HIS HONOUR: Before the Court is an application for bail pending appeal. The appellant was sentenced by Schmidt J to a sentence of ten months' imprisonment on 18 December 2015. Some eight months of that term of imprisonment has passed. The sentence was either effective as of that date or some time shortly thereafter when the appellant was arrested. It matters not for present purposes. The appellant has purported to appeal the proceedings under s 5 of the Criminal Appeal Act 1912 (NSW) (hereafter the 'Appeal Act').
It does so because it says that s 5(1)(c) allows an appeal against a sentence by leave of the Court where a person has been convicted on indictment. The term "indictment" is defined to include any information presented or filed as provided by law for the prosecution of offenders.
Assuming for present purposes that a person guilty of contempt is an offender, which in the case of criminal contempt is plainly the case, the charge that would be laid pursuant to the Supreme Court Rules 1970 (NSW) for contempt would, at least on its face, fall within the meaning of an information filed, as provided by law, for the prosecution of offenders.
The Attorney-General appears in these proceedings as amicus curiae. I hasten to add for that appearance the Court is most grateful. Unfortunately the plaintiff or prosecutor in the proceedings before her Honour Schmidt J is not before the Court. Whether or not the prosecutor before Schmidt J is a proper person is not a matter that at present I will consider but at the very least as a matter of proper form, even if the prosecutor before Schmidt J was not properly a party to the appeal proceedings, such a person should be given notice of the appeal or should have been.
I do not state that as a matter of criticism of the appellant, only that as a matter of proper form it ought to have occurred and as a matter of appropriate form the appeal should have been and should now be served on the prosecutor or plaintiff before Schmidt J.
I say that because plainly the interests of the plaintiff or prosecutor may be affected by any decision on appeal and as a consequence natural justice or procedural fairness would require that the person be heard.
The person is not before the Court now. The issue of appeal is a matter that in my view is a matter of some urgency and the requirements of the Bail Act 2013 (NSW) require that the application be dealt with as soon as is practicable.
Notwithstanding the absence of the plaintiff or prosecutor before Schmidt J, I intend to proceed with the matter regardless. I do so because whatever happens on the appeal, whatever its nature, to which I will come, the plaintiff or prosecutor will either be heard, or be heard as to his right to be heard, before any decision emanates from any court.
Since the appellant was at liberty prior to the imposition of the sentence imposed by her Honour it seems no real prejudice or immediate prejudice is suffered if I continue to hear this matter on the basis of the urgency to which I have referred.
The second aspect in relation to the appeal is that if the appeal is not an indictment within the meaning of s 5 as broadly defined, then the appeal may be an appeal properly instituted under the provisions of s 5AA of the Appeal Act, being an appeal against a person convicted of an offence by the Supreme Court in its summary jurisdiction.
I will deal with these issues slightly later in these reasons. If the matter is not a matter on indictment as broadly defined or a matter dealt with in the summary jurisdiction of the Supreme Court, it is a civil proceeding.
In the judgment of the Court of Appeal, in Matthews v Australian Securities and Investments Commission, [1] the Court considered the issues of bail in relation to contempt proceedings. His Honour Basten JA at [154] of the judgment referred to the proceedings then before the Court as civil proceedings. His Honour said:
"The charge being one of contravention of a court order, the contempt is characterised as civil: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98; Secretary of State for Home Department v Harman [1983] 1 AC 280 at 310 (Lord Scarman); Hearne v Street [2008] HCA 36; 235 CLR 125 at [130] and [141] (Hayne, Heydon and Crennan JJ); at [2] (Gleeson CJ agreeing) and at [24] (Kirby J agreeing). Although characterised as civil, some attributes of criminal proceedings are engaged, including the standard of proof beyond reasonable doubt: Witham v Holloway [1995] HCA 3; 183 CLR 525 at 534. Deliberate or contumelious defiance of a court order may constitute criminal contempt, but that was not alleged in the present case. The limitations on enforcement of judgments found in Part 8, Div 5 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) do not limit or otherwise affect the power to commit for contempt: Civil Procedure Act, s 131."
