HIS HONOUR: This is an appeal by Arash Hashimi against convictions by Magistrate Truscott entered on 1 December 2022 at the Burwood Local Court.
The learned magistrate convicted the Appellant on two charges, being one count under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and one count for use of using a carriage service to menace, harass or offend pursuant to s 474.17(1) of the Criminal Code Act 1995 (Cth).
On appeal, but not before the magistrate, the point taken is that in relation to the Commonwealth offence brought pursuant to s 474.17(1) the Local Court had no jurisdiction to hear and determine the matter and therefore had no power to convict the Appellant because, it is said, there was no consent given by the Appellant to the Local Court hearing the matter on a summary basis.
Mr Agius SC, who has argued the matter for the Appellant relies on what the Court of Appeal said in Morgan v The District Court of New South Wales and Anor 94 NSWLR 463, [2017] NSWCA 105 and in particular paras [9], [22], [23], [30] and [31] of Meagher JA's reasons, with whom Macfarlan JA and Beazley ACJ agreed.
The point is that in contradistinction to the position with charges under NSW legislation, where the default position is that the matter proceeds on a summary basis unless and until an application is made to the contrary, when dealing with criminal proceedings under Commonwealth legislation the position is governed by s 4G of the Crimes Act 1914 (Cth) which provides that indictable matters can only be dealt with by a court of summary jurisdiction with the consent of the accused.
The failure of a Court to determine whether such consent has been given is, so the submission goes, a failure to determine or deal with what has been described as the fundamental duty of a court, that being to determine whether it has jurisdiction to hear the matter before it.
In Morgan, the State, on appeal, accepted as a matter of fact, that the Appellant in that case did not give any consent as required by s 4J(1), which concession was acted upon by the Court to go on and determine at [30] and [31] that notwithstanding that lack of jurisdiction the District Court, on an appeal under s 18 of the Crimes (Appeal and Review Act) 2001 had jurisdiction to determine the Local Court's lack of jurisdiction and therefore under s 20(1)(a) of the Crimes (Appeal and Review Act), a power to set aside any conviction made in those circumstances.
I am told that the Local Court bench book, relying on the decision of Morgan counsels as good practice a requirement for magistrates to expressly enquire as to whether consent to proceed upon a summary basis is being given by an accused in particular in proceedings for offences under s 474.17.
All of the above can be accepted.
The real question for me in this case is whether there was in fact consent given by the accused before the magistrate so as to satisfy the requirement of s 4G thus giving the Local Court jurisdiction to proceed upon a summary hearing.
The first observation I would make is that there is nothing in the legislation or any of the cases of which I am aware that such consent has to be obtained expressly. True it is that good practice would dictate an express enquiry from the bench and an express response from the bar table but a failure to follow good practice does not necessarily mean that a Court has made a legal error.
To my mind it is obvious that consent in this area of the law, like so many other areas of law, can be given either by express statements or by inference from conduct.
Ms Reardon on behalf of the Crown, has submitted that I should find that consent was obtained, prior to the receipt of evidence by the magistrate, from the following facts. Firstly, in the context of charges under both the State and Commonwealth legislation, the matter was set down during the COVID era, following email correspondence between the Appellant and the Court.
In that correspondence, which is behind tab 3 in exhibit A, the solicitor then acting for the Appellant said to the Court, in part:
"ORDERS SOUGHT
We are instructed to enter pleas of not guilty to the charged matters and to set the matter down for hearing. Our available dates are as follows..."
The Local Court listing advice, which issued following that correspondence, confirmed that the matter had been set down for hearing, and allocated a hearing date with an estimate of four hours, with notations that all of the Crown witnesses were to be available for cross‑examination.
