Anson v DPP

4 On 14 July 2000 the representative of the Director of Public Prosecutions accepted that all charges under s 178B of the Crimes Act had been laid at a time which was beyond the six month period provided for in s 56 of the Justices Act. 5 Before the Magistrate the nub of the argument on behalf of the plaintiff was that if the offences charged were not indictable they must be summary and the time limitation of six months provided for in s 56 of the Justices Act applied to them. It was further argued on behalf of the plaintiff that the offences charged under s 178B of the Crimes Act could only be dealt with summarily because of the provisions of s 8 of the Criminal Procedure Act 1986 (the Criminal Procedure Act). 6 The Magistrate reserved her decision. It was delivered on 14 July 2000 and in the course of her judgment she said: "The prosecutions view is that the matter commenced as an indictable charge and as it did, it does not change its nature and s 56 does not apply. … In my opinion paragraph 8 (ie s 8 of the Criminal Procedure Act) clearly distinguishes between summary offences and indictable offences that are dealt with summary. I think the question is that is required to be dealt with summary or may be dealt with summary. (explanatory parenthesis added) I am in agreement with the prosecution case that it starts off as an indictable offence and does not change character and therefore it remains an indictable offence and the provisions of s 56 don't apply." 7 The decision of the Magistrate had two consequences. First, that the charges were not to be dealt with summarily, unless either the prosecutor or the plaintiff agreed to them being so dealt with; second, that there was no possible argument as to the availability of a defence under s 56 since that section applied only to summary offences. 8 The plaintiff has sought leave to appeal from the decision of the Magistrate referred to in paragraphs six and seven above. The summons filed by the plaintiff seeks: 1. An order granting leave to appeal. 2. An order quashing the order of (the Magistrate) made on 14 July 2000 declaring that offences under s178B of the Crimes Act 1900 are indictable offences. 3. An order that the offences allegedly committed by the plaintiff under s 178B of the Crimes Act 1900 are wholly summary offences. 4. An order that the matters be remitted to the learned Magistrate to hear and determine in accordance with the orders of this Honourable Court. 9 As explained in the Statement of Grounds, the relief sought raises two distinct matters for decision: The first is procedural; the second, substantive. 10 The first or procedural matter for decision involves two questions:

(i) Is the determination of the Magistrate an interlocutory order within the meaning of s 104(4) of the Justices Act 1902 (the Justices Act)?

(ii) If it is, should leave to appeal be granted? In this regard the Crown does not oppose the granting of leave to appeal should the first question be determined in favour of the plaintiff. 11 The second or substantive matter for decision is whether an offence under s 178B of the Crimes Act is an indictable or wholly summary offence. 12 This depends on the effect of the amendments to the Criminal Procedure Act 1986, which came into force on 1 January 2000.

Section 104(4) of the Justices Act, 1902 13 Section 104 of the Justices Act 1902 regulates the circumstances in which an appeal can be taken from a magistrate. Section 104(4) provides: "A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings on a ground that involves a question of law alone, but only with the leave of the Supreme Court." 14 For the determination of the Magistrate to fall within appeal provisions of s 104(4) of the Justices Act it must be able to be characterised as an interlocutory order and the proceedings must be summary. What is and is not an interlocutory order within the meaning of that subsection is far from clear. As was said by Sheller JA in Regina v Lethlean (1995) 83 A Crim R 197: "The cases have set no bright line for differentiating between what are truly orders in the sense described in Steffan and Stuart, and what are rulings in the sense described in Powch, Groves and Rogerson" (supra at 202) 15 This statement by Sheller JA echoes what was said by Gibbs J in Licul v Corney (1976) 50 ALJR 439 at 443-444 and is reminiscent of what was said by Lord Denning MR in Salter Rex & Co v Gosh (1971) 2 QB 597, namely that the question: "…is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point." (supra at 601) 16 However, whether the decision made by the Magistrate in the present case falls within the description "interlocutory order" is not the subject of express authority, so the advice tendered by Lord Denning MR is not of assistance. 17 In aid of his submission that the decision made by the Magistrate fell within the ambit of s 104(4) of the Justices Act, counsel for the plaintiff relied on s 5F of the Criminal Appeal Act 1912 (the Criminal Appeal Act) as a statutory provision in pari materia. This section relevantly provides that the Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal "against an interlocutory judgment or order given or made in proceedings to which (the) section applies" (s 5F(2)). Section 5F(3) provides that any party other than the Attorney General or Director of Public Prosecutions in proceedings to which the section applies: "…may appeal to the Court of Criminal Appeal against any interlocutory judgment or order made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal; or (b) if the judge, justice or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." 18 In Regina v Powch (1988) 14 NSWLR 136, it was held that a refusal to direct the recall of a Crown witness for further cross-examination was not an interlocutory judgment or order. Yeldham J, with whom Carruthers and Wood JJ agreed, said that such a refusal: "Is no more than … a ruling on a procedural matter, and is not in any sense an interlocutory judgment or order." (supra at 138) 19 The decision in Regina v Powch (supra) was followed in Regina v Edelsten (1989) 18 NSWLR 213, in which it was held that advance rulings on the admissibility of evidence, the sufficiency of evidence and the adequacy of the counts charged were not interlocutory judgments or orders within the ambit of s 5F. Lee CJ at CL said that: "… there are no procedures at all established by rule or otherwise which can give rise to such judgments in criminal matters. In the Supreme Court all matters pertaining to the trial are, as a matter of long-established practice, left to be dealt with by the judge at the trial…"(supra at 216)

