Firth v Director of Public Prosecutions

Court of Appeal (NSW)|2018-04-17|Before: McColl JA, Basten JA, Coll JA

Solicitors: Applicant self-represented Solicitor for Public Prosecutions (First Respondent) Crown Solicitor's Office (Second and Third Respondents) File Number(s): 2017/207045 Decision under appeal Court or tribunal: District Court of New South Wales; Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 04 September 2014 Before: Whitford SC DCJ; Pearce LCM File Number(s): 2012/247260; 2014/339065

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

In order to identify the issue before this Court it is necessary to have regard to the proceedings which led to the applicant's earlier disqualification, prior to his apprehension on 13 June 2012. Although the applicant's record of driving offences from 1980 onwards is extensive, the relevant matters commenced with the issue, on 8 and 9 October 2010, of court attendance notices alleging three offences involving breath testing and driving under the influence of alcohol. On the same day a notice was issued suspending his authority to drive in New South Wales.
He appeared before a magistrate in the Local Court at Tamworth on 1 December 2010, at which stage the charges were stood over until 28 January 2011. The magistrate expressly warned him that the suspension of his authority to drive would continue to operate and that he should not drive between "now and 28 January". Despite the warning, and consistently with his long record, he was stopped and charged on 18 January 2011 with driving whilst suspended. Because the charge of October 2010 which led to the notice of suspension was ultimately withdrawn, the applicant sought to contend that the notice of suspension was rendered null and void from the date of its issue. That argument was later dismissed by the magistrate, by Payne DCJ in the District Court and ultimately by this Court. [2]
Despite the fact that this Court upheld the judgment of Payne DCJ, it is necessary to have regard to precisely what happened in the course of the hearing of the charge relating to driving whilst disqualified in January 2011, both in the Local Court and the District Court.
When the matter originally came before the Local Court at Tamworth, the applicant entered a plea of guilty. Appearing for sentence on 7 March 2011, with representation, he sought to withdraw the plea, but was refused leave to do so. [3] He was convicted, fined and disqualified from holding a licence for a period of 12 months from 8 October 2010, being the date on which the licence was suspended. [4] The Director submitted that the backdating was an error, the commencement date being prescribed by legislation as, in this case, the date of conviction. [5] The Director said there was no power to vary that date. Nevertheless, that error could have no consequence in this case.
The applicant appealed to the District Court, seeking to challenge his conviction. The appeal came before Payne DCJ sitting at Tamworth on 1 August 2011. The judge (correctly) dismissed the appeal and convicted him.
Pursuant to s 12(1) of the Appeal and Review Act, a person convicted by the Local Court following a plea of guilty requires leave of the District Court to appeal against the conviction. That provision applied in this case. As a result, pursuant to s 63(2)(b) of the Appeal and Review Act (set out at [5] above) the stay which would otherwise have operated with respect to the disqualification order did not apply until leave to appeal was granted. It is not clear that leave was ever granted; if it were granted then the stay ceased when the appeal was determined a matter of minutes later. Accordingly, the order of suspension fixed to commence on 8 October 2010 would have expired on 7 October 2011, or, if the correct commencement date was 7 March 2011, on 6 March 2012.
On 13 June 2012, the applicant was again apprehended and charged with driving whilst disqualified. In fact, he was not then disqualified, but the records maintained by Roads and Maritime Services indicated that his suspension ran from the date of judgment in the District Court (1 August 2011) for 12 months, expiring on 31 July 2012. A certificate to that effect was issued by Roads and Maritime Services pursuant to s 230 of the Road Transport (General) Act 2005 (NSW) ("Road Transport Act"). That certificate was tendered without objection before Prowse LCM in April 2014; it constituted "prima facie evidence of the matters stated." [6] The applicant's defence was that the prosecutor had not proved beyond reasonable doubt that he was driving the car; there was no challenge to the allegation that he was disqualified at the date of the offence. He was convicted by Prowse LCM and sentenced in the terms set out above. His notice of appeal dated 13 May 2014 was directed to his conviction, on the basis that he was not guilty.

