Collier v Director of Public Prosecutions

Judgment 1HODGSON JA: On 7 April 2010, Mrs Collier, the plaintiff in these proceedings, was in the Local Court at Mudgee convicted and sentenced on six traffic offences. 2On 23 June 2010, Walmsley SC DCJ dismissed an application by Mrs Collier for leave to appeal from her conviction, deciding that Mrs Collier had pleaded guilty to the offences and that she should not be given leave to withdraw her plea. 3By her amended summons in this Court, Mrs Collier seeks an order in the nature of certiorari quashing the judgment of Walmsley DCJ, and consequential relief.

Circumstances 4Exhibit A before the primary judge included court copies of the six Court Attendance Notices by which the proceedings in the Local Court were commenced against Mrs Collier under s 172 of the Criminal Procedure Act 1986 ( CP Act ): Application Book (AB) 333-346. 5Three of these notices alleged offences occurring between 1.40 pm and 1.45 pm on 30 June 2009 at Surry Hills (never licensed person driving motor vehicle, using unregistered Class A motor vehicle, and driving uninsured vehicle), and three alleged offences occurring between 2.03 pm and 2.05 pm on 30 June 2009 at Paddington (same offences). 6Exhibit A before the primary judge also included a fact sheet that was before the Local Court (AB 347-351), setting out the police allegations as to what had happened. These allegations included: (1) At about 1.40 pm, police observed an identified Holden vehicle travelling in Albion Street, Surry Hills towards Flinders Street, turn into Flinders Street, then turn into Moore Park Road, and then turn into Greens Road, Paddington, where it stopped following activation of a warning device on the police vehicle. (2) The vehicle was unregistered. (3) Mrs Collier was the driver and was unlicensed. (4) Mrs Collier was then issued with a Field Court Attendance Notice for three offences. (5) Mrs Collier was told she was not to drive the vehicle and would need to arrange for it to be towed. (6) Less than five minutes later, police observed the same vehicle being driven along Greens Road by Mrs Collier. (7) Police indicated for Mrs Collier to stop, and she was arrested and taken to Surry Hills police station. (8) The Field Court Attendance Notice was cancelled, and Mrs Collier was charged with the six offences at the police station. 7The copy Court Attendance Notice shows a return date 22 July 2009 before a Downing Centre Local Court. 8On 14 July 2009, an email was sent to the Local Court in the following terms: "Dear Registrar, My name is Marion Louise Collier and I have two traffic matters (totalling 6) which are to come before your Court Tuesday next 22nd July. I have been informed by a Mr. Richard Wise Solicitor of Mudgee NSW, that since I live at Gulgong (3300 kms.) from Sydney" (that's clearly an error) "and wish to plead guilty with an excuse that it would be possible to have these matters transferred to Gulgong. Mr. Wise mentioned the 6th August 2009, and since the Gulgong Court does not alway [sic] sit, I presume that this must be the next date. Also as I explained when I rang your court this morning, My printer is not printing correctly, so you would not clearly understand if I printed and faxed to you. If this is not appropriate by e-mail, could you kindly let me know, my telephone number is" (and then it is set out) "Thanking you, Your's [sic] Sincerely, Mrs Marion Louise Collier". 9By letter dated 23 July 2009 to Mrs Collier, the Local Court at Downing Centre advised her that on 22 July 2009 the six matters had been adjourned to the Local Court at Gulgong "for Plea". 10On 6 August 2009, the matter came before Magistrate Stevenson in the Local Court at Gulgong. A solicitor Mr Wise appeared. According to the transcript, this was said: WISE: Your Honour, if I could just call through some of the matters that I'm involved in this morning, Starting with number 2, the matter of Marion Collier. HER HONOUR: She's not here? WISE: That is so your Honour. I received a telephone call from her indicating that she is unwell and she has asked for an adjournment of the proceedings. As I understand it, she is actually in for sentence having pleaded to certain matters at the Downing Centre. HER HONOUR: That's right. Right and then she says here she is waiting to be admitted to hospital. WISE: I have no further particulars your Honour. I think that if the matter could be put over to sentence to 8 October, I might be able to sort something out for her in the interim if that is suitable to your Honour. HER HONOUR: All right. You might like to remind her that she'd better not drive, she's already got two unlicensed matters, I don't know what else is on her record but it wouldn't be a good look. Okay, 8 October? WISE: Yes thank you, your Honour. HER HONOUR: Yes, for sentence yes. And then the transcript records: "ADJOURNED FOR SENTENCE TO THURSDAY 8 OCTOBER 2009." 11On 8 October 2009, the matter again came before Magistrate Stevenson at Gulgong. A Mr Flynn mentioned the matter for Mrs Collier. According to the transcript, this was said: FLYNN: I actually saw Mrs Collier myself a few days ago and I was going to ask for this matter to be adjourned to obtain some medical reports anyway it appears that she is suffering from - she had a lung biopsy a few weeks ago, she's now got a lung infection on that, she's having problems where she just hasn't been diagnosed properly so I think I need to get some reports in any case. HER HONOUR: All right. They were pleas of guilty weren't they as I understand it but no facts tendered? Pleas of guilty at the Downing Centre by letter. FLYNN: Yes, yes. That's correct. HER HONOUR: All right." 