Director of Public Prosecutions (NSW) v Scheibel & Anor [2004] NSWCA 187

Reported Decision : 145 A Crim R 576

New South Wales Court of Appeal

CITATION : Director of Public Prosecutions (NSW) v Scheibel & Anor [2004] NSWCA 187 HEARING DATE(S) : 11 May 2004 JUDGMENT DATE : 18 June 2004

JUDGMENT OF : Ipp JA at 1; Santow JA at 2; McClellan AJA at 3 DECISION : 1. The orders made by Blanch J on 28 July 2003 allowing appeals to the District Court against the refusal of two applications to annul convictions recorded by Bone LCM against Dion Jon Scheibel are quashed; 2. The cross-claims of the first opponent are dismissed; 3. The proceedings are to be remitted to the District Court for determination according to law of the applications for leave to appeal against conviction and sentence lodged by Dion Jon Scheibel

CATCHWORDS : Alleged jurisdictional error in District Court hearing an appeal against a refusal to annul a conviction in the Local Court - Whether refusal to annul a conviction pursuant to s 100D of Justices Act 1902 was an order capable of appeal pursuant to s 120 of Justices Act - Whether leave of District Court required to appeal pursuant to s 123 of Justices Act - "rights of appeal" under Pt 4A of Justices Act - Whether proceedings under Pt 4A are an appeal against a conviction, order or sentence in summary proceedings - Whether a decision to decline an application to annul pursuant to s 100D is an interlocutory or final order Justices Act 1902 (NSW) Crimes Act 1900 (NSW) LEGISLATION CITED : Crimes (Sentencing Procedure Act) 1999 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Justices Amendment (Procedure) Act 1997 (NSW) Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55 Hall v Nominal Defendant (1966) 117 CLR 423 Licul v Corney (1976) 180 CLR 213 Miller v Director of Public Prosecutions (2004) NSWCA 90 CASES CITED : Munday v Gill (1930) 44 CLR 38 R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 R v Cheng (1999) 48 NSWLR 616. R v King [2003] NSWCCA 399. Salter Rex & Co v Ghosh [1971] 2 QB 597 Director of Public Prosecutions (Claimant) PARTIES : Dion Jon Scheibel (1st Opponent & cross-claimant) District Court of NSW (2nd Opponent) Local Court of NSW (Def to cross-claim) FILE NUMBER(S) : CA 40038/04 P A Johnson SC (Claimant) COUNSEL : J Stratton SC (1st Opponent & cross-claimant) Submitting appearance (2nd Opponent) Submitting appearance (Def to cross-claim) S C Kavanagh (Claimant) SOLICITORS : S E O'Connor (1st Opponent & cross-claimant) Submitting appearance (2nd Opponent) I V Knight (Def to cross-claim )