Director of Public Prosecutions (NSW) v Scheibel & Anor

LOWER COURT District Court JURISDICTION : LOWER COURT DC 03/52/0076 FILE NUMBER(S) : LOWER COURT Blanch J, Chief Judge of the District Court JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40038/04 DC 03/52/0076

IPP JA SANTOW JA McCLELLAN AJA

FRIDAY 18 JUNE 2004 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v Dion Jon SCHEIBEL & ANOR Judgment 1 IPP JA: I agree with McClellan AJA. 2 SANTOW JA: I agree with McClellan AJA. 3 McCLELLAN AJA: The claimant seeks declarations and prerogative relief with respect to two criminal proceedings which were determined in the Local Court by Bone LCM and subsequently on appeal by Justice Blanch, Chief Judge of the District Court. The claimant was convicted in his absence of two charges of assault and was sentenced. He then applied to the Local Court pursuant to s 100D of the Justices Act 1902 (NSW) in relation to one of the convictions seeking an annulment. Blanch J upheld appeals from the Magistrate's decision and annulled the orders of conviction and the sentences, and remitted the matters to the Local Court. The matters then came before Bone LCM who declined to hear them on the grounds that he had no jurisdiction. 4 The claimant seeks orders which would return the proceedings for further determination in the District Court. The first opponent seeks orders in the nature of mandamus requiring the Local Court to comply with the orders of Blanch J.

The course of proceedings 5 On 30 August 2001, an information was laid alleging that Dion Jon Scheibel, the first opponent, on 21 January 2001, at Ballina, did assault Martin Eldridge thereby occasioning him actual body harm, contrary to s 59 of the Crimes Act 1900 (NSW) ("the first assault charge"). A summons issued which was returnable before Ballina Local Court on 21 September 2001, on which occasion the first opponent was represented, with the matter being adjourned to 11 October 2001. 6 On 11 October 2001 the first opponent failed to appear and his legal representative was granted leave to withdraw. Bone LCM convicted the first opponent in his absence. Thereafter, a warrant was issued pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the first opponent to be brought before the Local Court for sentencing. The first opponent was arrested pursuant to the warrant on 21 February 2002. 7 On 21 February 2002, the first opponent was further charged that on 9 February 2002, at Byron Bay, he did assault Benjamin Groves thereby occasioning him actual bodily harm contrary to s 59 of the Crimes Act ("second assault charge"). 8 Following several adjournments, the hearing of the second assault charge commenced before Bone LCM at the Byron Bay Local Court on 18 July 2002, but the matter was adjourned part-heard to 8 August 2002. 9 The first assault charge, in respect of which the first opponent had been convicted in his absence on 11 October 2001, was also before the Byron Bay Local Court on 18 July 2002. The first opponent had not made an application under s 100D of the Justices Act (which allows the Court to annul a conviction made in a person's absence) with respect to his conviction upon that charge. Although Bone LCM informed the first opponent of his right to make an application under s 100D of the Justices Act, such an application has never been made. 10 On 8 August 2002, the first opponent failed to appear at the part-heard hearing of the second assault charge. Bone LCM convicted him of this offence in his absence and ordered that a warrant issue under s 25(2) of the Crimes (Sentencing Procedure) Act for him to be brought before the Local Court for sentence on the second assault charge. 11 On 10 October 2002, the first opponent lodged an application under s 100D of the Justices Act seeking the annulment of the conviction on the second assault charge. On 7 November 2002, this application was heard and refused by Bone LCM. 12 On 19 February 2003, the first opponent was sentenced with respect to the two assault charges. Upon the first assault charge, the first opponent was sentenced to a term of imprisonment for eight months with a non-parole period of six months to date from 19 February 2003. With respect to the second assault charge, the first opponent was sentenced to a concurrent term of imprisonment of three months. 13 On 19 February 2003, the first opponent lodged appeals to the District Court against his conviction and sentence on both assault charges. 14 On 28 July 2003, the appeals came before Blanch J sitting at the Lismore District Court, when his Honour made the following orders: "I grant leave to add an appeal against the refusal to have a fresh hearing under section 100D. I allow the appeal, I quash the orders of the Magistrate. I remit the matters back to the Local Court for a hearing. In this regard I refer to the unreported judgment of Shepherd v DPP (NSW) [2003] NSWSC 83." 15 The actual effect of these orders is not clear. However, it is accepted by both parties that Blanch J intended to allow an appeal in relation to the refusal by Bone LCM to annul the conviction and sentence in relation to both matters. 16 The proceedings again came before Bone LCM on 23 October and 6 November 2003, when apparently submissions were made as to whether the Local Court should hear the matters. On 19 November 2003, Bone LCM delivered a written judgment in which his Honour held that he was functus officio and had no power to further consider the charges against the first opponent. 17 Although the Magistrate explained his reasons for concluding that he would not hear the matter, the position is quite unsatisfactory. Whether or not Bone LCM agreed with the course taken in the District Court and the orders made by Blanch J, Bone LCM had a duty to give effect to them. The rule of law requires any holder of judicial office to carry out the orders of a superior court in relation to a matter, even if he or she holds a contrary view.

