McKellar v DPP

Supreme Court of NSW|2014-04-15|Before: Adamson J, Hulme J

Introduction 1The plaintiff, Tara McKellar, appeals under s 52(1) of the Crimes Appeal and Review Act 2001 (NSW) against her conviction of the offence of larceny contrary to s 117 of the Crimes Act 1900 (NSW) and the sentence imposed by Eckhold LCM (the Magistrate) in the Local Court on 27 June 2013. 2On 27 June 2013 the Magistrate heard and determined the matter on the basis that she was not present although Mr Cranney, her solicitor, was present in court throughout. 3The principal issue raised was whether the plaintiff was before the court or whether the Magistrate was entitled to deal with her matter as if she were not. A secondary issue was whether s 38 of the Criminal Procedure Act 1986 (NSW) (the Act) allegedly required, in terms, the plaintiff's physical presence before the court that was hearing and determining the larceny charge against her. There was also an issue whether, if the plaintiff was not before the court, the prosecutor was still required to tender the police brief of evidence to prove the offence. 4The grounds of appeal are: 1. The magistrate erred by proceeding to hear and determine the matter and convict the plaintiff pursuant to s 196 of the Act when the plaintiff appeared by an Australian practitioner. 2. The magistrate erred in determining that s 36 of the Act did not allow an accused person to appear by an Australian practitioner in the accused person's absence. 3. The magistrate erred in considering he was obliged to proceed under s 196 of the Act if the prosecutor sought to proceed under that section. 4. The magistrate erred in his application of s 38 of the Act. 5It is accepted by the Director of Public Prosecutions (DPP) that, since the Magistrate was in error, the conviction ought be set aside and the matter should be remitted to the Local Court to be determined in accordance with law.

