Nand v Director of Public Prosecutions

Crimes Act 1900 (NSW)

1. The Crimes Act relevantly provides: "59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. . . . 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years."

Crimes (Appeal and Review) Act 2001 (NSW)

1. The Crimes (Appeal and Review) Act relevantly provides for an appeal from the Local Court to the District Court as of right against a sentence (s 11) and an appeal with leave against a conviction following a plea of guilty (s 12). An appeal must be lodged within 28 days. There is provision for an extension which is subject to the statutory limit of three months for the lodgment of an appeal or leave application (s 13). Sections 17 and 18 provide respectively that appeals against sentence and conviction are to be by way of rehearing. Section 20 provides for the orders that may be made by the District Court when determining appeals against conviction and sentence.
2. Section 29 limits the circumstances in which a person may appeal both to the District Court and to this Court. It relevantly provides: "29 Limits on appeals (1) No appeal may be made to the District Court under this Part against a decision of the Local Court: . . . (c) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5. (2) 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: (a) the Supreme Court has remitted the matter on appeal to the Local Court for redetermination, and the Local Court has redetermined the matter, or (b) the Supreme Court has refused leave to appeal in relation to an appeal made on a ground of mixed law and fact."
3. Section 53(1), which concerns appeals to this Court, relevantly provides: "53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court . . . 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."
4. An application for leave to appeal to this Court must be filed within 28 days after the "material date", or within such further time as the Court may fix: Supreme Court Rules 1970 (NSW), Pt 51B, r 5(3) and (5). The "material date" is relevantly the date on which the order is pronounced or given: SCR, Pt 51B r 3.

Criminal Procedure Act 1986 (NSW)

1. The Criminal Procedure Act makes provision both for summary hearings and trials on indictment. Section 3(1), which is contained in Ch 1 (headed "Preliminary"), defines "accused person" as follows: "(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: 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."
2. Chapter 2, headed "General Provisions", makes provision for offences that must be tried summarily; those that must be tried on indictment; and those which may be dealt with either summarily or on indictment. It was common ground that the offence with which the plaintiff was charged and to which he pleaded was in the third category: namely, an indictable offence which may be dealt with summarily.
3. Part 3 of Chapter 2, entitled "Criminal proceedings generally", contains the following provisions: "36 Representation and appearance (1) A prosecutor or accused person may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to appear for the prosecutor or accused person. . . . 37 Conduct of case . . . (2) The accused person's case may be conducted by the accused person or by the accused person's Australian legal practitioner or any other person permitted to appear for the accused person (whether under this or any other Act)."
4. Chapter 3 of the Criminal Procedure Act, entitled "Indictable procedure", makes provision for pleas of guilty for offences which are dealt with on indictment. Sections 99-102, which are contained in Division 5 (entitled "Procedure if accused person pleads guilty"), make provision for a plea of guilty at committal proceedings. Sections 154 and 155, which are contained in Division 5 (entitled "Pleadings on trial"), make provision for a plea on arraignment. These sections, which are to be distinguished from those governing pleas at earlier stages, provide: "154 Plea of "not guilty" If an accused person arraigned on an indictment pleads "not guilty", the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly. 155 Refusal to plead If an accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of "not guilty" to be entered on behalf of the accused person, and the plea so entered has the same effect as if the accused person had actually pleaded 'not guilty'."
5. Chapter 4 of the Criminal Procedure Act, entitled "Summary procedure", contains s 170(1), which provides: "(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily."
6. Division 2 of Chapter 4, entitled "Pre-trial procedures", contains the following provisions: "182 Written pleas (1) An accused person served with a court attendance notice may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty to the offence or offences the subject of the court attendance notice concerned. (2) The notice is to be in the form prescribed by the rules and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence. (3) An accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court: (a) is not required to attend the Court on that date, and (b) is taken to have attended the Court on that date. (4) This section does not apply to an accused person who has been granted or refused bail or in relation to whom bail has been dispensed with."
7. Division 3 of Chapter 4, entitled "Hearings" contains the following provisions: "192 Procedures where both parties present (1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter. (2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty. . . . 193 Procedure if offence admitted (1) If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly. . . ."