12The transcript notes that the matter was adjourned for sentence to 10 December 2009. 13On 10 December 2009, the matter was again before Magistrate Stevenson at Gulgong. According to the transcript before the trial judge, the following exchange occurred: HER HONOUR: Marion Collier, are you representing yourself today? ACCUSED: Yes your Honour. It is your Honour isn't it? HER HONOUR: Yes. No that's fine I'll deal with that matter shortly. LIST INTERPOSED ACCUSED: Excuse me can I just mention something? HER HONOUR: Mm. ACCUSED: Which might help out. I actually - my name's Marion Collier. I issued a subpoena in this matter. I was at a respiratory physician and got it done at Orange last week and I was told by the Registrar when she had to check it up that it was in for mention and Mr Wise when I saw him it was the first time I got to see him, had told me, had given me some paperwork and so I really don't know what's going on today but I need to get-- HER HONOUR: You're actually in for sentence today. ACCUSED: Well I suppose that's right. Everyone gets a different story. But - no offence your Honour - but the other thing is that I need to get access to that subpoena if that's possible-- 14Magistrate Stevenson then spoke to a barrister Mr Day, who was in the court, and asked if he could spend five minutes to advise Mrs Collier. 15Later that day, according to the transcript, the following was said: HER HONOUR: Mr Day did you have a chance to have quick word to that lady? Mr Day now appears for the Accused DAY: Yes I have spoken to Ms Collier your Honour- HER HONOUR: Thank you very much. DAY: --for the drive matters your Honour. I return the court's file. HER HONOUR: Thank you. DAY: Your Honour, I explained to her that the matter is listed for sentence today and there's six driving matters. She told me that she attended at the Local Court registry at Orange last week and spoke to Registrar Steele who apparently consulted the computer and informed Ms Collier that the matter was listed for mention today. Apparently also at the time a subpoena was issued for the production of documents relating to her condition, not so much a medical condition perhaps another condition, associated with the circumstances of the commission of one of the series of offences, there's three and three making it six your Honour. Your Honour, she is not in a position to proceed to sentence today. I explained to her the procedures of the court and that your Honour may be inclined to grant her an adjournment to the next sittings here at Gulgong. HER HONOUR: Okay. She sent a letter on 14 July to the registrar - it was at the Downing Centre saying she wanted to plead guilty and have the matter transferred here. DAY: What she has indicated to me your Honour, the pleas would be guilty. It's a rather interesting situation where the matter has some history to it your Honour, apparently. HER HONOUR: She's not seeking to traverse her pleas is she? ACCUSED: No I'm not. Yeah no, not really no I just want to explain why it happened. DAY: She is not traversing the plea your Honour, she is endeavouring to obtain material to explain her subjective circumstances at the time of the - at least one of the offences if not both. Your Honour she tells me also she has spoken to - she's not traversing her - she's also indicated that she has consulted with a duty solicitor, I think Mr Wise. It seems that she is eligible for Legal Aid and I did give her some advice, it wasn't of a legal nature your Honour, it was that she should contact Legal Aid and get representation to assist her on sentence. HER HONOUR: Well certainly it's two unlicensed and it does carry a - could carry a gaol sentence. 16Later again on that day, according to the transcript, the following was said: ACCUSED: Maybe I could speak for a second if that's all right? HER HONOUR: Well I'm going to say this. You've got two unlicensed, you've two unregistered and uninsured, that's what I'm focussing on. ACCUSED: Yes your Honour what I'm getting at is that basically the first one the reason why I was doing it and the second was to move the car off the road which was in a bad position and that was all I did. So I'm not denying that there was but I'm denying the facts that they've put in. And the reason that I subpoenaed that document is for the same reason that I have a letter from a doctor which I'll hand up which is basically that I do not have a mental illness, I have a letter from the AFP confirming that the registrar refused to have the matter investigate-- 17The matter was adjourned for sentence to 4 February 2010. 