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District Court 9 October 2015

Liam Monte v R

[2015] NSWDC 247

Theft & property
CRIMINAL LAW STEAL FROM PERSON ALL GROUNDS APPEAL APPEAL OUT OF TIME

Citation: Liam Monte v R [2015] NSWDC 247
Court: District Court of New South Wales
Date: 9 October 2015
Judge(s): Judge AC Scotting

Background

The appellant was found guilty of stealing from a person under the Crimes Act 1900 by a Local Court magistrate on 9 April 2014. The magistrate dismissed the charge without proceeding to a conviction, making an order under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, a disposition that counts as a "sentence" for appeal purposes under the Crimes (Appeal and Review) Act 2001 (the Act).

The appellant initially lodged an all-grounds appeal in the District Court on 17 April 2014. He then lodged a separate appeal in the Supreme Court on 9 September 2014. He subsequently withdrew the District Court appeal, which was dismissed, and the magistrate's orders were confirmed. The Supreme Court then heard and dismissed his appeal on 31 March 2015, having granted leave on mixed-law-and-fact grounds.

On 27 April 2015, the appellant lodged a second all-grounds appeal in the District Court. The question before Judge Scotting was whether the District Court had jurisdiction to hear it.

  • Whether the second District Court appeal was filed within the 28-day time limit imposed by section 11(2) of the Act
  • Whether the stay of execution of a sentence (under section 62 of the Act) had the effect of postponing the moment the sentence was "imposed," and therefore the time from which the appeal period ran
  • Whether section 29 of the Act barred the second District Court appeal because the matter had previously been before the Supreme Court and because a first District Court appeal had already been dismissed
  • Whether the exceptions in section 29(2) of the Act (relating to remittal or refusal of leave on mixed-law-and-fact grounds) applied

Decision

The court identified three independent and compelling reasons why it lacked jurisdiction to hear the second District Court appeal.

First, the appeal was out of time. The sentence was imposed on 9 April 2014, and the 28-day appeal window under section 11(2) of the Act expired well before the second appeal was filed on 27 April 2015. The appellant argued that the statutory stay of execution under section 62 deferred the moment of "imposition," but the court rejected that argument, holding that imposition and stay of execution are entirely distinct concepts. The appeal was also filed outside the three-month window within which leave to appeal out of time could be sought under section 13, so even the discretionary extension power was unavailable.

Second, section 29(1)(c) of the Act barred the second District Court appeal because the sentence had already been the subject of an appeal to the Supreme Court under Part 5 of the Act. The exception in section 29(2)(b), which permits a fresh District Court appeal where the Supreme Court refused leave on a mixed-law-and-fact ground, did not apply because the Supreme Court had in fact granted leave on those grounds.

Third, section 29(1)(b) independently barred the appeal because the same Local Court decision had already been the subject of the first District Court appeal, which was dismissed after the appellant withdrew it. The court also dismissed the appellant's estoppel argument, noting that the rights involved are statutory in nature and that a failure to meet the statutory conditions for appeal is not cured by estoppel-based reasoning. The court concluded with a pointed remark that the appellant's legal representatives had not exercised the forensic judgment expected of them in permitting the manifestly hopeless argument to proceed.

Orders Made

  • The second District Court appeal lodged on 27 April 2015 is struck out as incompetent.

Key Takeaways

  • Under the Crimes (Appeal and Review) Act 2001, a sentence is "imposed" at the time the magistrate makes the relevant order; the statutory stay of execution that follows does not postpone that date for the purposes of calculating the appeal period.
  • Section 29(1)(c) of the Act bars a second District Court appeal where the matter has previously been the subject of a Supreme Court appeal under Part 5, unless one of the narrow exceptions in section 29(2) is satisfied.
  • The exception in section 29(2)(b) (permitting a District Court appeal after a Supreme Court matter) requires that the Supreme Court refused leave on a mixed-law-and-fact ground; it does not apply where the Supreme Court granted leave but ultimately dismissed the appeal.
  • A clear statutory purpose, even if discernible from context, cannot override the plain words of legislation; the court applied Certain Lloyds Underwriters v Cross (2012) 248 CLR 378 in rejecting a purposive argument that would have expanded the available rights of appeal.
  • The court's jurisdiction in this context is entirely statutory: res judicata and estoppel principles do not operate to confer jurisdiction where the statutory conditions for appeal have not been met.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 11, 13, 18, 29, 52, 53, 62

Cases:
- Monte v Director of Public Prosecutions (NSW) [2015] NSWSC 318
- David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
- Commonwealth v Verwayen (1990) 170 CLR 394
- Certain Lloyds Underwriters v Cross (2012) 248 CLR 378
- R v Abou-Chabake [2004] NSWCCA 356
- Charara v R [2006] NSWCCA 244
- Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73