Liam Monte v R

District Court of NSW|2015-09-28|Before: Bellew J

Solicitors: Alexander Maroulis (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/122680

Judgment

Liam Monte (the appellant) was found guilty of one count of steal from a person contrary to section 94 Crimes Act 1900 by Mr Barnes LCM on 9 April 2014. The magistrate dismissed the charge without proceeding to a conviction pursuant to the terms of section 10(1)(a) Crimes (Sentencing Procedure) Act 1999.
On 17 April 2014 the appellant lodged an all grounds appeal in the District Court (the first District Court appeal).
On 9 September 2014 the appellant lodged an appeal in the Supreme Court of New South Wales, pursuant to sections 52 and 53 Crimes (Appeal and Review) Act 2001 (the Act). The Supreme Court appeal was against the sentence imposed by the magistrate, by reference to the extended definition of "sentence" provided for in section 3 of the Act; which is defined to include any order made under section 10 Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence.

Relevant legislation

Section 11 of the Act relevantly provides: Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). An appeal must be made: within 28 days after sentence is imposed.
Section 29 of the Act provides: No appeal may be made to the District Court under this Part against a decision of the Local Court: in relation to an environmental offence against which an appeal may be made under Part 4, or that is or has previously been the subject of an appeal or application for leave to appeal to the District Court under this Part, or that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5. Subsection (1) (c) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the District Court under this Part if: the Supreme Court has remitted the matter on appeal to the Local Court for redetermination, and the Local Court has redetermined the matter, or the Supreme Court has refused leave to appeal in relation to an appeal made on a ground of mixed law and fact. No application to set aside or vary any conviction or sentence of the Local Court that could be the subject of an appeal under this Part may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part.
Section 52 of the Act provides: (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.
Section 53 of the Act relevantly provides: (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (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. An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.
Section 62 of the Act relevantly provides: (1) This section applies to: (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed: (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or (b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or (c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act. (3) Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined.

Consideration

There are three compelling reasons why the Court does not have jurisdiction to deal with the second District Court appeal.

The second District Court appeal is out of time

The second District Court appeal is out of time. Section 11(2) of the Act provides for an appeal as of right to the District Court if the appeal is made within 28 days after the sentence is imposed. The sentence, being the order made pursuant to section 10 Crimes (Sentencing Procedure) Act 1999, was made and thereby imposed on 9 April 2014. The second District Court appeal was filed on 27 April 2015.
The appellant contends that the stay of execution of the sentence provided for by section 63 of the Act means that the sentence was not "imposed" until the stay was lifted by reason of the dismissal of the Supreme Court appeal. That argument equates the concepts of imposition of a sentence and the stay of execution of the sentence and it can be rejected on the simple basis that they are two entirely different things. In the present case, if the sentence had not been imposed, ie the order made pursuant to section 10 Crimes (Sentencing Procedure) Act 1999, the appellant had nothing to appeal against because he would have been neither convicted or sentenced.
The second District Court appeal has been lodged outside of the 3 month time limit provided for in section 13 of the Act, during which period the appellant could have sought leave to appeal out of time. The power of the Court to allow the appeal to be considered out of time is not invoked because the temporal prerequisite to the exercise of that power has not been satisfied: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 276-7 and Commonwealth v Verwayen (1990) 170 CLR 394 at 404.
On this basis alone, the Court has no jurisdiction to entertain the second District Court appeal.

The second District Court appeal is prevented by section 29 of the Act

The second District Court appeal offends two separate provisions of section 29 of the Act. I will deal with them in reverse order.
First, section 29(1)(c) of the Act has the effect of preventing an appeal to the District Court pursuant to section 11 against conviction or sentence that has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5 of the Act, except as provided for in section 29(2) of the Act.
The relevant exception provided for by section 29(2)(b) of the Act is if the Supreme Court has refused leave to appeal made on a ground of mixed law and fact.
In the present case, the rights of appeal provided for in sections 52 and 53 of the Act are contained in Part 5 and the Supreme Court granted leave to the appellant to proceed with grounds 2-4 that involved questions of mixed law and fact: Monte at [6]. Accordingly, the second District Court appeal does not come within the exception provided for by section 29(2)(b) of the Act.
Second, section 29(1)(b) of the Act has the effect of preventing an appeal that has previously been the subject of an appeal or application for leave to appeal to the District Court.
In the present case, the first District Court appeal was lodged on 17 April 2014 and withdrawn and dismissed at the appellant's request on 15 September 2014 by Finnane DCJ. In this regard, the following submission was made on behalf of the appellant: It is submitted that nothing turns upon the proposition advanced by the Crown that Mr Monte previously 'withdrew' his appeal to the District Court. An accused (sic) may institute and withdraw an appeal as many times as they wish (the only penalty being additional expense) as long as an appeal is ultimately instituted 'within time'.
That submission cannot be reconciled with the clear words of section 29(1)(b) of the Act and should be rejected. There are no exceptions in section 29 of the Act to the prohibition on previous District Court appeals under to Part 3, similar to the exceptions provided for by section 29(2)(a) and (b) of the Act that relate to appeals to the Supreme Court under Part 5. The sub-section clearly refers to appeals that have not been dealt with on their merits; for example it would prevent the bringing of a second appeal after the first appeal had been made but not yet determined. The sub-section clearly applies to the first District Court appeal in this case.
In any event, for the reasons already expressed the second District Court appeal is not within time.
The right to appeal provided for by section 11 of the Act is statutory and the exercise of that right is subject to the terms of the statutory grant: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108. By reason of the opening words of section 29 of the Act the second District Court appeal may not "be made to the District Court". For these further reasons, the Court has no jurisdiction to entertain the second District Court appeal.

