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. Mr Levinge then proceeded in what he says he intended to be an application for a permanent stay to the District Court. It would appear that his process came originally before Nash DCJ. Mr Levinge believes that Nash DCJ dismissed his application for a permanent stay. However, the solicitors respectively appearing for the Federal and State Directors of Public Prosecutions have indicated that their file notes state that all that Nash DCJ did when the matter was before him was to order that the trial of the proceedings brought against Mr Levinge should be listed for hearing in the District Court on 5 September 1988. I do not have any judgment or even note of the orders of Nash DCJ. However, from the description of what his Honour said and did on that occasion, it does not appear to me that his Honour addressed his attention to the questions which are posed for a formal application for a permanent stay by the decision of this Court in Watson v The Attorney General for New South Wales (1987) 8 NSWLR 685. 2 UNREPORTED JUDGMENTS It then appears that Knoblanche DCJ was assigned as the trial judge for the trial of Mr Levinge. This is to commence on 5 September 1988. Mr Levinge renewed an application for a stay before his Honour. However, because an application in the meantime had been brought by Mr Levinge by summons to this Court, for "expedited emergency relief", as it is described, Knoblanche DCJ declined to deal with the matter. This was, no doubt, done out of courtesy to this Court and also because of the undesirability of two courts dealing with the same subject matter at the same time. Because of the considerations referred to in the judgment of this Court on 9 June 1988, it is clear that I cannot today, nor can the Court, deal with the matter which is in the District Court. It is therefore necessary to dismiss the summons brought by Mr Levinge. However, that order of dismissal is without prejudice to any right which Mr Levinge may have to renew his application for a stay in the District Court. Such an application may be heard before 5 September 1988. If it is, and if it fails it may be possible for Mr Levinge to make an application for leave to appeal to the Court of Criminal Appeal, as is now provided. Alternatively, the application may be returned on 5 September 1988 before Knoblanche DCJ. Mr Levinge can then renew his application before the commencement of the trial as Knoblanche DCJ pointed out. If the application succeeds, the trial will then be stayed. If the application fails, it will then be for Mr Levinge to decide whether he wishes to ask for an adjournment to allow him to test Knoblanche DCJ's order. If Knoblanche DCJ provides an adjournment, it will then be for the Court of Criminal Appeal to decide whether to give Mr Levinge leave to appeal. If Knoblanche DCJ declines the adjournment, Mr Levinge will have that order as a ground for appeal at the end of the trial, if he is convicted. I have explained these matters to Mr Levinge, who appears unrepresented, so that he will understand first the limited jurisdiction of this Court, most notably following amendments to the law by Acts of Parliament passed at the end of 1987; secondly, the unlikelihood that Nash DCJ considered his application for a permanent stay; and thirdly that he is entitled to make such an application formally to the District Court. Such an application is the correct course for him to adopt. So much was pointed out in the Watson case. So much has been drawn to Mr Levinge's attention in the judgment of the Court of 9 June 1988 and again today. Nothing I have said is to be understood as in any way indicating the manner in which the District Court judge, with responsibility to do so, should decide Mr Levinge's application for a permanent stay. Indeed, it is the whole point of the procedure outlined in Watson, applied many times since, explained in this case on 9 June 1988 and now re-enforced by legislation enacted by Parliament, that it is normally for the trial court in the first instance to decide applications of this kind. I will have a copy of that judgment typed up today. It will be sent to Mr Levinge at the prison. It will also be sent to Knoblanche DCJ so he will know what I have done here. The summons is dismissed. There will be no order for costs. Mr Levinge may be returned to custody. COUNSEL: Claimant: MR LEVINGE (IN PERSON) WBYINGE v ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES (Kirby P) Opponents: MR HOGAN (A-G NSW), MISS THOMAS (DPP C'TH), MR BRYDEN (DPP NSW) SOLICITORS: 5 Claimant: MR LEVINGE (IN PERSON) Opponents: H K ROBERTS (STATE CROWN SOLICITOR)(A-G NSW), S E O'CONNER (SOLICITOR FOR PUBLIC PROSECUTIONS) (DPP NSW), DIRECTOR OF PUBLIC PROSECUTIONS (DPP C'TH)