Devitt v Ross

Factual background

1. The plaintiff pleaded guilty to shoplifting, custody of a knife in a public place, resist arrest and use offensive weapon (folding knife) to resist arrest.
2. At the time of sentencing, he was aged 49 and homeless. He was on a disability pension because of his low intelligence/cognitive difficulties and mental health. The pre-sentence report (AB 31-32) spoke of a prior diagnosis of schizophrenia, anxiety and bi-polar disorder and of him having been prescribed anti-psychotic drugs by Justice Health since entering custody. There was reference to a history of self-harm and suicide ideation, including threats to self-harm while in custody in February 2017.
3. The police facts (AB 26-27) recorded that at approximately 5pm on 7 December 2016 the plaintiff was seen taking a t-shirt from a hanger in the H & M clothing store in Pitt Street, rolling it up and putting it inside his jeans before leaving the store without paying. He then walked through an arcade onto Elizabeth Street where he put on the stolen t-shirt. Store security contacted police and told them the plaintiff's location outside 55 Elizabeth Street.
4. The offences, other than the shoplifting, were alleged to have taken place between 5.40pm and 5.50pm. As police approached the plaintiff, he took a small folding blade knife from his jeans pocket, opened it and pointed the blade at the police, at the same time assuming a fighting stance. The officers believed that they (and others) were at risk. Senior Constable Ross drew his service revolver and Constable Mungovan drew his Taser. Police told the plaintiff to drop the knife but he continued to move forward until he was within approximately two metres of police.
5. Apparently believing that Senior Constable Ross was about to fire his pistol, the plaintiff, still holding the knife at chest height, turned and ran along Elizabeth Street towards King Street. Constable Mongovan fired his Taser, striking the plaintiff in the back. The plaintiff fell to the ground, lacerating the bridge of his right eyebrow on the concrete footpath.
6. He was arrested, handcuffed and the two barbs removed from his back. He was then taken to Sydney City Police Station, after which he was taken to the Sydney Eye Hospital, where he received three stitches to his right eyebrow before being returned to the police station and charged.
7. He was refused bail by police and bail refused by Magistrate Grogan on 8 December 2016. The plaintiff has been in custody since 7 December 2016.
8. Pleas of guilty were entered on 6 February 2017 at a time when the Local Court was also informed that the DPP was not making an election in the matters (AB 18/Langley, Annexure F, p 16). The matters were stood over for sentence to 15 February 2017.
9. On 15 February 2017 the sentence proceedings were listed before her Honour Magistrate Freund. The solicitor from the Legal Aid Commission, then acting for the plaintiff, who had represented him in December 2016, said that she did not want her client on the audio-visual screen at that stage.
10. There followed a brief discussion about the matter between her Honour and the solicitor before the court papers were handed up. Her Honour noted that the plaintiff had a knife and that the police officer had to pull out his revolver. Her Honour said in relation to the revolver and the Taser "that could have gone down south pretty quickly as well". There was a reference to the plaintiff's prior offending, noting that the New South Wales record was not very big. The plaintiff had not mentioned anything about mental health. Her Honour noted, however, that the Victorian record of offences was substantial and included an armed robbery. The pre-sentence report, which had been prepared (AB 31-32) was handed up. It directly raised mental health issues on the part of the plaintiff.
11. Her Honour asked the solicitor what it was that she wanted (T.3.8, AB 46). The solicitor replied that she wanted to have the matter stood over for a full psychiatric review. Her Honour then went off the bench to enable the solicitor to speak to an identified nurse to see if he knew how to get a Community Treatment Order organized. This was not opposed by the police prosecutor.
12. Photographs of the knife were handed up. It had a blade of approximately 5cms in length.
13. Upon resumption, the solicitor told the court "we'll just have to deal with him according to law and the seriousness of what happened". The solicitor indicated an intention to tender the pre-sentence report already referred to (T.5.10, AB 48).
14. Her Honour intervened to propose that the plaintiff be brought onto the screen. While the parties were waiting for the AVL connection to be made, there was a discussion about the maximum term for each of the four offences. Her Honour expressed concern about the seriousness of Sequence 4 (use knife to resist arrest), referring to the maximum term of 12 years and identifying that in accordance with R v Doan (2000) 50 NSWLR 115, she was looking at a fixed term of 2 years (T.6.16-6.46, AB 49).