Effect of the Repeal of the Justices Act 1902 18 The Justices Act was repealed on 7 July 2003. From that day, provisions governing criminal procedure before the Local Court are contained in the Criminal Procedure Act 1986 (NSW), and provisions governing appeals from the Local Court in criminal matters are contained in the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). 19 Part 5A (ss 116 - 133V) of the Justices Act related to appeals from the Local Court to the District Court. Clause 5 of Schedule 1 to the Crimes (Local Courts Appeal and Review) Act provides as follows: "Appeals and applications under Part 5A of the Justices Act 1902 5. Part 5A of the Justices Act 1902 continues to apply to and in respect of any appeal or application under that Part that had not been finally dealt with before the appointed day as if that Act had not been repealed." 20 The "appointed day" was 7 July 2003. 21 Accordingly, Blanch J was exercising the powers and functions under Part 5A of the Justices Act when the appeals came before him. 22 The Court was provided with the transcript of the hearing before Blanch J. It reveals that the orders made by Blanch J that are now challenged, were consented to by the prosecution. In making the orders, Blanch J was concerned that the first opponent had been convicted and sentenced to a term of imprisonment without the chance of defending himself against the charges.

The issue 23 Notwithstanding that the prosecution consented to the course taken by Blanch J, it is now submitted that the proceedings have miscarried. It is submitted that a decision to refuse to annul a conviction pursuant to Pt 4A of the Justices Act, cannot be the subject of an appeal to the District Court. In these circumstances, it is submitted that the first opponent was confined to an appeal against conviction and sentence to the District Court pursuant to s 120(1) of the Justices Act. 24 The difficulties considered in the present case have apparently been recognised, and a Bill is presently before the Parliament which will put the issue beyond doubt in relation to future matters. However, the prospect of legislative amendment is of no relevance to the task of this Court, which is to construe the provisions of the Justices Act in force at the relevant time.

