Devitt v Ross [2018] NSWSC 1675

Devitt v Ross [2018] NSWSC 1675 · Read the judgment on AustLII

Catchwords: District Court appeals – out of time – simultaneous Supreme Court appeals

It is not uncommon for defendants to lodge District Court appeals completely out of time – that is, even after the three month period where they can still seek leave to appeal. However, what should happen when a District Court appeal is out of time, and a Supreme Court appeal is also lodged in an attempt to salvage an outcome? In this case, the Supreme Court has indicated that, whatever else happens, the District Court appeal should not be allowed to be finalised (even though it is out of time), because doing so effectively dooms the Supreme Court appeal to failure.

The appellant had a very unfortunate personal story, involving homelessness, cognitive difficulties, and mental illnesses including schizophrenia, anxiety and bi-polar disorder. He tried to steal a shirt from a clothing store, and when he was eventually confronted by the police, took out a knife. Police drew their weapons, he ran, and he was injured in the ensuing chase. He was eventually sentenced in the Local Court to a fixed term of imprisonment of 2 years, and a s9 bond of four years. He lodged a District Court appeal essentially one year after he was sentenced (that is, about 9 months out of time for an appeal). The matter came before a judge of the District Court. In the Supreme Court, there was a dispute about what formal orders the District Court judge eventually made, but one way or another the matter was dismissed by the judge. Separately, an appeal was lodged to the Supreme Court (by lawyers). That was heard by Hoeben CJ at CL, sitting alone.

There was a dispute about whether the District Court judge had struck the matter from the list, or actually determined the appeal and dismissed it. Despite the suggestion that the judge had struck the matter from the list for want of jurisdiction, in the Supreme Court his Honour concluded that the District court had applied s13(2) of the Crimes (Appeal and Review) Act, dismissed the appeal and confirmed the orders in the Local Court (at [55]). There was no inconsistency, his Honour found, between the expression ‘This matter was struck from the list’ and the order ‘Sentence Appeal Dismissed’.

Previous authority had held that the Supreme Court has no power to review any aspect of the decision of a Local Court under the Crimes (Appeal and Review) Act if it has been effectively superseded by a judgment in the District Court (at [61] to [62]). Here, the District Court judge had purported to strike the matter from the list for want of jurisdiction, so the defendant argued that no orders had been made at all – but as indicated above his Honour did not agree with that factual finding. For those reasons, his Honour found that the Supreme Court had no jurisdiction to hear the matter and dismissed the appeal.

In a practical sense, this underlines the fact that any time a defendant has both a District Court appeal and a Supreme Court appeal on foot, legal representatives should be extremely careful to ensure that the District Court makes no substantive orders at all in relation to the District Court appeal. If the District Court makes any order, that guarantees that the Supreme Court appeal (which might well already stand on shaky ground) will have no prospect of success.