Background facts

1. On 24 July 2013 the plaintiff was arrested and charged with assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) alleged to have occurred on 23 July 2013. There was also a back-up charge of common assault contrary to s 61 of the Crimes Act. Unlike the principal charge, the back-up charge did not require proof of actual bodily harm. The plaintiff was served with a Court Attendance Notice (CAN) which required his attendance at the Campbelltown Local Court on 30 July 2013.
2. The CAN set out the "Details of Offence/s" as follows: Crimes Act 1900, Section 59(1) Assault occasioning actual bodily harm domestic violence related Law Part Code 64780 - T2 Between 10:00 pm and 10:30 pm on 23/07/2013 at Campbelltown. did assault Arichna NAND thereby occasioning actual bodily harm to her

1. The Police Facts Sheet recorded the offences with which the plaintiff was charged as follows: Seq. No. Offences

2.    Assault occasioning actual bodily harm (dv) T2  Law Part : 64780
   

Act Crimes Act 1900 Section 59(1) 2. Common assault (dv) T2 Law Part : 64782 Act Crimes Act 1900 Section 61

1. When the matter was called, Ms Carr, a Legal Aid solicitor, announced her appearance on behalf of the plaintiff and informed Magistrate Walsh that the plaintiff pleaded guilty to sequence 1 (the offence of assault occasioning actual bodily harm). The Magistrate confirmed with the Prosecutor (Sergeant Billet) that sequence 2 was to be withdrawn and dismissed on the basis of acceptance of the plea.
2. Because of the importance of the issue, it is desirable to set out in full the relevant part of the transcript on which the DPP relied in this Court to establish compliance with s 192 of the Criminal Procedure Act: "CARR: I note the time, but perhaps if I could just raise one issue with your Honour. The matter of Nand - HIS HONOUR: Yes? Yes Ms Carr? CARR: Is a plea of guilty. HIS HONOUR: Yes. CARR: I anticipate the common assault is a backup offence to the actual bodily harm charge-- HIS HONOUR: Yes. CARR: --it might be appropriate for your Honour to at the very least, briefly peruse the facts, my client has no previous criminal history but your Honour might be assisted from a duty report from probation and parole-- HIS HONOUR: All right, so it's a plea to sequence 1 - CARR: It is. HIS HONOUR: --sequence 2 to be withdrawn and dismissed on the basis of the acceptance of the plea. PROSECUTOR: Yes your Honour. . ."
3. Ms Carr referred the Magistrate to the pre-sentence report which indicated that the plaintiff was suitable for supervision and also for a community service order. The evidence on sentence also included a reference from the plaintiff's local bishop and a letter of apology from the plaintiff. His Honour invited Ms Carr to make submissions on why he ought not impose a custodial sentence, having regard to the objective seriousness of the offence. Ms Carr and the Police Prosecutor addressed on penalty (the substance of which is not recorded on the transcript) following which the Magistrate delivered ex tempore remarks on sentence. His Honour convicted the plaintiff of assault occasioning actual bodily harm and imposed a sentence of imprisonment of nine months with a five month non-parole period.
4. On 31 July 2013 the plaintiff's solicitor lodged a notice of appeal to the District Court against the severity of his sentence pursuant to s 11 of the Crimes (Appeal and Review) Act.
5. On 5 August 2013 the plaintiff, who was represented by Mr Hammond, applied to Magistrate Rabbidge of the Local Court at Campbelltown for a grant of bail. Mr Hammond confirmed that the plaintiff had pleaded guilty in open court and informed the magistrate that the plaintiff had lodged an appeal against sentence. Bail was granted on conditions which included that: he reside with his parents; he not approach the victim; and that he prosecute his appeal in the District Court. It was noted that no date had been allocated for the hearing of the appeal against sentence.
6. On 18 October 2013 the plaintiff's appeal was listed for hearing in the District Court before Haesler DCJ. Mr Hammond again appeared on behalf of the plaintiff. His Honour rejected the plaintiff's application that the matter be disposed of pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). On the application of Mr Hammond, the matter was adjourned part-heard to 26 February 2014 pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) so that the plaintiff could continue to see his psychologist.
7. On 26 February 2014, the plaintiff was represented by Saba El-Hanania, his new (and present) solicitor, who informed Haesler DCJ that there was a possibility of an application to set aside the guilty plea and have the matter proceed as a conviction appeal. It was adjourned to 11 April 2014.
8. On 8 April 2014 the plaintiff swore an affidavit in which he denied the charge and deposed that he had instructed Ms Carr to indicate that he pleaded not guilty to the charge. This affidavit, together with a notice of motion, in which the plaintiff sought leave to traverse the plea of guilty, was filed in the District Court on 9 April 2014 by Mr El-Hanania. The matter was mentioned before Haesler DCJ on 11 April 2014 and adjourned (due to the number of other matters in the list) to 22 May 2014. The plaintiff swore a further affidavit on 20 May 2014 in response to Ms Carr's affidavit sworn on 15 May 2014, both of which were read at the hearing of the motion.
9. The notice of motion was listed before Haesler DCJ on 22 May 2014. The prosecutor maintained that the Court did not have jurisdiction to deal with the matter as the application was filed outside the time period of three months provided for in s 13(2) of the Crimes (Appeal and Review) Act, beyond which no extension of time could be granted.
10. His Honour heard evidence from the plaintiff and Ms Carr, both of whom were cross-examined. Later that day Haesler DCJ gave reasons for judgment on the plaintiff's application to withdraw his guilty plea. His Honour followed Denning v Department of Environment [2007] NSWLEC 258 and accepted the prosecutor's submission that the District Court had no jurisdiction to traverse the guilty plea as the plaintiff's application for leave was out of time. However, his Honour proceeded to make findings of fact relating to the application in the event that he was found to be incorrect on the application of s 13 of the Crimes (Appeal and Review) Act and refused the application for leave to traverse the plea of guilty. His Honour upheld the severity appeal in part and varied the sentence to eight months, wholly suspended upon entry into a bond.