The statutory provisions 25 At the relevant time, the Justices Act provided jurisdiction in the Local Court in relation to both indictable and summary offences. In relation to indictable offences, the Local Court was required to manage the statutory process which controlled committal proceedings. That process was contained in Division 1 of Pt 4 of the Act. 26 Division 2 of Pt 4 of the Act provides the process in relation to "offences punishable on summary conviction and complaints." Detailed provisions are included in Division 2 relating to the commencement of proceedings, the trial process, some aspects of sentencing and other matters. 27 Part 5 of the Act provided limited rights of appeal from a decision of the Local Court to the Supreme Court. Section 104(1) provided that a person against whom any conviction or order was made, or against whom sentence was imposed, by a magistrate in "summary proceedings" may appeal to the Supreme Court on a number of grounds. An appeal to the Supreme Court was also available, with the leave of the Court, in relation to an order that was made in "committal proceedings" on a ground that involves a question of law alone (s 104(3)). A similar position existed in relation to interlocutory orders made in "summary proceedings" (s 104(4)). The reference to "committal proceedings" in s 104 was a reference to proceedings heard and disposed of pursuant to Division 1 of Pt 4 of the Act, and the reference to "summary proceedings" was a reference to proceedings heard and disposed of pursuant to Division 2 of that Part. 28 Part 5A provided for appeals to the District Court. Section 120(1) provided that "an appeal against any conviction or order made, or sentence imposed, by a magistrate in summary proceedings may be made under [Division 2 of Pt 5A] by the person against whom the conviction or order was made or on whom the sentence was imposed." 29 However, s 121 precluded an appeal in relation to an order made by a magistrate which was (1) interlocutory, (2) dismissing an information, or (3) a decision not to make an order for costs against an informant. 30 Section 123 further confined the right of appeal afforded by s 120. Section 123(1) provided that an appeal against a conviction entered after a plea of guilty or in the absence of the defendant could only be made with leave of the District Court. Certain other limitations were imposed on appeals where a person may have been entitled to exercise rights pursuant to Pt 4A of the Act. I have referred to these additional matters below. 31 Part 4A was introduced into the Act by amendments made by the Justices Amendment (Procedure) Act 1997 (NSW). Entitled "Review of decisions by Local Courts", Pt 4A created a mechanism whereby a person could make an application to the Local Court for the annulment of "a conviction or order (other than an interlocutory order) made in respect of the person by a magistrate that was made in the absence of the person" or a "sentence imposed on the person by a magistrate in the absence of the person" (s 100D1(a) and (b)). Section 100D(2) provided that an informant could make an application for an "annulment of a conviction or an order made by a magistrate or a sentence imposed by a magistrate." 32 Provision was made for the form of the application and s 100F required the application to be made "within 2 years of the conviction or order being made or the sentence being imposed." 33 A further opportunity for review of a conviction or sentence was provided by s 100G. It afforded an opportunity for a person to make an application to the Minister, who could refer the matter for review by the Local Court where the Minister was "satisfied that a question of doubt has arisen as to the guilt of the person or the person's liability for a penalty" (s 100G(2)). A matter referred by the Minister to a Local Court is to be treated as an application for the purposes of Pt 4A (s 100G(4)). 34 Section 100I provided that a magistrate sitting alone was to exercise the jurisdiction of the Local Court with respect to an application under Pt 4A and s 100K provided the grounds which were to be applied by the court when considering the application. Section 100P precluded an application under Pt 4A by a person if an appeal, or application for leave to appeal, to a superior court had already been made. 35 Section 100Q permitted the making of more than one application under s 100D. The section was in the following terms: "(1) A person may not, except with the leave of the Local Court, make more than one application in relation to the same matter. (2) A Local Court may grant leave under this section if it is of the opinion that there are sufficient grounds for the application. (3) This section does not prevent a person from making an application under section 100D and an application to the Minister under section 100G in relation to the same matter." 36 When introducing the amending legislation which incorporated Pt 4A into the Justices Act, the Attorney-General identified the fact that the then existing arrangements for review of a decision made in the absence of a person were too restrictive, with the consequence that unnecessary burdens were being imposed on the District Court to hear appeals. In the Second Reading Speech to the Justices Amendment (Procedure) Bill (Hansard 19 November 1997), the Attorney-General said: "The avenues currently available to defendants dealt with in the Local Court are considered too restrictive. The present litigation only allows a review of a Local Court decision where an offender is able to satisfy the court that he or she did not receive a summons or notice to attend court or was otherwise unaware of the court hearing. If that person knew the court case was listed for a certain date, but was prevented by accident or other reason from getting to the court, the only avenue of redress would be to appeal the court's decision to the District Court. This is an unnecessary and costly use of judicial resources." 37 The incorporation of Pt 4A necessitated some amendments to the appeal rights in Pt 5A of the Act. In particular, s 123 was amended so that leave of the District Court was required before an appeal could be made "by a person who has not exhausted all rights of appeal under Part 4A." The section read as follows: "(1) An appeal may be made against a conviction entered after a guilty plea or in the absence of the defendant only with the leave of the District Court. (1A) An appeal may be made against an apprehended violence order under Part 15A of the Crimes Act 1900 that was made with the consent of the person against whom the order was made only with the leave of the District Court. (2) An appeal may be made by a person who has not exhausted all rights of appeal under Part 4A only with the leave of the District Court. (3) An application for leave to appeal is to be made by lodging a written application and a notice of appeal complying with section 122 not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate. Note: Section 126 sets out the manner in which an application is to be lodged. (4) If an application is made to a Local Court under Part 4A, the time for lodging an application for leave to appeal does not start to run until the application under Part 4A is finally disposed of. (5) This section does not apply to an appeal against the severity of a sentence." 38 The reference to "rights of appeal" under Pt 4A was not entirely appropriate. Although Pt 4A provided a process whereby a previous conviction or order or sentence could be reconsidered and annulled, the process was in the nature of an application for "review" of an order for conviction or sentence (the title given to Pt 4A), rather than an appeal. 39 Section 123(4) was also included, which provided that if an application was made under Pt 4A, the time for lodging an application for leave to appeal "does not start to run until the application under Part 4A is finally disposed of."

The claimant's submissions 40 Notwithstanding that the prosecutor accepted that the District Court had jurisdiction to entertain an appeal from a decision to decline an application for an annulment and acquiesced in the orders made by Blanch J, the claimant now submits that there was no jurisdiction to entertain the appeal. The submission has the following elements:

(a) Proceedings under Pt 4A do not give rise to an order in "summary proceedings" and are not amenable to an appeal pursuant to s 120(1).