The proceedings in the Local Court 7A Court Attendance Notice (CAN) issued on 23 November 2012 and served on the plaintiff alleged that: Between 3.30am and 4.00am on 23/3/2011 at Dubbo [the plaintiff] did steal certain property of the value of $300 to wit, a black Quicksilver beanie, 4x Steve Grigoryan CDs, 1x Johnstone Brothers CD, 1x Life is beautiful CD, 4x Drive Time Travel Orchid Fever CDs, 3x Good Morning Vietnam CDs, 1x Bronski Beat CD, and 1x Houseworks Songs CD, and approximately $10 in small Australian Currency being the property of Michael Brennan. 8The plaintiff's matter was listed for hearing on 27 June 2013 before the Local Court at Dubbo. Her solicitor, Mr Cranney, applied for an adjournment on the grounds that the plaintiff was unable to come from Sydney, where she was then living, to Dubbo because her Centrelink payments had been terminated two days before. The Magistrate said that, if the prosecutor wished to proceed, he thought he was obliged to deal with the matter by reason of s 196 of the Act. Mr Cranney said if the Magistrate intended to take that course, he might be able to get instructions to run the matter in the absence of the accused. When the Magistrate expressed doubt as to the availability of that course, Mr Cranney reminded his Honour that the definition of an accused person under the Act included a defendant's legal representative. The prosecutor said he was ready to proceed with the matter. The Magistrate then stood the prosecution down to enable Mr Cranney to obtain instructions. 9When the matter resumed Mr Cranney said he had been able to contact his client, and submitted he could appear by virtue of s 36 of the Act, which he contended referred to summary matters because a "prosecutor" did not appear at trials. The Magistrate said that, whilst s 36 was directed to the appearance of a legal practitioner, it was obvious the defendant was meant to be present, since the Supreme Court trial procedure was applicable by reason of s 38 of the Act. The Magistrate remained of the view that s 196 of that Act contemplated the present situation, namely the non-appearance of the defendant in person, although her legal representative was present. The matter was stood down in the list to be mentioned at noon. 10On resumption, Mr Cranney submitted that he could conduct the matter on behalf of the plaintiff by reason of s 15, s 36 and s 38 of the Act. 11Mr Cranney referred the Magistrate to R v Abrahams (1895) 21 VLR 343 in which a trial judge had excused four co-accused from being absent from their trial on the grounds of illness. After commencing its deliberations, the jury returned to court for further directions from the trial judge and subsequently returned a verdict of guilty. On each occasion the co-accused were absent but their counsel and solicitors were present. On a case stated the Full Court held that the convictions could stand. 12Mr Cranney also referred the Magistrate to R v McHardie [1983] 2 NSWLR 733; (1983) 10 A Crim R 51 upon which he relied for the proposition that where a prisoner escapes during a trial, the trial may proceed because such an escape can be considered a waiving of his right to be present. McHardie stood trial with his co-accused Danielson. On the 13th day (of an 18 day trial) McHardie escaped from Parramatta gaol. The trial continued in his absence. His counsel cross-examined the remaining Crown witnesses and addressed the jury on McHardie's behalf. The jury returned verdicts of guilty. Danielson was sentenced on 30 April 1982. McHardie was sentenced on 29 July 1982 after his arrest in Queensland and his extradition to NSW. One of McHardie's grounds of appeal was that the trial judge should have discharged the jury when McHardie failed to appear on the 14th day of the trial. The Court of Criminal Appeal (Begg CJ, Lee & Cantor JJ) said: Notwithstanding the general principle that at an indictable offence trial before a judge and jury the accused's presence is normally a prerequisite to a fair trial, his failure to appear after the trial has started, through his escape from lawful custody, can correctly be described and found to be a waiver of his right to be present at his trial; that the trial judge has a discretion as to whether he should continue the trial, or discharge the jury; that in NSW this principle applies to a trial whether it be one for a category of the law known as a felony, or for a category known as a misdemeanour, and that in any event, the distinction formerly applied for different considerations in cases of felony, as opposed to misdemeanour, are no longer of any legal significance in the present context. We hold that no error has been shown in the exercise of the judge's discretion to continue the trial, and that on an overall view of the trial, no miscarriage of justice has been shown in the manner now being considered. 13Mr Cranney submitted that s 36 and s 37 of the Act distinguished between an accused and a legal representative. The police prosecutor also submitted that s 36 of the Act allowed a person to appear either personally or by a legal practitioner, and that s 37 permitted the defendant's case to be conducted by a legal representative. 