15. The sentencing outcome proposed was outlined (T.6, AB 49) - a 5 year bond for the shoplifting and other matters and in relation to Sequence 4, a 2 year fixed term. In general discussion, the police prosecutor located a copy of the plaintiff's Queensland record, which was tendered without objection.
16. Her Honour inquired as to the maximum term for a first offence of "custody of a knife in a public place" and noted the maximum term was 6 months. While they awaited the AVL connection, her Honour went off the bench saying "You work out where you want to go and we'll go from there" (T.8.24, AB 51).
17. Upon resumption, the plaintiff was present via AVL, and the sentence hearing commenced in formal terms. Her Honour listed the four offences with which he was charged arising from his conduct on 7 December 2016. He adhered to his pleas of guilty. Her Honour noted that as a result, she had called up the bond he had been given on 28 October 2016 for larceny (s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) bond for 12 months) because he was in breach of that bond.
18. Her Honour then heard submissions in mitigation. The plaintiff's solicitor outlined his recent medical history and his being on anti-psychotic medication. The plaintiff agreed he had been coping with schizophrenia since at least the 1990s and said it was controlled by medication.
19. The solicitor asked about the incident of 7 December 2016. The plaintiff said that what contributed to his threatening the police with the knife was the private security personnel. He was going to give the shirt back. When he saw the police coming towards him "I just contributed to my - I threatened with a knife, yeah, but I think it's embellished a lot of that police report … First they - because the Tasers that I was dropping the knife OK I evaded them. That's when they shot me with four Tasers. I should be dead. You know electrocution it was like … the knife threat was momentary. It wasn't - I wouldn't, you know. I never approached - lunged at the police more than, half a metre". The plaintiff said he was not taking his medication at the time (T.10.17-10.51, AB 53). The plaintiff said that his destitution probably aggravated his thinking. He could get food and coffee but that was not enough. He was imprisoned in Queensland for a total of 2 years and also in Victoria for 2 years. The Victorian Department of Justice got him "onto a disability pension at Thomas Embling" (Langley, Annexure H, pp 24-26, T.11.25, AB 54).
20. The solicitor submitted that an awareness had been shown in his responses. It was conceded that the Sequence 4 offence was "very, very" serious. The solicitor believed he was the sort of person who should be on a Community Treatment Order, although it was accepted that they were not dealing with the matter that way. The solicitor noted that his New South Wales record was not serious, although he had some serious matters on his interstate records. The solicitor asked the court to be as lenient as possible.
21. The prosecutor did not wish to be heard.
22. Her Honour's reasons are to be found at (T.12-13, AB 55-56). Her Honour commenced with the breach of bond as the offending on 7 December 2016 breached the 28 October 2016 bond. As a result, her Honour revoked that bond and placed him on a further 4 year good behavior bond unsupervised.
23. Her Honour summarised the 7 December 2016 offences, i.e. stealing a T-shirt, having a flick knife in custody, the resistance to arrest and using the knife to attempt to resist arrest. Her Honour noted that what was of great concern was Sequence 4 where he threatened to use an offensive weapon to prevent lawful apprehension, causing one police officer to draw his service revolver and the other his Taser.
24. Her Honour noted that the maximum penalty for the Sequence 4 offence was 12 years imprisonment, which the plaintiff would be facing if the matter had been taken to the District Court. Because the matter was being dealt with summarily in the Local Court, the maximum penalty was 2 years.
25. Her Honour dealt with the offences in descending order of seriousness as follows: 1. Sequence 4 - the maximum penalty was 12 years. That was her Honour's starting point. Applying the principles in Doan's case, if she were to take the objective seriousness of the offence at the lower mid-range, the plaintiff was still looking at a term of imprisonment of 4 years so even if she applied a 25 per cent discount for an early plea of guilty, he was still looking at a term of over 2 years. Her Honour then imposed a fixed term of 2 years imprisonment commencing 7 December 2016 and ending 6 December 2018. 2. Sequence 1 - s 9 bond (4 years) - term read out including supervision by Community Corrections. 3. Sequence 2 - custody of the knife in public place (first offence) - as the facts overlapped with Sequence 4, her Honour dealt with this matter under s 10A Sentencing Procedure Act. 4. Sequence 3 - resist officer in execution of duty - s 9 bond with supervision on release from custody.
