Carly Anne Coles v Director of Public Prosecutions

Supreme Court of NSW|2022-07-19|Before: Yehia J

Solicitors: Legal Aid Commission (Plaintiff) Director of Public Prosecutions (First Defendant) File Number(s): 2022/0086128

Judgment

On 5 September 2020, Ms Carly Anne Coles ("the plaintiff") was charged in Broken Hill with aggravated break and enter contrary to s 113 of the Crimes Act 1900 (NSW) ("Crimes Act") and unlawfully possessing property contrary to s 527C(1)(a) of the Crimes Act. She was later charged with larceny contrary to s 117 of the Crimes Act.
On 25 May 2021, the matter came before the Local Court at Broken Hill. On that date, Ms Coles' solicitor, Mr Steven Keith Wright, sought and was granted leave to withdraw from the matter. Following this, the Magistrate committed the matter to the District Court for trial.

Legislative Framework

Although the error of law is not identified in the Amended Summons, it is accepted that the question is adequately set out in the plaintiff's written submissions at paragraph 17.
The error relied upon is the Magistrate's failure to ascertain whether the plaintiff was pleading guilty or not guilty to the offences before committing the plaintiff for trial in the District Court.
Section 95(4) of the Criminal Procedure Act 1986 (NSW) ("CPA"), provides that: Before committing an accused person under this section, the Magistrate must ascertain whether or not the accused person pleads guilty to the offences that are being proceeded with.
The first defendant concedes that the Local Court erred in law by failing to comply with s 95(4) before committing the plaintiff, who was unrepresented, for trial in the District Court.

Procedural History

After being arrested, the plaintiff was charged with offences including:
Aggravated Break, Enter with Intent (knowing person is present), contrary to s 113(2) of the Crimes Act; and
Larceny, contrary to s 117 of the Crimes Act.
The matter was mentioned in the Local Court at Broken Hill several times from 6 September 2020 up until the committal on 25 May 2021. On some occasions, the plaintiff was represented. At other times, she was un-represented.
A charge certificate was filed on 16 February 2021. On that day, Legal Aid appeared for the plaintiff and told the Magistrate that legal aid had been applied for. On 14 April 2021, the Legal Aid Commission again appeared for the plaintiff and the matter was given a case conference date of 5 May 2021 and adjourned to 25 May 2021. A case conference did not occur, and Legal Aid subsequently withdrew.
On 25 May 2021, the plaintiff was un-represented. The solicitor appearing for the Director of Public Prosecutions asked the Court to commit the plaintiff for trial and referred her Honour specifically to s 98 of the CPA.
Pursuant to s 98 of the CPA, if an accused person is not represented by an Australian legal practitioner, the Magistrate must not commit the accused person for trial or sentence unless the Magistrate is satisfied that the accused person has had reasonable opportunity to obtain legal representation for, or legal advice about, the committal proceedings.
That inquiry was made by the Magistrate, and the plaintiff said that she thought she had done everything required of her by the Legal Aid Commission and that they would be representing her. The inquiry under s 98 does not, however, relieve the Magistrate from the mandatory requirement under s 95(4).
At no stage did her Honour seek to "ascertain" whether or not the plaintiff wished to plead guilty in respect of the proceedings as was required by s 95(4) of the CPA.
The transcript records that the Magistrate adjourned for a short period to consider the matter and then delivered a judgment with reasons as to why her Honour was satisfied that the plaintiff had a reasonable opportunity to obtain legal representation as was required by s 98 of the CPA. Her Honour then committed the plaintiff to the District Court at Broken Hill.

Plaintiff's Submissions

The plaintiff submits that the error in committing the matter to trial without ascertaining whether the plaintiff was pleading guilty or not guilty was an error involving a question of law alone. The plaintiff's submissions address observations made by his Honour Beech-Jones J (as his Honour then was) in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 about the meaning of a "question of law alone" which identified that a question of law alone does not include a mixed question of fact and law.
The plaintiff submits that the error was solely one of law, as the Magistrate simply failed to undertake the inquiry required by s 95(4) of the CPA. It was not that the Magistrate misapprehended a factual issue about how the plaintiff was pleading.
The plaintiff does not contend that the Magistrate erred in their consideration of s 98 of the CPA but submits that the decision to commit the matter to the District Court was based exclusively on that consideration and failed to consider the plaintiff's intention to plead guilty or not guilty under s 95(4) of the CPA.

