Widdowson v R - [2020] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Widdowson v R [2020] NSWCCA 213
Hearing dates: 24 July 2020
Date of orders: 24 July 2020
Decision date: 24 July 2020
Before: Johnson J at [1], [28] and [34];
Wilson J at [2];
Wright J at [33].
Decision:
Application for release to bail struck out for want of jurisdiction

Catchwords:
CRIMINAL LAW – bail – release application – applicant convicted at trial and sentenced – application for leave to appeal against conviction filed out of time – no application made for extension of time – question of jurisdiction in circumstances where no application for leave to appeal pending before the Court – whether the applicant could meet test posed by s 22 of the Bail Act if there was jurisdiction to hear application – whether special or exceptional circumstances – no circumstances of that nature identified

Legislation Cited:
Bail Act2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act1912 (NSW)
Criminal Appeal Rules
Criminal Code (Cth)

Cases Cited:
Karout v Director of Public Prosecutions [2020] NSWCCA 15

Category: Principal judgment
Parties: Nicholas Widdowson (Applicant)
Regina (Crown)
Representation:
Counsel:
M Millward (Crown)
Solicitors:
Applicant (self-represented)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2020/00185815
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any material that might identify the complainant.
Ex A may not be disclosed or published
Decision under appeal

Court or tribunal:

Wagga Wagga District Court (trial)
Sydney District Court (sentence)

Jurisdiction:

Criminal

Date of Decision:

9-18 July 2018 (trial)
24 October 2018 (sentence)

Before:

Norrish QC DCJ

File Number(s):

2016/00299572

EX TEMPORE Judgment

JOHNSON J: The Court is in a position to give its decision in the matter. Wilson J will deliver the first judgment.
WILSON J: On 18 July 2018, Nicholas Widdowson was found guilty by a jury of four offences, being using a carriage service to transmit indecent material to a person under the age of 16 years contrary to s 474.27A(1) of the Criminal Code (Cth); exposing a child to indecent material contrary to s 66EB(3) of the Crimes Act 1900 (NSW); and three counts of sexual assault contrary to s 61I of the same Act. He had formerly entered a plea of guilty to count 2, that being an allegation of possessing child abuse material.
On 24 October 2018 sentence was imposed upon the applicant for those offences in the District Court of New South Wales by his Honour Judge Norrish QC. He imposed an aggregate sentence of 9 years imprisonment on the applicant with a 5 year non-parole period fixed. The non-parole period will expire on 17 March 2023.
Following the imposition of sentence, on 2 November 2018, the applicant filed a notice of intention to apply for leave to appeal against conviction and sentence. The notice was valid for six months from the date of filing. Shortly before its expiration, an extension of time was sought and granted by the Registrar of…

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 Widdowson v R

Details

AGLC: Widdowson v The Queen [2020] NSWCCA 213
Case: [2020] NSWCCA 213
Decision Date: 24 July 2020

CaseChat Overview and Summary

The applicant, Widdowson, sought bail pending the determination of an appeal against his conviction. The application was made after Widdowson had been convicted at trial and sentenced. The application for leave to appeal against the conviction was filed out of time and no application had been made for an extension of time. The legal issues before the Court were whether it had jurisdiction to hear the bail application, given that no application for leave to appeal was pending before the Court, and if so, whether Widdowson could meet the test posed by section 22 of the Bail Act.

The Court noted that it did not have jurisdiction to hear an application for bail unless there was an application for leave to appeal pending before the Court. However, in this case, no such application was pending. The Court considered whether there were special or exceptional circumstances that would warrant the exercise of its discretion to hear the application. However, the Court found that no such circumstances had been identified. As a result, the Court dismissed the application for bail. The Court held that the application was out of time and that no exceptional circumstances had been demonstrated that would warrant the exercise of the Court's discretion to hear the application. The Court found that Widdowson could not meet the test posed by section 22 of the Bail Act.

Orders