JW v The King [2026] NTCA 1

[2] There are two preliminary matters which require determination. The first is whether the application for leave to appeal may be referred to the Court of Appeal constituted by three judges, or whether it must be determined on the papers by the Court of Appeal constituted by one judge. The second and anterior matter is whether there is an avenue of appeal to the Court of Appeal from the decision of the Supreme Court refusing to grant the stay.

[3] Turning first to the question of leave, in pursuance of the power expressly vested under r 82.17(2) of the Supreme Court Rules 1987 (NT) I had initially directed that the application for leave to appeal be heard at the same time as the appeal. Given there are two apparently conflicting authorities from New South Wales and Victoria dealing with the substantive question on appeal, I considered the applicant's position to be sufficiently arguable to warrant the grant of leave but determined to refer the issue to the Court of Appeal constituted by three judges to afford the Crown opportunity to make oral submissions on the issue.

[4] The position adopted by the Crown is to the effect that it is not entitled to that opportunity because there is an inconsistency between the relevant provision of the Rules and s 53(2) of the Supreme Court Act 1979 (NT), which requires an application for leave to appeal to be determined in the first instance by a single judge on the papers. The Crown position is that the rule is invalid or inoperative by reason of inconsistency with the principal legislation. Although there is a little-known piece of legislation in the Northern Territory titled the Supreme Court (Rules of Procedure) Act 1987 (NT) which affords primacy to the Rules in certain circumstances, they do not present here. Accordingly, I must accede to the Crown's position in the matter, and I have determined on the papers that leave to appeal should be granted.

[5] That provisional grant of leave is subject to the determination of the Crown's second contention, which is that the Court of Appeal does not have jurisdiction and the appeal is therefore incompetent. The Crown's position is predicated on s 50A of the Supreme Court Act, which provides that Part III conferring appellate jurisdiction on the Court of Appeal does not apply to an appeal under Division 2 of Part X of the Criminal Code 1983 (NT). The Crown's submission in this respect raises two issues.

[6] The first issue concerns the statutory text. Appeals under Division 2 of Part X of the Criminal Code are limited in their terms to appeals against: (a) a finding of guilt; (b) a special finding; (c) the imposition of sentence; (d) a stay of proceedings on the basis they are vexatious or harassing; (e) a determination to terminate proceedings on the basis of auterefois convict or auterefois acquit or Royal pardon; (f) a refusal to declare or recommit a person as a habitual criminal or uncontrolled sexual offender; and, finally, (g) the quashing of an indictment or a stay of proceedings under s 339 of the Criminal Code or the inherent jurisdiction of the Supreme Court. The appeal in this case does not fall within any of those categories. Rather, it is an appeal against a refusal to stay the proceeding on the basis that it constitutes an abuse of process.

[7] The Crown has in its written submissions undertaken a detailed examination of the relevant legislative history in support of the proposition that the legislative intention was to confer exclusive jurisdiction on the Court of Criminal Appeal to hear and determine appeals from decisions made by the Supreme Court in the exercise of its criminal jurisdiction. Although there are various statements in the second reading speeches and other extrinsic materials which might suggest a subjective intention to do so on the part of various ministers and functionaries, that purpose is arguably not achieved by the statutory language.

[8] The Crown relies on a number of well-known authorities to the effect that the method to be applied in construing a statute is to ascertain the intended meaning of the words, and that a literal approach to construction should not be adopted if the result is improbable: see The Queen v A2 [2019] HCA 35; (2019) 269 CLR 507 at [32]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21.

[9] There are obvious limitations to that approach. It is not permissible for a court to apply the general purpose of the statute as derived from the extrinsic materials without regard to the words of the provision. In particular, it is not open to draw a different meaning from that which is able to be drawn from the terms of the provision. As the plurality observed in Alcan (NT) Alumina v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.

[10] A plain reading of the statutory language in this case is to the effect that only avenues of appeal created by and permitted under Division 2 of Part X of the Criminal Code are excluded from the operation of Part III of the Supreme Court Act. There is no introductory or general provision in Part X of the Criminal Code which would operate to vest appellate jurisdiction in criminal matters exclusively in the Court of Criminal Appeal. However, it may be accepted that was the clear intention in adopting the common form appeal provisions.

[11] The right of an appeal by an accused person against a finding of guilt or sentence had its origins in the Criminal Appeal Act 1907 (UK). Those common form provisions were replicated in all the Australian states at various times between 1911 and 1924, and subsequently enacted in Part X of the Criminal Code. The provision in Part X of the Criminal Code creating a right of Crown appeal may be traced to the enactment, in 1924, of s 5D of the Criminal Appeal Act 1912 (NSW). That section provided that 'the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper'.

[12] That formulation found its way into the Queensland Criminal Code in 1939 and was subsequently adopted in the Northern Territory Criminal Code. The provision now appearing in s 414 of the Criminal Code has over the years been expanded in its operation beyond appeals against sentence on the ground of inadequacy to include the different types of Crown appeal which I have already catalogued. It is tolerably clear that the purpose of the appeal provisions in the Criminal Code is to define and confine the circumstances in which an appeal may be brought from a determination, order or finding of the Supreme Court in the exercise of its original criminal jurisdiction.