26. It was common ground that the Grounds of Appeal in the Summons raised issues of mixed fact and law. As Beech-Jones J noted in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669 at [49] the structure of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act) is that matters of fact, or mixed fact and law, may be appealed as of right to the District Court but not to this Court. Beech-Jones J suggested that a grant of leave with respect to a pure question of fact can be expected to be a comparatively rare event and when exercised, conditions may attach to its grant.
27. Further, a complaint of error in the application of legal principle does not raise a question of law alone (R v PL [2009] NSWCCA 256 at [26] per Spigelman CJ). In JP v DPP at [48] Beech-Jones J quoted statements by Howie J in Kapral v Bunting [2009] NSWSC 749 at [48] counselling against this Court interfering with a factual decision made by a Magistrate who correctly understood and applied the law, as opposed to the situation which may be imagined where there was an error of fact of such significance that might, if not reviewed, result in a positive injustice.

Legislation regarding appeals from Local Courts

1. Part 5 Div 1 of the Appeal Act, deals with appeals by a defendant in Local Court proceedings to this Court. A defendant may appeal to this Court as of right against conviction or sentence by the Local Court only on a ground that involves a question of law alone (s 52(1)). An appeal to this Court from conviction or sentence by the Local Court on a ground that involves a question of fact, or a question of mixed law and fact, requires leave (s 53(1)). Section 53(4) of the Appeal Act requires that an application for leave to appeal be made within the period prescribed by the Rules of Court. The relevant Rules of Court are found in Part 51B of the Supreme Court Rules (s 61 of the Appeal Act).
2. An application for leave to appeal is instituted by filing a Summons. Such an application must be instituted within 28 days after the "material date", which in this case was 15 February 2017 (r 5(3)/r 6(1)). This Court may extend that time at any time (r 5(5)/r 6(2)(a)). An application for an extension of time may be included in the Summons (r 5(10)(a)/r 6(3)(a)).
3. Part 51B r 5(7)(a)-(b) requires in an application for leave to appeal that a plaintiff give a brief but specific statement of: 1. The grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law; and 2. Whether the appeal is from the whole or part only and what part of the decision below. For an application for leave, a plaintiff must also set out: 1. The nature of the case; 2. The questions involved; and 3. The reasons why leave should be given (r 5(7)).
4. The Court may determine an application for leave to appeal under s 53(1) by dismissing the application or by granting leave to appeal: s 54(1) Appeal Act. If the application for leave to appeal is dismissed, the Court may make such order as to the costs to be paid by the appellant as it thinks just: s 54(3) Appeal Act.
5. If leave to appeal is granted, the Court may determine the appeal against sentence by: 1. Setting aside the sentence; 2. Varying the sentence; 3. Setting aside the sentence and remitting the matter to the original Local Court for redetermination; or 4. Dismissing the appeal (s 55(2) Appeal Act).
6. Section 3(3) of the Appeal Act defines "varying a sentence". Section 3(3A) extends the power conferred on an appeal court to vary a sentence to make an order under s 10 of the Sentencing Procedure Act.

Appeals to the District Court from the Local Court

1. Because of the jurisdictional issue which is raised in these proceedings, it is necessary to understand the procedure and rules relating to appeals to the District Court from the Local Court.
2. Part 3 Division 1 of the Appeal Act deals with appeals to the District Court by a defendant. There is an appeal as of right against conviction or sentence or both (s 11(1)). Such an appeal must be made within 28 days after the sentence is imposed: s 11(2)(a).
3. Section 13 deals with late applications for leave to appeal. An application for leave to appeal out of time must be made within three months after the relevant sentence is imposed (s 13(2)).
