Solicitors:
Gibson Howlin Lawyers (Plaintiff)
RSPCA NSW (First Defendant)
Crown Solicitor's Office (Second Defendant)
File Number(s): 2022/65774
Decision under appeal Court or tribunal: Local Court
Date of Decision: 11 July 2022
Before: Degnam LCM
File Number(s): 2018/96298
[2]
Ex tempore Judgment - revised
HIS HONOUR: By a notice of motion filed in Court by leave on 12 July 2022, the plaintiff seeks an order in the nature of the writ of habeas corpus pursuant to s 71 of the Supreme Court Act 1970 (NSW) and that he be released from custody "pending any other lawful order of the Court or another Court having jurisdiction to make any order of detention". The defendant is Natalie Will, in her capacity as an Inspector of the Royal Society for the Prevention of Cruelty to Animals NSW ("the RSPCA"), who was the prosecutor of the charges that were heard in the Local Court that give rise to this application. The notice of motion also identifies the New South Wales Commissioner of Corrective Services as a defendant ("the Commissioner"). The Commissioner made a submitting appearance.
The matter came before me yesterday, 12 July 2022, sitting as the Duty Judge in Common Law. An affidavit in support of the notice of motion was read on the application, that had annexed to it some documentation that is relevant to the application. On 8 February 2022, following a contested hearing, Magistrate Degnan ("the Magistrate") found the plaintiff guilty of two counts of serious cruelty to a dog, in contravention of s 530(1) of the Crimes Act 1900 (NSW). I understand that at the hearing the plaintiff conceded that he had killed a dog by repeatedly stabbing it with a pitchfork and hitting it on its head with a mallet. A central issue was whether, at the time that the plaintiff carried out those acts, he had the necessary element of intent required by s 530(1), namely, an "intention of inflicting severe pain" when killing the dog.
Brighton v RSPCA NSW [2022] NSWSC 957 | Case summary | Zoe
At the time of the hearing in the Local Court, the plaintiff was at liberty, bail having been dispensed with. The Magistrate adjourned the matter to 19 May 2022 for a sentence hearing. The plaintiff's status was maintained. On 7 March 2022, the plaintiff filed a summons in this Court appealing the Magistrate's findings of guilt ("the summons") contending two grounds of appeal:
"1. With respect to both counts, the Court improperly conflated recklessness to the level of intention and reasoned improperly by drawing inferences of intention that were not open to be drawn, contrary to the reasoning of the High Court in Zaburoni v The Queen (2016) 256 CLR 482;
2. Further, and in the alternative, with respect to both counts, there was no evidence before the Court upon which it could properly find that the appellant had the actual subjective intention of inflicting severe pain upon the animal, as opposed to intending merely to kill the animal."
The plaintiff contended that both grounds raise a question of law alone and therefore leave is not sought in the summons. At the first return date on 17 March 2022, the plaintiff sought expedition of the hearing. The Registrar listed the matter for hearing on 22 August 2022.
Following the sentence hearing on 19 May 2022, the Magistrate adjourned the matter to 11 July 2022, when his Honour handed down a sentence of imprisonment for an aggregate term of 3 years and 2 months, with a non-parole period of 2 years.
Immediately following the handing down of the sentence, the plaintiff made an application for a stay of its execution, pending the determination of the appeal to this Court, pursuant to s 63 of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA"). The application was opposed by the defendant. Section 63 relevantly provides as follows:
"63 Stay of execution of sentence pending determination of appeal
(1) This section applies to -
(a) any sentence, and
(b) …
in respect of which an appeal or application for leave to appeal is made under this Act.
(2) The execution of any such sentence, … is stayed -
(a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or
(b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or
(c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.
…"
The Magistrate determined that the matter did not come within the terms of section 63(2) of CARA and refused the application. The following day the plaintiff made this application and, so I am informed, filed an appeal against conviction in the District Court as well.
I note that the matter has a lengthy history in this Court, although that is of little relevance to the current application. The proceedings before Magistrate Degnan were by way of a re-hearing. The two counts were originally heard by Magistrate McAnulty in 2019, the plaintiff being convicted of both and sentenced. He appealed to this Court. The appeal was upheld by Rothman J and the conviction quashed: Brighton v Will [2020] NSWSC 435; Brighton v Will (No 2) [2020] NSWSC 925. The defendant was granted leave to appeal to the Court of Appeal: Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355; Will v Brighton (No 2) [2021] NSWCA 8. The Court of Appeal found error in the Magistrate's interpretation and application of certain defences that had been relied upon by the defendant and upheld by Rothman J, but in Will v Brighton (No 2), at [3], stated that it was:
"… deeply concerned that there had been no proper determination of the existence of the mental element of the offences before the Local Court magistrate, on the proper interpretation of s 530 of the Crimes Act 1900 (NSW), as elucidated in the principal judgment of this Court."
Accordingly, the matter was remitted to the Local Court to be determined according to law.