The appellant's argument reflects a basic misunderstanding of the appellate jurisdiction conferred by the Act

The appellant's argument

The appellant's argument can be summarised as follows.
The Supreme Court appeal was in relation to "discrete points of law that arose in the Local Court proceedings", but that it was not an appeal against "conviction". The second District Court appeal is the appellant's appeal against conviction made as of right pursuant to section 11 of the Act. It is intended that the second District Court appeal will involve the agitation of issues that were outside the ambit of the Supreme Court appeal including: 1. whether the appellant had the necessary specific intent to steal; 2. whether the proceedings should be stayed because they are an abuse of process; and 3. whether the appellant should be granted leave to call fresh evidence.
The purpose of section 29 of the Act is to prevent re-agitation of issues that have already been decided by a superior court. It is not intended to cut off the right of an appellant to appeal against conviction without consideration of all of the evidence that was before the Local Court, because to do so would be unfair.
The District Court did not have jurisdiction to deal with the arguments raised in the Supreme Court appeal and the second District Court appeal is limited to an application of the principles outlined in Charara v R [2006] NSWCCA 244 at [17]-[22].

Determination

Sections 52 and 53 of the Act provide for an appeal to the Supreme Court by any person who has been convicted or sentenced in the Local Court, against the conviction or sentence. In the Supreme Court the appellant sought the following relevant orders, that: 1. the appeal be allowed; 2. the decision of the Magistrate be set aside; and 3. the charge laid against the plaintiff be stayed or dismissed.
The last prayer for relief was abandoned at the hearing in the Supreme Court: Monte at [4].
Contrary to the appellant's argument, the Supreme Court appeal was an appeal against sentence, by reference to the extended definition of "sentence" in section 3 of the Act. The appellant sought the setting aside of the orders of the magistrate being that: 1. the offence was proved; and 2. the charge was dismissed without proceeding to a conviction.
The abandonment of the prayer of relief seeking dismissal of the charge was appropriate because the magistrate had already dismissed the charge. I cannot determine on the basis of the material before me, why the prayer of relief seeking the imposition of a stay of the proceedings was abandoned. No argument has been put by the appellant to identify the basis on which the appellant could seek that relief in the second District Court appeal when it was expressly abandoned in the Supreme Court appeal.
The first and second District Court appeals were also appeals against sentence by reference to the extended definition of "sentence".
Put simply, the appellant had no right of appeal unless it was against the sentence imposed in the Local Court.
The effect of the orders of the Supreme Court was that leave to appeal was granted and the appeal against the sentence was dismissed. In other words, the appeal against sentence was dismissed and the appellant's unfairness argument should be viewed in that context, namely that he was granted leave to prosecute the appeal on the grounds of appeal specified in the Summons. The arguments presented based on those grounds of appeal did not persuade the Supreme Court to set aside the magistrate's orders.
It was open to the appellant pursuant to section 53(1)(a) of the Act to seek the leave of the Supreme Court to include grounds of appeal based solely on questions of fact. The existence of that provision allowed for all of the appropriate issues to be determined by the Supreme Court at the one time, in the one appeal contemplated by the Act.
The appellant did not seek to amend the grounds of the appeal to include a ground a solely based on a question of fact. There is no evidence before me upon which I could decide whether that was done as a result of the appellant's instructions or because he was not advised to do so. The Supreme Court appeal could have examined the matters set out in [29(a)-(c)] above if the grounds of appeal in the Summons were amended and the Supreme Court had granted leave. There is no specific prohibition similar to section 18 of the Act, preventing the calling of fresh evidence in an appeal brought pursuant to section 53 of the Act and I presume (although it is unnecessary for me to decide) that the Supreme Court could have received fresh evidence, subject to the usual requirements for reception of fresh evidence on an appeal set out in R v Abou-Chabake [2004] NSWCCA 356 at [63].
For the sake of completeness I should deal with two other matters arising from the appellant's argument. First, the purpose of section 29 of the Act asserted by the appellant is not evident from its language or from a contextual reading of the Act. Accepting that the asserted purpose could be gleaned from a contextual reading of the Act (which I do not), even a clear purpose cannot override the words of the legislation: Certain Lloyds Underwriters v Cross (2012) 248 CLR 378. Second, the appellant's argument is couched in terms of estoppel, which I assume is a reference to res judicata or issue estoppel. Neither of those concepts are raised in this argument because the right of appeal is statutory and the Court's lack of jurisdiction arises from the appellant's inability to demonstrate that he is entitled to appeal by reference to the terms of the statutory grant.
The appellant was faced with a choice between an appeal to the Supreme Court or an appeal to the District Court against the sentence imposed. For the reasons given, the appellant could not pursue an appeal to the Supreme Court and an appeal to the District Court, except in the limited circumstances set out in section 29(2) of the Act which do not apply in this case.
For these additional reasons, the second District Court appeal may not be made.

Conclusion

For the reasons expressed, the argument before me on behalf of the appellant was manifestly hopeless. Regrettably, the legal representatives of the appellant did not exercise the forensic judgement expected of them by the Court to prevent it from proceeding.

Orders

The proper order is that: 1. The second District Court appeal lodged on 27 April 2015 is struck out as incompetent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2015

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