(b) Because s 100Q permits a further application for review to be made in the same matter, with the leave of the court, any order declining to grant an application for annulment is interlocutory and accordingly s 121(1) precludes an appeal.

(c) If there was a right of appeal, it would be necessary for the Act to provide for the remittal of the matter to the Local Court in the event that an appeal was upheld, which occurred in the present case. It was submitted that there was no general power in the District Court to remit matters, the power being confined to s 133N(2)(b), where only mistakes of form or errors of law in the order of sentence have been identified as matter which could lead to remittal. Accordingly, without a power to remit, a successful appeal against the refusal of an application for annulment would not allow the necessary process in relation to the matter to be completed. This is a further reason why the Act should be construed so that an appeal is not available in the present circumstances.

(d) As the first opponent had never made an application for annulment of the conviction in relation to the first assault, an appeal was not available to the District Court in that matter.

The first opponent's submissions 41 The first opponent submitted that there was a right of appeal and that Blanch J correctly exercised the jurisdiction of the District Court. The submission had the following elements:

(a) Proceedings under Pt 4A are proceedings in the nature of, or in relation to, "summary proceedings" within the meaning of s 120(1).

(b) An order to decline an application for annulment is a relevantly final order because it finally disposes of the matter between the parties being the application for annulment. The fact that a further application could be made was not relevant although, if refused, would give rise to the possibility of a separate appeal.

(c) There were sound policy reasons, adverted to by Blanch J, why a right of appeal should be available. It would ensure that a person was not wrongly deprived of the opportunity for a summary trial before a magistrate and, if convicted, a rehearing before the District Court. The Act should, if there was ambiguity, be construed to give effect to these policy considerations.

Are proceedings under Part 4A an appeal against a conviction, order or sentence in summary proceedings? 42 As I have related, the scheme of the Justices Act was to provide a process in the Local Court for committal hearings in relation to indictable offences and a separate process in relation to offences punishable on summary conviction. The origins of the distinction and the reasons for it are explained by Dixon J in Munday v Gill (1930) 44 CLR 38 at 86. Summary proceedings are commonly understood as proceedings for summary offences or offences punishable summarily between parties, as distinct from prosecutions on indictments which are pleas of the Crown. 43 The inclusion of Pt 4A in the Act, which provided a right to make an application in limited circumstances to seek an annulment, although a proceeding in relation to summary proceedings, is of quite a different character to those proceedings. Section 100A makes plain that Pt 4A "applies to review procedures for conviction, penalties and orders by magistrates in summary proceedings." Section 100D describes the opportunity for review in language which distinguishes review from summary proceedings. The section provides for the making of an application for the annulment of a "conviction", "order made" or "sentence imposed" in the absence of a person. The orders sought to be annulled would have been made in summary proceedings. To my mind, although s 100D provided a review process in relation to summary proceedings as the title to Pt 4A indicates, the review proceedings were not themselves "summary proceedings" within the meaning of s 120(1). 44 The proper construction of s 120(1) is assisted by an understanding of the amendments made to s 123 when Pt 4A was introduced. The heading to s 120 is "When an appeal can be made by a defendant or other person." The heading to s 123 is "Matters in which an appeal can be made only with leave of District Court." 45 Section 123(2) provided that, unless leave is granted, an appeal is not available to a person who has not exhausted "all rights of appeal under Part 4A." "Rights of appeal under Pt 4A must mean the right to apply for annulment under s 100D as no other right that could be construed as an "appeal" is mentioned in Pt 4A. 46 Therefore, the appeal, contemplated in s 123(2) could not include appeals against orders made in applications for annulment under Pt 4A. That is because s 123 appeals were appeals that cold be made before a person had exhausted all rights of appeal under Pt 4A. That is to say, an appeal could be made, with leave, against "any conviction or order made, or sentence imposed" (under s 120(1)) before an application for annulment under s 100D was made or concluded. Putting the matter in another way, there could be no appeal against an application for annulment until the application was determined; but s 123(2) contemplated appeals that would take place before the determination of applications for annulment. Thus, the appeals contemplated by s 123(2) did not include appeals against applications for annulment under s 100D. 47 Division 2 provides for appeals by defendants and other persons. Section 120 and s 123 are in Division 2. The inference is that the appeal contemplated in s 120 was the same appeal as that contemplated in s 123. 48 It follows that the appeal contemplated in s 120 was not an appeal against an application for annulment under s 100D. 49 The position is confirmed by s 123(4), which provided that the time for lodging an application for leave to appeal does not start to run until any "Part 4A application is finally disposed of." It would make no sense to impose a time limit on an appeal by reference to the final disposal of an application under Pt 4A if it was contemplated that the right of appeal included an appeal from a decision to refuse that very application. 50 Accordingly, the reference to an application for leave to appeal in s 123(4) must be a reference to a decision other than a decision in respect of an application made under Pt 4A.