[13] The Crown says that to adopt any different approach would be to allow appeals under Part III of the Supreme Court Act by the Crown against acquittal and by both parties against interlocutory determinations concerning such matters as the admissibility of evidence. The submission concerning Crown appeals against acquittal must be rejected. A clear negative implication arises from the principle of legality, the specific mechanism for a Crown reference of a point of law after acquittal contained in s 414 of the Criminal Code, and the definition of a 'judgment' amenable to appeal under Part III of the Supreme Court Act to expressly include 'a finding of guilt' but not an acquittal. However, it may be accepted that the construction pressed by the applicant would permit appeals against interlocutory decisions with the risk of interrupting trials and fragmenting proceedings. Certainly, the common form provisions were designed to exclude appeals from interlocutory determinations in service of the overarching notion that the fragmentation of criminal proceedings is undesirable.

[14] The applicant submits that s 50A of the Supreme Court Act should not be construed with the effect of abolishing the previously existing right of appeal in respect of interlocutory criminal judgments 'by a side-wind'. That submission should also be rejected on the basis that was no doubt one intended purpose of the adoption of the common form provisions rather than an unintended consequence. So much is apparent from a survey of the historical and existing legal landscape. As stated, the common form provisions purposefully did not provide for any form of interlocutory appeal. As matters have developed, all States and Territories now permit interlocutory appeals in criminal trials on indictment to some extent, but their legislation falls into two distinct classes.

[15] In what are sometimes described as the 'defined issues' jurisdictions, being Queensland, Western Australia, South Australia, Tasmania and the Northern Territory, the governing statutes do not give general permission for interlocutory criminal appeals. They adopt the mechanism of designating only certain narrow classes of interlocutory determinations as susceptible to appeal. An example in the Northern Territory is the Crown right of appeal against an order staying proceedings, which is interlocutory in nature: see Re Luck [2003] HCA 70. In what are sometimes described as the 'comprehensive jurisdictions', being New South Wales, Victoria, the Federal Court and the Australian Capital Territory, the governing statutes give a more general right of appeal against interlocutory determinations in criminal matters. Those rights are subject to procedural and other restrictions which govern the entitlement to bring the appeal and seek to guard against the undue fragmentation of trial proceedings.

[16] It does not follow from the Crown position that errors made in interlocutory determinations during criminal proceedings in the Supreme Court in the Northern Territory are effectively immune from review. The avenue of recourse for the accused is to lodge an appeal based on that error in the event of a finding of guilt. That is a remedy frequently pursued in this jurisdiction in relation to interlocutory determinations concerning such matters as the admissibility of evidence. For reasons which follow, a decision to refuse a stay of proceedings on the ground of abuse of process falls into a different category. Moreover, a right of appeal of that type would be rendered nugatory by an interpretation which required the accused to endure proceedings to their completion before an appeal could be brought against a refusal to stay those proceedings.

[17] In light of the statutory scheme which has been adopted in the Northern Territory, the careful calibration of that scheme since its commencement, and the purposive approach which must be taken to the interpretation of the legislation, I find that on its proper construction s 50A of the Supreme Court Act operates to exclude from the appellate jurisdiction conferred by Part III of that Act appeals from orders, determinations and findings, whether final or otherwise, made in the exercise of the Supreme Court's original criminal jurisdiction.

[18] However, it does not follow from that finding that the Supreme Court's refusal to grant a stay of proceedings for abuse of process was an exercise of original criminal jurisdiction. As Mason CJ observed in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 26, the distinction between criminal and civil proceedings is not a rigid and inflexible one for the purpose of applying the principles of abuse of process. A superior court of record has an inherent common law power to prevent abuses of its process in both civil and criminal proceedings. That is an exercise of the original jurisdiction of the court to control its own processes: see Re Luck [2003] HCA 70 at [4]. That power does not derive from statute but is intrinsic to the nature and structure of the court itself: see Strickland v DPP (Cth) [2018] HCA 53; (2018) 266 CLR 325 at [256].

[19] This is not a situation in which the criminal proceedings are sought to be stayed pursuant to ss 21 and 339 of the Criminal Code because the subject matter of the indictment or how it is pleaded gives rise to some vexation or harassment in the legal sense of those terms. A proceeding is vexatious if it is made maliciously or without reasonable grounds. A proceeding is harassing if it constitutes the misuse of the court system to distress or burden an opponent without cause. Both those forms of abuse arise from the content of the initiating process itself. That is not, on proper characterisation, the category of abuse asserted by the applicant in this case. The fact that no issue is taken with the content of the indictment is apparent from the fact that the applicant intends to plead guilty to the charges. The abuse of process asserted in this case is that the Crown has failed to initiate judicial review proceedings challenging the Youth Justice Court's determination to hear the charges summarily, and, or in the alternative, that bringing the matter into the Supreme Court increases the period to which the accused might potentially be sentenced to detention or imprisonment. In other words, it is not the content of the criminal process with which the applicant takes issue. It is the fact that the process has been initiated at all.