4. Section 14 provides for the lodging of a written Notice of Appeal or Application for Leave to Appeal. A Notice of Appeal must state the general grounds of appeal (s 14(2)). An Application for Leave to Appeal must state the general grounds for the application and why it was not made within time (s 14(4)).
5. Section 16 deals with the determination of applications for leave to appeal. Section 16(2) provides that leave to appeal out of time must not be granted unless the District Court is satisfied that it is in the interests of justice that leave be granted.
6. Appeals against sentence are by way of rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be relied upon (s 17).
7. Section 20 deals with the determination of appeals.

The jurisdictional issue

1. The defendant provided written submissions to the effect that this Court has no jurisdiction to entertain this appeal given the dismissal of the Application for Leave to Appeal in the District Court. The defendant relied upon the reasoning of Adamson J in Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85. The plaintiff submits that the decision in Nand can be distinguished from this case and does not apply.
2. In order to understand the argument, it is necessary to say something more about the procedural history of this matter following the plaintiff's conviction and sentencing by her Honour on 15 February 2017.
3. On 1 February 2018 the plaintiff completed in handwriting both a Notice of Appeal to the District Court (AB 15) appealing the sentence for threaten police, evade arrest and possession of a knife and an Application for Leave to Appeal (AB 16-17) formally applying to the District Court for leave to appeal to file the Notice of Appeal outside of 28 days, i.e. out of time.
4. The grounds stated in the Application for Leave to Appeal referred to having to get his head level and now being on new medication. The first return date appointed for the Application for Leave to Appeal was 29 March 2018 (AB 15).
5. On 17 July 2018 the matter came before her Honour Judge Syme. There was no transcript of what occurred before her Honour. There are, however, three documents which provide assistance. On the front of the District Court file relating to the plaintiff, there is the following handwritten notation: "*Application for leave - out of time (1 year)". (Langley, Annexure A, p 5). The District Court record (Langley, Annexure A, pp 6-7) reflects that which is recorded in Justicelink (Langley, Annexure B, p 8). "Sentence Appeal Dismissed - Order Confirmed This matter is struck from the list for want of jurisdiction." However, the District Court file also contains a document (Langley, Annexure C, p 9) recording (without the words "Sentence Appeal dismissed - Order confirmed") but only stating: "This matter is struck from the list for want of Jurisdiction."
6. Part 53 r 12 of the District Court Rules relevantly provides: "Any judgment, order, sentence, direction or recommendation given or made by a judge in any proceedings shall be entered on: … (b) The appropriate court file; or (c) The appropriate computer record; And that entry shall, when signed by the judge or entered on the appropriate computer record, be the record of the judgment, order, sentence, direction or recommendation."
7. The Judge did not sign any entry or record but an entry was made on the appropriate computer record, i.e. Justicelink.
8. There is authority to the effect that in the event of an inconsistency between what is recorded in Justicelink and a formal order signed by the Judge, or otherwise entered under Part 53 r 12 of the District Court Rules 1973 to the effect that the formal order prevails over what is recorded on Justicelink (Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 at [28]-[34] per Leeming JA).
9. Because her Honour did not sign a formal order, I have concluded that what is recorded in Justicelink should prevail and reflects the order of the District Court made at the time. Although no order was signed by the Judge, Justicelink reflects the order which was "entered on the appropriate computer record".
10. There is a further difficulty. The Justicelink record refers to "Sentence Appeal Dismissed". That is clearly incorrect in that there was no Notice of Appeal before her Honour because no Notice of Appeal could be filed outside the 28 day period specified in s 11 without leave. The Justicelink record is clearly referring to the Application for Leave to Appeal. If there were any doubt that that is a correct interpretation, it is resolved by the notation on the front of the District Court file which states: "*Application for leave - out of time (1 year)". Accordingly, the Justicelink record ought be read as meaning "Application for Leave to Appeal Against Sentence is dismissed".
11. In the absence of any evidence or reasonable inference to the contrary, I have concluded that what occurred when this matter came before her Honour Judge Syme on 17 July 2018 was that her Honour applied s 13(2) of the Appeal Act and determined that the court had no jurisdiction to make the order sought in the Application for Leave to Appeal and accordingly, she dismissed the application and proceeded to confirm the orders made in the Local Court. I see no inconsistency between the expression "This matter was struck from the list" and "Sentence Appeal Dismissed" if the latter phrase is interpreted to be a reference to the Application for Leave to Appeal.
