Director of Public Prosecutions (NSW) v Mustow

Supreme Court of NSW|2016-10-25|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions File Number(s): 2016/134076

Judgment

HIS HONOUR: These proceedings concern the dismissal of a charge of assault occasioning actual bodily harm ("AOABH") to which Christopher Mustow had pleaded guilty. A magistrate dismissed that charge when finding Mr Mustow guilty of the more serious charge arising from the same incident of recklessly inflicting grievous bodily harm ("GBH").
Mr Mustow appealed to the District Court against his conviction. His conviction was quashed on the contention that the victim's injuries did not amount to grievous bodily harm.
The police re-charged Mr Mustow with AOABH. A different magistrate held that because of the prior dismissal of a charge for that offence she had no jurisdiction to deal with the fresh charge.
By alternative forms, the Director of Public Prosecutions ("the DPP") seeks to appeal against what occurred in the Local Court to, in effect, reactivate the charge of AOABH.
Mr Mustow resists the DPP's action on the basis that the prosecutor did not withdraw the AOABH charge when the first magistrate dismissed it. Mr Mustow submits that the prosecutor did not object to the dismissal. Subsequently, there had been a "trial" in the District Court for the GBH offence. He was acquitted. He could have been found guilty of the alternative offence of AOABH but was not. Double jeopardy prevented his further prosecution for the AOABH offence.

Procedural history

The defendant was arrested on 7 August 2014 and charged with an offence of assaulting Samuel March on 3 August 2014 thereby occasioning actual bodily harm.
He first appeared in the Local Court on 16 September 2014 and the matter was adjourned to 14 October. On the latter occasion a more serious charge of recklessly causing grievous bodily harm was also before the Court. The matter was then adjourned to 25 November 2014 and then to 30 January 2015.

Initial determination in the Local Court

On 30 January 2015 the matter came on for hearing before Prowse LCM. His Honour was told by both parties that a plea of guilty to the charge of assault occasioning actual bodily harm had been entered on 14 October 2014 but that the more serious charge was defended on the contention that the victim's injuries did not amount to grievous bodily harm. Referring to the AOABH charge the magistrate noted, "It's been marked as a backup".
The police brief of evidence was tendered without objection. The magistrate heard submissions. He then delivered an ex tempore judgment in which he found the injuries did amount to grievous bodily harm. The transcript records that after reviewing the evidence and submissions the magistrate said: "I AM OF THE OPINION IN THOSE CIRCUMSTANCES THOUGH IT IS A REALLY SERIOUS INJURY AND AMOUNTS TO GRIEVOUS BODILY HARM AND MR MUSTOW IS CONVICTED OF SEQUENCE 2. [COUNSEL]: Yes your Honour. HIS HONOUR: Record if any? UNDER THOSE CIRCUMSTANCES, SEQUENCE 1 IS DISMISSED AS A BACKUP. PROSECUTOR: Your Honour in relation to the matter, Mr March's father has prepared a victim impact statement. …"
The matter was adjourned for sentence on 13 March 2015. On that occasion, the learned magistrate sentenced Mr Mustow to imprisonment for 22 months with a non-parole period of 11 months.

Appeal to the District Court

Mr Mustow appealed against both conviction and sentence. The matter came before his Honour Judge Sides QC on 27 March 2015 on an application for bail pending the hearing of the appeal. On being informed that the conviction appeal concerned a limited issue his Honour invited the parties to deal with it that day and that is what occurred. His Honour upheld the appeal and quashed the conviction.
A discussion ensued about the status of the AOABH charge. Counsel for Mr Mustow appears to have initially taken the position that it could be dealt with as a lesser included alternative to the GBH charge but the prosecutor and the judge expressed some doubts. Counsel also appears to have accepted that there had not been a hearing on the merits of the AOABH charge. Ultimately the matter was stood over to 3 June 2015 so that a transcript of the proceedings before the magistrate could be obtained.
On 3 June 2015 the matter came back before Sides QC DCJ. The prosecutor indicated that the Office of the Director of Public Prosecutions had taken the position that it was inappropriate to file an ex officio indictment in the District Court for a charge of assault occasioning actual bodily harm because, in essence, it would be unfair for the defendant to face District Court jurisdiction. It was submitted that a more appropriate course was for the police to "relay the charge in the Local Court and the matter to proceed to sentence there which reserved Mr Mustow's rights in terms of an appeal to [the District] Court against the severity of any sentence". (In my view, this was a very practical and fair approach.) As a result, the judge simply made orders allowing the appeal and quashing the conviction for the GBH offence.