[20] Nor is the grant or refusal of a stay in those circumstances the exercise of a jurisdiction or power which derives from the filing of the indictment. While it may be accepted that the Supreme Court's criminal jurisdiction over the subject matter of a charge is enlivened by the filing of an indictment, there is an independent and already subsisting power which may be exercised to quash or stay the operation of an indictment. In exercising that power the court is protecting its ability to function as a court of law. That jurisdiction was recognised in Herron v McGregor (1986) 6 NSWLR 246, in which the Court stayed disciplinary proceedings pending in a medical disciplinary tribunal. In that case the Court identified the operation of a broader power and principle (at 251) in the following terms:

... In the absence of a contrary decision of the High Court on the point I think that this Court, as a superior court of justice, has inherent power to prevent an abuse of procedure in instituting or continuing proceedings in both civil and criminal cases ... I am strongly of opinion that not only has this Court the inherent power to stay its own and civil and criminal proceedings for abuse of process but its general supervisory and protective power extends to protecting inferior courts and tribunals from abuse of their procedure in relation to civil, criminal and disciplinary matters.

[21] That formulation was subsequently adopted and applied in Watson v Attorney-General (NSW) (1987) 8 NSWLR 685 to find that there exists a right to appeal to the Court of Appeal to review an interlocutory decision of a District Court judge to refuse a stay application. That appeal was entertained notwithstanding that the general right of interlocutory appeal in criminal matters had not yet been introduced in New South Wales. An application for special leave to appeal to the High Court was subsequently refused.

[22] The fact that the Supreme Court's criminal jurisdiction is enlivened on the presentation of the indictment does not mean that every power exercised with reference to those criminal proceedings is an exercise of criminal jurisdiction. The grant of bail is one example. That is not the exercise of criminal jurisdiction by the Court notwithstanding that it takes place in the context of a criminal proceeding. Similarly, the grant of a writ of habeas corpus in the context of criminal proceedings is not the exercise of criminal jurisdiction. Criminal jurisdiction is exercised to hear and determine finally whether an accused has engaged in conduct which amounts to an offence and, if so, to determine the punishment properly imposed for the transgression. Conversely, the grant of a permanent stay of criminal proceedings is the exercise of an inherent and original jurisdiction of the Court to control its own processes. It is a refusal to exercise criminal jurisdiction, rather than the exercise of criminal jurisdiction. That is consistent with the description sometimes given by English courts of a stay for abuse of process as 'an order of judicial review in the nature of prohibition': see R v Grays Justices; Ex parte Graham [1982] QB 1239 at 1247.

[23] The fact that the legislature has expressly granted a Crown right of appeal against an order staying proceedings under the terms of the Criminal Code does not lead to the conclusion that the exercise of the Court's inherent power to regulate its own proceedings is an exercise of criminal jurisdiction. An appeal from a determination in the exercise of that jurisdiction is not excluded by s 50A of the Supreme Court Act.

[24] Having reached that position, on one analysis of the legislative scheme it is impermissible for a single judge to decide the question of competency at this stage. A single judge may only exercise the appellate jurisdiction of the Court of Appeal in in the manner specified in ss 52(2) and (3) of the Supreme Court Act. So far as a single judge has power to dismiss an appeal for any 'other prescribed cause', it would not appear that any cause has in fact been prescribed. Neither the Act nor the Rules nor any other law in force in the Territory permits a single judge to dismiss an appeal on the basis that it is incompetent. Finally in this respect, the question whether an appeal is incompetent for want of jurisdiction is not a matter of practice and procedure.

[25] In the Crown submission, however, the power vested in a single judge to determine an application for leave to appeal in the first instance carries with it both the power and the obligation to determine the competency of the appeal if leave is to be granted. That is because a grant of leave may only be made in relation to an appeal which would otherwise fall within the jurisdiction of the Court of Appeal.

[26] The applicant does not cavil with that proposition, not least because even if the application for leave is refused, he is entitled to have the application determined by the Court of Appeal constituted by three judges. Similarly, the Crown says that even if a single judge determines that the appeal is competent it is not precluded from reagitating the issue before the Court of Appeal constituted by three judges. That is said to be because the Court of Appeal cannot properly exercise its appellate jurisdiction unless satisfied that jurisdiction is validly invoked.

[27] I accede to the Crown submission that the power vested in a single judge to determine an application for leave to appeal in the first instance carries with it the obligation to determine the competency of the appeal if some challenge is made in that respect. For the reasons I have given, I find that s 50A of the Supreme Court Act does not operate to deprive the Court of Appeal of jurisdiction to hear an appeal against the decision of the Supreme Court on 6 November 2025 to refuse a permanent stay of proceedings. I express no opinion on the question of whether it is open to the Crown to press its contentions concerning the competency of the appeal before the Court of Appeal constituted by three judges. However, should it choose to do so the matter will need to be pursued at the same time as submissions concerning the substantive question in the appeal are heard.

1. Leave to appeal is granted.
2. The appeal is listed for hearing at 10 AM on 29 April 2026 before the Court of Appeal constituted by Grant CJ, Brownhill and Huntingford JJ.