Citation: ZBJ v R [2025] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 14 July 2025
Judges: Garling J; Wright J; Yehia J
Background
The applicant (referred to by the pseudonym ZBJ) was convicted by a jury in the District Court in February 2022 of maintaining an unlawful sexual relationship with a child under 16 years, contrary to s 66EA of the Crimes Act 1900 (NSW). On 4 November 2022, the sentencing judge imposed a term of 18 years imprisonment with a non-parole period of 11 years.
A notice of intention to appeal was filed shortly after sentence, in November 2022. However, under the Supreme Court (Criminal Appeal) Rules 2021 (NSW), a notice of intention to appeal has effect for only 12 months. That notice therefore lapsed in November 2023 without a substantive notice of appeal being filed.
The applicant ultimately filed a notice of appeal in December 2024, approximately one year and one week after his notice of intention to appeal had ceased to have effect. The applicant's explanation for the delay was that his legal representatives had failed to order the summing-up in time, which in turn delayed preparation of the appeal documents. The applicant also filed a release application under the Bail Act 2013 (NSW), but the Registrar identified that the Court had no jurisdiction to hear that application until leave to appeal out of time was granted.
Legal Issues
- Whether the Court has jurisdiction to entertain a release application under s 49 of the Bail Act 2013 (NSW) before leave to appeal out of time is granted.
- Whether a proposed constitutional ground of appeal triggered notice obligations under s 78B of the Judiciary Act 1903 (Cth), and if so, the procedural consequences of that prior to leave being granted.
- Whether the application for leave to file a notice of appeal out of time should be granted under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), having regard to: the explanation for delay; the arguability of the proposed grounds; and any prejudice to the respondent or community.
Decision
Jurisdiction to hear the release and constitutional applications. The Court confirmed that, until leave to appeal out of time is granted, there is no "cause pending" before the Court for the purposes of s 78B of the Judiciary Act 1903 (Cth), and no "proceedings pending" for the purposes of the Bail Act 2013 (NSW). The appropriate course was therefore to determine the leave application first, before addressing the release application or any constitutional notice obligations.
Explanation for delay. The Court accepted that the delay was attributable to the failure of the applicant's legal representatives to obtain the summing-up in time, and noted the difficulties the applicant faced in managing the proceedings from custody, including delays caused by a refiling requirement and the court vacation period. The Court found the explanation for the delay to be satisfactory.
Arguability of the grounds. The applicant advanced numerous grounds across both the conviction and sentence appeals, including alleged defence counsel incompetence, new evidence, improper conduct by the Crown prosecutor, inadmissible evidence, errors by the trial judge, and an unreasonable verdict. The Court was satisfied that at least some of the proposed grounds were sufficiently arguable to warrant a hearing, and noted that other grounds could be considered if leave was granted in respect of the arguable grounds.
Absence of prejudice. The Crown did not identify any relevant prejudice flowing from the grant of leave, nor any adverse effect on the victim or the community. The Court found no such prejudice on its own assessment, and concluded that the interests of justice required leave to be granted.
Orders Made
- Pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the applicant has leave to make his appeal and his application for leave to appeal out of time.
- The applicant's appeal, application for leave to appeal, and release application are listed before the Registrar on 24 July 2025 at 9:00am.
Key Takeaways
- Until leave to appeal out of time is granted, no "cause pending" exists before the Court of Criminal Appeal, meaning neither s 78B constitutional notice obligations nor a release application under s 49 of the Bail Act 2013 (NSW) can be activated at that earlier stage.
- A satisfactory explanation for delay, combined with at least some arguable grounds of appeal and the absence of prejudice to the respondent, can collectively satisfy the interests-of-justice threshold for granting leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
- Delay attributable to legal representatives failing to obtain necessary documents (such as the trial summing-up) may constitute a satisfactory explanation, particularly where the applicant is self-represented from custody and faces practical limitations in managing the proceedings.
- The Court of Criminal Appeal confirmed that the leave application must be resolved before the substantive appeal, any constitutional ground notices, or a bail release application can be progressed.
- Refusing leave where grounds are arguable and no prejudice is identified would be unjust, even where the notice of appeal was filed more than a year outside the applicable filing period.
Legislation and Cases Referenced
Legislation:
- Commonwealth Constitution, s 80
- Bail Act 2013 (NSW), ss 4, 48, 49, 59, 61
- Crimes Act 1900 (NSW), s 66EA
- Criminal Appeal Act 1912 (NSW), s 10
- Interpretation Act 1987 (NSW), s 12
- Judiciary Act 1903 (Cth), ss 2, 78B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5
Cases:
- AK v R [2025] NSWCCA 74
- Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44
- Gould v R [2023] NSWCCA 103; 308 A Crim R 14
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
- Morton (a pseudonym) v The King [2025] SASCA 29
- R v CAZ [2012] 1 Qd R 440; [2011] QCA 231