Further proceedings in the Local Court

A Court Attendance Notice was created by a police officer on 8 June 2015 for the offence of assault occasioning actual bodily harm. (105) Ultimately it came before Baptie LCM on 29 February 2016. The matter proceeded by way of a contest in submissions as to whether the defendant could be further charged with an offence that had been dismissed without being specifically withdrawn by the prosecutor. The transcript records that at the conclusion of the proceedings her Honour said: "Reluctantly, I will mark the papers, 'No jurisdiction'."
The learned magistrate later set out her reasons. It is apparent that she had available to her a transcript of the proceedings before Prowse LCM on 30 January 2015. She recorded, without criticism, a submission that "on 30 January 2015 the Prosecution did not withdraw Sequence 1 and a full hearing on the merits of both charges was held. The Prosecution did not object to the order of Prowse LCM dismissing Sequence 1." Unfortunately, the submission misconstrued what had occurred. The only hearing that proceeded before Prowse LCM was of the GBH charge.
Her Honour later referred to ss 202 and 208 of the Criminal Procedure Act 1986 (NSW) and then said: "It would appear that his Honour Magistrate Prowse dismissed the sequence 1 charge pursuant to sections 202/205, rather than pursuant to section 208. It is clear from the transcript of the proceedings on 30 January 2015, that the prosecutor did not seek to withdraw the back up charge pursuant to section 208. If the prosecutor had sought to withdraw the charge pursuant to section 208, then the prosecution could have revived sequence 1 on a subsequent occasion."
Her Honour then referred to a defence submission about Sides QC DCJ having considered s 65 of the Crimes (Appeal and Review) Act 2001 (NSW). Her Honour did not have a transcript of the proceedings or judgment of his Honour. Section 65 of that Act was mentioned by his Honour in the proceedings on 27 March 2015 but it clearly did not form part of any conclusion his Honour had formed. It is unnecessary to refer to the provisions of s 65 because they were clearly irrelevant. Regrettably, without the benefit of the transcript, her Honour appears to have been misled into thinking that it had some bearing on some decision his Honour had made on the present issue (which he had not). She referred to an authority about magistrates abiding by decisions of a superior court and then said: "Considering all of the abovementioned circumstances, it would appear that this Court does not have any jurisdiction to hear and determine the current charge of assault occasioning actual bodily harm, and the papers are marked accordingly, 'No jurisdiction'."

Statutory provisions

It will be useful to set out some of the relevant provisions of the Criminal Procedure Act before dealing with the various errors asserted by the DPP.
Chapter 4 (ss 170-232) of the Criminal Procedure Act provides for "Summary Procedure". It applies to "proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily": s 170(1). The provisions of Pt 2 (ss 172-219) ("Trial procedures in lower courts") apply, inter alia, to proceedings before the Local Court: s 170(2)(a).
Section 193 applies where the accused person pleads guilty: 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.
Section 194 applies where the accused person pleads not guilty (or does not enter a plea or a plea of guilty is rejected): 194 Procedure if offence not admitted (1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person's guilty plea, the court must proceed to hear and determine the matter. (2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person.
Section 202 provides for how a court must determine a matter when the offence is not admitted: 202 Determination by court (1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter. (3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing.
Section 205 makes provisions in the case of the court determining to dismiss a matter: 205 Order dismissing matter to be made (1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter. (2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor. (3) This section does not apply to a matter that is taken to be dismissed because of section 208.
Section 206 provides for the effect of a certificate given to an accused person pursuant to s 205(2): 206 Effect of certificate that matter has been dismissed A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person.
Section 208 makes provision for a matter that is withdrawn by the prosecutor: 208 Dismissal of matter if matter withdrawn (1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned. (2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.

Error 1 - the second magistrate erred by ruling that the Court had no jurisdiction after the first magistrate dismissed the charge pursuant to s 208