18On 4 February 2010, the matter again came before Magistrate Stevenson at Gulgong. Mrs Collier was unrepresented. According to the transcript, this was said: HER HONOUR: Now in relation to Miss Collier as I understand it sergeant Miss Collier is still seeking Legal Aid but not here. Miss Collier I can take the matter to Mudgee and you can speak to a Legal Aid solicitor there if you like. ACCUSED: Well what's actually happened, I have got a letter from them. HER HONOUR: Right. ACCUSED: What initially had happened was I put in the application believing because I'd signed the documents that Mr Wise had sent all the necessary documents. I received a letter which I've got a copy here if you want it, dated 23 December sent to me to say that it was knocked back so when I got onto them and said, 'Well I'll send you in the documents" after I found out they hadn't been sent, they said, "No now you've got to appeal", so the twenty-eight days aren't up on the appeal so I'm really basically at this stage seeking an adjournment under s 57. HER HONOUR: No that's okay. So you've lodged your appeal? ACCUSED: Yes I lodged it straight away but I'm worked out-- HER HONOUR: And you don't know when it's going to be heard? ACCUSED: No I worked out that they would've received it 6 or 7 January, maybe the 8th at the latest. HER HONOUR: What about 17 March at Mudgee? ACCUSED: I'm involved in a family law matter in March and it could take up to two weeks. HER HONOUR: Well okay I'll tell you what. Your matter's for sentence on 7 April at Mudgee. ACCUSED: Okay thank you. HER HO'N0UR: All right. ACCUSED: I can leave now? HER HONOUR: Yes thank you. ACCUSED: Did you want a copy of that letter? HER HONOUR: No that's fine thanks. ACCUSED: Thank you. 19The transcript records that the matter was adjourned for sentence to 7 April 2010 at Mudgee. 20On 7 April 2010, before Magistrate Stevenson at Mudgee, Mrs Collier was represented by a solicitor Mr Madden. According to the transcript the following was said: HER HONOUR: yes other matters? MADDEN: Matter number 5 Marion Collier. HER HONOUR: Yes, Ms Collier. MADDEN: Ms Collier is before you in court your Honour, she is coming forward now. In relation to this matter, l am instructed to enter a plea of guilty. HER HONOUR: Thank you. MADDEN: If I may hand up some documents from the Manning Medical Practice and Dr Ronald Perry that may assist your Honour in regard to the submissions thank you. PROSECUTOR: I'll just show my friend before I hand up the facts. There's no objection to the references - facts and record. HER HONOUR: Yes thank you. Is Ms Collier still living in Gulgong? MADDEN: Yes your Honour. PROSECUTOR: Your Honour, I just note from my file that a plea of guilty may have been entered quite a few months ago, I think that would assist my friend and I think that should be brought-- HER HONOUR: 22 July. PROSECUTOR: It was entered back then? HER HONOUR: It was sent up from the Downing Centre. PROSECUTOR: Yes it's just that my file indicates that a plea may have been entered at Gulgong Local Court on 6 August perhaps. HER HONOUR: 6 August was the first time at Gulgong and it was put over to 8 October for sentence. So it must've been indicated at the Downing Centre. PROSECUTOR: Right. HER HONOUR: So what has happened to the car? MADDEN: Yes the car wasn't - isn't owned by my client your Honour, it's owned by her de facto as I understand it. HER HONOUR: So where is that car now? MADDEN: It's at home in the garage. It's still not registered, it's still not on the road other than the brief appearance it made on the road. COUNSEL ADDRESSED HER HONOUR: With the never licensed there's two matters, they would have to - do you have any objection if they're concurrent sergeant? PROSECUTOR: No your Honour. But it's an automatic three years I think-- HER HONOUR: YES THEY'RE EACH THREE YEARS DISQUALIFICATION AND I WILL MARK THEM WITH PROBATION. IT WILL BE A BOND FOR 12 MONTHS WITH PROBATION SUPERVISION BECAUSE IF SHE GETS A ..(NOT TRANSCRIBABLE).. OF DRIVING UNLICENSED IT DOES CARRY A GAOL SENTENCE. IN RELATION TO THE UNREGISTERED VEHICLE IT'S $100, COURT COSTS $76, 28 DAYS TO PAY THAT'S SEQUENCE 2. SIMILARLY, FOR SEQUENCE 3. I AM TAKING INTO ACCOUNT HER ABILITY TO PAY OTHERWISE THEY WOULD BE QUITE LARGER FINES. SEQUENCE 5 - $100, COURT COSTS $76. SO IT'S TWO BONDS WITH PROBATION SUPERVISION, A THREE YEAR DISQUALIFICATION AND FINES. YOU WILL HAVE TO ENTER THOSE DOCUMENTS IN THE OFFICE AND SEE THE PROBATION OFFICER TODAY, THANK YOU. MADDEN: They're 12 months bonds wasn't it your Honour? HER HONOUR: They are, thank you.

Proceedings before the primary judge 21Before the primary judge, evidence was given by Mrs Collier that: (1) The email of 14 July 2009 was sent by her ex-husband without her knowledge or authority at a time when she was ill. (2) She had always maintained her innocence, and that insofar as the transcripts showed her as making statements amounting to admissions, the transcripts were wrong. (3) Significant parts of what was said at the court appearances had not been transcribed. (4) Mr Madden was instructed to plead not guilty, and acted contrary to her instructions in purporting to enter a plea of guilty. 22Evidence was given by Mr Collier that he had sent the email of 14 July 2009 in the name of Mrs Collier, and had not asked her about its contents or shown it to her because she was too unwell. He had been told it was necessary to say that she was pleading guilty, in order to get the matter transferred to Gulgong. 23Also before the District Court was an email from Mr Day to Mrs Collier, confirming that he did not represent her on 10 December 2009 (Exhibit D before the primary judge, AB 93).