Defendant's Submissions

The first defendant concedes that the Local Court erred in law by failing to comply with s 95(4) of the CPA before committing the plaintiff for trial in the District Court.

Consideration

Leave to appeal is required under s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA"). In relation to the discretionary decision to grant leave to appeal and an extension of time, the plaintiff made several submissions which can be summarised as:

Although the matter has a long history, the plaintiff is yet to be arraigned and plea negotiations have already taken place, hence the "fragmentation of the process of criminal justice will be minimal";
The appeal has utility as Ms Coles will be entitled to enter pleas in the Local Court and obtain the benefit of the 25% discount under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA");
The error of law the subject of this appeal cannot be remedied by the District Court sentencing exercise as the discount is mandatorily reduced given the matter was committed to the District Court;
The delay in bringing the appeal is explained by various events which are outlined in the Affidavit of Steven Keith Wright, affirmed on 10 June 2020, including delays regarding service by the first defendant; and the need for the plaintiff's lawyer to obtain a transcript of committal proceedings and a full brief of evidence; and
The defendant will not suffer prejudice if the application to extend time or leave to appeal is granted due to the limited ambit of the appeal and the likelihood of resolution with pleas of guilty in the Local Court given the results of plea negotiations already undertaken.

I am satisfied, in the circumstances of this case, that leave to appeal should be granted.
Clearly, the Magistrate failed to ascertain whether or not the plaintiff was to plead guilty to the offences that were being proceeded with. This was not a case where the Magistrate misapprehended a factual issue about how the plaintiff was pleading or wrongly applied the law to decide a fact about whether the plaintiff was pleading guilty or not. The Magistrate simply did not undertake the inquiry required under s 95(4) of the CPA. I am satisfied that this was an error that involved a question of law alone within the meaning of s 53(3) of the CARA.
Before I make the necessary orders, it is important to note that committal for trial to the District Court impacts upon the sentencing discount available to an offender on sentence. The application of the discounts is mandatory and there are no relevant exceptions in this case.
Under s 25A(2) of the CSPA, a court must not apply any other discount for the utilitarian value of a guilty plea other than the discount provided for by Division 8.
The failure to undertake the inquiry required under s 95(4) of the CPA potentially deprived the plaintiff of a 25% discount for an early plea of guilty, as the discount available is mandatorily reduced by s 25D(2)(b) of the CSPA once the matter is committed to the District Court for trial.
The affidavit of Steven Wright, affirmed on 10 June 2022, states (at [32]-[34]) that the plaintiff has instructed him she will plead guilty in the Local Court to two charges and be committed for sentence. The facts have been agreed between the parties for that purpose. Although pleas of guilty could be entered by the plaintiff in the District Court, she would not receive the maximum discount on sentence which applies if pleas of guilty are entered in the Local Court. In that context, the grounds for relief are established.

Orders

I make the following orders: 1. I grant the plaintiff an extension of time under Part 51B Rule 5(5) of the Supreme Court Rules 1970 (NSW) to file the summons in this matter; 2. I grant the plaintiff leave under s 54(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal against the order of Magistrate Trad made in the Local Court at Broken Hill on 25 May 2021, which committed the plaintiff to trial; 3. Pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW): 1. I set aside the order of Broken Hill Local Court on 25 May 2021 committing the plaintiff to trial; and 2. I remit the matter to the Local Court at Broken Hill on 26 July 2022 for committal according to law. 1. No order as to costs, with the intention each party bear their own costs.

Amendments 19 July 2022 - typographical error in paragraph [5] 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: 19 July 2022

Crimes Act 1900(NSW)ss 113, 117, 527C(1)(a)

Criminal Procedure Act 1986(NSW)ss 55, 95, 96, 98

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