JOHNSON J: The Applicant, Jason Daniel Hall, seeks leave to appeal under s.5F Criminal Appeal Act 1912 with respect to a decision by a Magistrate to grant leave to the prosecutor, under s.263(2) Criminal Procedure Act 1986, to elect out of time to have certain offences dealt with on indictment.
The Applicant brings the application under s.5F Criminal Appeal Act 1912, which, by reference to s.5F(1)(a), permits an appeal against an interlocutory judgment or order in "proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court".
The Applicant contends that the decision of the Magistrate falls within s.5F(1)(a) as it constitutes the preliminary step in committal proceedings and forms part of committal proceedings which the Crown seeks to pursue.
The Crown submits that this application falls outside the terms of s.5F so that the application for leave to appeal is incompetent.
[2]
Factual Background
History of Proceedings
The proceedings involving the Applicant have had a somewhat protracted history before various courts.
The decision under challenge in this Court is that of Magistrate Crompton made at the Downing Centre Local Court on 5 August 2015: Director of Public Prosecutions (NSW) v Hall [2015] NSWLC 12. His Honour granted leave under s.263(2) for the prosecution to elect to have certain offences dealt with on indictment after the time fixed by the Local Court for such an election had expired.
The decision made on 5 August 2015 followed an earlier purported s.263(2) grant of leave which was challenged on appeal under the Crimes (Appeal and Review) Act 2001.
On 29 June 2015, in circumstances where both parties acknowledged that error had occurred at first instance, Campbell J allowed the appeal and remitted the matter to the Local Court for determination according to law: Hall v Director of Public Prosecutions [2015] NSWSC 839.
It was that remitted proceeding which was determined by Magistrate Crompton on 5 August 2015.
On 2 September 2015, the Applicant filed in this Court an application for leave to appeal under s.5F against the Local Court decision on 5 August 2015.
The Charges and s.263 Elections
The following appears to be the procedural history of the matters relevant to the present application.
Sequence No. H55095540 involved an allegation of take and drive conveyance without consent (a Table 2 offence). The offence is alleged to have been committed on 13 February 2014. The first mention of the matter was on 5 August 2014. The brief was to be served by 13 September 2014. As will be seen, the election was to be made by that date. A s.263 election was made on 28 September 2014. The Local Court was informed of the election on either 14 or 21 October 2014.
Sequence No. H55458321 included the following offences allegedly committed in June and July 2014:
1. take and drive conveyance without consent (two counts) (Table 2);
2. drive whilst disqualified (two counts);
3. not stopping a vehicle and driving the vehicle dangerously during a police pursuit (Table 2);
4. dishonestly obtain property by deception (Table 1);
5. attempted take and drive conveyance without consent (Table 2).
These charges were first mentioned on 8 August 2014. Brief service orders appear to have been made on 13 August 2014 with a reply on 26 September 2014. A s.263 election was to be made by that date. On 28 September 2014, a s.263 election was directed by the Director's delegate. On 21 October 2014, the election was noted in Court.
Sequence No. H55121852 included the following offences allegedly committed on 1 August 2014:
1. Take and drive conveyance without consent (Table 2);
2. not stopping a vehicle and driving the vehicle dangerously during a police pursuit (Table 2);
3. drive while disqualified.
These matters came before the Local Court on 2 August 2014. A brief service order was made on 13 August 2014 with a reply date of 26 September 2014. An election under s.263(1) was to be made by that date. An election was made on 1 October 2014 and the election was noted in Court on 17 October 2014.
The first s.263(2) application was heard in the Local Court on 3 November 2014, this being the decision quashed by Campbell J on 29 June 2015.
The proceedings against the Applicant have not reached the District Court as yet.
It will be seen from material placed before the Local Court that the Applicant has a substantial criminal history, and was on parole and subject to a s.9 good behaviour bond at the time of the offences which have attracted s.263 election.
[3]
Is the Application for Leave to Appeal Competent?
Section 5F(3) Criminal Appeal Act 1912 provides:
"(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:
(a) if the Court of Criminal Appeal gives leave to appeal, or
(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal."
Section 5F(1)(a) provides:
"(1) This section applies to:
(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and
…"
Section 5F(7) provides:
"(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001."
The earlier appeal brought by the Applicant, which was determined by Campbell J on 29 June 2015, was brought under s.53(3)(b) Crimes (Appeal and Review) Act 2001, with an alternative claim for judicial review under s.69 Supreme Court Act 1970. Section 53(3) of that Act provides:
"(3) Any person against whom:
(a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or
(b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,
may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court."
Campbell J accepted that a grant of leave under s.263(2) was an interlocutory order for the purpose of s.53(3)(b): Hall v Director of Public Prosecutions at [15]. In these circumstances, his Honour did not determine the Applicant's alternative claim for relief in the nature of certiorari under s.69 Supreme Court Act 1970.
Contrary to the approach taken by the Applicant with respect to the earlier grant of leave (where complaint was made about a suggested interlocutory order in summary proceedings), the Applicant now seeks leave to appeal to this Court under s.5F (where complaint is made about a suggested interlocutory order in committal proceedings).
Section 5F(1)(a) permits an application for leave to appeal against an interlocutory judgment or order in committal proceedings. "Committal proceedings" is not defined in the Criminal Appeal Act 1912. It is plain, however, that the expression as used in that Act is intended to refer to committal proceedings under the Criminal Procedure Act 1986, where the term is defined in s.3(1) as follows:
"committal proceedings means a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence."
Committal proceedings are provided for in the Criminal Procedure Act 1986 in Chapter 3, Part 2 (ss.47-120). Chapter 3 is headed "Indictable Procedure" and Part 2 is headed "Committal Proceedings".
Section 263 lies within Chapter 5 of the Act which is entitled "Summary Disposal of Indictable Offences by Local Court" (ss.258-273).
Sections 258-264 provide as follows:
"258 Objects of this Chapter
The objects of this Chapter are:
(a) to require the indictable offences listed in Table 1 to Schedule 1 to be dealt with summarily unless the prosecutor or the person charged with the offence concerned elects to have the offence dealt with on indictment, and
(b) to require the indictable offences listed in Table 2 to Schedule 1 to be dealt with summarily unless the prosecutor elects to have the offence concerned dealt with on indictment.
259 Offences to which this Chapter applies
(1) This Chapter applies to the offences listed in Tables 1 and 2 to Schedule 1.
(2) All the offences listed in Tables 1 and 2 to Schedule 1 are indictable offences, subject to the provisions of this Chapter.
260 Offences to be dealt with summarily unless election made to proceed on indictment
(1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment.
(2) An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment.
261 Procedure for dealing with offences summarily if no election made
An indictable offence listed in Table 1 or 2 to Schedule 1 is, if no election is made in accordance with this Chapter, to be dealt with summarily in accordance with the relevant provisions of this Act and any other relevant law as if it were a summary offence.
262 Procedure for dealing with offences if election made
(1) An indictable offence listed in Table 1 or 2 to Schedule 1 is, if an election is made in accordance with this Chapter, to be dealt with on indictment in accordance with the relevant provisions of this Act and any other relevant law.
(2) If an election is made in accordance with this Chapter and the person charged with the offence pleads guilty to the offence before the Local Court and the Court accepts the plea, the offence is to be dealt with in accordance with Division 5 of Part 2 of Chapter 3 as if the person charged had pleaded guilty under that Division to the offence.
263 Time for making election
(1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court.
(2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied that special circumstances exist.
(3) However, an election may not be made after the following events:
(a) in the case of a plea of not guilty - the commencement of the taking of evidence for the prosecution in the summary trial,
(b) in the case of a plea of guilty - the presentation of the facts relied on by the prosecution to prove the offence.
(4) An election may be made on behalf of a corporation by a person appearing as a representative of the corporation.
(5) The jurisdiction of the Local Court under this section may be exercised by a registrar.
264 Election may be withdrawn
(1) An election for an offence to be dealt with on indictment may be withdrawn by the party who made the election.
(2) However, an election may not be withdrawn after the following events:
(a) in the case of a plea of not guilty - the commencement of the taking of evidence for the prosecution in the committal for trial proceedings,
(b) in the case of a plea of guilty - the committal of the person charged for sentence.
(3) An offence is to be dealt with summarily in accordance with this Chapter if an election is withdrawn in accordance with this section."
Here, the Magistrate made a procedural ruling granting the prosecutor leave to make an election out of time under s.263(2) of the Act. Prior to any election being made, all matters were to be dealt with summarily. No charge was strictly indictable.
Appeals under s.5F from committal proceedings have usually involved subpoenas: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667; Attorney General (NSW) v Chidgey [2008] NSWCCA 66; 182 A Crim R 536. A ruling or decision by a Magistrate as to whether a prosecution witness should be required to attend for cross-examination at committal proceedings was held not to be an interlocutory judgment or order under s.5F in R v Colby; R v Kennedy (1995) 84 A Crim R 125. In R v O'Meara [2001] NSWCCA 340, it was said at [11] that a committal order is not an interlocutory order, but is a decision of an administrative character.
