Director of Public Prosecutions (NSW) v Andrew Scicluna & Anor [2010] NSWSC 1368 | Case summary

JUDGMENT 1 HIS HONOUR: On 23 June 2010 the first defendant, Andrew Scicluna, appeared before Magistrate Bone at the Local Court at Bega in an application to annul a conviction for an offence under the Prevention of Cruelty to Animals Act 1979 which had been recorded against him at the Local Court at Batemans Bay on 11 May 2009. His Honour held that he had no power to deal with the application because, in the light of the history of the matter, he was functus officio. 2 The plaintiff, the Director of Public Prosecutions (NSW), contends that his Honour fell into error in arriving at that conclusion, and seeks prerogative relief. The proceedings in the Local Court were prosecuted by a police officer, but in this court the Director has taken over the proceedings under s 9 of the Director of Public Prosecutions Act 1986. 3 The second defendant, the Local Court of New South Wales, has entered a submitting appearance. No appearance has been entered by or on behalf of Mr Scicluna, and he did not appear at the hearing before me. I was satisfied that he had been notified of the hearing date and had been supplied with the relevant documentation, and I proceeded in his absence. As will be seen, in this respect history was repeating itself. 4 On 20 October 2008 Mr Scicluna was charged with the offence, alleged to have been committed four days earlier. As I have said, when the matter came before the Local Court at Batemans Bay on 11 May 2009, he failed to appear and Magistrate Bone convicted him in his absence, pursuant to s 196 of the Criminal Procedure Act 1986. A warrant for his arrest was issued, pursuant to s 25(2)(a) of the Crimes (Sentencing Procedure) Act 1999, for him to be brought before the Local Court for sentencing. He appeared on 15 June 2009, and the matter was adjourned to 2 October 2009. 5 He failed to appear on that date and a further warrant was issued. He was brought before the Local Court at Bega on that warrant on 6 October 2009, again before Magistrate Bone, who sentenced him to imprisonment for 2 months. On the same day he lodged an appeal to the District Court against the severity of the sentence and was granted bail. 6 On 24 March 2010, that appeal was listed in the District Court at Bega before Freeman DCJ. Mr Scicluna told the court that he wished to challenge the conviction recorded against him. After some discussion, Freeman DCJ noted that the matter would be ventilated in the Local Court by an application for annulment, and struck out the appeal. No order was made in respect of the bail. It will be necessary to examine more carefully what happened on that occasion, because it lies at the heart of the present proceedings. 7 By early June 2010, no application for annulment had been received by the Local Court. The appeal was re-listed before Payne DCJ on 21 June 2010, when her Honour found that she had no jurisdiction to deal with it. It was on that same day that Mr Scicluna filed an application for annulment in the Local Court and, as I have said, two days later Magistrate Bone arrived at the decision which is challenged in this court. 8 It is necessary to examine some provisions of the Crimes (Appeal and Review) Act 2001. Section 4 provides for an application to the Local Court by a defendant for the annulment of a conviction imposed in his or her absence. Section 11(1) provides for an appeal by a defendant from the Local Court to the District Court against conviction or sentence, or both. However, by subs (1A) there is excluded from that general provision an appeal against a conviction in the defendant's absence, which is dealt with in the following sections. 9 By s 12(1), a person who has been convicted in his or her absence may appeal against the conviction by leave of the District Court. However, by subs (2)(a), such an application for leave may not be made by a person who is entitled to apply for an annulment under s 4 but has not done so. In other words, a person convicted in his or her absence must pursue an application for annulment of the conviction in the Local Court before resort may be had to the District Court. Section 11A provides for an appeal against the refusal of an annulment. 10 It is in the light of these provisions that what occurred before Freeman DCJ must be understood. As I have said, his Honour was told that Mr Scicluna wished to challenge his conviction even though the appeal filed related to sentence only. A solicitor then appearing for Mr Scicluna sketched the history of the proceedings, from which it was apparent that that conviction had been entered in his absence. His Honour noted that Mr Scicluna would have to pursue an application for an annulment before an appeal against conviction could be entertained. Accordingly, he observed that he had no jurisdiction to deal with such an appeal. It was on that basis that he simply struck the appeal out, noting that an annulment application was to be pursued in the Local Court. 11 It appears that the matter was re-listed before Payne DCJ because the court registrar considered that Mr Scicluna's position needed to be regularised. Even though his appeal had been struck out, he remained at large, subject to the terms of the bail granted to him when he lodged his appeal, and no annulment application had been filed. Accordingly, the District Court remained without jurisdiction to entertain a conviction appeal. Mr Scicluna attended court that day, and it was after discussion about his position that he lodged the annulment application. 