Nitiva v DPP & 2 Ors [1999] NSWCA 332 | Case summary

Nitiva v DPP & 2 Ors [1999] NSWCA 332 | Case summary | Zoe

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Circumstances Leading to the Charge 4 The claimant is a person of Fijian origin who came to Australia in 1983. According to his counsel Mr Coleman, he appeared to have limited education and did not communicate well. He was first issued with a learner's permit in New South Wales in 1986. It was alleged that on 22 June 1997 the claimant was the driver of a white Holden Commodore, registration number UBE 598 when he was stopped by police in Illawarra Road, Marrickville. The following conversation is said to have occurred between the police officer and the driver: "[POLICE]: May I see your licence please driver. [DRIVER]: I haven't got it with me. [POLICE]: Please state your full name and current place of abode. [DRIVER]: Josefa Nitiva, 30 Blaxland Road, Campbelltown. [POLICE]: What is your date of birth? [DRIVER]: 16.8.54" 5 The police officer made inquiries over his police radio and ascertained that a Josefa Nitiva was the holder of "NSW Class 1A Provisional Licence No. 2688cx which was disqualified at Campbelltown Local Court on 30 April 1997 for seven months for the offence of Refuse Or Fail To Submit To Breath Analysis Test". 6 The police officer questioned the driver further as follows: "[POLICE]: According to records you were disqualified from holding or obtaining a licence on 30.4.97 for a period of 7 months. What can you tell me about that? [DRIVER]: Yes. [POLICE]: Did you attend Campbelltown Court in respect to a charge of Refuse breath test? [DRIVER]: Yes. [POLICE]: Do you have anything else you wish to tell me about this matter? [DRIVER]: No." 7 The claimant was reported for the offence of Drive Whilst Disqualified. 8 Subsequently, an information was laid at Newtown Local Court and a summons was issued to the claimant, returnable at that court on 14 November 1997. The information was purportedly served on the claimant by ordinary prepaid post in accordance with s 63(2) of the Justices Act 1902 (NSW). 9 On 14 November, as the claimant did not appear, the magistrate adjourned the matter to Campbelltown Local Court on 10 December 1997, the closest court to the claimant's supposed address of 30 Blaxland Road, Campbelltown, "with the thought he might appear there". A Notice of Adjournment was forwarded to the claimant by prepaid post at that address by the Clerk of the Court. The claimant did not appear and on 10 December the matter was returned to Newtown Court for hearing on 23 December 1997. A further Notice of Adjournment was forwarded to the claimant by prepaid post at the same address. 10 When the matter came on for hearing at Newtown Local Court on 23 December 1997, the claimant again did not appear. The magistrate proceeded to hear the matter, finding "the offence proved" but dismissing it under s 556A of the Crimes Act 1900 (NSW). That section provides, relevantly: "(1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, made an order … : dismissing the charge;" 11 The hearing, which was sound recorded, was short. The following is the entire transcript of what occurred: "BENCH: That's come back from Campbelltown, I sent it to Campbelltown with the thought he might appear there but he's not appeared there. There's an affidavit of service but only by post. I don't really understand why the drive disqualified is being sought to be dealt with by post Sergeant? PROSECUTOR: I can't assist you your Worship, I don't know. BENCH: Well I don't know what you want to do with it, I'm not going to require a warrant to issue. If I'm not satisfied I can't deal with it on a matter like that without - see they don't normally serve summonses by post do they? PROSECUTOR: No, they serve them in person, I've never heard of a summons being served by post. BENCH: Well some summonses, traffic summonses are served usually by post but this is a drive disqualified. Well what do you want me to do? PROSECUTOR: I don't know much about the procedure with that your Worship. Obviously the person has to be notified with they're disqualified. BENCH: Well eventually, at the end of the day yes. Have you got antecedents? PROSECUTOR: Yes I've got antecedents. BENCH: Have you got facts there that indicate as to what the -- PROSECUTOR: I've got a section 12."