The first error contended for by the DPP was that Baptie LCM was wrong to regard herself as having no jurisdiction. The only sensible construction of what Prowse LCM did was that he dismissed the charge pursuant to s 208. Accordingly, pursuant to s 208(2), there was nothing to prevent later proceedings being brought against Mr Mustow for the same matter.
If one assumes that Prowse LCM was exercising a statutory power to dismiss the AOABH charge, that could only be by exercising the powers in either s 202 or s 208. As he had not dismissed the charge "after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act" (s 202(1)), then it could only be s 208 under which he proceeded.
There is good reason to accept that Prowse LCM took a short cut route to s 208 dismissal. In accordance with usual practice, where a hearing proceeds for a more serious charge and the prosecution succeeds in proving its case, the prosecutor withdraws any lesser (back-up) charge on the basis that it has no further utility. In this case, the magistrate must have assumed that such usual practice would apply; assumed the prosecutor would withdraw the AOABH charge; and on that basis simply dismissed it. So much is evident from his ruling after having convicted Mr Mustow of the GBH offence: "Under those circumstances, sequence 1 is dismissed as a backup". (Emphasis added)
If this analysis be accepted, then Baptie LCM had jurisdiction to deal with the further AOABH charge and was in error in holding otherwise.

Error 2 - the first magistrate acted without power to dismiss the charge pursuant to ss 202 and 205

In the alternative to the above asserted error, the DPP submitted that if the dismissal was purportedly made by way of the only other statutory power to dismiss, then Prowse LCM lacked the power to do so. The AOABH offence was admitted by Mr Mustow's plea of guilty and there was no suggestion of the magistrate not accepting that plea pursuant to s 193(2). In those circumstances, the only power he had if he was determining the matter was to convict Mr Mustow: s 193(1). The power of dismissal under s 202 only arose "after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act": s 202(1).
If the dismissal was purportedly made under s 202, then the prosecutor was denied procedural fairness in not being afforded an opportunity to be heard: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 at [52]; Director of Public Prosecutions (NSW) v Richardson [2015] NSWSC 1753 at [30].
If this analysis be accepted, then it was Prowse LCM who was in error in dismissing the charge.
Further, if the dismissal is regarded as having been purportedly made pursuant to s 202, the DPP further submitted (and I accept) that there was jurisdictional error in Prowse LCM making an order he was not authorised to make and also because there was the denial of procedural fairness. The decision to dismiss was no decision at all and so it remained within the jurisdiction of the Local Court to determine the matter. On this analysis, it was both magistrates who erred.

Error 3 - no certificate of dismissal had been issued pursuant to s 206 and pursuant to common law there had been no hearing on the merits so there was no bar to a further prosecution for the AOABH offence

There was no suggestion of any statutory bar to a further prosecution for the AOABH offence by way of a certificate having been issued pursuant to s 206.
At common law, whilst a plea in bar of autrefois acquit (or convict) is not strictly available in summary proceedings, it is open to a magistrate in appropriate circumstances to give effect to the common law rule against double jeopardy: State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 530). However, given there had been no hearing on the merits, the further AOABH charge did not create a situation of double jeopardy.
If this analysis be accepted, then Baptie LCM was in error in finding that she had no jurisdiction.

Conclusion

In any way the matter is viewed there was error on behalf of either or both magistrates.
The DPP sought relief either by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) or pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 (NSW). The latter does not cover each of the errors identified but the former does.
The summons was filed in this Court on 2 May 2016 and so the DPP requires an extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 in respect of the proceedings before Prowse LCM on 30 January 2015. I accept that the need to institute these proceedings did not materialise until after the matter was before Baptie LCM on 29 February 2016. I am mindful that the proceedings have become quite protracted from Mr Mustow's perspective but the interests of justice favour an extension of time being granted.
The relief sought in prayers 1 to 3 in the summons filed by the DPP should be granted.
Prayer 4 concerned costs being payable in the event of the DPP's success but counsel conceded at the hearing that this may be left in abeyance so that further instructions may be sought after judgment is delivered.

Orders

I make the following orders: 1. Pursuant to UCPR 59.10(2) I extend the time for instituting the claim for judicial review in respect of the order of Magistrate Prowse made on 30 January 2015 at the Local Court at Liverpool until 2 May 2016. 2. The record of proceedings in the Local Court against the first defendant for the offence of assault occasioning actual bodily harm be removed to this Court, and the following orders quashed: i) The order of Magistrate Baptie made on 29 February 2016 at the Local Court at Liverpool which found that the Court did not have jurisdiction to determine a charge against the first defendant for the offence of assault occasioning actual bodily harm (s 59 of the Crimes Act 1900); and ii) The order of Magistrate Prowse made on 30 January 2015 at the Local Court at Liverpool which dismissed a charge against the first defendant for the offence of assault occasioning actual bodily harm (s 59 of the Crimes Act 1900). 3. The matter be remitted to the Local Court to determine the charge of assault occasioning actual bodily harm according to law. 4. Any application for costs is to be filed and served within 14 days.

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: 03 November 2016

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