This is a decision following remittal of the matter from the Supreme Court. In Hall v Director of Public Prosecutions [2015] NSWSC 839, Campbell J made the following orders:
1. Grant leave to appeal;
2. Appeal allowed;
3. Set aside the order of her Honour Magistrate Robinson pronounced on 3 November 2014 granting leave for the prosecution to proceed as on indictment under s 263(2) of the Criminal Procedure Act 1986 (NSW) ("the Act");
4. Remit the matter at the Local Court for determination according to law.
[2]
Background
On 1 August 2014 the defendant, Jason Daniel Hall, was arrested in Sydney for offences alleged to have been committed by him earlier that day. At the time of arrest there were outstanding warrants for his arrest in respect of other matters. He was also on parole and the subject of a bond by way of s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("s 9 good behaviour bond"). The offences the subject of these proceedings were allegedly committed in breach of parole and in breach of the s 9 good behaviour bond.
The offences included Table 1 and Table 2 offences as well as strictly summary offences.
The charges were first listed on 2 August 2014 before the Local Court at Parramatta, and then on 8 August 2014 before Central Local Court. On 13 August 2014 the matter was again mentioned at Central Local Court, at which time the defendant entered pleas of not guilty to all charges. Orders were made for the service of the brief by 13 September 2014 and the matter was stood over to 26 September 2014 at Central Local Court to fix a hearing date. On 26 September 2014 the matter was listed for hearing on 3 November 2014.
On 8 October 2014 the matter was listed before Central Local Court for an application to vacate the hearing date. That application was stood over to 13 October 2014, and again to 17 October 2014, at which time the police prosecutor appearing in the matter sought to vacate the hearing date on the grounds that DNA evidence remained outstanding and that some police witnesses were unavailable on 3 November 2014. The application to vacate was granted.
The matter was mentioned again on 24 October 2014 at Central Local Court. The hearing was formally vacated and the matter stood over to 3 November 2014 for either election or to fix a hearing date.
[3]
3 November 2014 - Mention
When the matter came before Central Local Court on 3 November 2014 there were three sets of sequences in total before the Court. The sequences the subject of this decision are identified by charge number H 55121852. Two other sets of sequences, H 55095540 and H 55458321, were subject to election by the Director of Public Prosecutions ("the Director") when those matters came before Central Local Court on 21 October 2014, and were adjourned over for mention on 3 November 2014.
On 3 November 2014 the learned Magistrate heard argument relating to the Director's election of the offences in charge sequence H 55121852 and an application that all three sets of sequences be adjourned after directions were given in relation to the service of the balance of the brief of evidence.
In Hall v Director of Public Prosecutions (supra), his Honour Justice Campbell stated at [1] - [3]:
"1 The plaintiff challenges a decision made by a magistrate in criminal proceedings in the Local Court. The actual decision, and I am deliberately using that expression neutrally, is a grant of leave for the prosecution to proceed on indictment after the time fixed under s 263 Criminal Procedure Act 1986 (NSW) had expired. By dint of s 263(2) 'an election may, with the leave of the Local Court, be made after the time so fixed [under s 263(1)] if the Court is satisfied that special circumstances exist' (my emphasis).
2 It is common ground between the parties that the learned magistrate granted leave under s 263(2) and in doing so failed to apply the statutory test of asking herself whether she was satisfied that special circumstances exist. I have used the language of challenge at the commencement of these reasons because the plaintiff in his summons commencing the proceedings has sought relieve in the alternative. First, he has sought leave to appeal from what he styles an interlocutory order of the learned magistrate in accordance with s 53(3)(b) Crimes (Appeal and Review) Act 2001 (NSW); secondly, and in the alternative, he has sought judicial review of the decision under s 69 Supreme Court Act 1970 (NSW).
3 As I have said, there is no issue between the parties that the learned magistrate failed to identify and apply the correct statutory test. The time fixed for the prosecution to make an election under s 263 is to be found in the Local Court practice notes which have been referred to by learned counsel in their written submissions. There is no question that that time had expired, on any view of it, by the time an application was made to her Honour Magistrate Robinson on 3 November 2014."
[4]
Special circumstances
In relation to the sequences identified by charge number H 55121852 the Director seeks to elect to proceed on indictment outside of the time allowed by s 263(1) of the Act.
The matter having been remitted to the Local Court for determination according to law, it is now necessary to determine whether special circumstances exist for the purposes of s 263(2) of the Act.