Ground of review

It is not in doubt that to obtain relief from this Court the applicant must demonstrate jurisdictional error on the part of the District Court. That is the result of s 176 of the District Court Act 1973 (NSW), which is a form of privative clause precluding a quashing order for error of law on the face of the record. [7]
There are two ways of viewing the order of the District Court made on 4 September 2014. On one view, there was simply no power to convict the applicant of driving whilst disqualified on 13 June 2012 in circumstances where the court order of disqualification had expired on 7 October 2011, or at the latest, 6 March 2012. The 2014 conviction was not based on a mistake of fact, but on an assumption as to the existence of a court order which did not exist.
The alternative view of the order of 4 September 2014 was that the District Court had before it a charge of drive whilst disqualified, the evidence of disqualification being a certificate having statutory effect, to which no objection was taken and which formed a sufficient basis for a finding that the applicant was disqualified at the relevant date. The conviction resulted from a lengthy hearing over many months in the Local Court, during which the applicant had legal representation, and a contested hearing in the District Court. Thus the proceedings were properly before the Local Court and the District Court; there was no impropriety in the conduct of the proceedings; the order was one within the power of the magistrate and the District Court. There was an error, but it was an error made within jurisdiction.
If the decision had been one of an administrative body, rather than a court of record, [8] it may have been arguable that the error, albeit an error in fact, involved a condition precedent to the exercise of power, so that its absence would render the decision a nullity. [9] Even that view may be thought controversial, but it cannot avail the applicant in relation to a judgment and order made by the District Court.
Further, if the Court had made an order which it was without power to make, that order may have been classified as a "nullity", in the sense that failure to comply with it would not render the party in default in contempt of court. [10] However, as McHugh JA stated in Attorney-General (NSW) v Mayas Pty Ltd: [11] "If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed."
If in the present case the District Court had asked itself whether this was a case in which the Court may convict, impose a fine and impose a period of disqualification, the answer would have been, yes. The Court made orders of that kind. It should not have made such orders, because it was mistaken in its understanding that the applicant was the subject of an earlier disqualification order at the time the charge was laid. However, that was a mistake within jurisdiction and did not demonstrate any excess or want of jurisdiction. The legislation provides no basis for treating an extant disqualification as a jurisdictional fact, rather than a matter for evidence. [12]
In those circumstances, the orders made in the District Court in September 2014, confirming those made in the Local Court, should not be set aside. As they remained in force, there is no doubt that the applicant was a disqualified driver at the time of the charge laid on 13 November 2014.
It follows that there is no purpose in granting an extension of time within which to allow the proceedings for judicial review to be brought.
Even if the applicant's case had legal merit, there are powerful discretionary factors which would militate against an extension of time, but they need not be addressed.
On the basis that the District Court order of 4 September 2014 is not quashed, there is no basis for the consequential quashing of the conviction and orders made on 5 March 2015 in the Local Court at Tamworth.
The applicant also sought leave to appeal, pursuant to s 53 of the Appeal and Review Act, "against the convictions in the District Court". This order was misconceived: the right of appeal under s 53 is from a conviction or sentence by the Local Court. There is no right of appeal from the District Court exercising appellate jurisdiction from the Local Court in criminal matters. If the summons had sought leave to appeal from the Local Court on a question of law, pursuant to s 53, the proceeding could be remitted to the Common Law Division. However, it is too late to appeal from the judgment of the Local Court which was the subject of the appeal to Whitford DCJ; the orders made by the Local Court have been superseded by the orders made in the District Court. [13]
With respect to the orders made by the magistrate on 5 March 2015, there is an appeal on foot in the District Court. Unless the applicant undertakes to abandon the appeal in the District Court, which encompasses both errors of law and errors of fact, it would not be appropriate to grant leave in any event to appeal to the Supreme Court. It is therefore not appropriate to remit the matter to the Common Law Division.
There is a further reason why that step should not be taken. The error of law sought to be relied upon is presumably the same error which is said to infect the judgment in the District Court of September 2014, which is the basis for the disqualification breached in November 2014 which, in turn, is the subject of the conviction in the Local Court on 5 March 2015. While the District Court judgment of 2014 stands, the disqualification order was effective and the conviction in March 2015 was not legally bad on this ground.
Other than interlocutory relief which is no longer relevant, there were three other orders sought in the amended summons of 20 March 2018. First, an order was sought declaring the certificate under s 230 of the Road Transport Act to be invalid and of no force or effect.
That relief is inappropriate. As explained above, the certificate was not "invalid"; rather, it contained an error. The certificate had statutory effect and was tendered without objection in the proceedings in both the Local Court and the District Court in 2014.
Secondly, the applicant sought relief under s 5(1) and s 5B of the Criminal Appeal Act 1912 (NSW). Section 5 is limited to convictions on indictment; both sections confer rights of appeal to the Court of Criminal Appeal, not to this Court.
Thirdly, the applicant seeks to "appeal" pursuant to ss 78 and 79 of the Appeal and Review Act. Those sections provide for "an inquiry into a conviction or sentence" where "there is a doubt or question as to the convicted person's guilt … or as to any part of the evidence in the case." [14] That inquiry does not involve an exercise of the judicial function of the Court. [15] Such inquiries are undertaken by a judge in the Common Law Division. [16]
The Director indicated no objection to this Court referring the matter to a judge of the Court pursuant to s 78, if the Court thought appropriate. However, there is no reason why this Court, in the exercise of its supervisory jurisdiction, should take that step and good reason why it should not. The procedure is available to the "convicted person". The outcome of any such inquiry is by no means certain. For this Court to make a referral might be to indicate, at least by implication, that the Court considered there was some basis for intervention and referral to the Court of Criminal Appeal. In circumstances where this Court might be required to review the outcome of an inquiry, it would be inappropriate for the Court to be involved in any way in the commencement of such an inquiry, assuming it had power to do so.

