Martin v Office of the Director of Public Prosecutions (NSW)

1. [1]

   I have before me a notice of motion for an urgent stay, or order in the nature of a writ of prohibition, in respect of pending Local Court proceedings in which it is anticipated that the plaintiff will, subject to any adjournment or other order, be sentenced tomorrow, 2 April 2026.

Procedural history

1. [2]

   The prosecution of the plaintiff proceeded over three days, 1 July, 1 and 2 December 2025. The plaintiff was convicted of two offences.

2. [3]

   The matter was adjourned to 28 January 2026 for sentence.

3. [4]

   On 22 January 2026 (ie. a little over three weeks after the time for any appeal), the plaintiff filed a summons in this Court seeking an extension of time to appeal his conviction and seeking orders on judicial review quashing the conviction.

4. [5]

   On 28 January 2026, when the matter came before the Magistrate (as his Honour then was), his Honour was invited to proceed on the basis that s 69C of the Supreme Court Act 1970 (NSW) operated as an automatic stay of execution of any sentence imposed as a consequence of the conviction.

5. [6]

   Accordingly, the Magistrate made orders for the further conduct of the sentencing proceedings, but on the basis of an expectation that the execution of any sentence, once imposed, would by automatically stayed.

6. [7]

   It was common ground in the hearing before me that s 69C does not operate that way – as I read s 69C, it applies to judicial review of a determination made by the District Court in appeal proceedings of the kind described in the balance of s 69C(1). If that is correct, there is no automatic stay under s 69C where appeal proceedings are brought in this Court under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘CAR Act’) or where judicial review is sought of a decision of the Local Court. In expressing this view, I make no criticism of those who took a different view of s 69C earlier. I can understand how a person might have read s 69C(1) differently.

7. [8]

   In any event, relief is sought before me against the possibility that s 69C operates as I have indicated. It is undesirable for me, in an urgent duty list, to offer a concluded view beyond observing that there is a prima facie good argument on the text of s 69C that it has no operation in the present circumstances.

8. [9]

   As at the time of hearing before me on 1 April 2026, the Local Court had been asked to adjourn the hearing but had not done so. In fairness, given reliance on a victim’s impact statement, the undesirability of fragmenting criminal proceedings and the interests of the community, there may be reasons why the Local Court might not grant such an adjournment. I offer no view about that save to stress that it is a matter for the Local Court.

Operation of s 63 of the CAR Act

1. [10]

   I drew the parties’ attention to s 63 of the CAR Act and the following two decisions:

   1. (1)

      Balsiene v Department of Housing, New South Wales Land and Housing Corporation [2022] NSWSC 47; and

   2. (2)

      Balsiene and Anor v Department of Housing, New South Wales Land and Housing Corporation [2022] NSWSC 108.

2. [11]

   Section 63 of the CAR Act is as follows:

3. [12]

   In the first of the Balsiene decisions, Garling J was presented as duty judge with a situation where, as at 25 January 2022, the plaintiffs had been convicted in the Local Court and the matters were expected to proceed to sentence on 31 January 2022. The plaintiffs had filed a summons seeking leave to appeal in this Court and sought an injunction to stay the proceedings in the Local Court or to stay the execution of sentence until the appeals to this Court were determined.

4. [13]

   Justice Garling observed at [6] that “it is important, and a matter of public interest, that criminal proceedings [of the kind before his Honour] are brought to a close as soon as is possible before any appeal is heard in this Court and the issues raised for appeal are determined”.

5. [14]

   His Honour went on to say at [7] to [9]:

6. [15]

   The same matter came before another duty judge three weeks later (after the sentence) on 11 February 2022. The Magistrate on 31 January 2022 had imposed a non-custodial community based order. The plaintiffs sought a stay, the Local Court having expressed some doubt about whether it could treat the filing of the summons prior to the sentence being imposed as effective to bring about a stay.

7. [16]

   Justice Johnson observed that the plaintiffs brought an appeal as of right on a question of law as well as seeking leave to appeal on a question of fact or mixed fact and law. There being an appeal on a question of law alone, Johnson J reasoned as follows:

8. [17]

   His Honour made the following order:

9. [18]

   Implicit in his Honour’s reasoning, it seems to me, is a conclusion that s 63(2)(a) operates in circumstances where an appeal against conviction has been brought prior to sentence, such that upon the sentence being imposed it is stayed. I am inclined to agree with that conclusion. Section 63(1) is not confined to appeals against sentence – it applies to a sentence “in respect of which” an appeal or application for leave to appeal is made. If a sentence is imposed in respect of a particular conviction and an appeal has already been brought against that conviction, it seems to me that this is apt to be described as an appeal in respect of the sentence. A coherent operation of s 63 supports that conclusion.

