction to entertain an application for a stay of sentence when a notice of intention to appeal had been filed. The central issue was whether the filing of such a notice engages the jurisdiction of the Court, considering the implications of the notice not being considered as the commencement of an appeal proceeding.

The court found that the filing of a notice of intention to appeal does not activate the jurisdiction of the Court of Criminal Appeal. Instead, it serves as an extension of time within which a formal appeal may be lodged. Consequently, the court concluded that the jurisdiction of the Court was not engaged until a formal appeal was actually filed. The court further reasoned that the stay of sentence was a discretionary matter, contingent upon whether the stay was necessary to preserve the subject-matter of the proposed appeal against conviction. Given that the appellant had declined opportunities for an early hearing, the court considered the extent of prejudice from serving part of the non-custodial sentence as a factor against granting the stay.

Ultimately, the court dismissed the application for a stay of sentence. The reasoning was that the appellant had not demonstrated a compelling necessity for a stay that would preserve the subject-matter of the proposed appeal. The court held that the appellant's refusal to proceed with an early hearing contributed to the conclusion that the application for a stay should be rejected. The court did not find sufficient grounds to engage its discretionary power to stay the sentence pending the appeal.

Orders