Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 Hearing dates: 18 September 2017 Decision date: 27 September 2017 Before: Basten JA at [1]; Leeming JA at [35]; White JA at [96] Decision: 1. Dismiss the proceedings brought by the applicant.

2. Order that the applicant pay the costs of the Director of Public Prosecutions in this Court.

3. If the grant of bail to the applicant made on 18 September 2017 does not now cease to have effect pursuant to s 12(1)(b) of the Bail Act 2013, bail is hereby revoked. Catchwords: JUDICIAL REVIEW – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – challenge to conviction – challenge to sentence of imprisonment to be served by way of intensive correction order – whether District Court had failed to rehear the proceedings – whether denial of procedural fairness in re-imposing further sentence imposed in Local Court – whether jurisdictional error established

CRIME – appeal – procedure – nature of rehearing in District Court – sentence of imprisonment to be served by way of intensive correction order – how stay on execution of sentence effected by Crimes (Appeal and Review) Act 2001 (NSW) s 63 and Supreme Court Act 1970 (NSW) s 69C Legislation Cited: Bail Act 2013 (NSW), s 12 Crimes (Administration of Sentences) Act 1999 (NSW), ss 83, 90, 91, 162, 164, 254; Pt 3, Div 3 Crimes (Appeal and Review) Act 2001 (NSW), ss 5, 11, 17, 18, 19, 20, 28, 63, 68 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 12, 69, 71; Pt 2, Divs 2, 3 Crimes Act 1900 (NSW), ss 61N, 447A Criminal Appeal Act 1912 (NSW), s 18 District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), ss 69, 69A, 69B, 69C, 69D Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Firth v Director of Public Prosecutions [2013] NSWCA 403 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Hansell v Director of Public Prosecutions (NSW) [2016] NSWCA 311 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 Morgan v District Court of New South Wales [2017] NSWCA 105 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74 Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22 Whiteside v Director of Public Prosecutions [1999] NSWCA 454 Yousaf v Director of Public Prosecutions [2012] NSWCA 397 Category: Principal judgment Parties: Warren Douglas Gelle (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: G James QC; WS Tuckey (Applicant) A Mitchelmore (First Respondent)