JEFFREY v DIRECTOR OF PUBLIC PROSECUTIONS [1995] NSWCA 218

JEFFREY vy DIRECTOR OF PUBLIC PROSECUTIONS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 6 February 1995

[1995] NSWCA 218

Priestley JA. This application arises from an order made by Hunt J in 1992 under s 48(4) of the Proceeds of Crime Act 1987. There seems to be quite a deal of history involved in the matter but for the purposes of today's application I need only mention some small parts of it.

Mr Jeffrey filed a notice of appeal against the order made by Hunt J, Because of delays, for which the Director of Public Prosecutions was not responsible, he in due course filed a notice of motion seeking dismissal of Mr Jeffrey's appeal for want of prosecution. That matter was dealt with by Powell JA, who took into account the history of delay and the reasons for it that had occurred up to the date when he made the orders which he made on 9 May 1994.

Those orders were that Mr Jeffrey was to file and serve the settled appeal index on or before 16 May 1994; and file, lodge and serve the appeal book on or before 23 May 1994; and finally, that upon non compliance with his preceding orders, the appeal should stand dismissed for want of prosecution.

What happened after that date was that the settled appeal index was filed on 16 May 1994, the due date, but there is no evidence that Mr Jeffrey can produce that it was served on that date. Mr Jeffrey caused the filing and lodgment of the appeal books on 23 May 1994 but no copy of the appeal book was served until 25 May 1994 and then only one set, instead of three sets, was served. Since then the proper number of appeal books has been served upon the Director of Public Prosecutions.

These events leave the appeal in an unusual limbo. Ordinarily, when orders are made requiring conditions to be met to avoid an order of dismissal for want of prosecution, and the conditions are not complied with, the non compliance is complete. It is unusual to find the near but incomplete compliance that happened here. This limbo state seems to have left the Director of Public Prosecutions in some difficulty as to the procedure to follow to bring the matter to finality.