and "If matters involving the trial were dealt with before trial by a judge and a decision given, that was for convenience only, and the judge at the trial, whether the same judge or another, could reverse that decision." (supra at 239)

and "In my opinion s 5F has the effect that the 'interlocutory judgment or order' referred to is a judgment or order of a judge or magistrate made in 'proceedings for the prosecution of offenders on indictment' which, before the insertion of s 5F could be taken (directly or indirectly) to the Court of Appeal. For present purposes it is sufficient to say that s 5F thus does not include rulings by a judge of the Supreme Court given in advance of matters affecting the trial." (supra at 230) 20 Whilst the ultimate decision arrived at in Regina v Edelsten (supra) accords with later decisions of the court, the restrictive approach to the construction of s 5F which is inherent in the statements of the law by Lee CJ at CL does not, in my opinion, accord with such decisions. 21 Regina v Steffan (1993) 30 NSWLR 633 affirmed that a ruling on evidence made in advance of a trial pursuant to the procedure prescribed by District Court Rules Pt 55 rules 10 and 11, was not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act, and hence no appeal lay from such a ruling. The Court pointed out that the ruling could be altered during the course of the trial and that: "It … cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this court after a conviction." (supra at 639) 22 Although the result in Regina v Powch (supra) was accepted by the Court of Criminal Appeal in Regina v Steffan (supra), the distinction that had been drawn in that case between a ruling on a procedural matter and a judgment or order was not accepted (at 636). The Court said: "(t)he distinction …between a ruling on a procedural matter and a judgment or order would not always be an accurate one, as some procedural matters (such as an application for a change of venue or for a separate trial) would usually produce an interlocutory order, whereas others … clearly would not…" (supra at 636) 23 Furthermore, although the criteria referred to in paragraph 21 (above) are clearly appropriate matters at which to look when considering whether to characterise a decision as an interlocutory judgment or order, the fact that such decision cannot on its making be entered in the records of the court as a judgment or order is not of itself sufficient to prevent the decision in question from falling within the concept of interlocutory judgment or order as that phrase is used in various of the subsections of s 5. This in my opinion is clear from the result in Regina v Bozatsis (1997) A Crim R 296, to which reference is made below. 24 In Regina v Groves (NSWCCA 2 April 1990, unreported) leave to appeal against a refusal to stay a prosecution was refused where the application for leave was based on what was said to have been the obligation of the trial Judge to reject identification evidence because it was so weak. Clarke JA said that the court should be slow to permit parties to pursue applications where the matters the subject of the application are more properly the subject of decisions at the trial which are amenable to appeal after conviction.

25 In Barton v Walker (1979) 2NSWLR 740, Samuels JA, with whom Reynolds and Glass JJA agreed, said that in declining to accede to an application to disqualify himself: "… a judge who simply continues to sit does not thereby make a 'decree'. Nor does he make an order, I would think, if he announces that he will sit or gives reasons for deciding to do so." (supra at 751) 26 To a like effect is Rajski v Wood (1989) 18 NSWLR 512. 27 Regina v Rogerson (1990) 45 A Crim R 253, was concerned with a refusal by a trial judge to disqualify himself on the ground of apprehended bias. The court held that such a refusal was not a judgment or order in respect of which an appeal would lie under s 5F of the Criminal Appeal Act. In reaching this conclusion, Gleeson CJ said: "Of course, such a refusal might constitute a ground of appeal against the ultimate decision in the case in the course of which such an application was made, but …a refusal by a judge to accede to a submission that he disqualify himself is not itself a judgment or order of the court. I am respectfully of the view that the reasons that are given for that conclusion in Barton v Walker (1979) 2 NSWLR 740 are cogent." (supra at 255) 28 However, in Regina v Rogerson (supra), Gleeson CJ, with whom Wood and Brownie JJ agreed, also said that a decision: "…in relation to a refusal to vacate the hearing date stands in somewhat different position. There may well be room for considerable doubt as to whether a refusal to vacate a hearing date or grant an adjournment constitutes an interlocutory judgment or order." (supra at 255) 29 In Regina v Waterhouse (1992) 62 A Crim R 59, consideration was given to the existence of a right of appeal against a refusal to quash an indictment or to grant a stay of the trial. Mahoney JA, with whom Hunt CJ at CL and Abadee J agreed, said: "I am prepared to assume for present purposes that a right of appeal lies in relation to those matters, and I do so without finally deciding the matter. The terms of s 5F(3) are general, and I would require significant reasons for holding that the width of the discretion is to be read down so as to exclude in the case of an accused the right of appeal against such a matter." (supra at 64)