Whether time should be extended for leave to appeal

1. The plaintiff requires an extension of time for leave to appeal, as well as leave, before the appeal can be considered by this Court.
2. In my view, for the reasons given in more detail below, the appeal is incompetent since it challenges an order, being the conviction in the Local Court, which is no longer operative, having regard to the orders of the District Court refusing the application for leave to appeal against conviction. Accordingly, for that reason alone, no extension of time ought be granted. However, in deference to the parties' submissions, I propose to address the substantive arguments made by the plaintiff in support of the application for extension of time.
3. The matters to be taken into account in deciding whether time ought be extended include: the length of delay; whether an explanation for delay has been given, and the substance of the explanation; and whether the plaintiff has a fairly arguable case: see the authorities summarized in Dyason v Butterworth [2015] NSWCA 52 at [65] (in the context of UCPR r 59.10); and Pace v Read [2000] NSWSC 823. These matters will be considered in turn.

The length of delay

1. The order for the plaintiff's conviction was pronounced in the Local Court on 30 July 2013, which was, relevantly, "the material date" within the meaning of SCR 51B. The plaintiff's application for leave to appeal was required to be filed by 27 August 2013. The summons was filed on 17 December 2014. Accordingly, the delay was over fifteen months. As can be seen from the narrative of facts set out above, the summons was filed about seven months after the District Court appeal was finally determined.

The explanation for the delay

1. Mr Wendler neither identified a reason for the delay nor adduced any evidence to explain it. Although one might surmise that the plaintiff hoped that he would be successful in the District Court and did not avail himself of his right to seek leave to appeal to this Court until the District Court appeal had been determined, there is no evidence to the effect that this was why the summons was not filed earlier. Even if it were assumed, in the absence of evidence, that this occurred, there is no explanation whatsoever for the delay between 22 May 2014, when the District Court appeal was finally determined and 17 December 2014 when the summons in these proceedings was filed.