The difficulty in this case is that the charge for contempt deals not only with the contravention of a court order by the non-payment of an amount that was due to be paid and the failure to abide by a subpoena to produce records, but also alleges, as part of the charge, an abuse of the Court by way of a document sent to the Court and/or certain judicial officers who may constitute the Court. In those circumstances the contempt that is alleged may, on the one hand, or in part, be civil and, on the other hand, be a criminal contempt from its very inception.
The fundamental principle that applies to the jurisdiction of the Court in dealing with contempt is that historically a court, that is particularly a superior court of record such as the Supreme Court of New South Wales, exercises its jurisdiction en banc. As the High Court said in Re Jarman; Ex parte Cook (No 1) [2] ('Jarman'), per Dawson J:
"The reason for the express provision … that the jurisdiction of each of the courts might be exercised by a single judge is the notion which lies deep in history that a superior court of record comprises all its judges who must act collectively in order to constitute the court. Thus at common law all trials by jury were originally held before the court in banc. When trials at nisi prius before a single judge were introduced, the judge took the verdict but could not enter judgment. He returned the verdict to the court and the court in banc gave judgment accordingly. This was noted by Windeyer J in Kotsis v Kotsis where he said that the meaning of the word 'court' has come to us through a long history and observed:
According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge.
But the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges. Nor does the provision of an appeal from a single judge to a full court alter the situation for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance. For a court to grant prerogative relief against one of its own judges is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as 'rather ludicrous'. Thus, it was early recognised in this Court that it could not under s 75(v) of the Constitution grant prerogative relief directed towards itself. [Footnotes omitted.]
It is appropriate also to look at the judgment of the Federal Court in Bird v Free [3] and in particular at 478 to 480 per Drummond J.
The High Court in Jarman was divided in its opinion. His Honour Dawson J was in the majority. Even the minority, however, which expressed a different outcome, did not differ on the fundamental principle recited above, but, rather, on the effect of the statutory provisions with which the High Court was there concerned and which may have, on the minority view, overturned the common law principle otherwise applicable.
As a consequence of the foregoing, orders made by this Court, sitting as a single judge pursuant to the terms of s 40 of the Supreme Court Act 1970 (NSW) or sitting as the Court of Appeal, are, nevertheless, judgments of the Supreme Court of New South Wales. When the Court of Appeal exercises jurisdiction it exercises a different jurisdiction from that of a single judge, but both are the jurisdiction of the Court and the bench comprised in that manner is, respectively, the Court. In other words, each of the Court of Appeal and a single judge exercise for different purposes the jurisdiction of the Supreme Court of New South Wales and is the Supreme Court of New South Wales for that purpose.
If there was any doubt of that proposition one would only need to look at the provisions of s 73 of the Constitution. Section 73 of the Constitution permits an appeal from the Supreme Court of New South Wales to the High Court. It is not suggested that such an appeal did not lie from the Court of Appeal. The Court of Appeal for that purpose is the Supreme Court of New South Wales.
Indeed an appeal from a single judge of the Supreme Court of New South Wales is not permitted without the leave of the High Court unless and until an appeal has been heard by the Court of Appeal in a civil matter or Court of Criminal Appeal in a criminal matter.
I turn then to the status of the Court of Criminal Appeal. Section 3 of the Appeal Act establishes that the Supreme Court, shall for the purposes of that Act, be the Court of Criminal Appeal and the Court shall be constituted by three or more judges of the Supreme Court as the Chief Justice may direct. To that extent that the Court of Criminal Appeal is "created" by statute and, of course, it is no different from every court in New South Wales, with the exception of the Supreme Court which was created by letters patent in 1824.
