Sayer-Jones v R

Jurisdiction

1. As has been affirmed by many courts, [2] "it is the first duty of every judicial officer" to be satisfied that the court has jurisdiction to grant the relief sought. On occasions, a court will satisfy itself that if it had jurisdiction it would refuse the relief, thus rendering it unnecessary to determine the question of jurisdiction. No doubt there are circumstances when issues of exigency will prevail; but the position is inherently incoherent. If the court has no jurisdiction to grant relief, it will have no jurisdiction to determine that relief should not be granted on discretionary grounds. That is not to say that a court below the High Court may not determine that it has no jurisdiction (or indeed power) and, contingently, determine that had it the relevant jurisdiction (or power) it would not grant relief.
2. In the present circumstances, the Director's submissions may be summarised in three propositions. First, the Court of Criminal Appeal is a statutory court and, although it may have implied or incidental powers, its jurisdiction is confined to that conferred by statute. Secondly, that jurisdiction is not engaged until there is at least an application for leave to appeal (where leave is required) or a notice of appeal filed in the court registry. Thirdly, there is no express power to grant a stay of an order on its face properly made, by a court exercising trial jurisdiction.
3. The first proposition has not been in doubt since the High Court in Grierson v The King [3] held that this Court had no jurisdiction to reopen an appeal which had been heard on the merits and finally determined. More recently, the scope of that proposition has been addressed by the High Court in Elliott v The Queen [4] in the following terms: "30 The statement in Grierson that the Criminal Appeal Act prescribes the procedures for exercise of the jurisdiction by the Court of Criminal Appeal calls for some elaboration. First, whilst lacking 'inherent jurisdiction', a court exercising jurisdiction or powers conferred by statute enjoys, in addition, such powers as are incidental and necessary to the exercise of that jurisdiction and those powers. Secondly, weight must be given to the provision expressly made by s 12(1) of the Criminal Appeal Act. This provides that, if it thinks it necessary or expedient in the interests of justice, the Court of Criminal Appeal may exercise in relation to its proceedings any powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters."
4. So far as the invocation of this Court's jurisdiction is concerned, the Director submitted that the effect of a notice of intention to appeal appears not to have been considered by this Court, but that a similar procedure has been considered in the Court of Appeal. The Director relied upon a statement by Leeming JA in Olsen v Mentink [5] that "there was no proceeding in the Court of Appeal until Mr Olsen filed his summons". Although that was common ground, Leeming JA considered that the provisions of Pt 51 of the Uniform Civil Procedure Rules 2005 (NSW) were founded on that premise.
5. While it should be accepted that a summons seeking leave to appeal is sufficient to invoke the jurisdiction of the Court of Appeal, it may be noted that in Collins v The Queen [6] the High Court held that a right to appear in person or by counsel granted by s 78 of the Judiciary Act 1903 (Cth) was not attracted by an application for leave to appeal because an applicant was not a "party" within the meaning of that term in s 78. The joint reasons stated: [7] "In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the Court …. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court."
6. The question of the status of an applicant for leave to appeal may be put to one side. Brennan J noted in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1): [8] "The inherent jurisdiction of this Court to grant a stay pending the hearing of an application for special leave to appeal has been invoked from time to time in criminal matters: see Tait v The Queen; [9] Chamberlain v The Queen (No 1) [10] ."
7. The applicant relied in oral submissions on a decision of the Full Court of the Federal Court, Siminton v Australian Prudential Regulation Authority (No 2), [11] which involved the grant of a stay of a short sentence of imprisonment pending the hearing of an application for special leave to appeal to the High Court. However, the jurisdiction of an intermediate court of appeal to stay its own orders pending determination of a special leave application is uncontroversial and was affirmed by Brennan J in Burgundy Royale. That is not this case.
8. That this Court has power to stay the execution of a conviction is assumed by the grant of power to hear a bail application pursuant to s 67(1)(c) of the Bail Act 2013 (NSW). However, that provision does not identify when the power arises.
9. For these reasons, the primary submission by the Director should be accepted, namely that (i) until a notice of appeal (including one seeking leave to appeal) has been filed in the Registry of this Court, the Court has no jurisdiction to stay the execution of a conviction or sentence, and (ii) the filing of a notice of intention to appeal does not constitute the commencement of a proceeding in this Court.