30 In Regina v Baker (NSWCCA 5 April 1993, unreported), leave to appeal was granted against the refusal of a trial judge to grant an adjournment of a trial, in circumstances in which the effect of granting the application would have given rise to a change of venue. 31 Attorney General for NSW v Stuart (1994) 34 NSWLR 667 was concerned with an order to a stranger to proceedings that documents be produced to the court as a consequence of the rejection of a claim of public interest immunity which lead to an order being made for the production of documents by a stranger to the proceedings. Such a decision and its consequences were held to fall within s 5F of the Criminal Appeal Act. Hunt CJ at CL, with whom Smart and Studdert JJ agreed, said that an order of the kind in question: "…is one which commands the stranger to do something. It may be entered in the court record and action may be taken on it in the event that it is disobeyed… the fact that it is or may also amount to a ruling upon evidence does not exclude such an order from the terms of s 5F." (at 673) 32 In Regina v Bozatsis (supra), the court considered whether a decision or ruling to exclude all the evidence upon which the Crown might seek to rely to prove its case, which had the consequence of effectively bringing to an end the prosecution, fell within s 5F of the Criminal Appeal Act. The matter for decision arose out of a notice of motion which sought orders to that effect. The Court of Criminal Appeal considered whether it had jurisdiction under s 5F. It held that it did and that the jurisdictional issue should be resolved in favour of the Crown, ie, the appeal was allowed. Gleeson CJ, with whom Meagher JA and Bruce J agreed, said: "What is important is not [the] use of the word 'order', but the character and effect of the decision he [the trial judge] was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents to the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order." (supra at 304) 33 The significance of this decision, in my opinion, is to confirm that it is not necessary that the decision itself should be capable of being entered in the record of the court. Rather it highlights that if the effect of the decision is ultimately to give rise to an outcome which may form part of the court record, such antecedent decision is within the ambit of s 5F. 34 In Regina v Cheng (1999) 48 NSWLR 616 it was held that a ruling in favour of an accused person that there was no case to answer did not fall within the ambit of s 5F(2), even though the consequence of such a decision would be to lead to the jury being directed to acquit. This decision turned on the fact that it would require clear words in a statute to confer a right of appeal on the Crown in a criminal proceeding and that the words of s 5F(2) did not constitute such clear words. 35 Spigelman CJ, with whom Dunford and Kirby JJ agreed, having referred to the decision of Gibbs J in Licul v Corney (supra), which were affirmed by Gibbs J with the concurrence of Mason and Murphy JJ in Port of Melbourne Authority v Anshun Pty Ltd [No 1] (1980) 147 CLR 35 at 38, said that: "It may be taken to be accepted that the relevant test of an interlocutory judgment is on legal effect rather than practicality." (supra at 618)

and "The proposition that the Crown does not have a right of appeal against acquittal is too well-established for us to interpret the words used by parliament in s 5F(2) as extending to a direction to acquit by a trial judge… it constitutes a fundamental principle of such significance that only clear and unambiguous language would lead to the conclusion that an appeal by the Crown lies against such a direction. The language of s 5F(2) is not of that character. It is frequently the case that general words must be read down in order to comply with the actual or presumed intent of parliament. Absent clear language, however, parliament should be presumed not to interfere with the fundamental principle to which I have referred." (supra at 622)