There has been much discussion in Australia on the issue of inherent jurisdiction and inherent powers. The Federal Court for example is a superior court of record created by statute. There is in fact in the Act, that is the Criminal Appeal Act, no provision, creating the Court of Criminal Appeal nor expressly conferring on it the status of a superior court of record. Yet the Court of Criminal Appeal hears and determines appeals from the Supreme Court, which, manifestly, is a superior court of record with inherent jurisdiction and inherent powers. Nor does the Appeal Act specify the power of punishment for contempt.
Further, there is no express provision in either the Constitution or the Appeal Act enabling an appeal from the Court of Criminal Appeal to the High Court of Australia.
The Appeal Act assumes a right of appeal to the High Court of Australia: see, inter alia, s 25A of the Criminal Appeal Act. Nor is there a provision in the Judiciary Act 1901 (Cth) that expressly grants the right of appeal to the High Court of Australia.
The High Court of Australia has determined that the Appeal Act does not create a new court, but merely directs that the Supreme Court be constituted as prescribed in the Appeal Act as the Court of Criminal Appeal. As a consequence, the Court of Criminal Appeal remains in that respect the Supreme Court and an appeal lies from the Court of Criminal Appeal to the High Court under s 73 of the Constitution. [4]
As a consequence of that, and the principles adumbrated by the High Court in Jarman, the Court of Criminal Appeal so called is the Supreme Court exercising a jurisdiction conferred by the Criminal Appeal Act and the Court of Appeal is the Supreme Court exercising the jurisdiction of appeal conferred by various Acts, including, inter alia, the Supreme Court Act, and a judge sitting alone is the Supreme Court exercising jurisdiction pursuant to s 40 of the Supreme Court Act.
On one view, it matters not, therefore, whether the proceedings before Schmidt J were civil or criminal proceedings.
Nevertheless, the provisions of s 101(5) of the Supreme Court Act provide that an appeal lies to the Court of Appeal from any judgment or order of the Court; that being the Supreme Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of another court.
It seems to me that whether or not the proceedings are civil or criminal matters little. At least arguably, and probably more than arguably, the provisions of s 101(5) are a specific subsection which overrides the provisions of the Criminal Appeal Act and, in particular, the provisions of s 5 and s 5AA of that Appeal Act.
That would mean there must be an appeal to the Court of Appeal in relation to the sentence of contempt issued by Schmidt J.
That does not mean there may not also be an appeal to the Court of Criminal Appeal against that decision. That is a matter which frankly it is less appropriate that I deal with than a court exercising the appellate jurisdiction.
What then do I do with the bail application? The bail application is before the Court under the Bail Act 2013 (NSW). The Bail Act requires a court that has jurisdiction to deal with a bail application as soon as is practicable.
Now is as soon as is practicable. Does the Court as presently constituted have jurisdiction to deal with the bail application. The first question that must be dealt with is the provisions of s 51 and s 48 of the Supreme Court Act. Section 48 of the Supreme Court Act allocates or assigns to the Court of Appeal certain matters. One of the matters that it assigns to the Court of Appeal is an appeal. In any event, an appeal from a single judge is a matter that is necessarily dealt with by the Court of Appeal in civil proceedings, pursuant to s 101(5).
In criminal contempt proceedings, the Court of Appeal also has power to deal with contempt in the face of the court where it occurs in the Court of Appeal or it has breached a judgment or order of the Court of Appeal or an undertaking given to the Court of Appeal.
On the face of some of these charges, they fit within the provisions of s 48(2)(f) of the Supreme Court Act. Nevertheless, s 51 of the Supreme Court Act provides that where proceedings commenced in a Division but are under this or another Act or under the rules assigned to the Court of Appeal, the proceedings shall be for all purposes well commenced on the date of commencement in the Division, notwithstanding that proceedings are assigned to the Court of Appeal.
Secondly, the Court of Appeal or the Court in the Division in which the proceedings are pending, may, in either case, on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal. Paragraph 51(1)(d), of the Supreme Court Act provides, subject to any order in para (b) thereof that is the removal order, that the proceedings may be continued and disposed of in a Division.