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Service 16 As we have already stated, the summons was served by pre-paid post. This manner of service was authorised by s 63(2) of the Justices Act. That section provides: "Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return day by prepaid letter post addressed to the person to whom it is directed: (a) where that person is a natural person, at his last known place of residence or business, (b) where that person is a body corporate, at a place where it trades or carries on business, or (c) in either case referred to in paragraphs (a) and (b): (i) where there is a prescribed address for the person, and (ii) where there are no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person, at the prescribed address for that person." 17 Section 63(4) provides: "Where a summons is posted as provided in this section: (a) the deposition or affidavit of service shall state the manner in which the deponent was informed of the address to which it was so posted and the time and place of posting, and (b) in the absence of any proof to the contrary, the summons shall be deemed to have been on the person to whom it is directed at the time at which it would be delivered in the ordinary course of post." 18 The affidavit of service revealed that the information was served within the time prescribed by s 63 and that the section was otherwise complied with. The effect therefore of the operation of s 63 in this case was that there was deemed to be service upon the claimant, unless there was "proof to the contrary". There was no such proof before the magistrate. However, the magistrate expressed reservation as to whether the address to which the summons had been sent was the address of the claimant. We have already referred to her comments but it is convenient to refer to them again in the specific context of s 63: "Well I think that since there's no certainty about his address and the address was supplied by the defendant too he hasn't responded to notices to attend court on either occasion so I really don't know what the score is …" 19 From the balance of the exchange between the magistrate and the police prosecutor, it seems doubtful that either was aware of s 63 or at least its application in this case. 20 The claimant and the DPP both contend that it is clear from the magistrate's comments that she was not satisfied that service had been effected. We accept that this is the proper construction to place upon the magistrate's remarks. They each further submit that in those circumstances the magistrate should not have proceeded to hear the matter at that time in the absence of the claimant. At the heart of this submission is the fundamental notion of our justice system that judicial orders should not be made against a person unless that person has notice of an application for such orders to be made. There are of course various statutory and regulatory provisions which provide for service at a person's last known address and for substituted service. Section 63(2) is itself an example of the former. However, as A'Beckett J stated in Hunter v Stewart [1907] VLR 619 at 621: "… where justices have reason to suppose that a summons has not come to the knowledge of the person summoned, although served in accordance with the provisions of the Act, they ought not to proceed in his absence."

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See Irvine's Justices of the Peace , 2nd Ed, pp 345, 346; Oke's Magisterial Synopsis , 13th Ed, Vol i, p 155; R v Smith [1875] LR 10 QB 604. 21 In Hunter v Stewart, A'Beckett J noted that the statutory provisions as to service were such as to allow service otherwise than on the defendant and therefore, without more it would have been open to the justices to proceed upon proof of compliance with the statutory requirements. However, it had come to their notice that service had not in fact been effected. Accordingly, A'Beckett J held that the justices should not have proceeded to a hearing. 22 Schmidt v Schmidt [1912] SALR 101 was a similar case. There, the Court stated at 101-102: "It is a necessary condition to the service of a summons at the last known place of abode of a person to shew that the summons had come, or that there is a presumption that it had come to the defendant's knowledge." 23 In that case, it had come to the court's notice that the place at which the summons was served was not the defendant's usual place of residence. The conviction was therefore quashed. 24 This case is, of course, different, in that there was no proof before the magistrate as to whether the summons had come to the knowledge of the complainant. Under s 63, contrary proof, or proof that the address at which the summons was served was not the last known address of the defendant, is required otherwise service is deemed to have been affected in accordance with the section. In our opinion, the deeming provision in s 63(4) does not operate in the face of a clear doubt as to service as was expressed in this case. Section 63(4) merely states, in express statutory form, what has always been the case where service other than direct personal service is permitted - namely, that there is a presumption as to service if effected in accordance with the statutory provision. That is what the Court meant in Schmidt v Schmidt when it said that "there is a presumption that it had come to the defendant's knowledge". We agree with the submission of both the claimant and the DPP that, in that circumstance, the magistrate should not have proceeded to hear the matter. The claimant was therefore not afforded procedural fairness. That of itself is sufficient to entitle the claimant to the relief sought.

