KEYS v. WEST [2006] NSWSC 136

KEYS v. WEST [2006] NSWSC 136 - NSWSC 2005 case summary — Zoe

[11]

The history of the present proceedings in this Court 19 Following the filing of the statement of claim on 11 March 2004, the proceedings were heard on 16 September 2004 before his Honour Justice Shaw who delivered a judgment on 30 September 2004. 20 His Honour, in that judgment (paragraph [5]), observed that the proceedings involved a short question of law, namely, whether there was power to discharge the defendant despite the earlier conviction. Although not determining the issue on a final basis, his Honour observed in that judgment (at [13]) that notwithstanding the magistrate's recording of a "conviction", he was of the view there was a powerful case that this recording, conducted in relation to an ex-parte proceeding, "represents a bare finding of guilt rather than an authoritative or ultimate adjudication on the issue". His Honour also expressed a view at [17] that in the absence of clear provision in the statute "my inclination would be to construe the legislative regime so as to keep alive and available the possibility of a finding of guilt without conviction, and without the imposition of a penalty. This is a fortiori, in a case where the initial hearing leading to the 'conviction' has been conducted ex parte …". His Honour also referred to what seemed to him to be a strongly arguable case that no conviction should be recorded in all of the circumstances. 21 Without proceeding to finally determine the matter, his Honour at [21] observed that the defendant may have had an avenue of redress open to her, if she elected to take it, which was not statute barred. In this respect, reference was made to the provisions of s.100G of the Justices Act. The proceedings were accordingly stood over to allow the defendant to consider whether she did wish to make an application under s.100G and to give liberty to have the matter restored in the list if either party requested it. 22 The affidavit of Trent Nicoll sworn 10 August 2005 establishes that the opportunity provided to the defendant to make the application referred to by Shaw, J. had not taken place and accordingly the proceedings were re-listed before me and were heard on 21 November 2005.

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Consideration 23 The provisions of s.19B(1)(d) of the Crimes Act 1914 provide, inter alia, that where a person is charged before a court with a Federal offence and the court is satisfied that the charge is true but, having regard to specified matters, it is inexpedient to inflict any punishment and "that it is expedient to release the offender on probation" then the court may, inter alia, discharge the person without proceeding to conviction in respect of (the charge), upon the person giving security as specified in the section. 24 The central issue is whether these provisions were available and authorised the magistrate, on 9 October 2003 to make the order referred to in paragraph [2(a)] of this judgment. In this respect, it is contended for the plaintiff that such an order was not available at law because it is one made without proceeding to conviction. The defendant had already been convicted for the offence in question on 31 March 2000 and on 9 October 2003 that conviction still stood. 25 The issue debated between the parties to the proceedings is whether or not the order made in the course of the ex-parte proceedings on 31 March 2000 constituted a "conviction" within the meaning of s.19B(1)(d) of the Crimes Act. 26 The case law that has examined the meaning of that term is extensive. I have been greatly assisted by the helpful written and oral submissions of Mr. P. Moorehouse of counsel, who appeared on behalf of the Commonwealth Director of Public Prosecutions and Mr. G. Walsh, solicitor, who appeared for the defendant. Those submissions refer to many of the relevant decisions on the question. 27 It is fundamental to the resolution of the issue to observe, as stated by Toohey, J. (dissenting) in Maxwell v. The Queen (1995-96) 184 CLR 501 at 519, that the meaning of the term "conviction" generally depends on determining the sense in which it is used in the statute under consideration. Similarly, Dawson and McHugh, JJ. in that case (at 507) stated:- "The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence." 28 Their Honours then referred to what was stated by Tindal, CJ. in Burgess v. Boetefeur (1844) 7 Man. & G. 481 at 504 [135 ER 193 at 202]:- "The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury and, at other times, in its more strictly legal sense, for the sentence of the court." 29 By way of preliminary observation, the relevant case law that has considered the word "conviction" has arisen in a number of contexts including the following:-