As a consequence of the provisions of s 51(1) of the Supreme Court Act, the Court as presently constituted may deal with the proceedings and continue to deal with the proceedings before removal into the Court of Appeal, if that be the appropriate course.
The second aspect to which I would refer is the provisions of s 14 of the Civil Procedure Act 2005 (NSW). By that provision, in relation to particular civil proceedings, the Court may by order dispense with requirement of rules of court, if satisfied that it is appropriate to do so in the circumstances of the case.
To the extent that the charge in the proceedings before Schmidt J gave rise to civil proceedings, whether to be conducted as a matter of practice under the Crimes (Sentencing Procedure) Act 1999 (NSW) or in the summary jurisdiction of the Court or whether as civil proceedings, I have the power under s 14 of the Civil Procedure Act 2005 to dispense with any requirement of the rules of court, including the rules of the Supreme Court so made under the Supreme Court Act, that is the Supreme Court Rules.
As a consequence the following applies. The Court in the Bail Act is a reference to the Supreme Court of New South Wales. The Court of Appeal is, when it exercises jurisdiction, the Supreme Court of New South Wales. The Court of Criminal Appeal is, when it exercises jurisdiction, the Supreme Court of New South Wales. The Court, as presently constituted, is the Supreme Court of New South Wales and is, notwithstanding the assignment of an appeal of this kind ordinarily to the Court of Appeal, capable of continuing to deal with the matter until such time as I remove it to the Court of Appeal.
As a consequence, I have the power, in urgent situations, and I hesitate to add it is not a matter that I would exercise lightly, to exercise the power of the Court of Appeal and I have power to absolve compliance with the rules.
The Attorney-General has most helpfully referred the Court to the judgment of Matthews v ASIC to which I have earlier referred and in particular to the passage in the judgment of Tobias JA, in which his Honour refers to the lacuna that then existed in relation to an appeal and whether they were capable of or had the capacity to re-sentence.
That creates a difficulty, because if bail is granted the sentence continues as if it were being served and frankly I am not in a position to gainsay the orders of Schmidt J.
Therefore something must be done in order to deal with the lacuna that might otherwise apply. As a consequence of the foregoing I consider I have jurisdiction to grant bail and I have jurisdiction to exercise the power of the Court of Appeal conferred by various Acts pursuant to the terms of s 51 and as a consequence of those findings and the issues to which I have otherwise referred, I make the following orders:
1. 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;
2. The appellant shall file and serve a properly drawn notice, as if there were separate proceedings, separately commenced, in the Court of Appeal within 7 days hereof;
3. The appellant shall serve the plaintiff/prosecutor before Her Honour Justice Schmidt, with both notices of appeal upon which he seeks to rely, including a notice of appeal in the Court of Criminal Appeal and the notice in accordance with order 2 above;
4. Pursuant to s 61 of the Bail Act, bail granted, on condition that the appellant is to be of good behaviour and is not to approach or communicate with the plaintiff/prosecutor in the proceedings before Her Honour Justice Schmidt;
5. Orders of the Court issued on 18 December 2015, hereby stayed;
6. Appellant is entitled to be released forthwith;
7. The appeal is removed to the Court of Appeal;
8. These orders may be entered forthwith.
[3]
Endnotes
[2009] NSWCA 155.
[1997] HCA 13; (1997) 188 CLR 595.
(1994) 126 ALR 475.
See Stewart v The King [1921] HCA 17; (1921) 29 CLR 234 at 240. See also DPP (NSW) v Moradian,Saliba and Sparos [2010] NSWCCA 27, Burrell v The Queen [2008] HCA 234; (2008) 238 CLR 218 and see R v Jones; R v Hili (No 2) [2010] NSWCCA 195; (2010) 242 FLR 64.
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Decision last updated: 08 August 2016