12. Significantly, no challenge has been made to those orders by Judge Syme in these proceedings or otherwise.
13. In the course of argument, the Court was referred to the decision of Director of Public Prosecutions (NSW) v Dodds and Anor [2005] NSWCA 115 where as a result of an unfortunate sequence of events, a defendant in Local Court proceedings acting for himself, sought to file a number of documents. Some of them were in time and some were not. They sought leave to appeal against orders made in the Local Court. Hodgson JA (with whom Sheller JA agreed) drew a distinction between a court dismissing an application and the application being withdrawn. There Hodgson JA relevantly said: "23 In all these circumstances, there is a significant question whether the orders made by Finnane DCJ were effectual and, if otherwise effectual, were within jurisdiction. There is a real question whether it is appropriate to make an order dismissing an appeal where there has been no valid appeal. In any event, if the order made was based on a stated intention to withdraw an appeal, it seems that the appropriate order should have been the grant of leave to withdraw an appeal under s 67 and not dismissal. It is also noted that in any event Finnane DCJ's orders did not deal at all with the application for leave to appeal dated 25 June 2004 which, as indicated above, was an effectual application for leave to appeal, at least if appropriately amended."
14. In this case, for the reasons already indicated, the application before the District Court was an Application for Leave to Appeal out of time, not an appeal per se. In any event, there is nothing in the District Court record in this case to suggest that either party, i.e. the defendant or plaintiff, sought the leave of the court to withdraw the Application for Leave to Appeal.
15. If that is a correct analysis, the issue raised in this case is identical to that in Nand with the result that the orders of the District Court striking out the Application for Leave to Appeal, ordering its dismissal and confirming the orders made in the Local Court, remain effective.
16. In Nand a Notice of Motion seeking leave to traverse a plea of guilty was filed in the District Court. When the matter came before his Honour Judge Haesler SC on 22 May 2014 the prosecutor maintained that the court did not have jurisdiction to deal with the matter as the application was filed outside the time limit of three months provided for in s 13(2) of the Appeal Act. Having heard argument, Haesler SC DCJ accepted the prosecutor's submission that the District Court had no jurisdiction to traverse the guilty plea as the plaintiff's application for leave was out of time. His Honour did, however, proceed to make findings of fact in the event that his decision as to jurisdiction was found to be incorrect.
17. It was against that background that Adamson J set out her reasons for upholding the finding of no jurisdiction made by the District Court and for concluding that this Court did not have jurisdiction to deal with the application: "33 In my view, for the reasons given in more detail below, the appeal is incompetent since it challenges an order, being the conviction in the Local Court, which is no longer operative, having regard to the orders of the District Court refusing the application for leave to appeal against conviction. Accordingly, for that reason alone, no extension of time ought be granted. … … The incompetence of an appeal, if leave were granted 52 At the commencement of the hearing of the summons, I raised the question of the competence of the appeal (if leave were granted), having regard to the principle that this Court has no power to review any aspect of the decision of the Local Court if it has effectively been superseded by the judgment in the District Court: Wishart v Fraser and Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [11]-[13] per Basten JA (Giles and McColl JJA agreeing). I also noted that the plaintiff did not challenge, in the orders sought in the summons, the order of the District Court dismissing the plaintiff's application for leave to appeal against conviction. 53 Mr Wendler submitted orally that Wishart v Fraser had no application and relied on s 60 of the Crimes (Appeal and Review) Act. Ms Davidson sought leave to provide a written note within a short time of the conclusion of the hearing, to which Mr Wendler was given an opportunity to respond. Ms Davison accepted, in her written note, that the plaintiff's application for leave to appeal was futile as any appeal would be incompetent in light of Wishart v Fraser. What follows are my reasons which address Mr Wendler's written submissions in response. The plaintiff's submissions on the competence of the appeal 54 Mr Wendler submitted that there was no impediment to the plaintiff's exercising his right to seek leave under s 53 of the Crimes (Appeal and Review) Act. He contended that the only limitation on the right to seek leave to appeal was imposed by s 60, which prevents a person from appealing to this Court against a decision of a Local