Citation: JW v R [2016] NSWCCA 26
Court: Court of Criminal Appeal of New South Wales
Date: 26 February 2016
Judge(s): Simpson JA
Background
The applicant was charged with an offence under section 52A of the Crimes Act 1900 (NSW) and had been committed for trial in the District Court by the Children's Court in April 2015. A District Court judge refused to grant a stay of proceedings on the indictment in February 2016. The applicant then sought to challenge that refusal before the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 (NSW), which permits appeals against certain interlocutory judgments or orders by leave.
By Notice of Motion filed on 17 February 2016, the applicant sought a series of interim orders from a single judge of the Court of Criminal Appeal. These included a stay of the District Court proceedings, an order setting aside the Children's Court committal order of April 2015, and an order remitting the criminal proceedings back to the Children's Court for redetermination under the Children (Criminal Proceedings) Act 1987 (NSW).
The factual background to the proceedings was addressed fully in a related Court of Appeal judgment delivered on the same day: JW v District Court of New South Wales [2016] NSWCA 22.
Legal Issues
- Whether a single judge sitting alone in the Court of Criminal Appeal has jurisdiction to make the interim orders sought by the applicant
- Whether the orders sought fell within the powers conferred on a single judge by section 22 of the Criminal Appeal Act 1912 (NSW)
Decision
Simpson JA identified a threshold jurisdictional problem with the Notice of Motion. Under section 3(1) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must be constituted by three or more judges of the Supreme Court, as directed by the Chief Justice. No such direction had been made in this matter, meaning the court was not fully constituted to hear the substantive application.
Section 22 of the Criminal Appeal Act does identify certain limited powers that a single judge may exercise without requiring a direction from the Chief Justice. However, Simpson JA found that none of the orders sought in the applicant's Notice of Motion fell within those enumerated powers.
Because the interim orders sought exceeded the jurisdiction available to a single judge under section 22, Simpson JA held that it was not within her power to grant them. The Notice of Motion was dismissed on that basis, without any consideration of the merits of the underlying application.
Orders Made
- The Notice of Motion was dismissed.
Key Takeaways
- A single judge of the Court of Criminal Appeal can only exercise the specific powers listed in section 22 of the Criminal Appeal Act 1912 (NSW); that section does not extend to granting stays of proceedings, setting aside committal orders, or remitting proceedings to a lower court.
- Under section 3(1) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must ordinarily be constituted by three or more judges of the Supreme Court as directed by the Chief Justice.
- Requests for interim relief in the Court of Criminal Appeal must be framed within the jurisdictional limits applicable to the judge or bench hearing them, regardless of the merits of the underlying application.
- In dismissing the Notice of Motion, the court made no determination on the substantive question of whether the District Court's refusal of a stay was correct.
- Section 5F of the Criminal Appeal Act 1912 provides the mechanism for appealing certain interlocutory judgments or orders, but the availability of that mechanism does not itself expand a single judge's interim powers under section 22.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), s 52A
- Criminal Appeal Act 1912 (NSW), ss 3(1), 5F, 22
Cases:
- JW v District Court of New South Wales [2016] NSWCA 22