The facts
4 In 2004 the defendant was charged in the Tamworth Local Court with six offences that may be compendiously referred to as social security offences. Each was a federal offence. She entered a plea of guilty to each and was duly convicted. Pursuant to s 20(1)(a) of the Crimes Act 1914 she was by order, released on a recognizance which included a condition that she be of good behaviour for 18 months. She entered the recognizance.
5 In March 2008 the defendant was again charged in the Local Court in Tamworth, with 4 counts of offences against the Criminal Code 1995 (Cth), again offences which may be called social security offences and were federal offences. She again entered a plea of guilty to each charge.
6 These offences had been committed while the defendant was subject to the conditions, including the good behaviour condition, of the recognizance she entered in 2004. Accordingly, an information under s 20A(1) of the Crimes Act was laid, alleging breach, without reasonable cause or excuse, of the recognizance.
7 The defendant appeared before the Local Court in Tamworth on 12 August 2008. She admitted the breach. A good deal of subjective material was placed before the Magistrate. This satisfied the Magistrate that the defendant was suffering from a mental illness. He therefore dealt with the 4 charges, and the breach of recognizance, under s 20BQ of the Crimes Act. There is no challenge to the order so far as it concerns the 4 charges. The Magistrate further purported, in effect, to review the convictions on the 2004 charges, to set aside those convictions, and, pursuant to s 20BQ, dismiss those charges. It is that order that is the focus of the DPP's appeal.
8 Put simply, the DPP argued that s 20A does not extend to allowing a magistrate to set aside a duly entered conviction.
9 Although Mr Hamill SC, appearing for the defendant, sought to construct an argument, based upon a "purposive" approach to s 20A, that the section was wide enough to permit that course, he also acknowledged the force of the DPP's argument to the contrary. That argument, in my opinion, is correct.
10 Section 20A proceeds upon the basis that the guilt of the person has been established, and the person either discharged without conviction under s 19B or (as in this case) released on a recognizance under s 20(1)(a). In the latter case, it is implicit that a conviction has been entered. That conviction may only be disturbed by a proper appeal process. No such process has here taken place. The conviction cannot be set aside by another magistrate in later proceedings.
11 The DPP very fairly conceded that, in the circumstances, it would be appropriate that the discretion conferred by s 20A(5)(b)(iii) be exercised in favour of the defendant - that is, that no action be taken on the breach of recognizance. Accordingly, with the eventual concurrence of both counsel, I made orders that would achieve that result.
12 That is sufficient to dispose of the appeal.
13 However, Mr Hamill urged me to go further. He referred me to a decision of the Supreme Court of South Australia (Morrison v Behrooz [2005] SASC 142), in which Gray J expressed the view that s 20BQ does not contemplate the recording of a conviction, and does not apply where a defendant enters a plea of guilty. On that view, the scope of s 20BQ is limited to circumstances where no plea has been entered. According to his Honour, the section authorises "a diversionary process in the case of mental illness".
14 Mr Hamill urged me to review that decision and express a contrary view. In doing so, he referred me to a series of decisions under comparable NSW legislation, in which various judges have taken a view different to that expressed (in relation to different legislation) by Gray J. I will simply note the decisions to which I was referred. They are: Mackie v Hunt (1989) 19 NSWLR 130; DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93; Perry v Forbes (Supreme Court of New South Wales, Smart J, 21 May 1993, unreported).
15 As I made plain during the course of Mr Hamill's entreaties, I am firmly of the view that it would be quite wrong to take the course he proposes. Given the view I have reached on the principal issue, the applicability of s 20BQ does not arise for determination in this case. It would be a quite inappropriate exercise of the judicial function to embark upon an analysis, that could only be theoretical, of legislation that does not call for decision or application. That is the more so when what underlies the request is an invitation to one Judge to express the view that a considered judgment of a court of commensurate jurisdiction is wrong. I declined to accept the invitation, and declined to embark upon the analysis suggested.
16 I do, however, note that responsible senior counsel has raised for consideration a question of the construction of s 20BQ and the correctness of the decision in Morrison, that may arise for determination in another case.
17 Orders having already been made, it is unnecessary to say more.
18 The orders made were: