LEVINGE v ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES [1988] NSWCA 84

LEVINGE v ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 22 August 1988, 22 August 1988 [1988] NSWCA 84

CRIMINAL LAW AND PROCEDURE — stay of criminal proceedings — abuse of process — application to Court of Appeal — whether Court has jurisdiction following Supreme Court Appeals Amendment Act 1987 — whether application had been made to District Court held: (1) On the facts, application had not been made to District Court; (2) Application should ordinarily first be made to trial court. Watson v Attorney General for New South Wales (1987) 8 NSWLR 685; (3) Whether or not the Court of Appeal still had relevant jurisdiction it would not use it, at least in the present case, as no application had been made to the District Court. Levinge v Director of Custodial Services, Department of Corrective Services & Ors, (1987) 9 NSWLR 546; Levinge v Attorney General in and for the State of New South Wales & Ors, unreported, CA, 9 June 1988; (1988) NSWJB 97 referred to. Criminal Appeal (Amendment) Act 1987 Supreme Court (Appeals) Amendment Act 1987 ORDER Summons dismissed.

Kirby P Mr Levinge is once again before this Court. He has been before the Court on a number of previous occasions. The report of the first decision in his case is found in Levinge v Director of Custodial Services, Department of Corrective Services & Ors (1987) 9 NSWLR 546. The background facts of the case are set out in that report. I will not repeat them. Following that decision a further application was made by him to the Court for permanent stay of the criminal proceedings which he faces. This came before this Court, constituted by Samuels, Mahoney and Clarke JJA, on 9 June 1988. On that date the Court for a number of reasons set out in the judgment of Samuels JA (with which Mahoney and Clarke JJA agreed) made it plain to Mr Levinge that, if the Court had jurisdiction, notwithstanding the passage of the Supreme Court (Appeals) Amendment Act 1987, it would not normally exercise its jurisdiction until after an application for stay was made to the District Court, as the court in which the trial is to take place. See Levinge v Attorney General in and for the State of New South Wales & Ors, unreported, CA, 9 June 1988; (1988) NSWJB 97.