14His Honour's reasons and ruling were in the following terms: This is an application before me that the hearing in relation to Tara McKellar occur with Mr Cranney appearing as her legal representative in the absence of the defendant. The Criminal Procedure Act sets out the legislative basis upon which summary matters proceed. This is set out in a number of sections, s15 has been referred to and that is the application [of Part 2 ] "to all offences however arising, whenever committed and whatever court dealt with". Part 2 which is ss15-27. If one turns to Part 3 Criminal Proceedings Act generally, s 36 of the Act allows a prosecutor and an accused to appear personally or by an Australian legal representative or other person empowered by an Act or other law to appear as set out in that section. Section 3 of the Act defines an accused person as follows: An accused person includes, in relation to summary offences, a defendant and, in relation to all offences [where the subject-matter or context allows or requires], an Australian legal practitioner representing an accused person.... The application therefore has some basis but I believe that it is misconstrued [sic]. Section 38 sets out that hearing procedures are to be as for the Supreme Court in relation to all criminal matters and as far as practical to be conducted in accordance with Supreme Court procedures for the trial of an indictable offence. The bench book is one of the resources I have available to me so I have reviewed trial procedures as set out in the Butterworth's Practice and it is quite clear by inference that [it] is never contemplated that an accused person would have a trial in their absence. There is some case law, there is a case referred to by Mr Cranney from 1895 which I have not had regard to which suggests such a trial may occur, I think perhaps that things have moved from that time, certainly the Criminal Procedure Act is an Act from 1986. Section 196 of the Criminal Procedure Act sets out one of the procedures which is widely used in the Local Court which deals with a defended hearing or a first appearance or indeed another mention as is largely interpreted in the Local Court and upon the non appearance of that defendant. That is in the following terms: If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division. It is of course the case the CAN mustered [sic] out as an indictment with the elements of the offence required [sic]. This is the only contemplation that I can see in the legislation of this current circumstance. As a matter of statutory interpretation the specific overcomes the general and consequently it is a matter where I am of the view that s196 applies to these current circumstances. CONSEQUENTLY THE APPLICATION BY MR CRANNEY IS REFUSED. 15His Honour then sought confirmation from the prosecutor that he was seeking to proceed under s 196. The prosecution confirmed that he was. The Magistrate then asked Mr Cranney if he wished to withdraw. Mr Cranney indicated he did not wish to do so. 16The Magistrate then said that the CAN contained the elements of the offence. His Honour then purported to make a finding of guilt under s 196 of the Act, following which the police prosecutor then sought to tender the police facts and the defendant's antecedents on sentence. Mr Cranney invited the prosecutor to tender the police brief of evidence and submitted that where a matter was being dealt with under s 196, s 199(2) of the Act applied and that, before determining a matter, the Court had to consider any written material given to it by the prosecutor or lodged by the accused under s 182. 17The Magistrate responded: Well that's under 182 which is a written plea of guilty, you see. It doesn't deal with 196 situations. The facts sheet is considered sufficient in such circumstances, 182 requires me to have regard to written material or a written plea under that section. 18The plaintiff's solicitor then referred the Magistrate to Barker v Jacob (Supreme Court (NSW), RS Hulme J, 27 March 2000, unrep) in support of the proposition that a person did appear if legally represented, although personally absent. The Magistrate, after receiving a document which referred to the case, but which did not constitute a report of the case, tried to find the case on his computer but was unsuccessful. Accordingly, no report of the decision was available to the Magistrate. His Honour noted that Mr Cranney was relying on the case in respect of a matter for which the Magistrate had already given judgment. 19The Magistrate then asked Mr Cranney whether he was submitting that if a person was legally represented s 196 could not apply. Mr Cranney said that he was not but that the Magistrate "would certainly be allowed to rely on the police evidence and I have no qualms about that evidence". Mr Cranney later submitted that the offence was not made out on the brief of evidence. 20The prosecutor confirmed that on sentence he relied only on the police facts and that a fine was an appropriate penalty. Mr Cranney said that he did not wish to be heard on penalty. The Magistrate then convicted the plaintiff and fined her $300.