Whether the plaintiff raises a fairly arguable ground

1. The plaintiff relies on the following ground (which is set out in [8] of the summons): "The plea of "guilty" announced by his solicitor then acting rather than the plaintiff was contrary to ss 192 and 193 of the Criminal Procedure Act 1986 (NSW) and precipitated a fundamental failure of procedure going to the root of the proceedings before the Local Court."
2. Mr Wendler argued that the plaintiff's plea of guilty in the Local Court failed to comply with s 192 of the Criminal Procedure Act, and was, accordingly, invalid, for the following two reasons: 1. it was not given by him personally; rather it was given by Ms Carr on his behalf; 2. the Local Court did not state the substance of the offence to him.

Whether the plea of guilty was required to be given by the plaintiff personally

1. The first matter gives rise to a question of statutory construction. Mr Wendler argued that the use of the term "accused person" in s 192 did not include a legal practitioner appearing on behalf of the accused person. He submitted that the words in s 3 which qualify the definition, "where the subject matter or context allows or requires" have the effect, when applied to s 192, that a defendant in the Local Court who stands charged with an offence (such as assault occasioning actual bodily harm) which could be, but was not, tried on indictment, is required to answer the charge personally and cannot enter a valid plea through a legal practitioner appearing on his or her behalf.
2. In Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202 the Court of Appeal held that it was not necessary in Local Court proceedings for the charge or charges to be read formally to a defendant before a plea is taken for the plea to be valid and effective. As the Court was concerned with similar issues to those which arise in the present case I propose to set out the relevant passages in full. Justice Hodgson (Campbell JA and Latham J agreeing) said: [50] In my opinion, it can confidently be inferred by this court, as it could have been by the primary judge and by Magistrate Stevenson, that Mr Madden had been provided with copies of the Court Attendance Notices and the police facts, so that he was well aware of the terms of the charges. In my opinion, in those circumstances, his statement to the court that he was instructed to enter a plea of guilty would unequivocally convey to the court that Mrs Collier did plead guilty to those charges, in a way that was valid and sufficient, at least unless s 192 prevented this. In my opinion, it is clear from the definition of "accused person" in the CP Act, as well as from Dunn and Paauwe, that a plea can be entered by a legal practitioner. If it were the case that Mr Madden acted contrary to his instructions from Mrs Collier or misunderstood those instructions, this would not affect the validity of the plea, but at best support an application to withdraw it. [51] Dunn lends support to the proposition that the stating of the charge to the accused person, or at least to a legal practitioner appearing for the accused person, can be waived. Of course, that was a case in which counsel pleaded "not guilty"; but I do not think that this would justify a different result. If the statement of the charge is a condition precedent to the validity of one plea, I think it must be a condition precedent to the validity of the other, and to the validity of consequent proceedings also. The legislation in that case was in somewhat different terms from s 192 of the CP Act; but again I do not think it is sufficiently different to justify a different result. [52] I am not sure, however, whether a procedure required by a statute can simply be "waived". I think the more appropriate enquiry is whether or not s 192(2) of the CP Act is prescribing something that must occur before the power (and perhaps obligation) to convict can be exercised, and/or whether or not it was a purpose of the legislation that an act done in breach of the provision should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [41], [91]-[93]. [53] It seems clear that the purpose of s 192(2) is to ensure that, to the knowledge of the court, an accused person adequately understands what it is to which he/she is to plead guilty or not guilty, and understands that his/her response will count as such a plea. [54] But for the definition of "accused person" in s 3, one would read s 192(2) as requiring that the stating of the offence charged be to the accused person himself/herself; and one might then quite readily consider that this requirement was appropriately selected by the legislature as something that had to happen, in order to ensure, to the knowledge of the court, that the accused person does understand these things. . . . [55] However, in my opinion the definition of "accused person" in s 3 makes an important difference. In the light of that definition, the statement in s 192(2) can be made to a legal practitioner, and the legal practitioner may enter the plea. It is clear that in those circumstances what I have identified as the purpose of s 192(2) could be achieved readily and sometimes much more efficiently in other ways; for example, by the court directing the attention of the legal practitioner to an identified document in which the charge or charges are set out. In a busy Local Court list it may be highly inconvenient that multiple charges be individually stated in court; and the identification of charges could more effectively, as well as more conveniently, be done by drawing attention to an identified document. I think this suggests that, consistently with the purpose of s 192(2), it was not the purpose of the legislation to invalidate pleas or convictions if that section was not complied with. [56] One indication in the CP Act suggesting that the formality of stating the charges in court may not be a requirement for the validity of a plea is s 182: [provision set out] [57] This means that, in cases where an accused has not been arrested, there may be a written plea of guilty based on no more than the Court Attendance Notice; in which case, the accused would have no more than the Court Attendance Notice, which an accused to whom s 192(2) applies would also have. . . . [60] Accordingly, in my opinion the primary judge did not make an error of law in determining that Mrs Collier had pleaded guilty, because non-compliance with s 192 does not of itself invalidate a guilty plea, and Mr Madden's statement that he was instructed to plead guilty, when Mrs Collier's matter had been identified, was a sufficient unequivocal acknowledgment of guilt, referable to charges well understood by Mr Madden and Mrs Collier. . ."
