WALTER A _ LEVINGE (ALSO. KNOWN AS__ RICARDO LESSUR-MILLAR) v THE ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and CLARKE JJA 9 June 1988, 9 June 1988 [1988] NSWCA 83 Criminal law — procedure — application for permanent stay of proceedings on ground of abuse of process — appeal should be heard by the trial Court (the District Court) and not by the Court of Appeal in the first instance — Watson v Attorney General (1987) 8 NSWLR 685 applied and appeal dismissed. ORDER Appeal dismissed. No order as to costs. Samuels JA This is an application by the claimant, Walter Levinge, who is alsoknown as Ricardo Lessur-Millan, for a permanent stay of proceedings now pending in the District Court in the sense that he has been committed for trial on a number of charges in the District Court, although no bill has yet been found or, of course, any indictment presented. Mr Levinge appears in person and as a result the originating process is not very clear. There are two summonses and we have treated them, as I have said, as seeking a permanent stay on the ground that to proceed with the trial in the District Court would be an abuse of process. I do not think it necessary to go in detail to the facts of the matter, save to say this: Mr Levinge was extradited from the United States of America and arrived in Sydney on 7 May 1986. Since that time there have been proceedings in the Supreme Court, which terminated in an unsuccessful appeal to this Court in which judgment was given dismissing the appeal on 23 July 1987. In those proceedings which were heard at first instance by Smart J, Mr Levinge, who was then legally represented, sought to challenge his extradition primarily on the basis that it was wholly invalid because he had, in fact, been kidnapped and brought by unlawful means from the United States to Australia. That ground and other grounds, were painstakingly debated and their cogency finally rejected in the appeal. Since then committal proceedings have taken place and ultimately, on 19 April 1988 Mr Levinge was committed for trial in the District Court. He has filed before us two large bundles of documents, one on 21 March 1988, and the other on 16 May 1988. So far as I am able to see, they merely rehearse the material which has already been considered. Obviously the grounds of any attack upon the circumstances in which Mr Levinge was extradited from the United States to Australia must have originated some time ago and what has happened since July 1987 can have no relevance to arguments of that kind. I should add that it appears that Mr Levinge has made an unsuccessful application for special leave to appeal to the High Court against the decision of this Court, or has been unable, for one reason or another, to mount such an application. 2 UNREPORTED JUDGMENTS In Watson v The Attorney General (1987) 8 NSWLR 685 at 701, Priestley JA, in a judgment in which the other members of the Court agreed, said in substance that although no bill might have been filed and no indictment presented, the District Court had jurisdiction to deal with matters relating to trials that would take place if an indictment were presented. That is the position in the present case. The Court in Watson indicated clearly that applications for a stay should be made to the trial court, that is to the District Court, in the first instance, rather than to this Court. Mr Levinge objects to this consequence, pointing out that it means further delay and that it may be that the matter will, in due course, come to this Court anyway. So, in the effect, why should we not hear it now? There are, I think, a number of answers to that contention. The trial court is in a better position than an appellate court to take evidence and I would have thought from the documents I have read in the case, and from the way in which Mr Levinge has presented his submissions, that there may well be evidence in support of an application and facts which must be found, and the trial court is better suited to do that than we are. The trial court is in control of its own list and knows when cases are likely to be heard, what the delays are or are likely to be, and generally what the conditions of trial are of this information is known to us only at second-hand. I therefore have no hesitation about applying Watson. So, on the assumption that we have jurisdiction to entertain this matter, that is to say that jurisdiction is not removed from us by dint of the provisions of the Supreme Court Appeals (Amendment) Act 1987, which amended the Third Schedule of the Supreme Court Act, we would not entertain the application. As to whether or not we have jurisdiction and whether or not that Act affects our power in that respect, I would prefer to offer no final comment. It is not necessary to do so in order to dispose of the case. Finally, Mr Levinge has filed documents which amount to a claim for a writ of habeas corpus, either at common law or under the Act which relevantly is still in force in New South Wales. Once one disposes of the attack upon the legality of the extradition, and it seems to me that that matter is finally foreclosed by the decision of this Court, then it can hardly be said that Mr Levinge is unlawfully held since he is in the gaol at Parramatta, presumably by dint of a warrant issued by the Magistrate who committed him for trial; certainly as a result of that committal. I do not think, therefore, that any case has been made out for a writ of habeas corpus. In all the circumstances, I am of the opinion that the proceedings should be dismissed. (None of the opponents sought costs) Mahoney JA I agree. Clarke JA I also agree. SAMUELS JA: The order of the Court is that the proceedings are dismissed. There will be no order as to costs. Counsel for the Claimant: IN PERSON Counsel for the Opponents: MR P HASTINGS (lst & 2d) MR R HOWIE QC/MR W HROUDA (3rd) Solicitors for the Opponents: S E O'CONNOR, ACTING SOLICITOR FOR PUBLIC PROSECUTIONS