This Court's jurisdiction 21An appeal under s 52 of the Crimes (Appeal & Review) Act is confined to a question of law alone. The Magistrate purported to deal with the CAN under s 196 of the Act, although the plaintiff appeared by her solicitor. Accordingly, the plaintiff was entitled to invoke this Court's jurisdiction under s 52 of the Crimes (Appeal & Review) Act since the question raised is one of law. There was no need in my view for the plaintiff to include a claim under s 69 of the Supreme Court Act 1970 (NSW) in the nature of prerogative relief, although the Court's supervisory jurisdiction under that section could also have been invoked: Hill & Ors v King & Ors (1993) 31 NSWLR 654 at 659 (Clarke, Handley & Sheller JJA).

The legislative history in New South Wales of the statutory right of an accused to appear by a legal representative in summary proceedings 22In New South Wales an accused person has been entitled to appear by a solicitor in summary criminal proceedings since at least the adoption in 1850 of Lord Jervis' English Acts of 1848 by the English Duties of Justices (Summary Convictions) Act 1950, 11 & 12 Vic c 43, s 13 of which provided in part: ". . . but if both parties appear either personally or by their respective counsel or attorneys before the justice or justices who are to hear and determine such complaint or information, then the said Justice or justices shall proceed to hear and determine the same." [Emphasis added.] 23Section 77, the equivalent provision in the Justices Act 1902 (NSW), provided (until its repeal by the Justices Legislation Repeal and Amendment Act 2001 (NSW)): If, upon the appointed day and at the time and place for hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys the Justice or Justices shall proceed to hear the case. [Emphasis added.] 24When summary jurisdiction was conferred on this Court by the Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 12 of that Act was in the same terms as s 77 of the Justices Act 1902. 25In 2001 the NSW Parliament passed cognate legislation dealing with NSW courts and court procedures, particularly with regard to the Local Court. The Acts, which took effect on 7 July 2003, included the Justices Legislation Repeal and Amendment Act 2001 (referred to above), which repealed various acts including both the Justices Act 1902 and the Supreme Court (Summary Jurisdiction) Act 1967, and the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW). The effect of this suite of legislation was to include all provisions dealing with criminal cases, whether indictable or summary, into the Act. In the Second Reading Speech, the then Attorney General, Mr Debus, specifically noted that the Act would, upon coming into effect of the legislation, include the provisions that had been in the Supreme Court (Summary Jurisdiction) Act 1967 to ensure that all summary offences were dealt with in the same way (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001 at 19428).

The Act 26The provisions in the Act that are of particular relevance to the right of an accused to appear by his or her solicitor are s 3, s 36, s 37 and s 192. These provisions are set out above. Section 192 is the statutory successor to s 13 of English Duties of Justices Summary Convictions) Act 1950, 11 & 12 Vic c 43 and s 77 of the Justices Act 1902. 27Section 192 and its statutory predecessors have been consistently and authoritatively construed to permit an accused to appear by his or her solicitor in summary proceedings. In referring to the authorities which I have set out below, I do not suggest that there is any ambiguity in the wording of the legislation itself.