[3]
The plaintiff's submissions
The plaintiff submitted that, pursuant to s 63(2)(a) of CARA, a stay of execution of the sentence automatically applies because the appeal to this Court has been lodged, with the consequence that he must be released forthwith.
The first qualification to s 63(2)(a), which is elaborated in s 63(2)(b), namely, that if the appeal is the subject of an application for leave then a stay can only follow a grant of leave, does not apply, because the appeal, as filed on 7 March 2022, is not expressed to require a grant of leave. The two grounds raise questions of law alone and, pursuant to s 52(1) of CARA, the plaintiff has a right of appeal so that a grant of leave is not required.
The second qualification to s 63(2)(a), which is elaborated in s 63(2)(c), does not apply, because the plaintiff was not in custody on 7 March 2022, being the date that the appeal was filed in this Court, and therefore the Bail Act 2013 (NSW) is inapplicable.
The plaintiff submitted that his only option for seeking his release from custody pending the determination of this appeal is pursuant to s 63(2) of CARA. He cannot make a release application pursuant to the Bail Act. He is excluded from doing so in the Local Court by s 62 of the Bail Act, because he has already made his first appearance in this Court pending the hearing of his appeal. Although he has an appeal pending in the District Court, the ambit of that Court's jurisdiction is set by s 65 of the Bail Act, and the plaintiff is outside it. This Court's jurisdiction to hear a release application is confined by s 66(1) of the Bail Act to a rehearing from another Court.
[4]
The defendant's submissions
The defendant submitted that the two grounds patently raise questions of mixed fact and law. Accordingly, pursuant to s 53(1) of CARA, a grant of leave by this Court will be required in due course in order for the plaintiff to prosecute his appeal. The qualification of 63(2)(b) thus applies, so that the plaintiff cannot rely upon s 63(2)(a).
[5]
Submissions in reply
The plaintiff submitted in reply that, if the Court determined that whether the hearing of his appeal would necessitate a grant of leave is not to be determined by the terms of his summons but rather by the substantive nature of the two grounds, then it was open to this Court to make a qualified grant of leave to appeal in respect of one or both grounds, thus satisfying the requirements of s 63(2)(b) of CARA. In addition, the plaintiff indicated his intention to file an amended summons that will raise a third ground, which is one of mixed fact and law. He was prepared to seek leave to tender the amended summons in Court so that the third ground could also be the subject of a determination of a grant of leave to appeal for the purposes of the application for a stay of execution of the sentence.
The defendant submitted in reply that it was inappropriate for the Court, sitting in duty on an application pursuant to s 63(2) of CARA to make a ruling on whether either of the two grounds constituted a question of law alone, or to determine that one or more grounds raises a question of mixed law and fact and then grant leave to appeal for the purposes of the hearing of the appeal in August.
[6]
Consideration
The two grounds of appeal, in terms, refer to the evidence that was tendered at the hearing of the two charges. In that sense, both grounds rely at least to a degree upon the evidence, if only to frame the relevant questions of law.
That is not determinative of the question of whether the grounds raise questions of law alone or requests of mixed law and fact, but it is indicative of the need to have regard to the evidence on the record in order to make that determination.
Unsurprisingly, a transcript of the proceedings before his Honour on 11 July 2022 is unavailable on such short notice. As well, the annexures to the affidavit in support do not include the transcript of the hearing before the Magistrate or his Honour's reasons for the findings of guilt that prompted the appeal in this Court, or any of the exhibits.
Accordingly, even if I concluded that it was open to this Court to inquire into the substantive nature of the two grounds so as to then make a determination as to whether the plaintiff would require leave to appeal and, if so, determine whether leave should be granted, the record that is necessary to make those determinations is not before the Court. In any event, in my opinion, to do so would require the Duty Judge to venture beyond the scope of the type of matters that are suitable for urgent consideration.
The same considerations apply equally to the defendant's position. The grounds advanced do not patently raise questions of mixed law and fact and I cannot determine whether they do or not without recourse to the aforesaid material and without going beyond the reasonable constraints of matters to be determined by the Duty Judge.
[7]
Determination
The terms of the summons do not include an application for leave. The defendant contests that proposition, but I conclude that, for the purposes of s 63(2)(a), the summons is a "notice of appeal ... duly lodged" and, for the purposes of s 63(2)(b), the appeal is not "the subject of an application for leave". It may be that, in due course, a determination is made that leave is required, and if so, not granted. However, that is not the case at this time.
Accordingly, I determine that the sentence of imprisonment that was handed down by the Magistrate on 11 July 2022 is to be stayed pending the determination of the appeal filed by the plaintiff on 7 March 2022 or until further order of this Court.
[8]
Orders
I make the following orders:
(1) The sentence imposed on the plaintiff on 11 July 2022 by Magistrate Degnan be stayed until the determination of the appeal to this Court that was commenced by a summons filed by the plaintiff on 7 March 2022.
(2) The plaintiff is to be released by the second defendant, namely, the New South Wales Commissioner of Corrective Services, forthwith.
[9]
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Decision last updated: 19 July 2022