No such basis for reading down the words of s 5F(3) exists. Furthermore, what was said by Mahoney JA in Regina v Waterhouse (supra) suggests that s 5F(3) has a wider ambit than s 5F(2). 36 The significance of this decision, in my opinion, is that, although interlocutory, the finding that there was a case to answer did not have the effect of changing any rights of the person the subject of the charges and did not alter the way in which the determination of those rights was to proceed thereafter. 37 The decision in Regina v Lethlean (1995) 83 A Crim R 197 was concerned with an application for leave to appeal by an accused person from the rejection of a submission that there was no prima facie case. In that case it was held that a ruling on a submission that there was no case to answer was like a ruling on the admissibility of evidence and hence did not fall within s 5F(3). Sheller JA, with whom Allen and Hulme JJ agreed, highlighted the problem of differentiating between what are truly orders on the one hand and what are rulings on the other. The decision by the trial judge that there was a case to answer did not change the rights of the accused person nor give rise to the adoption of any different procedure for the determination of the guilt or otherwise of the accused. The decision that there was a case to answer simply meant that the trial proceeded to a determination by the jury as to the guilt or otherwise of the accused person. 38 In Regina v Saunders (1994) 72 A Crim R 347. Smart J, with whom Gleeson CJ and Studdert J agreed, examined the history in relation to interlocutory orders antecedent to s 5F and concluded that an order for a separate trial is an interlocutory order (supra at 353). A decision to sever the counts against an accused is likewise an interlocutory order. 39 From the foregoing it can be seen that the characterisation of what was done in the course of the proceedings does not depend upon the use of the word "judgment" or the word "order". What has to be looked at is the character and effect of the decision. 40 What was done by the magistrate in the present case was interlocutory in that it did not determine finally the guilt or innocence of the plaintiff. However, the effect of the decision was at least as profound as the refusal of an adjournment, the refusal to sever counts in an indictment, or the ordering of separate trials. Furthermore, the decision had the effect of changing fundamentally the procedure for the determination of the guilt or innocence of the accused. Moreover, it had the effect of exposing the plaintiff to a more severe penalty than would be the case were the matters to be determined summarily. The decision was a precursor to an entry on the record that would follow necessarily from the decision that the plaintiff should be committed for trial, an outcome which would form part of the record of the Local Court, in much the same way as the decision by the trial judge in Regina v Bozatsis (supra) would necessarily lead to an acquittal being directed and then entered on the record of the Court. 41 It also had the effect of rejecting any claim by the plaintiff to a dismissal of the charges based on s 56 of the Justices Act. Whether an argument based on s 56 of the Justices Act was one which could succeed on summary trial of the matters or not, the fact is that the determination that the matters should be dealt with on indictment meant that the argument could not even be raised at the later trial. 42 The decision by the magistrate involved the construction of the statutory provisions to which reference is made below. The decision was one of law and was such as to give rise to "a ground that involves a question of law alone" as that phrase is used in s.104(4) of the Justices Act. 43 If the matters which were the subject of the decision of the Magistrate could not be tested at the present stage of the proceedings they would be lost to the plaintiff. They could not be raised in a demurrer to any indictments. Finally, the procedure under which and circumstances in which the plaintiff would be tried if the decision of the magistrate could not be challenged would be fundamentally different. There would be trial by jury, not by a judicial officer sitting alone. The effect of such a difference is no less than the effect resulting from separate trials being ordered (Regina v Saunders (supra)) or the rejection of a claim for public interest immunity (Attorney General for NSW v Stuart (supra)). 44 The effect of the decision of the Magistrate is in my opinion quite different from a ruling on the admissibility of evidence (Regina v Powch (supra); Regina v Steffan (supra)). It is also different from the rejection of a submission that there is no prima facie case (Regina v Lethlean (supra); Regina v Cheng (supra)) in the same way as it is different from the refusal of a trial judge to disqualify himself (Regina v Rogerson (supra)). 45 The decision by the magistrate will find its way into the record of the Local Court since the result of the decision will be a formal order that the plaintiff be committed for trial. 46 For the foregoing reasons I am of the opinion that:

(i) the decision of the Magistrate involved a question of law;

(ii) such decision had the effect of depriving the plaintiff of a summary trial;

(iii) such decision should be characterised as an interlocutory order to which s 104(4) of the Justices Act applies. 47 For the foregoing reasons, I am of opinion that it is within the jurisdiction of the court to grant leave to appeal against the decision of the Magistrate. As the Crown has conceded that in the event that the court should determine that what was done by the Magistrate fell within s 104(4) of the Justices Act, leave to appeal should be granted, I am of the opinion that it would be appropriate so to do and I formally grant such leave.