Decision of primary judge 24The primary judge outlined the circumstances of the court proceedings. 25Having noted that Mr Madden did not give evidence, and having stated that he did not draw any inference adverse to Mrs Collier because of Mr Madden's absence from the witness box, the primary judge continued: 16. I am persuaded that the record shows without doubt that Mrs Collier did plead guilty to the six offences, although I accept her ex-husband's evidence of the circumstances in which he says he sent the email. The transcript, which I am satisfied is correct, notwithstanding Mrs Collier's submissions to me to the contrary, shows that on several occasions she was present in court and made statements which could only be consistent with her having pleaded guilty or intending to plead guilty. For example, on 10 December 2009 when the Magistrate said, "She is not seeking to traverse her pleas is she?" She said, "No I'm not, yeah, no not really no. I just want to explain why it happened". Then at transcript page 4 on that day she said she was in effect not denying she had driven the car but "denying the facts that they've put in". In that context she referred to a subpoena. A document she subpoenaed consisted of a COPS entry, which she said shows that the police had it in for her and were motivated by malice in certain respects, in the way they dealt with these matters. 26Having thus found that Mrs Collier had pleaded guilty, the primary judge then considered whether she should be permitted to withdraw that plea. He referred to Sagiv v R (1986) 22 A Crim R 73 and Wong v DPP [2005] NSWSC 129; and he continued: 20. I do have difficulty in seeing that there is any defence available to Mrs Collier. There was not a great deal said to me about the merits when this matter was before me last week. It is possible that Mr Wise addressed the merits, but the transcript of his address, as I have observed, was not transcribed. As I understand Mrs Collier's position, she concedes that she drove her car on each of the two relevant occasions but she says the second occasion was to avoid a dangerous situation. 21. On 10 December 2009 at transcript 3 Mrs Collier is recorded as saying, "I just want to explain why it happened". I observe also that in the email originally sent to the Local Court to get the matter transferred, the email said she wished to plead guilty with "an excuse". I infer that her husband had heard from her that there was to be an excuse offered. 22. The fact that she says, "I just want to explain why it happened" or that she had "an excuse", does not of course exclude the possibility that she does have some defence on the merits. But it does, so far as I am concerned, point much more in the direction of her wanting to explain why she did what she did, so as to ameliorate the objective seriousness of the offences. It is not as though she said she was not driving, that someone else was driving or something of that nature. 23. In summary, although I had concerns about the integrity of the pleas as originally entered, it is clear that she was present on several relevant occasions after that, particularly on the occasion when the sentencing exercise occurred and when she had a solicitor acting for her, and, as I found, did plead guilty. But I am very far from being convinced that any miscarriage of justice would occur if I did not allow her to withdraw the pleas of guilty.

Proceedings in this Court 27The claim to this Court is put on the basis of error of law on the face of the record, denial of procedural fairness and denial of natural justice. 28The evidentiary material before this Court included what was before the primary judge, and also some material that was not before the primary judge, which was admitted on the basis that it could be relevant to denial of procedural fairness or natural justice, and to the exercise of discretion in relation to the remedy of certiorari. 29In Mrs Collier's affidavits of 5 August 2010 and 27 August 2010, assertions are made concerning inaccuracies of transcripts, and there is also some material apparently relied on as supporting procedural unfairness towards her. 30In Mrs Collier's affidavit of 27 August 2010, it is stated that Mrs Collier was not shown the paperwork relating to the so-called facts of the New South Wales Police Service until November 2009; and that when, contrary to her instructions, Mr Madden made a guilty plea, she tried to intervene, which was not shown in the transcript. She also stated that there was no record in the transcript before the primary judge of Mr Madden's submission or Magistrate Stevenson's unnecessary adverse remarks against Mrs Collier. It was also stated that the primary judge had denied procedural fairness in not allowing her adequate time to prepare adequate submissions at the conclusion of the case. 31Material in paragraphs 26 to 32 of that affidavit were objected to and not immediately ruled on. In my opinion they are irrelevant and are to be rejected. 32Mrs Collier's affidavit of 29 November 2010 was objected to. In my opinion, the material in that affidavit is irrelevant, except in its references to that part of the transcript of 7 April 2010 which was not before the primary judge, but which is before this Court. 33There were also affidavits of Mrs Collier of 22 December 2010 and 29 March 2011, which are entirely irrelevant to this application. 