Cases in which the statutory right of an accused to appear by a legal representative has been considered 28In Ex parte Dunn (1904) 21 WN (NSW) 152 Dunn, a bookmaker who ran his betting business from premises in King Street, Newtown, was convicted of accepting a bet on a horserace from one W Small. Dunn did not appear at the hearing, but was represented by counsel who entered a not guilty plea on his behalf. Although the plea was accepted and entered by the Court, it was subsequently argued that since the charge was not read out, the plea should not have been accepted. Darley CJ said at 489-490: "...the defendant did not appear in person, but by counsel, as he had a right to do. The defendant not being present in person, his counsel, who was doubtless in possession of the information and summons, was called upon to plead, and he pleaded "Not guilty." It is now complained that the substance of the charge was not stated in Court under s 78 of the Justices Act. It may be that that section does contemplate cases where a defendant is represented by counsel as well as those in which he is personally present, but it appears to me that if counsel appears, it is his duty, if he has any doubt as to the nature of the charge, to ask that it may be stated, or that the information be read. If instead of doing so he pleads when called upon it seems to me that he waives his right to have the substance of the information stated to him. It would be a waste of time. In my opinion, therefore, there is nothing in that point." 29In Ex parte Hughes; re Moulden (1946) 47 SR (NSW) 91 Hughes, who was charged with being found in a common gaming house, did not appear personally to answer the charge but his solicitor indicated he appeared for Hughes and asked the magistrate to accept from him a plea of guilty. The magistrate refused. The Court of Appeal (Jordan CJ, Davidson & Street JJ) held there was nothing preventing the magistrate from accepting the plea and proceeding to hear the matter. Jordan CJ, with whom Street J agreed said: ". . . it is well settled that when a trial before justices is proceeding in the ordinary way, by an information laid before a justice followed by a summons, the accused is not required to appear in person; he may appear by counsel or attorney. This is recognised by s.77 of the Justices Act, and has been decided by the cases of Bessell v Wilson (1853) 1 E&B 489 at 499 - 500; R v Thompson [1909] 2 KB 614 and R v Montgomery (1910) 102 LT 325....there was nothing to prevent the magistrate from proceeding with the trial, since the accused was represented by an attorney who was ready, and wished, to go on." 30Davidson J said: "When an accused has been summoned he need not appear in person but may be represented by counsel or attorney.....And under s 77 of the Act, if upon the day and at the time and place appointed for the hearing, or to which the hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys, the justice or justices are required to hear the case." 31In R v Paauwe [1971] 2 NSWLR 235 Paauwe was charged before the magistrate with indictable offences, to which he pleaded guilty and was committed to the District Court for sentence. On sentence his counsel indicated that his client adhered to his pleas. Paauwe was then convicted and sentenced. On appeal he argued that the conviction was bad as the charges had never been read out. The Court of Criminal Appeal dismissed the appeal. The Court (Manning JA, Lee & Slattery JJ) said at 238: It is well settled that where a proceeding for a non-indictable offence is instituted by summons, the accused is not required to appear in person and counsel or solicitor may appear for him and plead guilty or not guilty: Ex parte Hughes; Re Moulden (1946) 47 S.R.(N.S.W.) 91; 63 W.N. 293; R v Thompson [1909] 2 K.B. 614 and Ex parte Dunn (1904) 4 S.R. (N.S.W.) 486; 21 W.N. 152. But where the information results in a charge being laid, it is the invariable practice, when the accused is before the magistrate, that the proceedings should commence with the accused being charged. Once charged, his counsel or attorney in his presence, may answer for him: Justices Act , s. 70(3); R v Salisbury and Amesbury Justices; Ex parte Greatbatch (1954) 2 Q.B. 142, at p.147 per Goddard L.J. 32In Barker v Jacob (Supreme Court (NSW), RS Hulme J, 27 March 2000, unrep) a defendant did not appear in person in the Local Court but his legal adviser was present. The magistrate purported to hear and determine the matter under s 75B of the Justices Act 1902 (the statutory predecessor of s 196 of the Act) over the objection of the defendant's solicitor. Hulme J said on an appeal to this Court: "An elementary knowledge of the practice which has prevailed in court generally over a century or more would have precluded her Worship from taking the view that a person did not appear even though a legal adviser was present when the person was not . . . The appellant having appeared, the magistrate was then bound to follow the requirements of section 70 [i.e. prescribing how evidence is to be taken in a summary hearing] which obliged her to have evidence given in general orally. None answered this description. The case was accordingly one where her Worship's conviction of the appellant and sentence imposed in consequence must be quashed." 33I was also referred to R v Hodder (1986) 33 A Crim R 295 in which the Court of Criminal Appeal (Street CJ, Lee and Foster JJ) considered the history of ss 74, 75, 75A and 76 of the Justices Act 1902 and in particular the powers of a magistrate to hear and determine a matter under s 76 of that Act (which dealt with the circumstance of an adjourned hearing where a party or parties are not present either in person or by their legal representatives).