10. [19]

    Ms Caristo who appears for the NSW Office of the Director of Public Prosecutions, draws my attention to the practice of bringing an urgent appeal in a higher court – usually the District Court – and then approaching the Local Court the same day seeking bail.

11. [20]

    While I recognise that practice, and while I recognise that practice often will address the issue, it seems to be that that does not control the operation of s 63. It seems clear enough that, if an appeal is brought against conviction and a sentence is imposed, the appeal would be in respect of the sentence if the summons bringing the appeal were amended to seek orders that the sentence also be set aside if the conviction is set aside.

12. [21]

    Accepting that to be the case, it is implicit in any appeal against conviction that a sentence imposed in respect of that conviction should be set aside. It seems to me that, in those circumstances, as soon as a sentence is imposed in respect of a conviction, it is possible to say immediately upon that sentence being imposed that an appeal in respect of the sentence is made if there is an extant appeal against conviction.

13. [22]

    My attention has also been drawn to s 63(2)(c). While these provisions are attended by some doubt, it appears to me that s 63(2)(a) and (c) operate as follows: the appeal is stayed when notice of appeal is duly lodged (per subpara (a)), except that if the situation is one in which an appellant is in custody when the appeal is made, then the execution of sentence is stayed when the appellant becomes entitled to be released in the manner set out in the balance of subpara (c).

14. [23]

    Clearly this contemplates as a possibility a situation in which a sentence is imposed while an appellant is in custody, and if no appeal is made as at that time, then the execution of the sentence is not stayed until the defendant becomes entitled to be released on one of the bail provisions described in the balance of the subsection. This, in an ordinary situation in which no appeal against conviction has been brought prior to sentence, would provide the circumstance in which the practice that Ms Caristo made submissions about operates. Nevertheless, that does not control the scope of s 63(1) and what it means to conclude that there is a sentence in respect of which an appeal is made.

15. [24]

    As I have indicated, having concluded that an appeal against conviction carries with it the necessary implication that the appeal, if successful, will lead to the setting aside or quashing of any sentence that is imposed, an appeal against conviction will be apt to be described as an appeal “in respect of” a sentence as soon as that sentence is imposed. I stress that these conclusions are reached in the context of an urgent matter in a duty list. I am very grateful to the assistance I have received. As I have indicated, I see these matters as attended by some doubt.

Extension of time

1. [25]

   I note that the appeal against conviction is out of time under the Part 51B of the Supreme Court Rules 1970 (NSW). As I have indicated, it was filed a little over three weeks after the material date. However, given that the material date was the very end of December, the vacation period provides an adequate explanation for delay, and I propose to grant an extension of time. I do so in part because I can see scope for debate about whether s 63 operates if an appeal as of right under s 52(1) is not brought within the time required by s 52(2), that is, subject to any extension, the period prescribed by the rules of court.

2. [26]

   It seems to me that upon granting an extension of time, there will be valid appeal brought as of right and presently on foot at the time any sentence is imposed, if a sentence is imposed tomorrow. I am conscious that the plaintiff seeks judicial review relief including an order in the nature of a writ of prohibition against the Local Court Judge as well as bringing an appeal. However, the discretionary considerations identified by Garling J apply equally to the question whether this Court should exercise its judicial review powers to intervene between conviction and sentence. Given the view I have reached about s 63, such intervention relying on the powers in s 69 of the Supreme Court Act is not necessary. I do not propose to exercise those powers.

3. [27]

   Accordingly, I propose to refuse the relief sought in the plaintiff’s notice of motion before me, but grant an extension of time to bring the appeal against conviction and include a notation that the application for a stay or order in the nature of prohibition is refused on the basis of the Court’s conclusion that an extant appeal against conviction under s 52 of the CAR Act engages the operation of ss 63(1) and (2) of the CAR Act as soon as a sentence is imposed in respect of that conviction.

4. [28]

   I note, for completeness, that I will be duty judge tomorrow and have sufficient familiarity with the matter that if any urgent application is necessary tomorrow, following the pronouncement of any sentence, it may be practicable for me to deal with it in the duty list tomorrow. That will of course depend on the nature of any application and the other business of the Court at the time.

5. [29]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to Rule 6(2)(a) of Part 51B of Supreme Court Rules 1970, I extend time for the plaintiff to bring his appeal against conviction to 22 January 2026.

   2. (2)

      Refuse the relief sought in the plaintiff’s notice of motion filed 1 April 2026.

   3. (3)

      Note that the plaintiff’s application for a stay or order in the nature of prohibition has been refused on the basis of the Court’s conclusion that an extant appeal against conviction under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) engages the operations of ss 63(1) and (2) of the Crimes (Appeal and Review) Act as soon as a sentence is imposed in respect of that conviction.