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• In the context of a discussion of a plea of "guilty" upon a subsequent plea of autrefois convict , a conviction is a determination of guilt and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused: Regina v. Tonks (1963) VR 121 at 127. It was there also recognised that it may be that even a determination of guilt will not in all cases amount to a "conviction" , for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given but conviction by judgment adding "but there must at least be a determination of guilt before there can be a conviction" . 31 In Stone (supra), Hunt, AJA. analysed in considerable detail the relevant authorities in the context of autrefois convict. Specific reference was made to the decision of the Court of Appeal in Kopuz v. District Court of NSW (1992) 28 NSWLR 232. There, the privative clause in s.146 of the Justices Act 1902 was in issue ("no conviction or order of a Justice … or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court"). The Court of Appeal held (at 242-243) that, as the applicant had not been sentenced, s.146 did not prevent the grant of prerogative relief. 32 Hunt, AJA. in Stone (supra), closely examined the judgments of the High Court in Maxwell (supra). The issue to be decided in that case (Maxwell) was whether the judge had power to reject a plea of guilty to manslaughter to a charge of murder. That in turn depended on whether the appellant had been convicted at that time. 33 Hunt, AJA. expressed the opinion that the word "conviction" as used in the context of autrefois convict requires both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) to be established by the accused. Accordingly, his Honour concluded that in the absence of sentence, the plea in bar must fail (at [57]).

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(d) any other order or decision releasing the defendant subject to conditions. (4) The Magistrate may adjourn the proceedings to enable the defendant to appear or be brought before the Magistrate for sentencing." 36 I finally also note the provisions of s.80AA of the Justices Act 1902 (NSW) which is in the following terms:- "(1) A Justice or Justices shall not, by any conviction, order that the defendant be imprisoned unless the defendant is present at the time the order for imprisonment is made. (2) Where a Justice or Justices convicts or convict a defendant who is not present, the Justice or Justices may, at the time of convicting the defendant or at a later time, issue or authorise an authorised Justice to issue a warrant for the apprehension of the defendant for the purpose of the defendant's being brought before a Justice or Justices for sentencing." 37 The provisions of s.75E(1) plainly state that ex-parte proceedings of a matter may be a determination by conviction. The provisions of s.75E(3), however, envisage that an order by way of conviction may be made, yet no order made imposing a sentence, in particular a sentence of imprisonment or periodic detention, unless the defendant is present. In other words, in some cases at least, the conviction is based upon a determination of the guilt of a defendant and is not a final disposition of the proceedings by way of sentence. 38 This emphasises the importance of the statutory context and the particular provisions in question. In Dixon (supra), Yeldham, J. at 624 specifically identified provisions of the Justices Act as it then stood which may hold different consequences so far as a "conviction" is concerned. His Honour there stated:- "I think it is clear that, in some sections of the Justices Act, the expression 'conviction' refers to a final determination or judgment and the complete disposal of a case: see, for example, ss.81, 82, 83, 87, 88, 91, 120, 122. On the other hand, there are sections which clearly indicate that a finding of guilt alone is denoted: see for example ss.52, 75B, 78, 100A, 132." 39 In that case, Yeldham, J. determined that the expression where it appeared in s.112(1) referred to a finding of guilt, whether or not there had been imposed a consequential penalty. A similar observation, it will be noted, was made by his Honour in relation to the provisions of s.75B, as it then stood. 40 The evidence in this matter establishes that the Magistrate, on 31 March 2000, had before him the statement of facts. The statement was within the meaning of s.75D(1), "sufficient to establish the offence". The evidence in these proceedings also establishes:-