Conclusions 34The effect of s 3 and s 36 of the Act is that Mr Cranney's appearance before the Magistrate meant that the plaintiff was before the court and s 196 of the Act did not apply. Once the Magistrate had refused the plaintiff's adjournment application, the Court was obliged by s 192(1) to proceed to hear and determine the CAN. Further, pursuant to s 202 of the Act, the Magistrate was obliged to hear the evidence in the matter, whether this was by way of the prosecutor tendering the police brief of evidence or the prosecution witnesses giving their evidence orally. Section 202, in terms, contemplates that the accused person will not necessarily be present in person during the hearing and contemplates the issue of a warrant to bring the person before the Court for sentencing where a custodial sentence is to be imposed or is in contemplation. In the present case it was common ground that no penalty other than a fine would be imposed. 35This error is sufficient to require the matter to be remitted to the Local Court. However, as ground 4 raises the Magistrate's construction of s 38, it is necessary to examine the provenance of s 38 to illuminate its meaning and purpose. 36The statutory predecessor of s 38 of the Act was s 8 of the repealed Supreme Court (Summary Jurisdiction) Act 1967 (Explanatory Note to the Criminal Procedure Amendment (Justices & Local Court) Bill 2001, page 6). Unlike the Justices Act 1902, which made detailed provision regarding the conduct of summary hearings (including in s 70 of the Justices Act 1902, the statutory predecessor of s 195 of the Act, how evidence was to be taken), the Supreme Court (Summary Jurisdiction) Act 1967 did not contain such detail when conferring summary jurisdiction upon this Court. Provision was later made in the Supreme Court Rules for such procedure in Division 2 of Pt 75. Section 8 of the Supreme Court (Summary Jurisdiction) Act 1967 effectively replicated s 70 of the Justices Act 1902 and was, in terms, directed to the right to cross-examine witnesses and to address the court after evidence had been taken. 37Section 38 is a procedural provision. It was considered by Hall J in Mason v Lyon [2005] NSWSC 804 in the context of a direction made by the Local Court that written submissions be served by both parties to the prosecution prior to the hearing. Hall J found that the direction was authorised by s 26 of the then Local Courts Act 1982 (NSW). His Honour said at [26]: Insofar as the plaintiffs relied upon the conventional principles and procedures that apply to criminal proceedings to support the argument put to the Court, it is of some importance to observe: (a) The right to address a court in accordance with the provisions of s 38 of the Criminal Procedure Act is not expressed in absolute terms but is qualified by the phrase, "as far as practicable". In determining practicability in this context, the following two factors are relevant so far as the proceedings before the Local Court are concerned: (i) unlike most proceedings before the Supreme Court for the trial of an indictable offence, the learned magistrate is the judge of both fact and law; (ii) the elements of the offences charged are not, in terms, in dispute. The substantive issues arise from the affirmative defences raised by the plaintiffs (as detailed above). Their complex and, to a point, novel implications, make them entirely suitable for the written submission procedure as they will assist the Local Court in dealing with them, without disadvantage or detriment to the plaintiffs (as to which see below). (b) The procedure envisaged for the filing of written submissions is not one which would, in my assessment, produce any identifiable or particular disadvantage to the plaintiffs nor would it in any broader sense undermine or impair the plaintiffs' right to a fair hearing. (c) As events have transpired with the service of a copy of the written submissions by the prosecutor on the plaintiffs' legal representatives, there is, in my opinion, no scope for disadvantage or prejudice to the plaintiffs. 38The Magistrate's view that s 38 required the plaintiff's physical attendance at the hearing was incorrect. Section 38 is a procedural section directed to the examination of witnesses and to a party's right to make submissions to the court. It does not have the effect of applying all criminal trial procedures applicable in the Supreme Court (which generally deals with indictable offences) to the Local Court. 39For completeness I should add that, had the plaintiff's solicitor withdrawn and the matter proceeded under s 196 of the Act (in the then absence of the plaintiff), s 199(2) would not have required the prosecutor to tender the prosecution brief. Section 199(1) would have allowed the Magistrate to hear the matter on the basis of the CAN, but if any written material had been tendered by the prosecutor or, in the case where an accused had notified the court under s 182 of an intention to plead guilty and had sent with that notification material in mitigation of that guilty plea, then the Magistrate was obliged to consider those materials before determining the matter. However that is not the present case. 40Furthermore, the wording of s 196 is such as to confer a discretion on the Magistrate to decide whether to deal with the matter in the absence of the accused; it does not oblige the Magistrate to proceed. In the circumstances of the present case, it was for the Magistrate, and not the prosecutor, to decide whether to proceed, particularly in circumstances where the plaintiff had intended to be present in person but, due to matters that arose shortly prior to the hearing, could not.

Orders 41I make the following orders: (1)Quash the conviction and sentence imposed upon the plaintiff by the Local Court sitting at Dubbo on 27 June 2013. (2)Remit the matter to the Local Court at Dubbo to be heard and determined according to law. (3)Each party bear his or her own costs.

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: 23 April 2014

Crimes Appeal and Review Act 2001(NSW)

Criminal Procedure Amendment (Justices and Local Courts) Act 2001(NSW)

Justices Act 1902(NSW)

Local Courts Act 1982(NSW)

Supreme Court (Summary Jurisdiction) Act 1967(NSW)

Justices Legislation Repeal and Amendment Act 2001(NSW)

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