Criminal Law and Practice (N.S.W.)—Bail—Sentence for fixed period to commence on specified day—Bail pending Supreme Court application to challenge jurisdiction of sentencing court—Application dismissed after expiration of fixed period from specified day—Power of Supreme Court to direct that sentence commence on future date—Periodic Detention of Prisoners Act 1981 (N.S.W.), s.8.
Decisions
MASON, MURPHY, WILSON and DEANE JJ. This is an application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. In order to understand and deal with the submission of the applicant, it is necessary to sketch a chronology of the relevant facts.
2. On 13 December 1982 in the Court of Petty Sessions at Hornsby, the applicant pleaded guilty to two charges of driving a motor cycle in a manner dangerous to the public. He was convicted, fined a total of $1,250.00 and disqualified from holding or obtaining any licence to drive a motor vehicle for an effective period of two years.
3. The applicant appealed to the District Court of New South Wales against the severity of the penalties. The appeal was heard and determined on 9 August 1983. Although the appeal was dismissed, the learned District Court Judge varied the orders of the Court of Petty Sessions. In lieu of the fines, he sentenced the applicant to imprisonment for three months on each charge, such terms to run concurrently, and ordered that the imprisonment be served by way of periodic detention pursuant to the Periodic Detention of Prisoners Act 1981 (N.S.W.) in the Emu Plains Prison Complex. As required by s.8 of that Act, the order specified a date on which the sentence was to commence, namely, 19 August 1983. The period of disqualification was reduced to an effective period of twelve months.
4. The applicant did not commence to serve the sentence. An appeal against penalty was apparently lodged in the Court of Criminal Appeal and, on 19 August 1983 a Judge of the Supreme Court (Reynolds J.A.) granted him bail for one week conditioned only that he attend the Supreme Court at 10 a.m. on 26 August 1983. The materials relating to the purported appeal to the Court of Criminal Appeal are not before us. We are, however, informed by counsel that the view was subsequently taken by the applicant's advisers that the purported appeal to the Court of Criminal Appeal was incompetent and it is common ground between the present parties that that was so.
5. On 26 August 1983, the applicant attended the Supreme Court in accordance with the condition of his bail. The matter came before a judge of that Court (Yeldham J.) who was apparently informed that it was accepted that the appeal which had been lodged was incompetent and that it was proposed to initiate proceedings in…
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.
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AGLC
Whan v McConaghy [1984] HCA 22
Case
[1984] HCA 22
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning the interpretation of a will. The appellant, Mrs. Whan, was the beneficiary of a discretionary trust established by the will of the late Mr. McConaghy. The respondent, Mr. McConaghy, was the executor of the will. The dispute centred on whether Mrs. Whan had a right to call for the trust property to be transferred to her absolutely, or if the executor retained discretion over the distribution of the trust assets.
The primary legal issue before the High Court was whether the terms of the will created a presently vested interest in Mrs. Whan, or if the executor retained a discretionary power to distribute the trust property. This involved an analysis of the language used in the will to ascertain the testator's intention regarding the nature and extent of Mrs. Whan's entitlement. The court had to determine if the discretion granted to the executor was absolute or if it was subject to an obligation to exercise it in favour of Mrs. Whan.
The High Court held that the will did not confer a presently vested interest upon Mrs. Whan. Instead, it established a discretionary trust, granting the executor a wide discretion to apply the trust income and capital for her benefit. The court reasoned that the language of the will indicated the testator's intention to provide for Mrs. Whan's welfare through the executor's judgment, rather than to give her an immediate entitlement to the trust property. The principles of construction applied focused on the clear intention of the testator as expressed in the will, particularly the use of words indicating discretion.
The appeal was dismissed, with the High Court affirming the decision of the lower court that the executor retained discretion over the distribution of the trust assets.