The jurisdictional problem confronting the Applicant is illustrated by considering the nature of an order which he seeks if the appeal was allowed. He seeks an order setting aside the s.263(2) decision and a ruling by this Court, refusing the extension of time, so that the prosecutions will be determined summarily.
This feature reinforces a conclusion that no committal proceedings have commenced against the Applicant with respect to these matters, and that the Magistrate's ruling itself was not made in committal proceedings: s.5F(1)(a). In these circumstances, s.5F(3) is not an available avenue for appellate review of the decision.
A further difficulty for the Applicant is whether the grant of leave under s.263(2) constitutes an "interlocutory judgment or order" for the purpose of s.5F(3) Criminal Appeal Act 1912. Campbell J concluded that, whilst "the matter is not free from doubt … a grant of leave under s 263(2) is an operative judicial act and is accordingly an interlocutory order for the purpose of s 53(3)(b)": Hall v Director of Public Prosecutions at [15].
The Crown submits here that the relevant decision was not an "interlocutory judgment or order" for the purpose of s.5F, relying upon AF v R [2015] NSWCCA 35 at [30]-[31]. The Crown submitted that the grant of leave to elect out of time under s.263(2) was not an order of the requisite character. It was submitted that it was not an operative judicial act, but rather the Magistrate did no more than answer a preliminary question without commanding anything more to be done: Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 at 394-395 [12]-[15].
If it was necessary to resolve the question in this case, I would conclude that the decision under challenge is not an "interlocutory order". However, I am satisfied that there is a more fundamental difficulty confronting the Applicant. He cannot bring himself within the terms of s.5F as the decision under challenge, whether an interlocutory order or not, was not made in committal proceedings.
I am satisfied that the Applicant's application for leave to appeal to this Court is incompetent.
[4]
Proper Construction and Application of s.263(2) Criminal Procedure Act 1986
Although it is not necessary to say more for the purpose of disposing of this application, there is utility in making some observations concerning the proper construction and application of s.263(2) Criminal Procedure Act 1986. There is an absence of authority concerning this practical provision which is exercised with some regularity.
Section 263 appears at [30] above. It is noteworthy that the jurisdiction under s.263 may be exercised by a registrar: s.263(5). The present case suggests that a Magistrate will often exercise the s.263(2) jurisdiction, although this is not required by statute.
Section 263(1) provides that an election to have an offence dealt with on indictment must be made within the time fixed by the Local Court. Practice Notes issued by the Chief Magistrate under s.27 Local Court Act 2007 make provision for s.263 election. Clause 5.3 of Local Court Practice Note Crim 1 states:
"5.3 Table matters
(a) On the first mention, if there is no decision as to whether or not an election is to be made in a Table matter:
(i) If the accused enters a plea of not guilty - orders will be made for the service of the brief in accordance with paragraph 5.4;
(ii) If the accused enters a plea of guilty -
* the prosecution will be entitled to an adjournment for 2 weeks to consider whether or not to make an election; and
* the facts are not to be tendered.
(b) Pursuant to s 263(1) CPA, an election must be made on or by the first return date after an order is made for service of the brief of evidence (ordinarily, the second mention). The proceedings are to be dealt with summarily in accordance with this Chapter unless an election is made.
(c) If an election is made, the matter is to proceed in accordance with Practice Note Comm 1."
Clause 4 of Local Court Practice Note Comm 1 provides as well for s.263 election:
4. Election in Table matters
4.1. A brief of evidence will not be ordered in a Table matter unless the Court is informed that a plea of not guilty is entered.
4.2. A Table matter will proceed summarily pursuant to Chapter 5 of Practice Note Crim 1 unless an election is made to proceed on indictment in accordance with section 260 of the CPA within the timeframes set out in paragraph 4.3.
4.3. Pursuant to section 263(1) of the CPA, an election must be made on or by the first return date after an order is made for service of the brief of evidence.
4.4. Where a plea of guilty is entered at the first mention, the prosecution is entitled to an adjournment for 2 weeks to consider whether or not an election is to be made and facts are not to be tendered.
4.5. Committal proceedings are to proceed in accordance with the following timetable unless the Court is satisfied that departure from the timetable is in the interests of justice.
Clause 5.3 of Local Court Practice Note Crim 1 and Clause 4.3 of Local Court Practice Note Comm 1 appear to nominate the time fixed by the Local Court for the purpose of s.263(1) of the Act. This is done by reference to a date fixed for a different purpose (the first return date after an order is made for service of the brief of evidence, ordinarily the second mention). In practice, at this early stage of proceedings, a police prosecutor will be appearing with a process of contact with the Office of the Director of Public Prosecutions expected to be underway in cases where s.263 election is under consideration.
