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Supreme Court 28 July 2016

R v Mahaffy

[2016] NSWSC 1085

Public order & justice offences
CONTEMPT APPEAL BAIL SOUGHT JURISDICTION TO GRANT BAIL CONSIDERED SENTENCE

Citation: R v Mahaffy [2016] NSWSC 1085
Court: Supreme Court of New South Wales
Date: 28 July 2016
Judge(s): Rothman J

Background

The appellant had been sentenced by Schmidt J to ten months' imprisonment on 18 December 2015 for contempt of court. By the time the bail application came before Rothman J, approximately eight months of that sentence had already been served. The contempt charge arose from a combination of conduct: failure to pay a sum owing, failure to comply with a subpoena to produce records, and alleged abuse of the Court through a document sent to the Court or its judicial officers.

The appellant sought bail pending appeal and purported to appeal under s 5 of the Criminal Appeal Act 1912 (NSW). Because the contempt had both civil and criminal dimensions, a threshold question arose as to the correct appellate pathway and which court had jurisdiction to deal with bail. The Attorney-General appeared as amicus curiae. The plaintiff or prosecutor before Schmidt J was not present, and the Court noted that natural justice would require that person to be served and given the opportunity to be heard.

  • Whether the contempt at issue was civil contempt, criminal contempt, or a mixture of both, and how that classification affected the correct appellate pathway.
  • Whether a single judge of the Supreme Court had jurisdiction to grant bail pending an appeal from a contempt sentence.
  • Whether the appellant's purported appeal under s 5 of the Criminal Appeal Act 1912 (as an appeal from conviction on indictment or from the summary jurisdiction) was the correct vehicle, or whether the matter was properly a civil appeal to the Court of Appeal.
  • Whether there was a potential lacuna in the Court of Appeal's power to re-sentence on a contempt appeal, and whether that lacuna affected the bail application.
  • Whether the Court could dispense with the rules of court to allow the existing notice to operate across both appellate pathways simultaneously.

Decision

Rothman J observed that the contempt in question was not straightforwardly civil or criminal. The portion involving non-payment of money and failure to comply with a subpoena resembled civil contempt, while the portion involving alleged abuse of the Court through a document sent to judicial officers bore the character of criminal contempt from its inception. This mixed character created genuine uncertainty about the proper appellate pathway.

On the question of jurisdiction, his Honour drew on the principle, confirmed by the High Court in Re Jarman; Ex parte Cook (No 1) [1997] HCA 13, that a superior court of record exercises its jurisdiction as a whole. Whether exercised by a single judge or by the Court of Appeal, the jurisdiction is that of the Supreme Court of New South Wales. A single judge therefore exercises the same institutional jurisdiction, albeit for different purposes, as the Court of Appeal.

His Honour also identified a potential lacuna: the Court of Appeal may have lacked a clear statutory power to re-sentence on a contempt appeal, a gap previously noted in Matthews v ASIC [2009] NSWCA 155. Rothman J found that, because the appeal would be rendered nugatory if bail were refused and the sentence served before the appeal was resolved, and because there was jurisdiction under s 51 of the Supreme Court Act 1970 to exercise powers assigned to the Court of Appeal, a single judge had jurisdiction to grant bail in these circumstances.

Rothman J dispensed with the rules of court to treat the existing notice of appeal as also constituting an application to the Court of Appeal, ordered the appellant to file and serve properly drawn notices in both the Court of Criminal Appeal and the Court of Appeal, and granted bail under s 61 of the Bail Act 2013 on conditions. The sentence was stayed and the appeal removed to the Court of Appeal.

Orders Made

  • The rules of court were dispensed with so that the notice of leave to appeal to the Court of Criminal Appeal was also treated as an appeal to, or application for leave to appeal to, the Court of Appeal.
  • The appellant was required to file and serve a properly drawn notice of appeal in the Court of Appeal within 7 days.
  • The appellant was required to serve the plaintiff/prosecutor before Schmidt J with both notices of appeal.
  • Bail was granted under s 61 of the Bail Act 2013, on conditions that the appellant be of good behaviour and not approach or communicate with the plaintiff/prosecutor in the proceedings before Schmidt J.
  • The orders of the Court made on 18 December 2015 were stayed.
  • The appellant was entitled to be released forthwith.
  • The appeal was removed to the Court of Appeal.
  • Orders to be entered forthwith.

Key Takeaways

  • A single judge of the Supreme Court may have jurisdiction to grant bail pending a contempt appeal where the Court of Appeal's power to re-sentence is uncertain and the appeal would otherwise be rendered nugatory before it could be heard.
  • Under the principle confirmed in Re Jarman, a single judge and the Court of Appeal each exercise the jurisdiction of the Supreme Court of New South Wales for their respective purposes; they are not separate courts.
  • Contempt arising from a combination of non-compliance with court orders and alleged abuse of the Court may be both civil and criminal in character, creating genuine uncertainty about the correct appellate pathway under the Criminal Appeal Act 1912.
  • Where the correct appellate vehicle is uncertain, the court may dispense with the rules of court to allow a single notice of appeal to operate across both the Court of Criminal Appeal and the Court of Appeal pathways simultaneously.
  • Natural justice requires that the original plaintiff or prosecutor before the sentencing judge be served with any notice of appeal, even where that party is not present at the bail hearing, because their interests may be affected by the appellate outcome.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 61
- Civil Procedure Act 2005 (NSW), s 131
- Criminal Appeal Act 1912 (NSW), ss 5, 5AA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Supreme Court Act 1970 (NSW), ss 40, 51, 101(5)
- Supreme Court Rules 1970 (NSW)
- Judiciary Act 1901 (Cth)
- Constitution of the Commonwealth

Cases
- Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595
- Matthews v Australian Securities and Investments Commission [2009] NSWCA 155
- Burrell v The Queen [2008] HCA 234; (2008) 238 CLR 218
- DPP (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195; (2010) 242 FLR 64
- Stewart v The King [1921] HCA 17; (1921) 29 CLR 234