12 Unfortunately, Magistrate Bone did not have the transcript of the proceedings before Freeman DCJ or Payne DCJ when he dealt with the application. His Honour had no more than a file note of the order of Freeman DCJ, which read, "Appeal is struck out. Note that the matter will be ventilated in the L. C. by an application for annulment." As to the proceedings before Payne DCJ, he only had a further note that "Her Honour expressed the view that she had no role to play as the matter had been finalised by his Honour, Freeman DCJ, on 24 March 2010." 13 It should also be noted that during the hearing of the application his Honour questioned whether he had jurisdiction to hear it, and the parties' representatives agreed that he did not. Mr Scicluna was represented by the solicitor who had appeared for him before Freeman DCJ, but the informant was represented by a police prosecutor who, of course, had not appeared in the District Court. 14 Obviously, it is the disposition of the matter before Freeman DCJ, not Payne DCJ, which is relevant for present purposes. Magistrate Bone determined that the order of Freeman DCJ striking the appeal out had brought the proceedings to finality. In his reasons, he referred to the "general principle of law that, except in limited circumstances, a magistrate has no power to rehear or reconsider a case which he or she has finalised", citing Ex parte Kelly; re Teece (1996) 85 W.N. (N.S.W.) (Pt.1) 151. 15 His Honour arrived at that conclusion not without misgivings. He noted that the legislation governing District Court appeals made no provision for an appeal to be struck out, but added that "almost certainly" Freeman DCJ had meant to dismiss the appeal. He also noted that it would not be in the interests of justice to leave the matter as it was, and that any doubt about the power of the Local Court or the District Court to take it further might be resolved by this court. 16 In his reasons at [14], his Honour expressed his conclusion in this way: "I am of the opinion that I have no power to consider the present application because I am "functus officio". I convicted and sentenced the applicant, he appealed to the District Court and the District Court's decision was to determine the appeal as "struck out". The process (subject only to a decision by the Supreme Court) has therefore finished as once the appeal process to the District Court is finalised the litigation is at an end." 17 In noting that there was no statutory basis for an order striking out an appeal, his Honour referred to s 20 of the Crimes (Appeal and Review) Act, which sets out the ways in which the District Court may dispose of an appeal. Striking out is not one of them. The section provides: " 20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12(1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal." 18 However, as I have said, his Honour did not have the benefit of the transcript of the proceedings before Freeman DCJ, the effect of which I have summarised above. It is clear from a reading of that transcript that the judge did not intend to dispose of the appeal finally. Rather, he found that he had no jurisdiction at that time to deal with an appeal against conviction. Although not expressed, it was implicit in the way he approached the matter that he envisaged that Mr Scicluna might appeal under s 11A, or seek leave to appeal under s 12(1), if the application for annulment were refused. Obviously, as Mr Scicluna wished to challenge his conviction, there was no point in proceeding with the sentence appeal at that stage. 19 In those circumstances, an order striking the appeal out might have been appropriate, but that is not a matter which need be decided for present purposes. In effect, Freeman DCJ invited Mr Scicluna to pursue an application for annulment in the Local Court and, clearly, there was jurisdiction in that court to deal with it. Accordingly, Magistrate Bone fell into jurisdictional error and the Director of Public Prosecutions is entitled to relief. Counsel for the Director fairly raised the question whether relief might be refused in my discretion because of the acquiescence of the prosecutor in the Local Court in his Honour's decision, citing Ramskogler v DPP (1995) 82 A Crim R 128, per Kirby P at 136 and Handley JA at 141. However, that would not be an appropriate course in the circumstances of this case. 20 It is appropriate to make an order in the nature of certiorari quashing the magistrate's determination that he was functus officio in the proceedings, to declare that he erred in law in that finding and in failing to exercise his jurisdiction to consider the annulment application, and to order that that matter be remitted to the Local Court to be determined according to law. That being so, I make the orders sought in paragraphs 1 - 4 of the amended summons filed on 28 September 2010. 21 The Director also seeks an order in respect of bail pending the determination of that application. I have the power to do so by virtue of s 28 of the Bail Act 1978, and provision for the grant of bail during that period is to be found in s 6(g4) of that Act. On the day on which this judgment is delivered I shall hear from counsel for the Director and, if he appears, from Mr Scicluna on that question. If necessary, I shall also hear the parties on costs.

Director of Public Prosecutions (NSW) v Andrew Scicluna & Anor

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