Gorrick v NSW Police

Judgment (on adjournment of proceedings) 1JOHNSON J : Before the Court today, in the Duty Judge list, are proceedings commenced by Summons filed on 21 October 2010, in which the Plaintiff, Christopher Charles Gorrick, seeks relief against the Defendant, referred to as "NSW Police" . 2Proceedings having been commenced 10 months ago, there have been a number of mentions before the Registrar with no appearance of the Defendant. Given the imprecise way in which the Defendant was identified, that state of affairs is not surprising. 3On 8 August 2011, the matter came before Barr AJ, and an affidavit of the Plaintiff affirmed 8 August 2011 was furnished to the Court. The matter was stood over and, on 19 August 2011, the Registrar directed that the proceedings should come before the Duty Judge today to deal with the application for leave to appeal out of time identified in the Plaintiff's Summons. 4Today, Mr Fraser appears effectively for the Commissioner of Police. Mr Gorrick appears for himself. 5There has been some discussion concerning the nature of the proceedings and their current status. Mr Gorrick sought an adjournment of the matter, which was not opposed by Mr Fraser, and which I propose to allow. The following observations are intended to record the issues in the proceedings and the steps which Mr Gorrick will be required to take to prepare the matter for hearing. 6The Summons seeks the following relief: "1. Leave to appeal out of time against conviction in Parramatta Local Court. 2. Stay of execution of sentence pending granting of leave to appeal and hearing of appeal". 7Until the affidavit of Mr Gorrick of 8 August 2011 was supplied, the nature of the proceedings remained as expressed in those somewhat cryptic terms. The affidavit indicates that what Mr Gorrick is seeking to do is to appeal against a conviction in the Parramatta Local Court on 16 June 2010 for an offence under s.18 Child Protection (Offenders Registration) Act 2000 . Mr Gorrick indicates that he pleaded guilty to that matter and was placed on a bond under s.9 Crimes (Sentencing Procedure) Act 1999 for a period of 18 months. 8Mr Gorrick's affidavit indicates that he gave instructions to his then lawyers to appeal to the District Court. He was represented in the Local Court by a solicitor, Mr Autore, who instructed a barrister, Mr Steward. 9It would seem that Mr Gorrick was in custody for a period for breach of parole and that, as it happens, no appeal was lodged to the District Court. 10An appeal to the District Court lies in criminal proceedings in the Local Court under s.11 and following of the Crimes (Appeal and Review) Act 2001 . Such an appeal may be brought as of right within 28 days and, by leave, within three months. Under s.13 of that Act, three months is an outer limit which cannot be further extended. 11Mr Gorrick has told the Court that his intention was to appeal against conviction. As I have mentioned, he pleaded guilty in the Local Court and was represented by solicitor and counsel. The transcript of 16 June 2010 is now before the Court (MFI1). A statement of facts was apparently presented to the presiding Magistrate in a form that was signed by Mr Gorrick (MFI3). If Mr Gorrick had been in time to appeal to the District Court against conviction, it would still have been necessary for him to obtain leave to appeal against conviction because he had pleaded guilty in the Local Court: ss.11(1A), 12(1) Crimes (Appeal and Review) Act 2001 . However, that is academic because it is simply too late for Mr Gorrick to appeal to the District Court. It was too late by the time he commenced the proceedings in this Court on 21 October 2010. 12Mr Gorrick tells the Court that, by his Summons, he seeks leave to appeal to this Court and to have this Court, in effect, allow him to appeal to the District Court. I do not think that ss.52, 53, 54 or 55 Crimes (Appeal and Review) Act 2001 (or any other section in that Act) allows this Court to make orders to open the door to an appeal to the District Court. 13Mr Gorrick then indicated that what he sought to do was to appeal against conviction on the basis that the statement of facts relied upon in the Local Court does not disclose the offence to which he pleaded guilty. I have raised with Mr Gorrick a number of problems with this argument. Having done so, although I am not proceeding to determine the matter, it is appropriate that I record these matters in case it becomes relevant at a later time. 14It is open to a person who has pleaded guilty to an offence in the Local Court to seek the leave of the Local Court to withdraw the plea of guilty, at any time prior to sentence, under s.207 Criminal Procedure Act 1986 . The Local Court has a discretion in that respect which will not be lightly exercised: Wong v Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37; Director of Public Prosecutions v Yeo [2008] NSWSC 953; 188 A Crim R 82 at 92-93 [40]-[47]. The position is particularly challenging for an applicant who was legally represented when the plea of guilty was entered. However, that is academic because no such application was made to the Local Court by Mr Gorrick before sentence in this case. 15It may be theoretically open to the Plaintiff to seek to challenge, on appeal, his conviction on the basis that no offence was committed, despite his plea of guilty: cf Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at 312-313 [32]-[35]. A problem for Mr Gorrick, of course, is that the plea of guilty itself involves an admission of all the elements of the offence: Meissner v The Queen [1995] HCA 41; 184 CLR 132 at 157. The basis of the conviction is the admission of the Plaintiff, whether the facts tendered in support of the sentencing hearing disclose an offence or not. 16All of this I record because it reveals, in my view, a number of fundamental problems that lie ahead for the Plaintiff. Whether he can persuade a Judge of this Court to grant him leave to appeal and indeed whether there is a foundation within ss.52 to 55 Crimes (Appeal and Review) Act 2001 for him to seek that that be done, remains to be considered on a future occasion, if the Plaintiff presses his claim for relief. 17I have informed the Plaintiff that the ordinary rule as to costs in civil proceedings applies to an appeal of this sort. If the matter is run to finality, and if he does not succeed, then he is at risk of an order for costs being made against him in favour of the active Defendant to the proceedings. 18Mr Gorrick has indicated that he intends to instruct a solicitor, Maurice Marshan of Maurice Marshan & Associates at Five Dock, and that he wishes an opportunity to file an Amended Summons and an affidavit in support, and to have an opportunity for the matter to proceed to a hearing on the merits. 19It will be necessary for the Plaintiff to correctly identify the Defendant. The Defendant ought be the police officer who initiated the criminal proceedings against the Plaintiff in the first place. It may be, in accordance with common practice, that the Director of Public Prosecutions will take over the opposition to the appeal in this Court under ss.9 and 10 Director of Public Prosecutions Act 1986 . That course is open to the Director, and frequently happens. Whether the Director takes that course or not, of course, is a matter for him. 20I have made these observations to record my perception of the issues and problems in the proceedings as they stand. It will, of course, be a matter for the Judge who hears the matter to determine the proceedings on their merits including any application for leave to appeal out of time. 21I make the following orders: (1) I direct the Plaintiff to file and serve by 14 October 2011 an Amended Summons which identifies correctly the Defendant, and which sets out the relief he seeks under the Crimes (Appeal and Review) Act 2001 and which otherwise complies with the requirements of the Uniform Civil Procedure Rules 2005 for an appeal to this Court under the Crimes (Appeal and Review) Act 2001 . (2) I direct the Plaintiff to file and serve by 14 October 2011 any affidavit upon which he seeks to rely in support of his claim for relief. (3) I direct that a Notice of Appearance of the lawyer to appear for the Plaintiff be filed and served by 14 October 2011. (4) I stand over the proceedings until 9.00 am on 24 October 2011 before the Registrar. Whether the proceedings are referred to the Duty Judge for hearing on that day will depend upon the state of readiness and time estimate of the matter, and the ability of the Duty Judge to accommodate the matter. (5) The costs of today are reserved. 22[Postscript: On 20 October 2011, the Plaintiff discontinued the proceedings with the consent of the Defendant].