Hayes v Office of the Director of Public Prosecutions

Solicitors: Legal Made Easy (Plaintiff) Solicitor of Public Prosecutions (NSW) (Defendant) File Number(s): 2019/59826

EX TEMPORE Judgment - REVISED

1. This matter comes before the Court by way of an appeal from the Local Court of New South Wales under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW). That provision confers a right on a person convicted or sentenced in the Local Court to appeal to this Court, but only on a ground that involves a question of law alone.
2. In this case the plaintiff and the defendant agree that orders should be made extending the time for bringing the appeal, which was filed out of time, and, in substance, allowing the appeal on the basis that the learned magistrate erred in law by failing to give adequate reasons for the conviction and sentence imposed on the plaintiff on 29 March 2018 for the offence of possessing a small amount of the prohibited drug, cocaine.
3. I have reviewed the matter in chambers with the assistance of, with respect, the very detailed and helpful written submissions provided by Ms Langley of the Office of the Director of Public Prosecutions and I agree that the learned magistrate has failed in her judicial obligation to provide reasons.
4. The obligation to give reasons has been dealt with in a very similar context quite recently by Bellew J in Roylance v The Director of Public Prosecutions [2018] NSWSC 933. That matter, like this matter (and the next matter in the list), concerned a matter that was dealt with by way of a written admission of guilt under s 182 of the Criminal Procedure Act 1986 (NSW). Bellew J set out the obligations of a magistrate in such circumstances (at [12] to [15]) in the following terms: A judicial officer is obliged to give reasons for his or her decision. As a general proposition that will require a record of the facts upon which the conclusion is based, and the process of reasoning by which the conclusion is reached. Failure to provide adequate reasons is an error of law. What is adequate must be assessed according to the circumstances of each individual case. There is a need to make proper allowance for ex-tempore decisions delivered in a busy Local Court which has an extremely heavy workload. An appellate Court must read the reasons fairly, making due allowance for the circumstances in which they were delivered, and without overly scrutinizing them. An appellate Court must also recognise the desirability of matters in a busy Local Court being determined expeditiously. Proper allowance must also be made for cases that are heard on an ex-parte basis which are often dealt with informally. In the context of the present case, it is also important to recognise that the obligation of a judicial officer to give reasons extends to sentence proceedings. In R v JCE [2000] NSWCCA 498; 120 A Crim R 18 Fitzgerald JA (commencing at [19]) made a number of observations as to that obligation. His Honour observed that the duty of a sentencing Judge to give reasons for sentence extends to a duty to explain his or her decision, and that this may require discussing sentencing options, and giving reasons as to why particular options were not adopted. That is not to say that it will be necessary for every possibility to be discussed in every case. However, an obligation remains upon a sentencing Judge to explain the reasons why he or she imposed the sentence that was imposed. In the present case the proceedings against the plaintiff were dealt with on an ex-parte basis, following which the Magistrate delivered ex-tempore reasons. Even making allowance for those circumstances, the Magistrate remained under a duty to give reasons in a way which expressed his findings clearly, and which enabled the parties to understand the basis for his decision to record a conviction and impose a fine in each case. In my view, the reasons do not satisfy that test. There is a passing reference to the character references relied upon by the plaintiff, but there is no indication of how (if at all) that material was taken into account. Perhaps even more fundamentally, it is not apparent from the reasons how and why the Magistrate determined that it was appropriate to impose a fine of $330.00 in each case. It would not be possible for either party to determine the basis upon which the Magistrate reached his decision by reading the reasons.