R v Mahaffy [2016] NSWSC 1085

R v Mahaffy [2016] NSWSC 1085

The Court held that it had jurisdiction to deal urgently with the bail application because the Court of Appeal, the Court of Criminal Appeal and a single judge each exercise jurisdiction of the Supreme Court of New South Wales, and s 51 of the Supreme Court Act 1970 (NSW) allowed the Division to continue dealing with proceedings assigned to the Court of Appeal before removal. Given that an appeal concerning contempt was at least arguably governed by s 101(5) of the Supreme Court Act 1970 (NSW), and given the substantial portion of the ten-month sentence already served and the possible lacuna concerning re-sentencing, the rules were dispensed with, bail was granted, the orders under appeal...

Jurisdiction
Australia
Judgment Date
28 July 2016
Procedural Posture
Application for Bail Pending Appeal From Sentence for Contempt / Bail Pending Appeal
Outcome
Bail granted, orders of 18 December 2015 stayed, and appeal removed to the Court of Appeal.
Legal Topics
['appeal Bail' 'jurisdiction to Grant Bail' 'court of Appeal Jurisdiction' 'court of Criminal Appeal Jurisdiction' 'contempt Sentence' 'stay of Orders' 'removal to Court of Appeal']
['criminal Law' 'contempt of Court' 'appellate Procedure' 'bail'] ['appeal Bail' 'jurisdiction to Grant Bail' 'court of Appeal Jurisdiction' 'court of Criminal Appeal Jurisdiction' 'contempt Sentence' 'stay of Orders' 'removal to Court of Appeal']

Case Brief

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Procedural Posture

Application for Bail Pending Appeal From Sentence for Contempt / Bail Pending Appeal

Legal Issues

  1. 1 ["Whether the appellant's appeal from a sentence for contempt was properly brought under s 5 or s 5AA of the Criminal Appeal Act 1912 (NSW), or instead lay to the Court of Appeal under s 101(5) of the Supreme Court Act 1970 (NSW)." 'Whether the Supreme Court as presently constituted by a single judge had jurisdiction to deal urgently with the bail application before removal to the Court of Appeal.' 'Whether the rules of court should be dispensed with so that the notice of leave to appeal to the Court of Criminal Appeal could be treated as also an appeal to or application for leave to appeal to the Court of Appeal.' 'Whether bail and a stay should be granted to avoid the appeal being rendered nugatory in light of the sentence already substantially served and a possible lacuna concerning re-sentencing on appeal.']

Ratio Decidendi

The Court held that it had jurisdiction to deal urgently with the bail application because the Court of Appeal, the Court of Criminal Appeal and a single judge each exercise jurisdiction of the Supreme Court of New South Wales, and s 51 of the Supreme Court Act 1970 (NSW) allowed the Division to continue dealing with proceedings assigned to the Court of Appeal before removal. Given that an appeal concerning contempt was at least arguably governed by s 101(5) of the Supreme Court Act 1970 (NSW), and given the substantial portion of the ten-month sentence already served and the possible lacuna concerning re-sentencing, the rules were dispensed with, bail was granted, the orders under appeal...

Court Disposition

Bail granted, orders of 18 December 2015 stayed, and appeal removed to the Court of Appeal.

Orders

  • ['That the rules of court be dispensed with so that the notice of leave to appeal to Court of Criminal Appeal be treated as also an appeal to or application for leave to appeal to Court of Appeal.' 'The appellant shall file and serve a properly drawn notice, as if there were separate proceedings, separately...