3. Of present relevance to the first argument, the Court of Appeal found that the words "accused person" in s 192 included a legal practitioner (in that case, Mr Madden) appearing on behalf of a defendant in the Local Court. Mr Wendler sought to distinguish Collier v Director of Public Prosecutions (NSW) on the ground that it concerned minor traffic offences, which were summary offences, whereas the present case concerned indictable offences which were dealt with summarily. He submitted that the feature of such offences was that they were, necessarily, more serious and that, accordingly, the "subject matter or context allows or requires" the words "accused person" to mean the actual accused person rather than including a legal practitioner representing him or her. Mr Wendler was unable to point to anything in Collier v Director of Public Prosecutions (NSW) which supported the drawing of such a distinction and accepted that there was nothing other than the potential seriousness of the offence which could form the basis for such a distinction.
4. I am bound by Collier v Director of Public Prosecutions (NSW). I am not persuaded that the difference for which Mr Wendler contended between summary offences on the one hand and those that could be dealt with summarily or on indictment on the other constitutes a relevant distinction. However, in deference to Mr Wendler's argument, I shall address the question of construction of s 192 in the context of the Criminal Procedure Act. This requires an examination of the relevant provisions of the Act as a whole, which have been set out or summarised above.
5. As provided for in ss 36 and 37 of the Criminal Procedure Act, an accused person can appear by a legal practitioner. I considered the legislative history of ss 36 and 37 of the Criminal Procedure Act and cases applying the provisions in McKellar v DPP [2014] NSWSC 459 at [22]-[33]. These provisions have the effect that, as the plaintiff was represented by Ms Carr, Ms Carr's announcement of the plea of guilty would appear to be as effective as it would have been had the plaintiff announced it himself. There is no indication in the text of s 192 or s 193 that a plea has to be given personally.
6. The provisions in Chapter 4 (ss 192 and 193) are to be distinguished from ss 154 and 155, which provide for pleas on arraignment. In such cases, it appears from the wording of s 155 that the context requires the expression "accused person" to be confined to the accused person, since the legal representative is not "arraigned" and it would appear unlikely that Parliament contemplated that a legal practitioner would either "stand mute" or "not answer directly to the indictment".
7. The broad terms of s 170 provide, in my view, a further basis for not distinguishing between summary offences and those indictable offences which can be dealt with summarily, since s 170 makes Chapter 4 (which contains s 192 and 193) apply to all such offences, without differentiation.
8. The procedure for written pleas in s 182 of the Criminal Procedure Act, which was referred to by Hodgson JA in the passage from Collier v Director of Public Prosecutions (NSW) set out above, provides a further indication that a plea need not be given personally in Court.
9. Mr Wendler also referred to R v Duffield and Dellapatrona (1992) 28 NSWLR 638, in which Kirby P, at 655-656, emphasised, by way of obiter, the practical benefits of taking a plea orally from an accused person personally in committal proceedings. In particular his Honour said, at 656A-C: "Where a person pleads guilty in committal proceedings, there is no invariable practice in this State to take such a plea from the accused himself or herself. Stephen (above at 275) acknowledges that by ancient English criminal procedure, at the trial, the plea has to be taken from the accused person "orally in open court". Especially in circumstances where the committing magistrate is aware that the plea is proffered following "negotiations" between the prosecutor and those representing the accused, there is much to be said for affording the accused the opportunity, for himself or herself, to acknowledge the plea orally in public before the magistrate acts upon it. The reasons for such a course are obvious. Such an act acknowledges guilt in a public way. It thereby attracts to the accused the advantages, upon sentence, which normally attend the admission of guilt and the formal acceptance of what must then follow. . . . A public acknowledgment of a plea of guilty from the lips of the accused person may help ensure against later assertions of a lack of understanding, confusion or actual misrepresentation of instructions given to legal representatives. . ."
10. This dictum supports the proposition that, whatever the practical benefits of taking a plea from the accused person personally, it is not a legal requirement (except at a trial on indictment at the point of arraignment). In my view, for the reasons given above, it is not fairly arguable that ss 192 and 193 of the Criminal Procedure Act required the plaintiff's plea to be given personally. Accordingly, the circumstance that the plea was communicated to the Court by Ms Carr complied, in that respect, with the requirements of the Act.

