Citation: CRIBB v REGINA [2008] NSWSC 265
Court: Supreme Court of New South Wales, Common Law Division
Date: 7 March 2008
Judge(s): Adams J
Background
The applicant had been sentenced on 22 May 1979 to three concurrent mandatory life terms for murder and 12 years for rape, following pleas of guilty. Because those sentences were imposed by operation of law at the time, the sentencing judge was not required to articulate reasons. Following the 1989 abolition of mandatory life sentences, legislation allowed persons serving such sentences to apply to the Supreme Court for a redetermination to a fixed term.
The applicant made his first redetermination application in 1991. That application was heard in 1993 and dismissed, and the subsequent appeal to the Court of Criminal Appeal was also dismissed in 1994. In July 1998 the applicant filed a second application for redetermination, which was subject to various delays over many years before being listed for hearing in March 2008.
Two days before the scheduled hearing, the applicant notified the Court that he wished to withdraw the application. The Crown did not oppose withdrawal but submitted that Court leave was required and that, as a condition or consequence of withdrawal, the Court should order that no further application could be made for five years. The victims' families had communicated their concerns about the matter being litigated again.
Legal Issues
- Whether the applicant required leave of the Court to withdraw a redetermination application under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999
- Whether the Court had jurisdiction, upon withdrawal of the application, to make an order prohibiting a further application for a specified period under clause 6 of that Schedule
Decision
Adams J held that leave of the Court was not required to withdraw the application. The general principle is that a party who institutes proceedings may withdraw them unless exceptional circumstances or a specific rule of law prevents this. The District Court Act analogy raised by the Crown, drawn from Reischauer v Knoblanche (1987) 10 NSWLR 40, did not apply. That case required leave because withdrawal triggered various ancillary consequences, including costs, custody arrangements, and stayed orders. None of those considerations arose here: the applicant remained in custody serving his sentence, no costs question arose, and no undertakings or ancillary orders were in play.
On the second question, Adams J held that the Court had no jurisdiction to make a prohibition order following withdrawal. The power under clause 6 of Schedule 1 to prohibit further applications can only be exercised following a hearing within the meaning of clause 7. Clause 7 requires the Court to consider specific matters, including reports from relevant bodies, community safety, and the offender's age. No such hearing had occurred, and the Court could not simply treat the disposition of a withdrawal as equivalent to a completed hearing under the Schedule.
The Crown's alternative argument, that the Court could make such an order as part of "disposing" of the application under clause 4, was rejected. To do so would effectively allow the Crown to agitate a substantive order against the applicant on an ex parte basis without the procedural protections that a full hearing under the Schedule requires. Adams J described this as not only unsupported by Schedule 1 but as a contravention of the clear process expressed there.
Adams J acknowledged genuine sympathy for the victims' families and their concerns about future litigation, but held that the Court could not invent a jurisdiction, particularly where doing so would adversely affect the liberty of the subject.
Orders Made
No orders were made in this decision. The Court record was to note simply that the application was withdrawn.
Key Takeaways
- A party who has instituted a redetermination application under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 does not require Court leave to withdraw it, absent exceptional circumstances or a specific statutory prohibition.
- The power under clause 6 of Schedule 1 to prohibit future applications is only available following a substantive hearing conducted in accordance with clause 7; it cannot be enlivened merely by the withdrawal of an application.
- Allowing the Crown to obtain a prohibition order upon withdrawal, without a full hearing, would permit an effectively ex parte proceeding that the Schedule does not authorise and that conflicts with its express procedural requirements.
- A court cannot invent jurisdiction, and this restraint applies with particular force where the proposed order would adversely affect the liberty of the subject.
- Adams J noted, without deciding any future outcome, that the applicant's stated willingness to consent to a five-year moratorium could potentially be a relevant consideration if a further application is made after that period expires.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1, clauses 4, 6, and 7
- District Court Act 1973 (NSW)
Cases
- Reischauer v Knoblanche (1987) 10 NSWLR 40; 31 A Crim R 240