The statute does not state what is required for s.263 "election". There is no statement that an election is not made until it is communicated to the Local Court and/or the defendant. At the least, however, there is an implied requirement that an election will be communicated promptly to the defendant and the Local Court, to allow it to be noted that compliance with s.263(1) has occurred.
The Local Court (including a registrar) is authorised by s.263(1) to fix a time for the making of a s.263 election. It may be taken that there is power to extend that time upon a proper basis, as long as the extension is granted before the expiration of the time provided for initially under s.263(1): s.48 Interpretation Act 1987. This scenario may arise in practice, given that the time fixed by way of Practice Note is a by-product of a date selected for another purpose related to service of the brief. In a particular case, the prosecutor may ask legitimately for further time to consider the election issue. Of course, s.263(2) has application only after the expiration of the time fixed by the Local Court. It is only then that the "special circumstances" requirement must be satisfied.
The s.263 procedure was referred to in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 480 [95]-[96]:
"95 Section 263 provides for the time for making an election. That a charged person's criminal record is relevant to the process of election is reinforced by s.265 Criminal Procedure Act 1986, which requires the prosecution to serve upon the person charged with a Table 1 offence, a copy of his or her criminal record.
96 It might be thought that the provision of the criminal record to a person charged with a Table 1 offence is intended to assist that person to consider whether indictable election should be sought, and to be in a position to make submissions to the prosecution on the question whether the prosecution should elect for indictable disposal of the matter."
Reference was made, as well, in Zreika v R at 480-481 [100] to matters which the prosecutor may take into account in determining whether an election is to be made:
"Paragraph 8 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales lays down guidelines for election by the prosecution for an offence to be dealt with on indictment. The guidelines are furnished pursuant to s.13 Director of Public Prosecutions Act 1986. Paragraph 8 of the Guidelines includes the following:
'…
An election should not be made unless:
(i) the accused person's criminality (taking into account the objective seriousness and his or her subjective considerations) could not be adequately addressed within the sentencing limits of the Local Court; and/or
(ii) for some other reason, consistently with these guidelines, it is in the interests of justice that the matter not be dealt with summarily (eg. a comparable co-offender is to be dealt with on indictment; or the accused person also faces a strictly indictable charge to which the instant charge is not a back-up).
… .'."
It may be accepted that factors which contributed to the election in the Applicant's case related to his criminal history and current sentences, and the question whether the sentencing jurisdictional limit of the Local Court was appropriate in this case.
It should be emphasised that the issue for consideration under s.263(2), where the prosecution seeks the leave of the Local Court to elect to proceed on indictment out of time, is whether the Court is satisfied that "special circumstances exist" to allow that extension of time. The focus of attention is not directed to the appropriateness of an election in the particular case, but to the reasons why the decision was not made within the time allowed by the Local Court.
The term "special circumstances" is used in a variety of different statutory contexts. In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, in considering the term "special circumstances" in s.44(2) Crimes (Sentencing Procedure) Act 1999, Spigelman CJ said at [59]-[60]:
"59 The words 'special circumstances' appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. …
60 Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently 'special', so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that 'special circumstances' are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a 'special circumstance'.".
In applying the term, it is necessary to keep in mind the nature of the decision for which a finding of special circumstances is required. The phrase has a purposive element and should be interpreted in relation to the objective to be served: D (A Child) v White (1988) VR 87 at 91.
In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67, Kiefel J said at [19]:
"The words 'special circumstances' are not so imprecise as to require judicial gloss: Beadle v Director-General of Social Security (1985) 60 ALR 225, 228. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545 I expressed the view that the words require something which distinguishes a person's case from others, something that sets it apart from the usual or ordinary case."
In Expile Pty Limited v Jabb's Excavation Pty Limited [2002] NSWSC 851; 194 ALR 138 at 139-140 [5], Hamilton J said:
"5 The word 'special' is an ordinary English word. The relevant definition of it as used in the present context appears to me to be that given in the Macquarie Dictionary (3rd ed, 1997) as follows:
'6 Distinguished or different from what is ordinary or usual: a special occasion '
The thrust of that definition is that 'special' is used in contradistinction to 'ordinary' or 'common'. 'Special circumstances' is an expression that has been used in other statutes. One must always bear in mind in an exercise of statutory interpretation that one is interpreting the particular words in the context of the particular statute. However, cases decided on other statutes, whilst they cannot govern the situation, indicate that, where 'special circumstances' is used in contexts like the present, it is used in the sense of the definition which I have quoted from the Macquarie Dictionary. Its essential meaning is that it denotes a particular situation which can be regarded as distinguished from the ordinary or common runs of situations. It has been found to bear this meaning in a number of other statutory contexts of a widely varying nature: eg Re Norman (1886) 16 QBD 673 per Lopes LJ at 677; Re Hunter (A Bankrupt), Ex Parte Exclusive English Imports Limited (In Liquidation) [1954] NZLR 747 per F B Adams J at 754; Clarks of Hove Ltd v Bankers' Union [1978] 1 WLR 1207 per Geoffrey Lane LJ at 1215; Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 per Wilcox J at 225; Lyon v Wilcox [1994] 3 NZLR 422 CA per Casey J at 431; Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529 CA per Richardson P at 536."
