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Supreme Court 6 November 2018

Devitt v Ross

[2018] NSWSC 1675

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW PROCEDURE SUMMONS DISMISSED.

Citation: Devitt v Ross [2018] NSWSC 1675
Court: Supreme Court of New South Wales
Date: 6 November 2018
Judge(s): Hoeben CJ at CL

Background

The plaintiff pleaded guilty in the Local Court to shoplifting, possessing a knife in a public place, resisting arrest, and using an offensive weapon (a folding knife) to resist arrest. The offences arose from an incident in December 2016 in which the plaintiff, who was homeless and had significant mental health difficulties, wielded a small knife at police officers approaching him on Elizabeth Street, Sydney. On 15 February 2017, a Local Court Magistrate sentenced him to, among other things, a two-year fixed term of imprisonment for the use of the knife to resist arrest.

The plaintiff initially sought leave to appeal to the District Court against the sentence. The District Court dismissed that application for want of jurisdiction, and also dismissed the application for leave to appeal and confirmed the Magistrate's orders. The plaintiff then filed an Amended Summons in the Supreme Court seeking an extension of time to appeal and orders setting aside the sentence imposed by the Magistrate.

By the time of the Supreme Court hearing, the plaintiff had withdrawn one of four original grounds of appeal. The arresting police officer was the sole defendant, but that defendant's solicitor was granted leave to withdraw. The Director of Public Prosecutions appeared as amicus curiae (a "friend of the court," a party who assists without being a formal party to the proceedings) to address the question of jurisdiction.

  • Whether the Supreme Court had jurisdiction to hear the plaintiff's application, given that the District Court had already dealt with the matter and made orders dismissing the application for leave to appeal
  • Whether the District Court's order was a live, operative order capable of engaging the principle against re-litigation established in Wishart v Fraser (1941) 64 CLR 470
  • Whether the plaintiff's application could be distinguished from the line of authority preventing a superior court from revisiting a lower court's order on the basis that no hearing on the merits had occurred in the District Court

Decision

Hoeben CJ at CL found that the District Court had done more than merely strike the plaintiff's application from the list for want of jurisdiction. Her Honour found that the District Court judge had also dismissed the application for leave to appeal and confirmed the Magistrate's orders. That finding was critical to the jurisdictional analysis.

The Court applied the principle from Wishart v Fraser (1941) 64 CLR 470, which holds that where an appeal court has dealt with a matter, a further court cannot treat the underlying order as still operative and competently entertain a fresh challenge to it. Because the District Court had dismissed the leave application and confirmed the Local Court's orders, the Supreme Court held that the Local Court's sentence was no longer the operative order being challenged. It was the District Court's order that had superseded it.

The plaintiff argued that the Wishart v Fraser line of cases was distinguishable because the District Court had not conducted a hearing on the merits. The Court rejected this, noting that the analysis in Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 applied equally here. The fact that the District Court judge had gone on to consider the merits in the alternative did not disturb the reasoning or render the Supreme Court application competent.

The Court further noted that if the District Court had done no more than strike the matter from the list without making any other order, the analysis might have differed. However, that was not what had occurred on the facts as found.

Orders Made

  • The Amended Summons dated 2 October 2018 was dismissed.
  • No order as to costs.

Key Takeaways

  • Where a District Court dismisses an application for leave to appeal from a Local Court sentence and confirms the Magistrate's orders, the Wishart v Fraser principle operates to prevent the Supreme Court from treating the original Local Court order as competent to appeal.
  • The Court confirmed that the Wishart v Fraser finality principle is not limited to cases where the intermediate court conducted a full hearing on the merits; dismissal for want of jurisdiction accompanied by a confirming order is sufficient to engage the principle.
  • A distinction exists between a District Court merely striking a matter from the list (which may leave no operative order) and a District Court dismissing an application for leave and confirming lower court orders. Only the latter engages the Wishart v Fraser bar.
  • In dismissing the summons, the court declined to make a costs order against the plaintiff, having regard to his circumstances as a homeless person receiving a disability pension.
  • The decision reaffirms the analysis in Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 concerning the Supreme Court's jurisdiction to hear appeals from Local Court sentences where an intermediate appellate step has already occurred.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 11, 13, 14, 16, 17, 20, 52, 53, 54, 55, 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 44
- Supreme Court Rules 1970 (NSW), Pt 51B rr 5, 6
- District Court Rules 1973 (NSW), Pt 53 r 12

Cases:
- Wishart v Fraser (1941) 64 CLR 470
- Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85
- R v Doan (2000) 50 NSWLR 115
- Director of Public Prosecutions (NSW) v Dodds and Anor [2005] NSWCA 115
- Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156
- JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
- Kapral v Bunting [2009] NSWSC 749
- R v PL [2009] NSWCCA 256