"Special circumstances" is not defined in the Act, nor is there any judicial consideration of this particular statutory test. However, s 93 of the Act has been considered judicially.
In Baines v Gould (1993) 67 A Crim R 297, Studdert J held:
"The Shorter Oxford Dictionary defines 'special' as meaning 'of such a kind as to exceed in some way that which is usual or common' and, also 'exceptional in character, quality or degree.'"
In TEZ v Longley [2004] NSWSC 74; 142 A Crim R 122, Shaw J set out the elements relevant to the application of special circumstances in the context of applications pursuant to s 93 of the Act ("s 93 applications") at [20]:
"The totality of the relevant issues in each case should be considered in determining whether or not the reasons are special for the purposes of the Act: Lawler v Johnson & Anor (2002) 56 NSWLR 1 at 10 per O'Keefe J. Hunt CJ at CL with whom Smart and Grove JJ agreed, emphasised the need for individual consideration of each case in R v Kennedy (1997) A Crim R 341 at 352:
What are 'special reasons' and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way..."
His Honour then quotes O'Hare v DPP [2000] NSWSC 430 at [51], relying on Studdert J in Baines v Gould (supra) at 303:
"In summary the decided cases in New South Wales establish and in Victoria and South Australia indicate that the facts or situations that constitute "special reasons" should not be confined by precise legal definition, are not a closed category, should not be approached in an unduly restricted way and need to be:
* special in relation to the particular case;
* solid, that is substantial in nature;
* not common or usual;
* out of the ordinary;
* unusual or atypical;
* clearly distinguishable from the general run of cases"
The special circumstances relied upon by the Director in making the election out of time are these:
1. That at the time of the commission of the offences the defendant was subject to parole and to a s 9 good behaviour bond;
2. That the offences are serious, one of which having a maximum penalty of 10 years of imprisonment;
3. That the defendant has an extensive criminal history;
4. That the defendant has had other matters before the Court for which he is currently serving a custodial sentence; and
5. That, if the election were not allowed out of time, the Local Court would not have sufficient sentencing scope to appropriately deal with all matters should the defendant be convicted.
[5]
Decision
It is submitted on the defendant's behalf that the reasons for the election being made late do not amount to special circumstances warranting leave to elect at a late stage. It is submitted that this case is special neither by facts nor procedure. I reject that submission. In the absence of any jurisprudence as to what constitutes "special circumstances" for the purposes of s 263(2) of the Act, I have had regard to the factors set out in Baines v Gould (supra), including the principle that what constitutes "special reasons" should not be approached in an unduly restricted way.
When the two other sets of sequences, H 55095540 and H 55458321, came before Central Local Court on 21 October 2014 the Director made the election to proceed on indictment pursuant to s 263 of the Act. The offences the subject of this application are alleged to have been committed last in time of all of the offences. It is submitted that the prosecution intention was at all times that all matters, including sequence H 55121852, should proceed on indictment and not be dealt with by the Local Court.
The defendant is currently in custody serving a number of sentences of imprisonment, as evidenced by his criminal history (Annexure A to the Affidavit of Helen Langley sworn 3 June 2015). His earliest release date is 30 January 2016. Following his arrest on 1 August 2014 his parole was revoked in respect of sentences imposed by her Honour Judge Ainslie-Wallace (as her Honour then was) on 27 March 2006 for 27 offences, principally robberies and thefts, with a further 65 offences taken into account by way of Form 1. The aggregate sentence imposed was 10 years and 9 months commencing 27 February 2005, the effective non-parole period being 8 years.
In addition to that sentence, the defendant is serving a sentence of 12 months imprisonment imposed on 17 September 2014 at Central Local Court, dating from 17 July 2014 with a non-parole period of six months.
The defendant also remains subject to a s 9 good behaviour bond imposed on 18 June 2014 at Balmain Local Court.
I find that these facts are special in relation to this particular case, that they are substantial in nature, that they are not common or usual, they are out of the ordinary, unusual or atypical and clearly distinguishable from the general run of cases.
Moreover, if the defendant is ultimately convicted of the H 55121852 offences the Local Court would have no scope to impose any penalty referrable to the offending conduct involved in those offences. This, in and of itself, is substantial and clearly distinguishable from other cases.
I am satisfied that there are special circumstances for the purposes of s 263(2) of the Act which warrant the grant of leave for an election to be made after the time fixed by s 263(1).
[6]
Order
The application for leave for the Director to elect to proceed on indictment out of time is granted.
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Decision last updated: 15 September 2015