Counsel for the Applicant referred Magistrate Crompton to decisions where the term "special reasons" was considered in the context of a decision whether to direct the attendance of a witness at committal proceedings under s.93 Criminal Procedure Act 1986: B v Gould (1993) 67 A Crim R 297; Tez v Longley [2004] NSWSC 74; 142 A Crim R 122. Although general statements in these cases concerning the term "special reasons" may have provided some general assistance, it is important to keep in mind the different statutory context surrounding s.263(2).
Where a s.263(2) application is made, it is necessary to consider the reasons why election was not made by the prosecution within the relevant time period, for the purpose of determining whether the Court can be satisfied that special circumstances exist for granting leave for an election to be made out of time. To this end, something is required which distinguishes the case from others - that sets it apart from the usual or ordinary case: Kiefel J in Secretary, Department of Family and Community Services v Chamberlain at [19] (see [52] above).
A primary focus of the decision under s.263(2) will be any explanation as to why the prosecution did not make the election in time. The length of time since expiration of the s.263(1) time limit will be significant. In a particular case, it may be that the circumstances of the offences, and the dates upon which they were allegedly committed, will bear upon this issue as well. It may be that there are groups of charges which will need to be considered together by the prosecution, to decide whether a s.263 election ought be made. This appears to be the case here, where groups of charges were considered at about the same time, to allow a decision to be made about s.263 election.
The overall administration of justice is also important, being justice as it affects the community as well as the individual: D (A Child) v White at 93. This aspect may arise if a s.263(2) refusal left the Local Court with inadequate sentencing powers to deal with the offences at hand, or where refusal may see a co-accused being dealt with separately in the District Court.
Magistrate Crompton set out, in Director of Public Prosecutions v Hall at [16], the suggested special circumstances relied upon by the Crown in this case:
"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."
In the course of determining to grant leave under s.263(2), his Honour referred to these features of the case and concluded at [18]-[24]:
"18 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.
19 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.
20 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.
21 The defendant also remains subject to a s 9 good behaviour bond imposed on 18 June 2014 at Balmain Local Court.
22 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.
23 Moreover, if the defendant is ultimately convicted of the H55121852 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.
24 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)."
It may be seen that the matters relied upon by the prosecution concerned the nature and gravity of the Applicant's criminal history and of the present charges, together with the inappropriateness of the Local Court (with its jurisdictional limits) sentencing the Applicant. His Honour's reasons focused upon similar considerations. It does not appear that an argument was advanced by the prosecutor as to why the elections were not made in time. His Honour's reasons did not advert to any explanation for the delay.
Although the matters advanced by the prosecutor, and relied upon by his Honour, were not extraneous to the decision to be made under s.263(2), there ought to have been some explanation provided as to why any relevant election was not made within the time laid down under s.263(1). The statutory need for "special circumstances" requires some explanation for the relevant delay so as to justify a favourable decision by the Court under s.263(2).
As mentioned earlier, these observations have been made given the absence of authority concerning the construction and operation of s.263 Criminal Procedure Act 1986.
[5]
Conclusion
It is the position, however, that the present application for leave to appeal is incompetent. It is not open to this Court to take any step given the absence of authority under s.5F Criminal Appeal Act 1912 to do so.
In any event, there is a further difficulty confronting the Applicant. This Court has determined that a refusal of leave under s.263(2) Criminal Appeal Act 1986 is not an impediment to the Crown bringing an ex officio indictment in the District Court charging the offences which were the subject of the s.263(2) refusal: Iqbal v R [2012] NSWCCA 72 at [15]-[24]. In these circumstances, the utility in a challenge to a s.263(2) decision is questionable.
I propose that leave to appeal should be refused upon the basis that the application for leave to appeal under s.5F Criminal Appeal Act 1912 is incompetent.
DAVIES J: I agree with Johnson J.
[6]
Amendments
30 November 2015 - [36] - Citation amended.
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Decision last updated: 30 November 2015