Court which has already been the subject of an appeal or leave application to this Court. He submitted that, had Parliament intended that a person who appealed, or applied for leave to appeal, to the District Court against a conviction or sentence imposed by the Local Court would not be permitted to appeal, or seek leave to appeal, to the Supreme Court, the Crimes (Appeal and Review) Act would have made express provision. Mr Wendler made no submission about the effect of s 29 of the Crimes (Appeal and Review) Act. 55 Mr Wendler contended that Wishart v Fraser did not apply as the plaintiff's notice of motion in the District Court for leave to appeal against his conviction was "a nullity" and "totally void" since the District Court had no jurisdiction to entertain the leave application, as it was out of time. He also submitted, in the alternative, that, because the arguments relating to alleged non-compliance with s 192 of the Criminal Procedure Act were not put in the District Court, there was no impediment to his relying on them in this Court. Further, Mr Wendler submitted that the purpose of Part 5 of the Crimes (Appeal and Review) Act was "to ensure the Supreme Court's supervisory jurisdiction remains inviolable" and relied on Campbell v DPP (NSW) [2008] NSWSC 1284. Section 60 of the Crimes (Appeal and Review) Act 56 I am not persuaded that s 60 of the Crimes (Appeal and Review) Act evinces the intention for which Mr Wendler contended. A statute is presumed to operate against the background of the existing legal principles. As Sackville AJA explained in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [82]-[107], a party who seeks to challenge a decision of a lower court both in an intermediate court and a superior court may be put to his or her election, depending on the nature of the respective proceedings. One of the reasons for this is that, once the intermediate court has made orders (in this case, the District Court), its orders, and not those of the lower court (in this case, the Local Court), are the operative ones. … The jurisdiction of the District Court and its orders 58 I reject the plaintiff's submission that the orders of the District Court were a nullity. The District Court had power to determine the leave application. It determined that it was obliged to refuse leave, by reason of s 13 of the Crimes (Appeal and Review) Act, as the application was not lodged within time. The effect of s 13 was not to deprive the District Court of its jurisdiction to determine whether it could grant the application for leave, but rather to prevent its granting the application. When the District Court dismissed the plaintiff's notice of motion, its orders, which were made within its jurisdiction, became the operative orders and displaced the orders of the Local Court. That its jurisdiction on an appeal against conviction under s 20 of the Crimes (Appeal and Review) Act did not arise (as there was no appeal, merely an application for leave to appeal, which was required to be refused) is beside the point. 59 This analysis is consistent with the decision of the Court of Appeal in Blacker v Parnell [1978] 1 NSWLR 616 in which a convicted defendant sought statutory prohibition in this Court pursuant to s 112 of the Justices Act 1902 (NSW), as well as appealing to the District Court against conviction and sentence. He sought to withdraw the proceedings in the District Court to allow the application to this Court to be determined. To this end, the appeals to the District Court were dismissed by consent. The Court of Appeal held, in accordance with Wishart v Fraser, that: the operative orders were the orders of the District Court dismissing the appeal against conviction; and that, accordingly, it had no jurisdiction to determine a challenge to the conviction in the Local Court. 60 The decision on which Mr Wendler relied, Campbell v DPP (NSW), is of no assistance since it involved solely an application for leave to appeal from the Local Court to this Court; there was, in that case, no appeal, or application for leave to appeal, to the District Court. The effect of s 29 of the Crimes (Appeal and Review) Act 61 Section 29 of the Crimes (Appeal and Review) Act would appear to contemplate that an appeal to this Court on a question of law (which arises as of right under s 52) and an application for leave to appeal to this Court on a question of mixed law and fact (under s 53) ought be made before an appeal to the District Court against conviction or sentence under ss 11 and 12. However, s 29(2) expressly preserves the right of a person to appeal to the District Court if this Court has refused leave to appeal on a ground of mixed law and fact. 62 In my view, the better view is that, although a plaintiff may lodge an appeal or leave application in the District Court against a conviction in the Local Court (and must do so within three months or be time-barred by s 13 of the Crimes (Appeal and Review) Act), the appeal ought not be dealt with (and no orders made by the District Court) until the proceedings in this Court under Part 5 of the Crimes (Appeal and Review) Act have been determined (see Lazarus v DPP (NSW) [2015] NSWSC 1776 at [24]-[25] per RS Hulme AJ). I do not consider that s 29 (1)(c) has the effect of invalidating an appeal lodged in the District Court if Supreme Court proceedings are on foot since this construction would carry the risk that a plaintiff would be out of time for an appeal to the District Court if this Court refused leave to appeal outside the three month period allowed by s 13 for filing appeals or leave applications in the District Court. 