Costs

For the reasons set out above, the proceedings commenced by the applicant must be dismissed. As with the earlier application to this Court by this applicant, having unsuccessfully invoked the civil jurisdiction of the Court, he must pay the costs of the proceedings. Impecuniosity is not a ground for resisting such an order.

Orders

I propose the following orders: 1. Dismiss the application for an extension of time within which to commence proceedings by way of the amended summons filed on 20 March 2018. 2. Order that the applicant pay the Director's costs of the proceedings in this Court.
BARRETT AJA: I agree with Basten JA.

Endnotes

Uniform Civil Procedure Rules 2005 (NSW), Pt 59, r 59.10(1).
Firth v Director of Public Prosecutions [2013] NSWCA 403 at [23] (Leeming JA, Emmett JA and Sackville AJA agreeing).
Local Court tcpt, 07/03/11, p 5(30)-(35).
Tcpt, p 6(40)-(45).
Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(7).
Road Transport Act, s 230(1).
Downey v Acting Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]-[134]; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10].
District Court Act, s 8(2).
See, eg, Minister for Immigration and Multicultural Affairs v Bhardwarj (2002) 209 CLR 597; [2002] HCA 11 at [14] (Gleeson CJ).
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [27]-[28] (Gaudron, Gummow and Callinan JJ) applying Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 (McHugh JA).
Mayas at 357.
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 (Dixon J); [1938] HCA 7.
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Garde v Dowd at [11]-[12]; Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [33] (Leeming JA, Simpson JA and Sackville AJA agreeing).
Appeal and Review Act, ss 78 and 79(2).
Appeal and Review Act, s 79(4).
Sinkovich v Attorney-General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383.

Amendments 18 April 2018 - Adding file number in court below - coversheet 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: 18 April 2018

Road Transport (Driver Licensing) Act 1998(NSW)

Road Transport (General) Act 2005(NSW)

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