Whether the Local Court stated the substance of the offence to the plaintiff as required by s 192 of the Criminal Procedure Act

1. Mr Wendler sought to distinguish Collier v Director of Public Prosecutions (NSW) on the same basis (that it applied only to summary offences rather than indictable offences dealt with summarily) for the second ground of alleged non-compliance. He submitted that the statements in Collier v Director of Public Prosecutions (NSW) concerning the requirement to state the substance of the offence to the accused person had no application to the present case. For the reasons given above, I do not consider there to be any basis, either in Collier v Director of Public Prosecutions (NSW) or in the Criminal Procedure Act itself, to impose a higher standard for indictable offences dealt with summarily than has been held to apply to summary offences.
2. I consider that the extract from the transcript of the Local Court proceedings on 30 July 2013 set out above indicated the following: 1. The charge of common assault was a back-up charge to the principal charge of assault occasioning actual bodily harm. 2. Mr Nand pleaded guilty to the principal charge, which had the effect that the back-up charge was withdrawn and dismissed.
3. These indications are clear when regard is had solely to the transcript. They correspond with the CAN and the Police Facts Sheet, both of which were before the Court and can be taken to have been in the hands of Ms Carr, who appeared on behalf of the plaintiff. Although the court did not, in terms, "state the substance of the offence to the accused person", the Magistrate adopted what Ms Carr had said as to the substance of the offence (assault occasioning actual bodily harm), which was, accordingly, incorporated by reference into the Magistrate's response of "Yes" and his Honour's confirmation that it was a "plea to sequence 1" and that "sequence 2 [was] to be withdrawn and dismissed on the basis of the acceptance of the plea [to sequence 1]". Accordingly, I consider that the requirements of s 192(2) were fulfilled and that, in light of Collier v Director of Public Prosecutions (NSW), it is not fairly arguable that they were not.

The incompetence of an appeal, if leave were granted

1. At the commencement of the hearing of the summons, I raised the question of the competence of the appeal (if leave were granted), having regard to the principle that this Court has no power to review any aspect of the decision of the Local Court if it has effectively been superseded by the judgment in the District Court: Wishart v Fraser and Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [11]-[13] per Basten JA (Giles and McColl JJA agreeing). I also noted that the plaintiff did not challenge, in the orders sought in the summons, the order of the District Court dismissing the plaintiff's application for leave to appeal against conviction.
2. Mr Wendler submitted orally that Wishart v Fraser had no application and relied on s 60 of the Crimes (Appeal and Review) Act. Ms Davidson sought leave to provide a written note within a short time of the conclusion of the hearing, to which Mr Wendler was given an opportunity to respond. Ms Davison accepted, in her written note, that the plaintiff's application for leave to appeal was futile as any appeal would be incompetent in light of Wishart v Fraser. What follows are my reasons which address Mr Wendler's written submissions in response.

