NSW Caselaw
New South Wales Court of Appeal
CITATION: DPP v Arab & Anor [2009] NSWCA 75 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 10 March 2009
JUDGMENT DATE: 9 April 2009
JUDGMENT OF: Beazley JA at 1; Macfarlan JA at 41; Handley AJA at 42
1. Order that the record of the District Court sitting in its criminal jurisdiction at Sydney on 20 August 2008 in the proceedings in the matter of the appeal of Mohammad Hossein Arab 08/21/0171 be removed to this Court and the orders of Hughes DCJ of that date purporting to annul the convictions and sentences imposed in the Local Court and remitting the matters to the Local Court be quashed; 2. Declare that the District Court fell into jurisdictional error in deeming Mr Arab's appeal to the District Court to be an appeal against the Local Court's refusal of an annulment application pursuant to the Crimes (Appeal and Review) Act 2001, s 4; DECISION: 3. Declare that the District Court fell into jurisdictional error in purporting to determine the appeal as an appeal under the Crimes (Appeal and Review) Act 2001, s 11A; 4. Order that the matter be remitted to the District Court to be determined according to law; 5. No order as to costs.
CATCHWORDS: CRIMINAL LAW – plea of guilty entered in the Local Court –application under Criminal Procedure Act 1986, s 207 to withdraw guilty plea – application refused and conviction entered by Local Court – appeal against conviction made to the District Court under Crimes (Appeal and Review) Act 2001, s 12 – conviction annulled pursuant to Crimes (Appeal and Review) Act 2001, s 11A – appeal by the Crown to the NSWCA – jurisdictional error made by District Court in purporting to determine the appeal as an appeal under Crimes (Appeal and Review) Act, s 11A - CRIMINAL LAW – District Court deemed appeal to be an appeal against the Local Court's refusal of an annulment application pursuant to Crimes (Appeal and Review) Act 2001, s 4 – conviction annulled – appeal by the Crown to the NSWCA – no entitlement to make an application for annulment under the Crimes (Appeal and Review) Act 2001, s 4 – phrase "not in appearance" in s 4 can only mean "does not appear" – jurisdictional error made by District Court in deeming appeal in to be bought under s 11A
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