Yousaf v Director of Public Prosecutions [2012] NSWCA 397

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yousaf v Director of Public Prosecutions [2012] NSWCA 397 Hearing dates: 30 October 2012 Decision date: 06 December 2012 Before: McColl JA (at [1]), Meagher JA (at [2]), Barrett JA (at [3]) Decision: 1. Order that the amended summons filed on 24 September 2012 and the notice of motion filed on 18 October 2012 be dismissed. 2. Order that the sentence imposed on Kamal Yousaf by the Local Court and confirmed by the District Court by order made on 25 May 2012 take effect on and from today, 6 December 2012. 3. Order that Kamal Yousaf pay the costs of the Director of Public Prosecutions of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - application for review of decision of the District Court in its criminal jurisdiction on appeal from the Local Court - review limited to jurisdictional error - complaint that evidence wrongly rejected does not entail jurisdictional error - complaint that original decision not supported by the evidence does not entail jurisdictional error - complaint of apprehended bias may entail jurisdictional error - where judge commented on the fact that litigant employed different lawyers for two related matters - where judge gave "Parker warnings" following which appeals were withdrawn - neither action of judge provided any ground for reasonable apprehension of bias - application for order that District Court release exhibit ordered not to be returned - no basis shown for Court of Appeal to make such order - CRIMINAL LAW - procedure - sentencing - where offender has not commenced to serve custodial sentence imposed by Local Court - statutory power for Court of Appeal to order recommencement of sentence upon determination of application for judicial review of District Court appeal decision. Legislation Cited: Crimes (Administration of Sentences) Act 1999 Crimes (Appeal and Review) Act 2001, ss 18(1), 18(2), Division 1 of Part 3 Crimes (Domestic and Personal Violence) Act 2007, s 13 District Court Act 1973, ss 4(1), 9(2), 127(1), 166, 176 District Court Rules 1973, Part 53 rules 1(1), 9 Supreme Court Act 1970, ss 69C, 69D Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Craig v v South Australia [1995] HCA 58; (1995) 184 CLR 163 Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Elias v The Director of Public Prosecutions [2012] NSWCA 302 Garde v Dowd [2011] NSWCA 115 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 Spanos v Lazaris [2008] NSWCA 74 Whiteside v Director of Public Prosecutions [1999] NSWCA 454 Category: Principal judgment Parties: Kamal Yousaf - Applicant Director of Public Prosecutions - First Respondent District Court of New South Wales - Second Respondent Representation: Applicant in person Ms C A Webster SC - First Respondent Applicant in person S C Kavanagh - First Respondent I V Knight, Crown Solicitor - Second Respondent File Number(s): 2012/173560 Decision under appeal Date of Decision: 2012-03-15 00:00:00 Before: Keleman SC DCJ File Number(s): 2010/329591