The plaintiff's submissions on the competence of the appeal

1. Mr Wendler submitted that there was no impediment to the plaintiff's exercising his right to seek leave under s 53 of the Crimes (Appeal and Review) Act. He contended that the only limitation on the right to seek leave to appeal was imposed by s 60, which prevents a person from appealing to this Court against a decision of a Local Court which has already been the subject of an appeal or leave application to this Court. He submitted that, had Parliament intended that a person who appealed, or applied for leave to appeal, to the District Court against a conviction or sentence imposed by the Local Court would not be permitted to appeal, or seek leave to appeal, to the Supreme Court, the Crimes (Appeal and Review) Act would have made express provision. Mr Wendler made no submission about the effect of s 29 of the Crimes (Appeal and Review) Act.
2. Mr Wendler contended that Wishart v Fraser did not apply as the plaintiff's notice of motion in the District Court for leave to appeal against his conviction was "a nullity" and "totally void" since the District Court had no jurisdiction to entertain the leave application, as it was out of time. He also submitted, in the alternative, that, because the arguments relating to alleged non-compliance with s 192 of the Criminal Procedure Act were not put in the District Court, there was no impediment to his relying on them in this Court. Further, Mr Wendler submitted that the purpose of Part 5 of the Crimes (Appeal and Review) Act was "to ensure the Supreme Court's supervisory jurisdiction remains inviolable" and relied on Campbell v DPP (NSW) [2008] NSWSC 1284.

Section 60 of the Crimes (Appeal and Review) Act

1. I am not persuaded that s 60 of the Crimes (Appeal and Review) Act evinces the intention for which Mr Wendler contended. A statute is presumed to operate against the background of the existing legal principles. As Sackville AJA explained in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [82]-[107], a party who seeks to challenge a decision of a lower court both in an intermediate court and a superior court may be put to his or her election, depending on the nature of the respective proceedings. One of the reasons for this is that, once the intermediate court has made orders (in this case, the District Court), its orders, and not those of the lower court (in this case, the Local Court), are the operative ones.
2. Further, an Anshun estoppel may arise. In the present case, the plaintiff could have made (but failed to make) the same arguments in the District Court before Haesler DCJ as he seeks to advance in this Court (based on alleged non-compliance with s 192 of the Criminal Procedure Act). That he did not does not prevent the estoppel arising. However, it is not necessary to determine the estoppel point as the appeal is incompetent on the grounds of the principle in Wishart v Fraser.

The jurisdiction of the District Court and its orders

1. I reject the plaintiff's submission that the orders of the District Court were a nullity. The District Court had power to determine the leave application. It determined that it was obliged to refuse leave, by reason of s 13 of the Crimes (Appeal and Review) Act, as the application was not lodged within time. The effect of s 13 was not to deprive the District Court of its jurisdiction to determine whether it could grant the application for leave, but rather to prevent its granting the application. When the District Court dismissed the plaintiff's notice of motion, its orders, which were made within its jurisdiction, became the operative orders and displaced the orders of the Local Court. That its jurisdiction on an appeal against conviction under s 20 of the Crimes (Appeal and Review) Act did not arise (as there was no appeal, merely an application for leave to appeal, which was required to be refused) is beside the point.
2. This analysis is consistent with the decision of the Court of Appeal in Blacker v Parnell [1978] 1 NSWLR 616 in which a convicted defendant sought statutory prohibition in this Court pursuant to s 112 of the Justices Act 1902 (NSW), as well as appealing to the District Court against conviction and sentence. He sought to withdraw the proceedings in the District Court to allow the application to this Court to be determined. To this end, the appeals to the District Court were dismissed by consent. The Court of Appeal held, in accordance with Wishart v Fraser, that: the operative orders were the orders of the District Court dismissing the appeal against conviction; and that, accordingly, it had no jurisdiction to determine a challenge to the conviction in the Local Court.
3. The decision on which Mr Wendler relied, Campbell v DPP (NSW), is of no assistance since it involved solely an application for leave to appeal from the Local Court to this Court; there was, in that case, no appeal, or application for leave to appeal, to the District Court.