Is an offence under s178B of the Crimes Act able to be dealt with on indictment, or is it wholly summary? 48 Section 178B of the Crimes Act was inserted by an amendment effected in 1951 (Act No. 31 of 1951). 49 Section 8 of the Criminal Procedure Act 1986 provides that: "(1) The following offences must be dealt with summarily: (a) an offence that under this or any act is required to be dealt with summarily, (b) an offence that under this or any other act is described as a summary offence, (c) an offence (not being an offence that under this or any other act is required to be dealt with on indictment) for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than two years. (2) An offence may be dealt with summarily if it is an offence that under this or any Act is permitted to be dealt with summarily or on indictment."

50 The penalty provided for an offence under s 178B is less than 2 years imprisonment, namely imprisonment for one year. Therefore, it was argued on behalf of the plaintiff that as the parenthetical clause in s 8(1)(c) had no application to the instant case, the effect of s 8(1)(c) was to mandate a summary hearing of the proceedings. 51 However, Part 2, Division 3 of the Criminal Procedure Act on its face makes a different provision. 52 Section 18 of the Criminal Procedure Act provides that: " The objects of this division are: (a) To require the indictable offences listed in Table 1 to Schedule 1 to be dealt with summarily unless the prosecuting authority or the person charged with the offence concerned elects to have the offence dealt with on indictment; and (b) to require the indictable offences listed in Table 2 to Schedule 1 to be dealt with summarily unless the prosecuting authority elects to have the offence concerned dealt with on indictment" 53 Part 2 of Table 2 of the Criminal Procedure Act deals with offences relating to property whether under the Crimes Act or the common law. It sets out a list of offences which includes s 178B where the value of the property or the amount of money in question in respect of which the offence is charged does not exceed $5,000. 54 The question for decision is whether the offences under s 178B of the Crimes Act with which the plaintiff stands charged are governed by s 8 of the Criminal Procedure Act or by s 18 and Table 2 of such Act. 55 The plaintiff contends that there is an inconsistency between the two provisions and that when s 8 of the Criminal Procedure Act was amended it impliedly repealed the provisions of s 18 and Table 2 to the extent that they applied to s 178B of the Crimes Act. 56 The question of construction depends upon determining the parliamentary intention. In determining such intention regard must be had, inter alia, to the fact that both provisions appear in the same Act and to the general form of s 8 of the Criminal Procedure Act on the one hand and the specific nature of s 18 and Table 2 of that Act on the other hand. 57 The basic rule of construction is that, absent express words of repeal, an existing statutory provision is not repealed or derogated from unless an intention so to do is necessarily to be implied. 58 The usual approach is that unless there are very strong grounds for an implied repeal it should not be found to have occurred. In construing two acts of parliament that are said to be inconsistent the general presumption is that parliament intended that both pieces of legislation should operate. Where the provisions that are said to be inconsistent are both in the same enactment a conclusion that there has been an implied repeal is even more difficult to arrive at than where two different acts of parliament are being construed. In both cases every attempt should be made to reconcile what is said to be the conflicting or competing statutory provisions. One mechanism for achieving this is to treat an apparent inconsistency as an exception to a general rule stated in the competing or conflicting acts or parts of the one act. 59 In the present case there is a provision which requires an offence which carries a penalty of less than two years imprisonment to be dealt with summarily. Section 8 is quite explicit, all such offences "must" be dealt with summarily. Section 18 and Part 2 of Table 2 to Schedule 1 of the same Act requires the prosecution of offences against property, which include offences under s178B, to be dealt with summarily unless the prosecuting authority elects to have such offences dealt with on indictment. 60 The general provision in s 8 should, in my opinion, be read as being subject to the exception provided for in that part of the Act which makes specific provision in relation, inter alia, to s178B of the Crimes Act. So read, the two provisions of the Act, although introduced at different times, are not inconsistent. 61 The consequence of such a construction is that the prosecuting authority has the right of election in relation to the procedure by which the relevant charges will be heard and determined. 62 In the instant case the prosecuting authority has elected to have the charges against the plaintiff under s178B dealt with on indictment. There has been no argument put that the election so to do was, in effect, exercised in the negative at an early stage in the proceedings before the Magistrate and that, as a consequence, it was not thereafter open to the prosecuting authority to make an election to have the offences dealt with on indictment. 63 In the absence of any such argument I do not think it necessary or appropriate to examine the question of negative election and its effect, if any, on a later positive election. 64 For the foregoing reasons I am of the opinion that the procedure for prosecuting an offence under s 178B of the Crimes Act is governed by the provisions of s 18 and Part 2 of Table 2 to Schedule 1 of the Criminal Procedure Act. 65 Accordingly, I am of opinion that orders 2, 3 and 4 in the summons of 11 August 2000 should be refused. 66 Orders:

1. Leave given to the plaintiff to appeal in respect of the order made by the Magistrate on 14 July 2000.

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