34There is also documentary evidence before this Court that was not before the primary judge. This includes documents signed by Mrs Collier at the police station on 30 June 2009, and additional transcript for 7 April 2010, which was not before the primary judge. Relevantly, that transcript is as follows: MADDEN: If I may-- HER HONOUR: Yes. MADDEN: --indulge your Honour for reasons I won't put forward. HER HONOUR: Yes. MADDEN: I won't try and do my usual Legal Aid submission. I'd Just like to give some background if I could. HER HONOUR: Mm. MADDEN: Your Honour my client was a different stage of her life at that stage. It was a bad time. There were some family problems, especially in regard to certain things, court, District Court appearances and things she had to fix up there with her daughter at the time where her daughter was making certain problems and saying it was her that was making them. And in regard to the accident of 30 June my instructions are that on that day - there had previously been an accident in 99 and which she went to court. She disputed the fine in regard to that accident. My instructions are that she won that court case and she believed that she had a licence. She paid some sort of a fine but she still had her licence so in that period ensuing up to 30 June she thought that she did have a licence. On that day, yes she knew the vehicle wasn't registered. She didn't drive it very often. It was her de facto's vehicle and I would say the onus was on him to make sure it was registered. She was having some health problems. You can see with what the documents that I tendered to your Honour she wasn't in a good mind frame in regard to that. She was driving to the doctor's appointment at the time when the police pulled her over. When the police pulled her over you can see by the facts that they said, "Don't move the vehicle, you have to get somebody to two [sic] it away". She went to ring on her mobile. Her mobile was flat. Because of her health problems she was having trouble breathing. The car was not in a particularly good spot on a busy road in Sydney. My instructions are she moved that car some 20 metres or so in which time the police had done - came back, so there would've been a period of time so she just didn't do it straight away. She tried to get on the mobile. There was a period of time because the police had come around again and they saw that she had moved the vehicle. Hence the time that she was unlicensed on the second occasion. Your Honour my client is fifty-six years of age. She did complete Year 12. She's worked as a postal clerk. She's worked as an assistant manager in food outlet. She's worked in a call centre for Vodafone. She's currently on a disability pension. I ask your Honour to take into consideration the medication is in regard to anti-depressant which I believe now her life's in a better space, the medication's right. She has fixed up those concerns in regard to the respiratory problems. As I understand the problems in regard to her daughter are fixed up so her life's in a better place than what it was. And if you look at her record you will see there are other unlicensed offences but I'd ask your Honour to take that in consideration that that was the period of time that I'm talking about in her life. There is an early plea and I thank my friend for bringing that to my attention so that needs to be taken into consideration - I ask your Honour to take that into consideration. I understand that there would be - and I've explained to my client that a lengthy suspension of licence in regard to this matter. It would also be dealt with by - could be dealt with by way of fines but I've explained and my client does understand the serious nature, particular with the amount of offences there but I'll repeat and I'd ask your Honour to take into consideration when they happened I that period of time in her life. [sic] There's nothing further. HER HONOUR: The police weren't very happy with her I can see that by the - she was probably having an argument with them too I assume.

Submissions 35Mrs Collier submitted that the primary judge erred in that, having stated he "had concerns about the integrity of the pleas as originally entered", did not apply the principles stated in Sagiv that "in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt, the court should readily grant leave". 36Mrs Collier submitted that the primary judge erred in not taking account of the fact that individual charges were not put to her so as to obtain clear pleas to those charges; and in not taking account of the 23 July 2009 letter to the effect that the matter had been set down for plea to be given by her in the future. 37Mrs Collier submitted that the primary judge denied her procedural fairness in not giving her time for submissions, based on the fact that on the last day of the hearing the DPP's solicitor put up two legal case studies concerning principles on which the primary judge would act; and that the primary judge's offer of a sentence appeal showed he had a preconceived mindset. 38Mrs Collier submitted that she was denied procedural fairness by Magistrate Stevenson, having regard to the transfer of proceedings to Mudgee, the fact that Magistrate Stevenson met in chambers with Mr Wise and Mr Madden on the morning of 7 April 2010, and having regard to Magistrate Stevenson's adverse comment after Mr Madden's submissions.

