Slusarek v Director of Public Prosecutions
[2022] NSWCCA 194
•22 August 2022
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Slusarek v Director of Public Prosecutions [2022] NSWCCA 194 Hearing dates: 22 August 2022 Date of orders: 22 August 2022 Decision date: 22 August 2022 Before: Beech-Jones CJ at CL at [1]
Price J at [25]
Garling J at [2]Decision: Release application dated 27 June 2022 and filed by the applicant on 5 July 2022 be dismissed for want of jurisdiction.
Catchwords: CRIME — Bail — Appeal bail — Jurisdiction of the appeal court — Applications filed out of time — No substantive proceedings on foot in the appeal court — No jurisdiction to hear and determine release application
Legislation Cited: Bail Act 2013 ss 22, 48, 59, 61
Crimes Act 1900 ss 61M(2), 66A(1), 66B
Cases Cited: Dedeoglu v R [2022] NSWCCA 74
Mashayekhi v R [2021] NSWCCA 55
Widdowson v R [2020] NSWCCA 213
Texts Cited: Not applicable
Category: Principal judgment Parties: Dean Andrew Slusarek (Applicant)
Director of Public Prosecutions (Respondent)Representation: Counsel:
Solicitors:
Self-Represented (Applicant)
E Wilkins (Respondent)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2022/195764 Publication restriction: Not applicable
ex tempore Judgment
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BEECH-JONES CJ at CL: I invite Justice Garling to give the first judgment.
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GARLING J: Mr Slusarek was arrested and taken into custody with respect to a series of sexual offences on 14 January 2018. He has remained in custody ever since.
District Court
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On 27 September 2018, in the District Court, he entered pleas of guilty to three charges. Two were offences contrary to s 66A(1) of the Crimes Act 1900 of having sexual intercourse with a person under the age of 10 years. The third offence was one contrary to s 66B of the Crimes Act of attempting to have sexual intercourse with a person under the age of 10 years.
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Two further charges of aggravated indecent assault against a person under the age of 16 years, contrary to s 61M(2) of the Crimes Act, were taken into account on sentencing on a Form 1.
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After he entered his pleas of guilty, and prior to his sentencing, Mr Slusarek (“the applicant”) filed a Notice of Motion on 18 April 2020, seeking leave to change his pleas from guilty to not guilty. After a hearing, on 29 April 2020, Wells DCJ dismissed that application.
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On 21 August 2020, the applicant was sentenced by North DCJ to an aggregate term of imprisonment of 9 years to date from 14 January 2018, with a non-parole period of 6 years which will expire on 13 January 2024.
Court of Criminal Appeal
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The applicant filed a Notice of Intention to Appeal against his sentence imposed by North DCJ on 28 August 2020. That Notice of Intention to Appeal was subsequently extended, and then ultimately expired on 28 May 2021.
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On 4 March 2022, the applicant filed a Notice of Appeal together with grounds and submissions in respect of a conviction appeal, seeking to argue that the decision to dismiss his application for leave to change his pleas was erroneous.
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On 5 July 2022, the applicant filed this release application, which was dated 27 June 2022. The applicant’s Application for Leave to Appeal in respect of both conviction and sentence, both of which applications necessitated an extension of time, were originally fixed to be heard together with any appeal in this Court today, 22 August 2022. A little less than two weeks ago, the applicant filed considerable additional material and, as a consequence, the Registrar determined that the proceedings dealing with any applications for leave or any appeal could not be heard today. Those proceedings have been adjourned, and the applicant is required to file any further applications and materials by mid-September. He informs this Court today that he will be able to comply with that date.
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However, the applicant seeks to proceed with his bail application today. It is to be observed that presently there is no current Notice of Intention to Appeal against either conviction or sentence filed in the Court of Criminal Appeal. There is no application currently filed for an extension of time to file an Application for Leave to Appeal against either conviction or sentence. The Notice of Appeal against conviction filed on 4 March 2022 was clearly out of time.
Jurisdiction
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A question arises as to the jurisdiction of this Court to hear and determine the applicant’s release application in circumstances where the applicant does not have any substantive proceedings pending before this Court that would enliven its jurisdiction.
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Section 48 of the Bail Act 2013 limits the power of this and other courts to hear and determine an application for bail to circumstances in which the Court has power pursuant to the Bail Act. Section 61 of the Bail Act provides that a court may hear a bail application for an offence “if proceedings for the offence are pending in the court”. It is clear from the terms of s 59 of the Bail Act that reference to proceedings pending in a court is a reference to substantive proceedings pending in the court.
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In this case, although the applicant filed the Notice of Intention to Appeal against his sentence within time, that has now expired. He needs an extension of time to file any further Notice of Intention to Appeal. The applicant’s Notice of Appeal was also filed out of time, and he needs an extension of time to file that Notice.
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Accordingly in the absence of a duly filed and current Notice of Intention to Appeal, or Notice of Appeal, the applicant does not have any substantive proceedings pending before this Court. At most, any appeal will depend upon a court at a future time extending the time within which the applicant is entitled to lodge the appropriate documents for his appeal. The grant of any such leave will necessarily depend upon the Court’s satisfaction, at a future hearing, that it is appropriate that such leave be granted.
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It seems to me that in these circumstances, this Court does not have the jurisdiction to hear and determine this bail application.
Other Judgments
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This Court has previously held that it lacks jurisdiction to hear a bail application where leave to appeal has not been granted and where an appeal, or an application for leave to appeal has not been filed within time: see Widdowson v R [2020] NSWCCA 213.
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A similar conclusion was reached by the Court in Mashayekhi v R [2021] NSWCCA 55 in circumstances which closely reflect those here.
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Most recently this Court in Dedeoglu v R [2022] NSWCCA 74 struck out a release application in circumstances where a Notice of Intention to Appeal against conviction and sentence had been filed within time but, after further extension, had expired. In that case, a Notice of Application for leave to appeal was on foot but it had been filed out of time and required an extension of time to enable it to be heard and determined.
Conclusion
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I have concluded that by reference to clearly determined facts involving the various applications being made to this Court by the applicant, there are presently no substantive proceedings pending in this Court and accordingly this Court lacks jurisdiction to hear and determine a release application.
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In those circumstances, I am of the view that it is not appropriate to consider and determine whether the applicant has shown that special or exceptional circumstances exist for a grant of bail - which he would be obliged to do by s 22 of the Bail Act - were this Court to have jurisdiction.
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I propose the following order:
Release application dated 27 June 2022 and filed by the applicant on 5 July 2022 be dismissed for want of jurisdiction.
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BEECH-JONES CJ at CL: I agree with Justice Garling and add the following.
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In his oral submissions on the question of jurisdiction, the applicant referred to the efforts he has made to comply with orders made by the Registrar for the filing of a Notice of Appeal and submissions in support. Nothing in the Registrar’s case management of the applicant is capable of affecting this Court’s jurisdiction to grant bail. Nothing in the Registrar’s case management of the applicant was capable of conveying to him that this Court had jurisdiction to grant bail at the present time.
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The listing of this bail application today proceeded at his request. I agree with the orders proposed by Justice Garling.
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PRICE J: I agree with the orders proposed by Justice Garling, and I also agree with the additional remarks of Justice Beech-Jones.
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Decision last updated: 06 September 2022
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