Sullivan v Senior Constable D Moore & Ors [2008] NSWCA 160

New South Wales Court of Appeal

CITATION: Sullivan v Senior Constable D Moore & Ors [2008] NSWCA 160

HEARING DATE(S): 4 July 2008 JUDGMENT OF: Beazley JA at 1; Giles JA at 13; Campbell JA at 14

EX TEMPORE JUDGMENT DATE: 4 July 2008

DECISION: The summons is dismissed with costs.

Owen Noel Sullivan (Applicant) PARTIES: Senior Constable D Moore (First Respondent) Commissioner of New South Wales Police (Second Respondent) District Court of New South Wales (Third Respondent)

FILE NUMBER(S): CA 40742/07

COUNSEL: In person (Applicant) K Richardson (First and Second Respondents)

SOLICITORS: In person (Applicant) I V Knight, Crown Solicitor (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/12/1031

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 11 October 2007

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40065/08

BEAZLEY JA GILES JA CAMPBELL JA

Ex tempore 4 July 2008 Owen Noel Sullivan v Senior Constable D Moore & Ors Judgment 1 BEAZLEY JA: The Court is in a position to give judgment in this matter now. 2 Mr Sullivan was convicted in the Local Court of driving a motor vehicle without a licence. A fine was imposed. He appealed to the District Court pursuant to the provisions of s 11 of the Crimes (Appeal and Review) Act 2001. Under that section there is an appeal from the Local Court to the District Court as of right. 3 The nature of the appeal is governed by s 18 of that Act and provides that an appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings. There is an exception not relevant to this matter. Fresh evidence may be given, but only by leave of the District Court. Mr Sullivan's appeal to the District Court was heard by Berman DCJ. His Honour dismissed the appeal and confirmed the conviction. 4 Mr Sullivan has now sought to appeal by way of a third amended summons filed on 24 April 2008 to this Court under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Section 10(1) of the Crimes (Sentencing Procedure) Act provides that without proceeding to a conviction, a court that finds a person guilty of an offence may make any one of the orders specified in the subsection, including, "(a) an order directing that the relevant charge be dismissed". 5 Whilst it may be that Mr Sullivan's purpose in relying on s 10(1)(a) was to put before the Court the order that he would submit ought to have been made in the matter, s 10 does not provide any right of appeal to this Court, and his reliance upon it is misconceived. There is no right of appeal to this Court from an appeal heard by the District Court under s 11 of the Crimes (Appeal and Review) Act. 6 The Court alternatively considered whether it might nonetheless proceed with the matter on the basis that it was an application for judicial review under s 69 of the Supreme Court Act 1970. The first and second respondents properly acknowledged that this Court does have supervisory jurisdiction under s 69. However, that jurisdiction is constrained by the provisions of s 176 of the District Court Act 1973 which provides, "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court". 7 Section 176 is in the form of a privative clause, so that despite its apparent absolute terms, it is properly construed so that this Court would retain a supervisory jurisdiction if the District Court acted in excess of jurisdiction. See R v Hickman [1945] HCA 53; (1945) 70 CLR 598. See also Schokman v DPP [2001] NSWCA 334, especially at [21]. 8 The circumstances surrounding the offence in this case were that Mr Sullivan, at the time that he was asked to produce his drivers licence, did not hold a New South Wales drivers licence. He held a drivers licence issued in the United Kingdom. Berman DCJ determined, however, that that did not entitle him to drive in New South Wales. He could only drive in New South Wales without a New South Wales drivers licence if he was not a permanent visa holder. 9 This finding was based upon a combination of the provisions of cl 55 of the Road Transport (Driver Licensing) Regulation 1999 and cl 9 of the Migration Reform (Transitional Provisions) Regulation 1994 (Cth). The effect of the latter regulation was that because Mr Sullivan had at one time held an Authority to Return, he was thereby taken to have been granted a permanent visa to enter Australia and to remain indefinitely in Australia. For that reason, the provisions of cl 55 of the Road Transport (Driver Licensing) Regulation did not apply so as to permit him to drive in Australia by using a drivers licence issued overseas. 10 His Honour's determination in this regard was a finding made in the exercise of the jurisdiction of the District Court in determining, on the appeal under s 11, whether the offence had in fact been proved. Being a finding made within jurisdiction, it follows that there was no excess of jurisdiction in the District Court's determination. 11 Accordingly, having regard to the provisions of s 69 as constrained by the operation of s 176, as explained, there is no basis in this Court for the grant of relief by way of judicial review and, accordingly, the summons must be dismissed.