63 Section 29 does not appear to contemplate a person's exercising his or her rights to appeal or to seek leave to appeal in the District Court, before commencing proceedings under Part 5 of the Crimes (Appeal and Review) Act. This is a powerful indication that Parliament did not intend to sanction the course taken by the plaintiff in the present case of exhausting his or her rights in the District Court before commencing proceedings this Court for relief under ss 52 or 53. Moreover, as referred to above, when orders have been made in the District Court (including, as in Blacker v Parnell, consent orders dismissing the appeal, or, as in the present case, dismissal of the leave application as it was not brought within time), the principle in Wishart v Fraser applies and the plaintiff would have to challenge the District Court decision, since it, not the decision of the Local Court, would be the operative decision. I note for completeness that this Court's jurisdiction to review the decision of the District Court is limited to jurisdictional error (which cannot validly be excluded: Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 at [54]-[55]), by reason of s 176 of the District Court Act 1973 (NSW) which provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. 64 Had the plaintiff wished to make the present challenge and preserve his rights to appeal or seek leave to appeal to the District Court, he could have filed a summons in this Court as well as lodging an appeal in the District Court within 3 months of 30 July 2013. The summons in this Court would have been dealt with first. If leave had been refused by this Court, the plaintiff would then have been able to prosecute his appeal in the District Court. By doing it the other way around, the plaintiff is seeking to challenge a decision (the conviction in the Local Court) that is no longer operative. Unlike the procedure I have referred to above, the course taken by the plaintiff in the present case is not sanctioned by the Crimes (Appeal and Review) Act (cf. Sinkovich v Attorney-General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at [46]-[47] per Basten JA (Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing)). It would offend the principle in Wishart v Fraser as well as the principle of finality of litigation: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [16], were this Court to treat the appeal against the conviction in the Local Court as competent."
18. I respectfully agree with her Honour's analysis and her Honour's conclusions.
19. Accordingly, the submission by the plaintiff that Nand can be distinguished from the Wishart v Fraser (1941) 64 CLR 470 line of cases because no hearing on the merits was involved, cannot be sustained. The fact that Haesler SC DCJ went on to consider the merits of the claim before him, in case his finding as to lack of jurisdiction was incorrect, does not in any way affect her Honour's reasoning. The situation confronting Haesler SC DCJ in Nand was substantially the same as that confronting Syme DCJ in these proceedings.
20. In the course of submissions, the DPP raised as a possibility that if all that occurred before Syme DCJ was that her Honour struck out from the list the plaintiff's application for leave for want of jurisdiction and did nothing further, there was in fact no operative order affecting the orders in the lower court. In that case, the Wishart v Fraser line of cases would not apply and there would be nothing to prevent this Court from dealing with this application.
21. There are two difficulties with that proposition. The first is that it is contrary to my findings as to what orders were made in the District Court in that I have found in addition to striking the matter from the list for want of jurisdiction, her Honour also dismissed the Application for Leave to Appeal and confirmed the Magistrate's orders. The second difficulty is that the proposition is contrary to her Honour's analysis in Nand. It follows, therefore, that this Court does not have jurisdiction to hear the plaintiff's application and his Summons should be dismissed.
22. No claim for costs has been made by the defendant in this matter. That is an appropriate stance given the position of the plaintiff, as disclosed in the evidence before the Local Court. He is homeless and in receipt of a disability pension. In those circumstances, the orders which I make are as follows: 1. The Amended Summons dated 2 October 2018 is dismissed. 2. There should be no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2018