R v Mahaffy [2016] NSWSC 1085

Supreme Court New South Wales

Medium Neutral Citation: R v Mahaffy [2016] NSWSC 1085 Hearing dates: 28 July 2016 Date of orders: 28 July 2016 Decision date: 28 July 2016 Jurisdiction: Common Law Before: Rothman J Decision: (1) That the rules of court be dispensed with so that the notice of leave to appeal to Court of Criminal Appeal be treated as also an appeal to or application for leave to appeal to Court of Appeal; (2) The appellant shall file and serve a properly drawn notice, as if there were separate proceedings, separately commenced, in the Court of Appeal within 7 days hereof; (3) The appellant shall serve the plaintiff/prosecutor before Her Honour Justice Schmidt, with both notices of appeal upon which he seeks to rely, including a notice of appeal in the Court of Criminal Appeal and the notice in accordance with order 2 above; (4) Pursuant to s 61 of the Bail Act, bail granted, on condition that the appellant is to be of good behaviour and is not to approach or communicate with the plaintiff/prosecutor in the proceedings before Her Honour Justice Schmidt; (5) Orders of the Court issued on 18 December 2015, hereby stayed; (6) Appellant is entitled to be released forthwith; (7) The appeal is removed to the Court of Appeal; (8) These orders may be entered forthwith. Catchwords: CONTEMPT – Appeal Bail sought – jurisdiction to grant bail considered – exercise of jurisdiction assigned to Court of Appeal – possible hiatus in power of Court of Appeal to re-sentence – operation of s 101(5) of Supreme Court Act 1970 – appeal rendered nugatory if stay or bail not granted. Legislation Cited: Bail Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Constitution of the Commonwealth Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Judiciary Act 1901 (Cth) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Burrell v The Queen [2008] HCA 234; (2008) 238 CLR 218 DPP (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 R v Jones; R v Hili (No 2) [2010] NSWCCA 195; (2010) 242 FLR 64 Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595 Stewart v The King [1921] HCA 17; (1921) 29 CLR 234 Category: Principal judgment Parties: Regina (Crown) David Mahaffy (Applicant) Attorney-General of New South Wales (Intervener) Representation: Counsel: No Appearance (Crown) E James (Applicant) D Kell (Intervener)