Other matters 51 To my mind, it is unnecessary to resolve the question of whether or not a decision to decline an application for an annulment pursuant to s 100D is an interlocutory or final order. As Lord Denning said in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601: "This question of 'final' or 'interlocutory' is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way." 52 In Miller v Director of Public Prosecutions (2004) NSWCA 90, this Court considered both s 100D and s 100K of the Justices Act. The matter was originally considered by Dowd J as an appeal pursuant to s 104 of the Act. His Honour held that an order declining to annul a conviction is not interlocutory but final. This finding was not contested in the Court of Appeal, where Sheller JA said (Beazley JA and Young CJ in Eq agreeing) (at [4]): "Even though the subject of the appeal was an order refusing to annul a conviction pursuant to section 100D of the Justices Act, the appellant was treated as a person against whom a conviction had been made by a magistrate in summary proceedings. No objection was taken to this course and Dowd J's conclusion that the decision of the magistrate was a final decision is not challenged." 53 The question of what constitutes an interlocutory order has been considered in a number of contexts. In the context of s 5F of the Criminal Appeal Act 1912 (NSW), a ruling on evidence is an interlocutory order: R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 302-304; a direction to acquit by a trial judge is not: R v Cheng (1999) 48 NSWLR 616. However, an order in relation to an application for a permanent stay is interlocutory: R v King [2003] NSWCCA 399. 54 The matter has also been considered on many occasions in the context of civil litigation. Generally, an order made in the course of proceedings which "concludes the fate of the particular application in which it is made", but "does not conclude the rights of the parties inter se", is interlocutory: Hall v Nominal Defendant (1966) 117 CLR 423 at 440. 55 In Licul v Corney (1976) 180 CLR 213, in the context of s 35(1)(a) of the Judiciary Act 1903 (Cth), Barwick CJ said that to be a final order it "must of its own force put an end to the action or proceeding between the parties" (at CLR 219). In the same matter, Gibbs J said (at CLR 225): "The other view which, since Hall v Nominal Defendant (1966) 177 CLR 423, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be." 56 The difficulties in identifying final orders in some cases was emphasised by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55. 57 Whether or not an order declining an application for annulment is final or interlocutory, the fact that more than one application for review may be made (s 100Q) makes it unlikely that it was intended that a right of appeal would be available. Furthermore, if a person believed that his or her application pursuant to s 100D was wrongly refused, and the relevant doubt could be demonstrated, an application could be made to the Minister pursuant to s 100G. The fact that both further or alternative applications could be made suggests that the legislature did not intend that a right of appeal would be available. 58 I am not persuaded that policy reasons should dictate a resolution of any ambiguity in favour of the first opponent. Leaving to one side my view that the meaning of s 120(1) is clear, when the purpose of the legislation, as the Attorney-General made plain, was to provide a review process which would minimise the burden of unnecessary appeals to the District Court, I see no good reason to provide a further appeal from the decision made in that review. If the application for annulment was denied, exhausting a person's rights under Pt 4A an appeal against conviction or sentence remained available to the District Court. 59 Although it could hardly be suggested that a process which might lead to conviction or sentence of a person should not include an appeal, there is nothing in the Act to suggest that parliament intended that an unsuccessful application for annulment could be corrected on appeal. 60 It follows that before this Court the claimant must succeed and the first opponent's cross-claim dismissed.

Costs 61 I have indicated that before the District Court, the prosecutor accepted that an appeal was available to the first opponent and acquiesced in the course taken by Blanch J. In these circumstances, the parties are agreed that there should be no order for costs in this Court.

Orders 62 In my opinion, this Court should make the following orders:

1. The orders made by Blanch J on 28 July 2003 allowing appeals to the District Court against the refusal of two applications to annul convictions recorded by Bone LCM against Dion Jon Scheibel are quashed.

2. The cross-claims of the first opponent are dismissed.

3. The proceedings are to be remitted to the District Court for determination according to law of the applications for leave to appeal against conviction and sentence lodged by Dion Jon Scheibel. **********

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