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Analysis 45 As noted in paragraph [27], the High Court's decision in Maxwell (supra) emphasised that the answer to the question posed in the present case depends upon the context, that is, the statutory context, in which it is asked. In that respect, it is essential to have regard not only to the provisions of s.75F but to all of the provisions contained within ss.75A to 75F. Accordingly, the analysis which follows is directed towards ascertaining the content and meaning of a conviction under s.75E in its relevant statutory setting. I propose, firstly, to refer to relevant case law principles and, secondly, to consider the relevant statutory provisions in light of those principles. 46 In Cobiac v. Liddy (1969) 119 CLR 257, the High Court determined that the provisions of s.4(1)1 of the Offenders' Probation Act 1913-1953 (SA) were not precluded by the operation of s.47 of the Road Traffic Act 1961-1967 (SA). Section 4(1)1 permitted a court of summary jurisdiction where it considered a charge proved, to proceed, without convicting the person charged, to dismiss the information or complaint. The provision there considered was similar to the former s.556A of the Crimes Act 1900 (NSW) and the provisions now to be found in s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 47 Windeyer, J. (one of the majority) examined the meaning of the word "convict" as a verb and of the noun "conviction". There the distinction was made between conviction in the case of an indictable offence (where the word has been used of a jury's verdict of guilty rather than of the judgment of the court following upon verdict) and as well in the context of the proceedings in a court of summary jurisdiction. "… in more recent times it has been said that the word 'conviction' is sometimes used as meaning the finding of guilt; at other times, it means that finding together with the judgment … of the Court." [per Darling, J. in Harris v. Crooke ]. "This, it seems to me, is especially so when the question arises in relation to proceedings in the court of summary jurisdiction. In a trial on indictment, the jury's return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a Court of Petty Sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he pronounces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence: Regina v. Sheridan; Reg. v. Campbell; ex-parte Hoy …" (at p.273) 48 The latter statement contained in this extract is relied upon by the plaintiff being one which favours the plaintiff's contention that the order imposed by the magistrate on 31 March 2000 was a "conviction" in the broad sense of that term. The plaintiff also relies upon a similar statement in Mulcahy v. Clark (1991) Tas. R. 115 per Zeeman, J. at p.116. However, such observations will only be applicable if that meaning is harmonious with the terms of the Justices Act 1902 to which I will shortly turn. In other words, it is essential to examine the provisions to determine whether there is a legislative indication that the term "conviction" in s.75F is to be given a narrow and not a broad meaning. 49 In Della Patrona v. Director of Public Prosecutions (Cth) (No. 2) (1993) 38 NSWLR 257 at 264, Kirby, P. referred to "the narrow sense" of the word "conviction". It was held that the word may have a meaning synonymous with a finding of guilt not followed by some appropriate order. 50 In Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] 51 NSWLR 305, Howie, J. made reference to a conviction that represents "a bare finding of guilt", such as would authorise the issuing of a warrant to bring an offender before the court for sentencing under s.25(2) of the Crimes (Sentencing Procedure) Act 1999. 51 The question in this matter is whether the term "conviction" in s.75E of the Justices Act in the form the section took at the relevant time is to be given a narrow rather than a broad meaning so as to amount only to an order or finding that the offence charged was proved. 52 There is, in my opinion, to be found within the scheme constituted by ss.75A-75F indications that the term "conviction" in s.75F is to be given a narrow rather than a broader meaning. In this respect:-

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(d) The construction referred to in (b) tends to find some additional support in the terms of s.75E(3) which is directed to ensuring that in ex parte proceedings a person who may be subjected to one or other of the significant orders or decisions referred to in s.75E(3), be present before any final disposition of the proceedings. 53 In Kopuz v. District Court of New South Wales (1992) 28 NSWLR 232, Priestley, JA., at 243, stated that whether conviction and sentence should be regarded as a single act or separate acts depends upon the construction of the statute being considered, citing Re Stubbs (1947) 47 SR(NSW) 329 at 335, 339. For the reasons discussed in [52] above, there is, in my opinion, sufficient indication in the relevant statutory context, namely, the provisions contained within s.75A to s.75F, to provide an indication that the conviction recorded in this case is to be construed in terms of s.75F as a conviction by way of a determination as to the defendant's guilt rather than a conviction which finally disposed of the proceedings. The legislative intention is clear that a defendant in ex parte proceedings, as in a case in which a defendant appears, was to be given the opportunity which the statute provided to persuade a court upon the making of a finding that the person is guilty of an offence, to apply to have the benefit of the former provisions of s.556A, namely, to avoid a conviction in the broader or final sense of that word from being entered and for alternative orders to be made in accordance with that provision. 54 Finally, this construction appears to be in conformity with what Mr. Clugston, the Magistrate, on 31 March 2000 envisaged when the warrant of apprehension for sentence dated 5 April 2000 was issued. The warrant records "this defendant having been convicted of this offence did fail to appear for sentence" and then proceeds to state "I command you to apprehend and bring the defendant before Mr. Clugston or another Magistrate for sentencing". This is reflected in the learned Magistrate's record of conviction "[1]D convicted [2] s.80AA warrant to issue". 55 The magistrate on 31 March 2000 plainly elected not to proceed with the final disposition of the proceeding by way of determining penalty but that that should only take place following the apprehension of the defendant. Only then, when the defendant appeared before Mr. Clugston or another magistrate, would there be a final disposition by a determination of sentence. In other words, the magistrate's evident intention was entirely in conformity with the procedures envisaged under s.75F. 56 I have accordingly concluded that:-

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