The effect of s 29 of the Crimes (Appeal and Review) Act

1. Section 29 of the Crimes (Appeal and Review) Act would appear to contemplate that an appeal to this Court on a question of law (which arises as of right under s 52) and an application for leave to appeal to this Court on a question of mixed law and fact (under s 53) ought be made before an appeal to the District Court against conviction or sentence under ss 11 and 12. However, s 29(2) expressly preserves the right of a person to appeal to the District Court if this Court has refused leave to appeal on a ground of mixed law and fact.
2. In my view, the better view is that, although a plaintiff may lodge an appeal or leave application in the District Court against a conviction in the Local Court (and must do so within three months or be time-barred by s 13 of the Crimes (Appeal and Review) Act), the appeal ought not be dealt with (and no orders made by the District Court) until the proceedings in this Court under Part 5 of the Crimes (Appeal and Review) Act have been determined (see Lazarus v DPP (NSW) [2015] NSWSC 1776 at [24]-[25] per RS Hulme AJ). I do not consider that s 29 (1)(c) has the effect of invalidating an appeal lodged in the District Court if Supreme Court proceedings are on foot since this construction would carry the risk that a plaintiff would be out of time for an appeal to the District Court if this Court refused leave to appeal outside the three month period allowed by s 13 for filing appeals or leave applications in the District Court.
3. Section 29 does not appear to contemplate a person's exercising his or her rights to appeal or to seek leave to appeal in the District Court, before commencing proceedings under Part 5 of the Crimes (Appeal and Review) Act. This is a powerful indication that Parliament did not intend to sanction the course taken by the plaintiff in the present case of exhausting his or her rights in the District Court before commencing proceedings this Court for relief under ss 52 or 53. Moreover, as referred to above, when orders have been made in the District Court (including, as in Blacker v Parnell, consent orders dismissing the appeal, or, as in the present case, dismissal of the leave application as it was not brought within time), the principle in Wishart v Fraser applies and the plaintiff would have to challenge the District Court decision, since it, not the decision of the Local Court, would be the operative decision. I note for completeness that this Court's jurisdiction to review the decision of the District Court is limited to jurisdictional error (which cannot validly be excluded: Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 at [54]-[55]), by reason of s 176 of the District Court Act 1973 (NSW) which provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.
4. Had the plaintiff wished to make the present challenge and preserve his rights to appeal or seek leave to appeal to the District Court, he could have filed a summons in this Court as well as lodging an appeal in the District Court within 3 months of 30 July 2013. The summons in this Court would have been dealt with first. If leave had been refused by this Court, the plaintiff would then have been able to prosecute his appeal in the District Court. By doing it the other way around, the plaintiff is seeking to challenge a decision (the conviction in the Local Court) that is no longer operative. Unlike the procedure I have referred to above, the course taken by the plaintiff in the present case is not sanctioned by the Crimes (Appeal and Review) Act (cf. Sinkovich v Attorney-General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at [46]-[47] per Basten JA (Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing)). It would offend the principle in Wishart v Fraser as well as the principle of finality of litigation: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [16], were this Court to treat the appeal against the conviction in the Local Court as competent.

Conclusion

1. The delay in bringing these proceedings is lengthy. It has not been explained. The sole ground raised by the plaintiff (based on alleged non-compliance with s 192 of the Criminal Procedure Act) is, for the reasons given above, not fairly arguable. Accordingly, there would be no utility in extending the time within which the plaintiff's application could be brought. For these reasons, I am not disposed to extend time.
2. There is a further, and independent, reason, why an extension of time ought not be granted. The plaintiff's appeal to this Court against the conviction ordered in the Local Court would, if leave were granted, be incompetent, since the operative decision is that of the District Court in respect of which no orders are sought.

Orders

1. I make the following orders: 1. Refuse the application to extend the time for filing the summons. 2. Dismiss the summons. 3. Order the plaintiff to pay the defendants' costs of the proceedings.

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