Second, Ms Reardon relies on what was said between bench and bar in the Local Court and the way the matter was conducted. I have read the transcript of the hearing before Magistrate Truscott on 21 November, and again on the resumed occasion, 1 December, and it is abundantly clear to me that the solicitor then acting for the appellant conducted himself in a way that was only consistent with the matter proceeding upon a summary basis, which in turn was only consistent with him having instructions to consent to such a course. In that regard, I do not think it should be overlooked that Meagher JA in Morgan, after recording the concession by the State that no relevant consent had been given, said this:
"She was unrepresented. The evidence did not suggest that she had been advised of the effect of s 4G, or provide any basis for inferring that she had given the required consent."
In the circumstances of this case, the appellant was represented by a solicitor. I infer that both the solicitor and the magistrate, and indeed all the lawyers involved in the matter at the time, understood the law, and in particular the requirements of s 4G. I infer from the way the matter was set down for hearing, and from the way the hearing was conducted by a solicitor acting for the appellant that he had instructions to consent to the matter proceeding upon a summary basis, and by his conduct conveyed those instructions to the Court.
Mr Agius then puts the matter in another way. He says that I should infer that the magistrate did not turn her mind at all to this important question of jurisdiction. I am not sure that is a finding I should make at all but that may be what happened. It may be that the explanation for the way the matter was conducted was that all involved in the matter overlooked the requirement for consent, because of the fact that there was simultaneously being conducted prosecutions under State and Commonwealth legislation.
However, if that is what occurred, I do not think that is a relevant consideration, because this is an appeal under s 18 of the Crimes (Appeal and Review) Act, and as such is a re‑hearing, by which I am required to determine (absent any leave to the contrary) on the material before the magistrate, whether the convictions should be set aside or the appeal dismissed (s 20).
Regardless of whether the magistrate specifically turned her mind to the question of jurisdiction, I am satisfied on the material before the magistrate that the relevant consent was communicated to the Court in the way I have described.
For those reasons, I propose to dismiss the appeal on the jurisdictional ground.
During argument I raised with Mr Agius on a number of occasions whether he had any other grounds of appeal. He told me that he did, and that the ground was the same matter that was run before the magistrate, that is, whether there was sufficient evidence for the magistrate to conclude that the relevant text or WhatsApp messages had been sent by the Appellant.
The magistrate was persuaded to the relevant standard that the appellant was the author of those messages.
Mr Agius suggested that I should proceed upon some sort of separate question basis, although no formal application to that effect was made. He made no submissions other than those going to jurisdiction.
The Crown, not anticipating the jurisdictional argument, but anticipating a more orthodox appeal based on the merits of the matter, provided comprehensive written submissions going to why the magistrate had not erred in determining the guilt of the appellant beyond reasonable doubt. I had read those submissions and the material referred to in them, before coming on the bench, and am comfortably satisfied on the material that was before the magistrate that the magistrate's decision on the merits was not only correct but, in my view close to unarguably so.
Accordingly, I am not prepared to bifurcate the proceedings to allow the appellant to have some further opportunity to ventilate what I regard to be close to a hopeless appeal on the merits. The Appellant's opportunity to run his appeal was today. He made no submission as to any other ground. In the event that the Court of Criminal Appeal determines that I am incorrect on the jurisdictional basis - Mr Agius having told me that in the event I am against him on the jurisdictional matter, he thinks it likely that there will be an appeal - then he will succeed, but if not, he should not be able to return to this Court to run the balance of his appeal.
Finally, before I leave the matter I should observe that, having read the decision of Perry and others v Nash and others [1980] 32 ALR 177, it seems to me that even if the jurisdictional argument being advanced was correct, the result would be that I would set aside the conviction, but the ultimate legal consequence would be that the hearing before the magistrate would be taken to be in the nature of committal proceedings in respect to an indictable offence; in which case it would be unlikely that there would be remittal for a further hearing for a further hearing before the magistrate. Rather, the likely result might be that the appellant would be indicted for trial before this Court.
For those reasons, I propose to dismiss the appeal.
The order I make is that the appeal filed on 2 December 2022 is dismissed.
[2]
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Decision last updated: 25 September 2023