I hope I will be forgiven if I deliver a rather short and unlearned ex tempore judgment in this matter, but I think there are good reasons for doing so.
The first is that there has been quite a long delay in this matter, added to, of course, by these pending proceedings in this Court. I do not think I should add to that by way of a reserved judgment.
Secondly, although not entirely in terms of its facts, I think that this matter is doctrinally very largely on all fours with the recent decision of Yehia J in Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960 ('Coles'). I respectfully do not think I can add very much to what her Honour said very recently.
Thirdly, the ground upon which the matter will be decided is conceded by the Crown Prosecutor, a concession which I accept, so in truth there is not an issue requiring resolution before the Court.
So, for all of those reasons, I should be quite short.
[2]
Background
Mr Hijazi - whom I shall call simply the defendant, even though, of course, he is the plaintiff in these proceedings - quite some time ago was charged with a serious drug offence. The matter was making its way through the Local Court, in accordance with the Criminal Procedure Act 1986 (NSW). The Crown served a charge certificate, and there was no trouble or controversy about that: see s 67 of the Criminal Procedure Act. Then there was also a case conference, and there is no trouble about that: see s 70 of the Criminal Procedure Act. There never was, however, a case conference certificate: see s 74 of the Criminal Procedure Act. Now, the reasons for that are a little unclear, and I confess an unfamiliarity with the practicalities of the Local Court.
Suffice to say, eventually the matter came before Magistrate Williams on 3 March 2022. By that stage the solicitor for the defendant was appearing simply by way of email - I do not make any criticism of that, and I am told, and I accept, that that is an orthodox way to do things in the Local Court.
Magistrate Williams was dissatisfied with the progress of the matter. His Honour ultimately said, "I will adjourn it for seven days to 10 March, for filing the case conference certificate and also for committal. Must proceed otherwise will be committed, pursuant to s 76."
That was a reference to the section within Ch 3, Pt 2, Div 5 of the Criminal Procedure Act whereby a Magistrate, if having reached a state of satisfaction about unreasonable failure by the legal representative for a defendant, and also having considered the interests of justice, may, in the absence of a case conference certificate, even so commit for trial or sentence.
What happened next was that, in accordance with that one week adjournment, the matter came before Magistrate Moody on 10 March 2022.
On that occasion, the solicitor for the defendant appeared in person, and sought a two week adjournment. The position of the Crown was neither to consent to nor oppose that course. The learned Magistrate resisted the two week adjournment and said, "It's been on for so long." The solicitor for the defendant then sought a one week adjournment, and explained that the defendant had been unwell, and seemingly was unable to get an AVL booking from a particular gaol.
Ultimately, the learned Magistrate refused the adjournment, and ended up committing the charges for trial. The matter was listed, quite some months ago now, for arraignment in the District Court.
[3]
Submissions and Determination
It is conceded by the Crown before me that, before doing that, the Magistrate was required, pursuant to s 95(4) of the Criminal Procedure Act to, "ascertain whether or not the accused person pleads guilty to the offences that are being proceeded with".
It is also conceded by the Crown that that essential precondition to action pursuant to s 95, or indeed pursuant to s 76, had not been fulfilled.
There is an importance underlying this. It is not, as Yehia J has recently explained in Coles, mere formalism. That is because the Early Appropriate Guilty Plea (EAGP) structure that Parliament imposed by way of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) provides mandatory cut-off points in terms of discounts for pleading guilty, based quite rigidly on the timing of entry of pleas.
In other words, if a person is wrongly (to use a generic term) committed for trial, thereafter their opportunity to receive the benefit of having pleaded in the Local Court is irrevocably gone. There is no flexibility built into the EAGP system that would cover such cases.
As I say, the point of the plaintiff in these proceedings (brought pursuant to ss 53(3) and 55 of the Crimes (Appeal and Review) Act 2001 (NSW)) about s 95(4) of the Criminal Procedure Act is conceded. I accept that concession. I say that in accordance with Yehia J's judgment in Coles. I also think the recent judgment of the Court of Criminal Appeal in Stuart v R [2022] NSWCCA 182 ('Stuart') has a role to play.
Although one soundly appreciates that the Local Court is a very busy forum, as Stuart has shown, and as the rigour of the EAGP system shows, it is important as a judicial officer to take the time to make sure that one knows precisely what a defendant is pleading guilty to, and what they are pleading not guilty to.
It is also important to take time to make sure that, in a setting like s 95, where a person might end up suffering a forensic disadvantage, a precondition like s 95(4) is complied with.
Having said that, as one can see from the words of the subsection, there needs to be a process of "ascertainment". There does not need to be a rigid, ritualistic approach. As counsel and I discussed, one can readily posit examples in which it would be futile to insist that some sort of ritual be engaged in.
I do think that ground (ii) question as to the plea is established, and I do think that the right order is remittal. That is also not resisted by the Crown. I am satisfied that remittal to the Local Court would not be an exercise in fruitless formality, because I am told by both ends of the Bar Table that there are negotiations ongoing. In other words, it is quite possible that the defendant will enter a plea of guilty, at least to some charges, and thereby get the fruits of the entry of that plea in the Local Court.
The other aspect is how far I should go in determining the ground (i). That is really founded on s 76 of the Act. Both parties are content for me not to. And I think, in a sense, for me to embark upon that obiter dicta would be unnecessary.
I believe it is enough to say that, although I think it is probably right that Magistrate Williams was, rightly or wrongly, as it were (and I say that to accommodate a possible argument by the defendant about procedural fairness being satisfied with regard to the preconditions in the section) exercising the function under s 76; I also think that there is a serious issue as to whether that satisfaction can be de facto "delegated" to a subsequent Magistrate.
In other words, I think that there is at least a serious argument that, if the second Magistrate in this case was indeed proposing to commit, pursuant to s 76, in the absence of a case conference certificate, then that second Magistrate would have needed to have formed their own satisfaction of the matters required to be reflected upon in the section, before that step could be undertaken.
But, to repeat myself: I simply raise that as a reflection, nothing more. By consent, I do not purport to determine that ground.
The final aspect is that I was kindly provided with some refined consent orders. I will not read them out now. I think that would be excessive formalism as well. I will simply indicate to the parties that I have endorsed them, and they will be available as soon as reasonably practicable, in sealed form, from the Supreme Court Registry.
[4]
Orders
I make the following orders by consent:
1. The Court grants the plaintiff an extension of time under Part 51B rule 5 (5) of the Supreme Court Rules to file the summons in this matter.
2. The Court grants the plaintiff leave under s. 54(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal against the order of Magistrate Moody made in the Local Court on 10 March 2022, which committed the plaintiff to trial.
3. The Court, pursuant to s 55(3)(a) of Crimes (Appeal and Review) Act 2001 (NSW);
1. sets aside the order of Central Local Court on 10 March 2022 committing the plaintiff to trial; and
2. remits the matter to the Downing Centre Local Court for committal according to law with the matter to be mentioned on Thursday 15 September 2022 at the Downing Centre Local Court.
1. No order as to costs, with the intention each party bear their own costs.
[5]
Amendments
13 September 2022 - Name of counsel for the defendant corrected.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 September 2022
Parties
Applicant/Plaintiff:
Abbas Hijazi
Respondent/Defendant:
Director of Public Prosecutions
Legislation Cited (4)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)