Citation: [2022] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 2 February 2022
Judge(s): Beech-Jones CJ at CL
Background
The applicant, a self-represented prisoner with a substantial criminal history including serious sexual offences, was subject to an Extended Supervision Order (ESO) made by the Supreme Court in July 2020 for a period of five years under the Crimes (High Risk Offenders) Act 2006 (NSW). He had also been subject to an Interim Supervision Order (ISO) made in April 2020, shortly before the expiry of his parole. After pleading guilty to breaching the ESO, he was convicted in mid-2021 and sentenced to a non-parole period of two years commencing August 2020.
The applicant subsequently filed an application for leave to appeal against his sentence, as well as a later ground raising alleged incompetence of his District Court legal representatives. As his grounds expanded, so too did a series of applications under section 12 of the Criminal Appeal Act 1912, seeking orders for the production of documents and the attendance of witnesses. A bail application was also pending.
The court identified that a central purpose underlying several of the production applications was the applicant's attempt to challenge the validity of the ESO and ISO within the criminal appeal and bail proceedings. He sought, among other things, transcripts of the hearings that led to the making of those orders.
Legal Issues
- Whether the Court of Criminal Appeal has jurisdiction to set aside or otherwise invalidate an ESO or ISO made by the Supreme Court, in the course of hearing a bail application or a criminal appeal.
- Whether orders under section 12 of the Criminal Appeal Act 1912 for production of documents and attendance of witnesses were justified to support the applicant's challenge to the ESO and ISO.
- Whether the remaining production and witness orders sought had sufficient relevance to the identified grounds of appeal or the bail application.
Decision
The court held that the applicant's attempt to challenge the ESO and ISO through criminal appeal and bail proceedings was entirely misconceived. Both orders were made by the Supreme Court, a superior court of record. Citing Kable v State of New South Wales (2013) 252 CLR 118, the court confirmed that orders of a superior court of record are valid unless and until set aside by a court of competent jurisdiction, even if made in excess of jurisdiction.
Critically, the Court of Criminal Appeal does not have jurisdiction to set aside an ESO or ISO. The court further noted that, even if such orders were set aside by a competent court, that outcome would have no bearing on whether the applicant committed the offence of breaching the ESO. The challenge to those orders within these proceedings was therefore futile, and any production orders sought for that purpose were unwarranted.
As for the remaining production and witness orders, the court found that none appeared to have any relevant connection to the two identified grounds of the sentence appeal, nor did their production appear necessary to support the bail application. All applications were refused.
The court also placed the applicant on notice that the inclusion of threats against judicial officers in submissions constitutes a potentially serious contempt of court and may be dealt with accordingly.
Orders Made
- All applications under section 12 of the Criminal Appeal Act 1912 for production of documents and attendance of witnesses were refused.
Key Takeaways
- The Court of Criminal Appeal confirmed it has no jurisdiction to set aside an Extended Supervision Order or Interim Supervision Order made by the Supreme Court under the Crimes (High Risk Offenders) Act 2006.
- Orders of a superior court of record remain valid unless and until set aside by a court of competent jurisdiction, even where there is an arguable excess of jurisdiction, following Kable v State of New South Wales (2013) 252 CLR 118.
- Even if an ESO were set aside, that would not affect the question of whether a person had committed the offence of breaching it; an attack on the underlying order cannot provide a defence to the breach conviction.
- Production orders under section 12 of the Criminal Appeal Act 1912 will not be granted where the documents or witnesses sought have no relevant connection to the identified grounds of appeal or the bail application.
- Threats against judicial officers included in court submissions may constitute a serious contempt of court and can be treated as such.
Legislation and Cases Referenced
Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 12, 22
Cases:
- Kable v State of New South Wales (2013) 252 CLR 118; [2013] HCA 26
- State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350
- State of New South Wales v Monteiro (Final) [2020] NSWSC 881