Decision 39In my opinion, the most significant question raised in this application is whether, on the facts as found by the primary judge, there was an error of law in his determination that a guilty plea had been entered. 40This question calls for consideration of the effect of ss 192 and 193 of the CP Act , which applied to the proceedings brought against Mrs Collier in the Local Court: 192 Procedures where both parties present (1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter. (2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty. (3) Instead of hearing and determining the matter, the court may, if it thinks that the matter should not proceed on the specified day, adjourn the hearing to another day for mention or hearing. 193 Procedure if offence admitted (1) If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly. (2) This section does not apply if the court does not accept the accused person's guilty plea. 41These sections must be read with the definition of "accused person" in s 3 of the CP Act : accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person. 42Also relevant are provisions dealing with the commencement of summary proceedings. Section 172 of the CP Act provides that proceedings are commenced by the issue of a Court Attendance Notice, and s 177 provides for the service of such notices. Section 175 provides for the form of such notice: 175 Form of court attendance notice (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment. 43A previous section to somewhat similar effect to s 192 was s 78 of the Justices Act 1902: 78 Defendant to plead (1) Where the defendant appears at the hearing and has been provided with a written copy of any charges against the defendant, the substance of the information or complaint shall be stated to the defendant, and he or she shall be asked if he or she has any cause to show why he or she should not be convicted or why an order should not be made against the defendant, as the case may be. (2) If he or she thereupon admits the truth of the information or complaint and shows no sufficient cause why he or she should not be convicted or why an order should not be made against him or her then the Justice or Justices present at the hearing shall convict him or her or make an order against him or her accordingly. (3) If he or she does not admit the truth of the information or complaint then the said Justice or Justices shall proceed to hear the prosecutor or complainant and the witnesses whom he or she examines and such other evidence as he or she adduces in support of the information or complaint and to hear the defendant and the witnesses whom he or she examines and such other evidence as he or she adduces in his or her defence. 44The effect of that provision was considered in Ex parte Dunn (1904) 21 WN(NSW) 152. In that case, the applicant before the Supreme Court had been charged upon an information with an offence under the Games, Wagers and Betting Houses Act 1902. At the hearing before a magistrate, the applicant was not present but was represented by counsel. The information was not read nor its substance stated in court, but the clerk asked the applicant's counsel "What is the plea?", and counsel replied "not guilty". The magistrate found the offence proved. The applicant sought prohibition, inter alia on the ground that the substance of the charge had not been stated as required by s 78 of the Justices Act . The Full Court dismissed the application. Darley CJ gave the leading judgment, in which he said: With regard to the second ground it appears that the defendant did not appear in person, but by counsel, as he has a right to do. The defendant not being present in person, his counsel, who was doubtless in possession of the information and summons, was called upon to plead, and he pleaded "Not guilty." It is now complained that the substance of the charge was not stated in Court under s. 78 of the Justices Act. It may be that that section does contemplate cases where a defendant is represented by counsel as well as those in which he is personally present, but it appears to me that if counsel appears, it is his duty, if he has any doubt as to the nature of the charge, to ask that it may be stated, or that the information be read. If instead of doing so he pleads when called upon it seems to me that he waives his right to have the substance of the information stated to him. It would be a mere waste of time. In my opinion, therefore, there is nothing in that point. 45Another case of some relevance is R v Paauwe [1971] 2 NSWLR 235. In that case, the appellant was charged before a magistrate with indictable offences, pleaded guilty to them and was committed for sentence. At Quarter Sessions, without the appellant being formally charged, his counsel stated that he appeared for the appellant and that the appellant adhered to his pleas. The appellant was convicted and sentenced. The Court of Criminal Appeal dismissed the appeal, holding that it was not necessary that the appellant be re-charged before Quarter Sessions. At 238, the court (Manning JA, Lee and Slattery JJ) said this: It is well settled that where a proceeding for a non-indictable offence is instituted by summons, the accused is not required to appear in person and counsel or solicitor may appear for him and plead guilty or not guilty: Ex parte Hughes; Re Moulden (1946) 47 S.R.(N.S.W.) 91; 63 W.N. 293; R v Thompson [1909] 2 K.B. 614 and Ex parte Dunn (1904) 4 S.R. (N.S.W.) 486; 21 W.N. 152. But where the information results in a charge being laid, it is the invariable practice, when the accused is before the magistrate, that the proceedings should commence with the accused being charged. Once charged, his counsel or attorney in his presence, may answer for him: Justices Act , s. 70(3); R v Salisbury and Amesbury Justices; Ex parte Greatbatch (1954) 2 Q.B. 142, at p.147 per Godard L.J. 46In the present case, if on the facts as found by the primary judge there was never an occasion when the substance of the six charges was stated by the court to Mrs Collier or to a legal practitioner representing her, and if it is the case that in those circumstances there was no plea of guilty that could support her conviction and sentence, then in my opinion there would be an error of law that could justify certiorari. 47The primary judge's acceptance of Mr Collier's evidence as to the circumstances in which he sent the email of 14 July 2009 means that the email could not amount to a plea of guilty by Mrs Collier (even if it could otherwise do so). None of the exchanges in court, prior to 7 April 2010, could amount to a plea of guilty; and in my opinion it is clearly implicit in the primary judge's account of what happened on each of these occasions that there was no occasion when the substance of the charges was stated by the court. 