Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313

Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) [2020] NSWCA 313

The applicant's challenges to custody were without substance. The fresh summons was out of time, incompetent and, insofar as it sought to review the same District Court decision already determined, an abuse of process; it did not provide a basis for a continuing stay. The attempted appeal from Local Court orders was also out of time and an abuse of process because the District Court appeal had superseded the Local Court sentences. The sentence had not expired because the grant of bail caused the statutory stay to operate and time on bail did not count toward the sentence. No stay pending special leave was justified because no reasonable prospects or exceptional circumstances were shown,...

Jurisdiction
Australia
Judgment Date
30 November 2020
Procedural Posture
Applications and Notices of Motion in Judicial Review Proceedings Concerning a District Court Criminal Sentence, Including Applications for Habeas Corpus, Stays, Reopening, and Summary Dismissal / Procedural Rulings on Motions After Dismissal of Earlier Summons and Pending Determination of Director's Notice of Motion
Outcome
Applicant's notices of motion filed 20 November 2020 and 27 November 2020 and further oral applications were otherwise dismissed; directions were made for filing further material; the Director's dismissal motion was stood over; Commissioner of Corrective Services was joined as Fifth Respondent.
Legal Topics
['stay of Execution of Sentence Pending Judicial Review' 'application Out of Time' 'abuse of Process' 'bail and Effect on Sentence' 'special Leave to Appeal to High Court' 'application for Inquiry Under Crimes (appeal and Review) Act 2001 (nsw)' 'reopening Judgment' 'summary Dismissal']
['criminal Law' 'sentencing' 'judicial Review' 'civil Procedure' 'habeas Corpus'] ['stay of Execution of Sentence Pending Judicial Review' 'application Out of Time' 'abuse of Process' 'bail and Effect on Sentence' 'special Leave to Appeal to High Court' 'application for Inquiry Under Crimes (appeal and Review) Act 2001 (nsw)' 'reopening Judgment' 'summary Dismissal']

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Procedural Posture

Applications and Notices of Motion in Judicial Review Proceedings Concerning a District Court Criminal Sentence, Including Applications for Habeas Corpus, Stays, Reopening, and Summary Dismissal / Procedural Rulings on Motions After Dismissal of Earlier Summons and Pending Determination of Director's Notice of Motion

Legal Issues

  1. 1 ['Whether a fresh summons filed on 18 November 2020 commenced valid judicial review proceedings and effected a statutory stay under s 69C(2) of the Supreme Court Act 1970 (NSW).' "Whether the applicant's current custody was unlawful and habeas corpus or reinstatement of bail should be granted." 'Whether time should be extended for the fresh judicial review proceeding or for review connected with refusal to state a case.' 'Whether an attempted appeal from Local Court orders filed on 16 September 2020 was duly lodged or stayed the sentence.' 'Whether the District Court sentence had expired by effluxion of time while the applicant was on bail.' 'Whether a stay should be granted pending an application for special leave to appeal to the High Court.' 'Whether a stay should be granted pending a request for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW).' "How the applicant's application to reopen the judgment of 19 November 2020 and the Director's motion to dismiss the fresh summons should proceed."]

Ratio Decidendi

The applicant's challenges to custody were without substance. The fresh summons was out of time, incompetent and, insofar as it sought to review the same District Court decision already determined, an abuse of process; it did not provide a basis for a continuing stay. The attempted appeal from Local Court orders was also out of time and an abuse of process because the District Court appeal had superseded the Local Court sentences. The sentence had not expired because the grant of bail caused the statutory stay to operate and time on bail did not count toward the sentence. No stay pending special leave was justified because no reasonable prospects or exceptional circumstances were shown,...

Court Disposition

Applicant's notices of motion filed 20 November 2020 and 27 November 2020 and further oral applications were otherwise dismissed; directions were made for filing further material; the Director's dismissal motion was stood over; Commissioner of Corrective Services was joined as Fifth Respondent.

Orders

  • ['Direct that the applicant e-file and serve the amended summons in matter 2020/328871 and affidavit in support and the application for special leave to appeal to the High Court within 7 days.' 'Direct the applicant to file and serve within 7 days any further written submissions in support of her applications for...