A contingent consideration of this application

1. Against the possibility that the Court is wrong in determining that it has no jurisdiction to grant a stay, it is desirable to address the alternative submission by the Director as to why, as an exercise of a discretionary power, a stay should not be granted in this case.
2. There is no doubt that the purpose of the jurisdiction to stay an order made by a trial judge is to preserve the subject-matter of the litigation. [12] Strictly speaking, that issue does not arise in the present case. A conviction will continue to have effect whether or not a sentence is running, or has been completed. As the applicant noted in his affidavit of 1 October 2024, the conviction may have serious consequences for him including disqualification from being a company director, from working in a law firm or being admitted as a legal practitioner. [13] It is not uncommon for persons to pursue appeals against conviction after serving a sentence. Where there is no appeal against the severity of the sentence, it is not strictly necessary to stay the operation of the conviction in order to preserve the subject matter of the appeal. Further, in the very common case of an appeal against sentence, the fact that the sentence will continue to run until the appeal is determined, is rarely a basis for staying the execution of the sentence and granting bail to a person in custody. Where that step is taken, however, it is usually on the basis that there is a good prospect that an appeal will be upheld. On occasions a sentencing judge has suspended the operation of the sentence pending an appeal against conviction.
3. Three considerations diminish the need for a stay in the present case. First, the applicant first filed a notice of intention to appeal on 26 July 2023, following the jury verdict. He filed a notice of appeal on 3 November 2023, but did not pursue the matter at that stage (no doubt because he was facing a further trial in November 2023). However, after his acquittal of the further charge, on 20 March 2024, he filed a second notice of appeal in substitution for the first. That appeal was listed for hearing on 28 June 2024. The applicant in effect abandoned that opportunity to have his appeal against conviction determined by requesting the Registrar, on 4 April 2024, to vacate the orders he had made. That step was taken, with the result that the matter reverted to one involving only a notice of intention to appeal.
4. Following the imposition of the sentence on 6 June 2024, the applicant filed a fresh notice of intention to appeal and, on 31 July 2024 filed a third notice of appeal. The notice of appeal was listed for hearing on 25 October 2024. It may be observed that in the ordinary course, under prevailing conditions, a notice of appeal may be heard within three months of filing. Urgent matters can be heard more expeditiously.
5. Secondly, in his affidavit of 11 September 2024, the applicant stated that, "my grounds of appeal have been settled". [14] In draft written submissions dated 5 August 2024 the applicant stated that he sought leave to appeal on the following single ground: "the verdict of the jury is unsupported by the evidence". Indeed, there appears to have been a high degree of similarity between the submissions now sought to be put in support of the proposed appeal against conviction and the application for a directed verdict, which was made almost at the end of the trial.
6. The short point to be derived from this history is that, for whatever reasons, the proposed appeal would have been heard and determined by now (or at least heard today) were it not for steps taken by the applicant to vacate two hearing dates and decline to file a fresh notice of appeal.
7. Thirdly, although in his affidavit of 1 October 2024, repeated orally, the applicant made much of the "punitive aspects" of his sentence, it is a non-custodial sentence (a community correction order) with conditions which are by no means unusually onerous. Further, the possibility that the punitive aspect of the sentence will have been served in full before his proposed appeal is determined is unrealistic and, to the extent that it is served, will be entirely a factor of his own making. He has served just under four months of a 24-month order.
8. In these circumstances, were there power to order a stay of the conviction, this is not a case in which such an order would be made.

Conclusions

1. One further observation should be made with respect to the unwillingness of the applicant to file his proposed notice of appeal and to require that he have until 1 December 2024 to do so. That appears to be a function of his intention to issue subpoenas or notices to produce in order to put before the Court evidence which was not adduced at trial. The basis upon which that course would be permitted was not explored during oral submissions, but the applicant would be well advised to obtain advice as to the circumstances in which such a course is available. An appeal against conviction is an appeal in the strict sense and is not an opportunity to rerun a case on material which was not placed before the jury.
2. The Court makes the following order: Dismiss the applicant's application for a stay of the execution of his conviction and sentence.

Endnotes

1. Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3).
2. See Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2015, The Federation Press), pp 37-38.
3. (1938) 60 CLR 431 at 435-436 (Dixon J); [1938] HCA 45.
4. (2007) 234 CLR 38; [2007] HCA 51 (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) (footnotes omitted).
5. [2019] NSWCA 279 at [33], [38]; see also Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 at [45] (McColl JA).
6. (1975) 133 CLR 120; [1975] HCA 60.
7. Collins at 122 (Barwick CJ, Stephen, Mason and Jacobs JJ).
8. (1986) 161 CLR 681 at 683; [1986] HCA 84.
9. (1962) 108 CLR 620 at 623-624; [1962] HCA 57.
10. (1983) 153 CLR 514; [1983] HCA 13.
11. [2008] FCAFC 112; (2008) 249 ALR 171.
12. See Jennings Construction at 683.
13. Affidavit, par 4(4).
14. Affidavit, par 11. 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: 03 October 2024