48As regards the hearing on 7 April 2010, the primary judge described that occasion as follows: 11 On that day Mr Madden appeared for her. He is from the Legal Aid office. He told the court he was instructed to enter a plea of guilty. The transcript shows that he then handed up some documents concerning medical problems which Mrs Collier had. [Although I note that in her address to me last week Mrs Collier told me that he had no such documents to hand up, that is what the transcript shows.] Mrs Collier told me that she was there that day and that Mr Madden did appear for her but that he did not do what she had asked him to do. However, the record, that is the transcript, shows there was a discussion about when the pleas had been entered and then there were addresses which were not transcribed and then the Magistrate found her guilty of all matters and imposed penalties for all matters. 49Again, in my opinion it is implicit in that account that the substance of the charge was not stated by the court, at least unless the calling of the matter could be considered as in the circumstances amounting to such a statement. I note that the part of the transcript that was before the primary judge, and is before the Court, suggests that Mr Madden's statement about entering a plea was in response to the calling of the matter, and that nothing was said as to what the charges were; although, unless this was a finding of the primary judge, it may be that any error based on this would not be on the face of the record . Alternatively, it might be said that the failure of the primary judge to address the question as to the stating of the charges would be an error of law on the face of the record. In any event, having regard to my view that this is implied by the judgment itself, it is not necessary to pursue this. 50In my opinion, it can confidently be inferred by this Court, as it could have been by the primary judge and by Magistrate Stevenson, that Mr Madden had been provided with copies of the Court Attendance Notices and the police facts, so that he was well aware of the terms of the charges. In my opinion, in those circumstances, his statement to the court that he was instructed to enter a plea of guilty would unequivocally convey to the court that Mrs Collier did plead guilty to those charges, in a way that was valid and sufficient, at least unless s 192 prevented this. In my opinion, it is clear from the definition of "accused person" in the CP Act , as well as from Dunn and Paauwe , that a plea can be entered by a legal practitioner. If it were the case that Mr Madden acted contrary to his instructions from Mrs Collier or misunderstood those instructions, this would not affect the validity of the plea, but at best support an application to withdraw it. 51Dunn lends support to the proposition that the stating of the charge to the accused person, or at least to a legal practitioner appearing for the accused person, can be waived. Of course, that was a case in which counsel pleaded "not guilty"; but I do not think that this would justify a different result. If the statement of the charge is a condition precedent to the validity of one plea, I think it must be a condition precedent to the validity of the other, and to the validity of consequent proceedings also. The legislation in that case was in somewhat different terms from s 192 of the CP Act ; but again I do not think it is sufficiently different to justify a different result. 52I am not sure, however, whether a procedure required by a statute can simply be "waived". I think the more appropriate enquiry is whether or not s 192(2) of the CP Act is prescribing something that must occur before the power (and perhaps obligation) to convict can be exercised, and/or whether or not it was a purpose of the legislation that an act done in breach of the provision should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [41], [91]-[93]. 53It seems clear that the purpose of s 192(2) is to ensure that, to the knowledge of the court, an accused person adequately understands what it is to which he/she is to plead guilty or not guilty, and understands that his/her response will count as such a plea. 54But for the definition of "accused person" in s 3, one would read s 192(2) as requiring that the stating of the offence charged be to the accused person himself/herself; and one might then quite readily consider that this requirement was appropriately selected by the legislature as something that had to happen, in order to ensure, to the knowledge of the court, that the accused person does understand these things. One might then find that the purpose of the provision was to invalidate purported pleas of guilty entered into in the absence of such statements. This appears to have been the position in the United Kingdom under statutory provisions there, which do require the stating of the charge to the accused person himself/herself: R v Wakefield Justices, ex parte Butterworth [1970] 1 All ER 1181. 55However, in my opinion the definition of "accused person" in s 3 makes an important difference. In the light of that definition, the statement in s 192(2) can be made to a legal practitioner, and the legal practitioner may enter the plea. It is clear that in those circumstances what I have identified as the purpose of s 192(2) could be achieved readily and sometimes much more efficiently in other ways; for example, by the court directing the attention of the legal practitioner to an identified document in which the charge or charges are set out. In a busy Local Court list it may be highly inconvenient that multiple charges be individually stated in court; and the identification of charges could more effectively, as well as more conveniently, be done by drawing attention to an identified document. I think this suggests that, consistently with the purpose of s 192(2), it was not the purpose of the legislation to invalidate pleas or convictions if that section was not complied with. 56One indication in the CP Act suggesting that the formality of stating the charges in court may not be a requirement for the validity of a plea is s 182: 182 Written pleas (1) An accused person served with a court attendance notice may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty to the offence or offences the subject of the court attendance notice concerned. (2) The notice is to be in the form prescribed by the rules and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence. (3) An accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court: (a) is not required to attend the Court on that date, and (b) is taken to have attended the Court on that date. (4) This section does not apply to an accused person who has been granted or refused bail or in relation to whom bail has been dispensed with. 57This means that, in cases where an accused has not been arrested, there may be a written plea of guilty based on no more than the Court Attendance Notice; in which case, the accused would have no more than the Court Attendance Notice, which an accused to whom s 192(2) applies would also have. 58In my opinion, apart from any effect of s 192, for an effective plea of guilty it must be appropriately conveyed to the court that the accused person (personally or by a legal practitioner) understands what is charged against him/her and unequivocally pleads guilty to that charge: that is, unequivocally acknowledges guilt in such a way as to authorise the court to convict him/her of the particular charge and sentence him/her accordingly. This means that, even if non-compliance with s 192 does not of itself invalidate a guilty plea, such non-compliance may result in invalidity, just because in the circumstances of non-compliance there has not been the necessary unequivocal acknowledgment. 59Having regard to all the considerations set out above, and to the authority of Dunn , which this Court should respect, in my opinion the better view is that the stating by the court of the substance of the offence is not of itself a condition precedent to the validity of a plea of guilty, and it was not the purpose of ss 192 and 193 that the power to convict not arise unless there has been such a stating. However, generally in the case of an unrepresented accused, the considerations set out in the previous paragraph would require that, for validity of a plea, s 192(2) be explicitly followed (and, in the case of multiple charges, that separate pleas be taken to each charge). In the case of a represented accused, the legal representative should as a matter of practice at least have attention drawn to the Court Attendance Notice and the offence stated in the Court Attendance Notice: I am inclined to the view that, at least in the case of a represented accused, this would be a substantial if not exact compliance with s 192(2). 60Accordingly, in my opinion the primary judge did not make an error of law in determining that Mrs Collier had pleaded guilty, because non-compliance with s 192 does not of itself invalidate a guilty plea, and Mr Madden's statement that he was instructed to plead guilty, when Mrs Collier's matter had been identified, was a sufficient unequivocal acknowledgment of guilt, referable to charges well understood by Mr Madden and Mrs Collier. The later reference in the transcript of 7 April to an earlier plea was plainly made with a view to giving Mrs Collier the benefit of greater leniency because of an early plea; and it in no way affected the validity of the plea entered by Mr Madden. 61In my opinion no error of law is shown in the primary judge's refusal of leave to withdraw the guilty plea. His reference to concerns about the integrity of the guilty plea as originally entered referred in my opinion to Mr Collier's email and to suggestions that there had been a plea of guilty at the Downing Centre. In relation to the plea as entered on 7 April 2010, the primary judge expressed no such concern. It was well open to the primary judge to find that the transcripts were relevantly accurate, and to find that Mrs Collier's conduct demonstrated an intention to plead guilty. Having regard to Mrs Collier's various statements going to the merits, which suggested no viable defence, it was well open to him not to be satisfied that there would be any miscarriage of justice if he did not allow her to withdraw the pleas. 62In my opinion Mrs Collier's complaints about procedural fairness have no substance whatsoever. The matters referred to by her do not begin to justify any inference of apprehended or actual bias in either Magistrate Stevenson or the primary judge, or to suggest that she was not given a fair opportunity by the primary judge to present her case. 63The circumstances of the matter being transferred to Mudgee, disclosed by the transcript of 4 February 2010, do not begin to suggest any oppressiveness against Mrs Collier; the meeting in the magistrate's chambers cannot support any inference as to actual or apprehended bias; and the comment by Magistrate Stevenson after the submissions of Mr Madden on 7 April 2010 is no more than an innocuous comment based on her reading of the police facts. 64The material does not support a conclusion that Mrs Collier was not given by the primary judge a fair opportunity to present her case; and the primary judge's offer, at the end of his decision, to consider a sentence appeal shows commendable concern for the interests of Mrs Collier and does not begin to suggest a preconceived mindset.

Discretion 65Having regard to what I have said above, no basis for the grant of certiorari has been shown, and the question of discretion in the granting of certiorari does not arise. 66However, I am of the view that, if I were wrong in holding that a failure to explicitly state the substance of the offence charged to an accused person is not fatal to the validity of a guilty plea, it would not be appropriate to deny a remedy in the exercise of discretion. Although I accept that Mrs Collier at all times until and including 7 April 2010 manifested an intention to plead guilty, and has not by any statement or evidence suggested any viable defence, such a fundamental departure from a requirement of the legislation, so construed, would I think require a remedy: cf R v Wakefield Justices .

Orders 67For those reasons, in my opinion, the summons should be dismissed with costs. 68I note that the effect of this decision is that Mrs Collier will be liable to be sentenced pursuant to s 97 of the Crimes (Sentencing Procedure) Act 1999. Although there has been a stay in force for some of the time since entry into the bond was required, there has been a failure to enter into it. However, this has occurred in circumstances where there has been a challenge to the conviction in respect of which, as this judgment shows, there was one point that was reasonably arguable. In those circumstances it seems to me that it would not be a reasonable exercise of sentencing discretion now to impose any heavier sentence on Mrs Collier than the fines and the bond that was originally required. 69CAMPBELL JA: I agree with Hodgson JA. 70LATHAM J: I agree with Hodgson JA.

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