Citation: Widdowson v R [2020] NSWCCA 213
Court: Court of Criminal Appeal, New South Wales
Date: 24 July 2020
Judge(s): Johnson J, Wilson J (primary judgment), Wright J
Background
The applicant had been convicted by jury in the District Court of several serious sexual offences involving a child, and sentenced to an aggregate term of nine years' imprisonment with a five-year non-parole period. Following sentencing in October 2018, he filed a notice of intention to apply for leave to appeal against both conviction and sentence. That notice was extended twice by the Registrar but ultimately lapsed on 31 October 2019 after no application for leave to appeal was filed within the extended period.
In April 2020, the applicant filed a fresh notice of intention to apply for leave to appeal, again without seeking an extension of time to explain the significant delay. In May 2020, he filed a handwritten document purporting to seek leave to appeal "on all grounds," accompanied by discursive complaints about the trial and the complainant's credibility. No formal grounds were particularised, and nothing addressed sentence.
On 23 June 2020, the applicant filed an application for bail or release to the Supreme Court. That application came before the Court of Criminal Appeal on 24 July 2020. The applicant was unrepresented.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear a bail application in circumstances where no valid appeal or application for leave to appeal was properly pending before it.
- Whether the filing of an out-of-time notice of intention to seek leave to appeal, without any application for an extension of time, was sufficient to enliven the Court's jurisdiction to hear bail.
- Whether the Court could properly grant an extension of time on its own motion to create jurisdiction for the bail application.
- Whether, if jurisdiction had existed, the applicant could have satisfied the "special or exceptional circumstances" threshold under section 22 of the Bail Act 2013 (NSW).
Decision
The Court unanimously found that it had no jurisdiction to hear the bail application. Section 67 of the Bail Act 2013, which sets out the specific powers of the Court of Criminal Appeal to hear bail applications, did not apply. None of the enumerated circumstances in that section were present: no new trial had been ordered, no stay of execution was in force, no appeal to the High Court was pending, and no bail decision had been made by the Land and Environment Court or the Supreme Court.
The Court also considered sections 61 and 59 of the Bail Act 2013, which allow a court to hear a bail application where proceedings for the offence are "pending" before it. Under section 10(2)(b) of the Criminal Appeal Act 1912 (NSW), an appeal is only taken to be pending if a notice of intention to appeal has been "duly given" and the application has been made within the time required by the rules. Because the May 2020 application for leave to appeal was filed out of time and no extension had been sought or granted, no appeal was properly pending and no jurisdiction arose.
The Court declined to grant an extension of time on its own motion to cure the jurisdictional defect. Three reasons were given: there was no application before the Court seeking such an extension; there was no evidence adequately explaining the extensive delay; and there was insufficient material to assess the merits of the proposed appeal, a matter appropriately left to the bench constituted to hear the leave application.
Although the application was struck out for want of jurisdiction, the Court went on to express a view on the merits, recognising that the unrepresented applicant deserved an explanation. All three judges concluded that, even if jurisdiction had existed, bail would have been refused. The applicant could not satisfy the "special or exceptional circumstances" requirement under section 22 of the Bail Act 2013, which applies to persons convicted and sentenced who have an appeal pending. The applicant's arguments, namely that his convictions would not stand on review and that he needed liberty to prepare his appeal, did not reach the required threshold. The material before the Court was insufficient to demonstrate that the grounds of appeal were more than merely arguable.
Orders Made
- The application for bail was struck out for want of jurisdiction.
Key Takeaways
- The Court of Criminal Appeal's power to hear a bail application is confined to the circumstances enumerated in section 67 of the Bail Act 2013; where none of those circumstances is present, the Court has no jurisdiction to entertain the application.
- Under section 10(2)(b) of the Criminal Appeal Act 1912, an appeal is only "pending" for jurisdictional purposes if the application for leave to appeal has been made within the time required by the rules; an out-of-time filing, without a granted extension, does not satisfy that requirement.
- Filing a notice of intention to seek leave to appeal outside time, without seeking or obtaining an extension, is insufficient to enliven the Court of Criminal Appeal's jurisdiction to hear a bail application.
- Where no extension of time has been sought, no explanation for delay provided, and no adequate assessment of the appeal's merits is possible, the Court will not grant such an extension of its own motion to create jurisdiction for a bail application.
- Under section 22 of the Bail Act 2013, a convicted and sentenced person seeking release pending appeal must establish "special or exceptional circumstances"; the mere possibility that convictions may not withstand scrutiny on review, or a need to prepare an appeal from custody, does not meet that threshold.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 5, 22, 48, 59, 61, 67
- Criminal Appeal Act 1912 (NSW), ss 8A, 10(2)(b)
- Criminal Appeal Rules
- Criminal Code (Cth), s 474.27A(1)
- Crimes Act 1900 (NSW), ss 61I, 66EB(3)
Cases
- Karout v Director of Public Prosecutions [2020] NSWCCA 15