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Section 75B 28 Three things are to be noted about s 75B. First, the section does not require oral or documentary evidence to be called. Rather, the magistrate must be satisfied (i) that the facts as alleged in or annexed to the summons constitute the offence charged and (ii) that reasonably sufficient particulars of the offence thereof are set out in or annexed to the summons. Secondly, the section neither requires nor permits the magistrate to convict. Rather, the magistrate may impose a fine. Thirdly, the magistrate may also invoke the provisions of s 556A of the Crimes Act. 29 The summons specified that on 22 June 1997 the defendant, "being the driver of a motor vehicle, to wit, motor car, UBE-598 upon a public street, to wit, Illawarra Road, he being a person disqualified from holding a driver (sic) under the Traffic Act 1909 did drive such vehicle during the period of such disqualification". In our opinion, these particulars were efficient for the purposes of s 75B. 30 That leaves the question whether the magistrate was satisfied that the facts as alleged in the summons constituted the offence with which the claimant was charged. At some time after the exchange to which we have referred above the magistrate completed the Bench Sheet in the matter. This is a pro forma document which sets out the history of the proceedings. In part of the printed section of the document appear the words "SECTION 75B CASE - WHERE NOT SOUND RECORDED - NO APPEARANCE FOR THE DEFENDANT. I am satisfied on examination of the information, summons and affidavit of service that the facts as alleged in the summons constitute an offence and reasonably sufficient particulars thereof are set out in the summons" (the s 75B statement). The place for the signature of the magistrate appears as part of a table section of the form in a separate section above this printed statement. The magistrate signed the document where provided. No provision is made for the s 75B statement to be signed or initialled by the magistrate nor did the magistrate in fact sign or initial the statement. 31 Senior counsel for the DPP submitted that although s 75B was an available procedure in this case (assuming valid service) the magistrate did not, in accordance with the requirements of s 75B(2), express satisfaction that the facts as alleged in or annexed to the summons constituted an offence and that reasonably sufficient particulars thereof were set out in annexed to the summons. He submitted therefore that she failed to make the necessary finding under s 75B and accordingly was not empowered to take any step by way of imposing a fine or proceeding under the provisions of s 556A. He eschewed reliance upon the s 75B statement on the Bench sheet on the basis that it only applied where proceedings were not sound recorded. These proceedings were. 32 For our part, we consider that this is too technical an argument. The purpose of having the s 75B statement on the Bench sheet is so as to provide, in a convenient way, a record of the magistrate having made the necessary findings under the section where the proceedings are not recorded. In brief, it relieves the magistrate of having to write out, by hand, the requisite findings under the section in every case. This is an undoubtedly convenient practice. We do not think we should assume, however, that the magistrate intended that the s 75B statement would have no effect in this case. It would have been different, of course, if she had not signed the bench sheet. 33 Senior counsel for the DPP then submitted that it was unlikely in any event that the magistrate had proceeded under s 75B. This submission was based upon her Worship's finding that the offence was proved. This he submitted was the language of conviction and therefore appropriate to s 76. Section 75B does not give the Magistrate any power to convict. 34 There are two responses to this submission. First, until the matter was heard in this Court, the DPP has always proceeded on the basis that the matter was heard under s 75B. The notice of appeal refers to a hearing under that section. Were it not for the fact that we have determined that the orders of Naughton DCJ should be quashed for the reasons already given, the question of the section under which the local court hearing was conducted would have been of vital importance. That is because, pursuant to s 131AB(4)(b) the District Court may not impose a sentence that could not have been imposed by the Magistrate. There would, therefore, have been a live issue on the matter in this Court as to whether Naughton DCJ exceeded his jurisdiction by imposing a term of imprisonment. We do not need to decide that matter in this court. 35 The second response to the DPP's submission that it was unlikely that her Worship proceeded under s 75B, is that it was likely that she was merely invoking the traditional language of s 556A. That section expressly provides that if an offence is "proved" but the provisions of s 556A are to be invoked, an order is made, "without proceeding to a conviction", dismissing the charge. The language used by her Worship appears to follow this formula. This is quite different from entering a conviction, or deferring from convicting the claimant, which this submission otherwise implies was done. 36 There is another basis upon which it could be argued that the Magistrate did not proceed under s 75B. During the course of the exchange between her Worship and the police prosecutor, she asked the prosecutor "Have you got facts there that indicate as to what the …". This was an unnecessary inquiry if she was proceeding under s 75B as she only had to be satisfied that the that the facts as alleged in or annexed to the summons constituted the offence charged and that reasonably sufficient particulars of the offence were set out in the summons. It might have been a relevant inquiry if the matter was proceeding under s 76. 37 Proceedings under s 76 are conducted on the basis of a normal hearing. Evidence must be called in the usual way. If the magistrate proceeded under s 76 here, it is clear that she made the order in the absence of any evidence to support the charge. If that is what occurred, the claimant was denied procedural fairness in this regard also. 38 The following thus emerges:

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Proceedings Before the District Court 41 On 15 January 1998 the first opponent appealed against the inadequacy of the sentence imposed upon the claimant by the magistrate on 23 December 1997 at Newtown Local Court. The appeal was lodged pursuant to s 131AB of the Justices Act as it then stood. 42 Section 131AB then provided: "(1) The Director of Public Prosecutions may appeal to the District Court against any sentence imposed by a Justice or Justices in: … (b) proceedings for a prescribed summary offence (as defined in the Director of Public Prosecutions Act 1986), or (c) proceedings for any other summary offence if instituted or carried on by the Director of Public Prosecutions. (2) The District Court may, in its discretion, do any one or more of the following: (a) confirm, quash, set aside or vary the sentence, (b) impose such sentence as may seem proper to the District Court, (c) exercise, by order, any power which such a Justice or Justices might have exercised. … (4) The District Court may not: … (b) impose a sentence that could not have been imposed by the Justice or Justices concerned." 43 The appeal of the first opponent was mentioned in the District Court on 4 May 1998, 4 June 1998, 8 July 1998 and 5 August 1998. On each occasion there was no appearance by or on behalf of the claimant. 44 The claimant was finally served with the Notice of Appeal by police attending his residence at 6/176 Yambil Street, Griffith on 4 August 1998, the day before the fourth occasion it was listed for mention. Although the claimant was unable to appear the following day, 5 August 1998, some communication was apparently made with the District Court and the matter was fixed for hearing on 26 August 1998. 45 On 26 August 1998 the matter came before Cantrill ADCJ. The claimant failed to appear when the matter was called and his Honour made orders upholding the appeal, quashing the orders of the magistrate and issuing a warrant for the claimant's arrest. 46 Later that day, at about 12 noon, the claimant appeared in person, unrepresented. His Honour requested the services of the duty barrister to advise the claimant. The duty barrister for that day was Stephen Coleman, a reader who had commenced practice in April 1998. Mr Coleman was unable to give any consideration to the matter that day and his Honour revoked the orders he had made earlier that morning and stood the matter over to the following day. 47 On 27 August 1998 the matter was listed before Naughton DCJ. Mr Coleman appeared for the claimant as duty barrister and the matter was stood down in the list, "not before 12 noon", as the claimant had not arrived at the court. 48 The claimant arrived at Court sometime prior to 12 noon. Mr Coleman explained to his Honour certain difficulties with the matter and sought that the matter be adjourned for a week. His Honour declined to adjourn the matter and indicated it would be heard at 2 pm that day. 49 At 2 pm discussion ensued between the solicitor for the Crown, Ms Lagana, Mr Coleman and his Honour, with respect to the claimant's position given his instructions to Mr Coleman that he was not driving the motor vehicle on the occasion in question and had not been served with the summons with respect to the Local Court proceedings. His Honour determined that the Crown appeal should proceed. The Crown documents were tendered and admitted without objection as Exhibit A. Exhibit A appears to have comprised the traffic breach report, the information, a section 12 traffic record report (dated 25 August 1998), a P16 antecedent report form and the transcript of the Local Court proceedings on 23 December 1997. There was no direct identification evidence of the claimant. 50 The claimant gave evidence that he was not the driver of the vehicle in question and had never been served with the process in the Local Court. The claimant also said that on the day in question, 22 June 1997, he had been at Claymore, a suburb of Campbelltown, from 3pm onwards for several hours drinking with a number of other people and had then travelled directly to Griffith as a passenger in a motor car. 51 As to that evidence, Naughton DCJ said "Well I don't accept that, I just don't accept that". He also did not accept that the claimant had not been served with the Local Court proceedings. Naughton DCJ foreshadowed he was considering imposing a custodial sentence of three months imprisonment. His Honour commented adversely on the claimant's failure to call witnesses to support his evidence that he was in Campbelltown at the time of the alleged offence and rejected what was in effect an application by Mr Coleman for an adjournment. 52 Mr Coleman then applied for a stated case, saying "it may be that your Honour would be prepared to have this put forward as a case stated". The following discussion then took place: "HIS HONOUR: Well there's a correct procedure to do that, and you'll have to follow the correct procedure if you want to do that" COLEMAN: Well, your Honour, I was just going to say if your Honour does hold against me on my submissions in terms of the Magistrate's decision and if you choose not to confirm the 556A application then I would make application to state a case. HIS HONOUR: Yes. Do you have any other submissions to make?" 53 The Crown then addressed on penalty, after his Honour stated: "Well, Ms Lagana, you've heard what I'm minded to do, I'm minded to impose a fixed term of three months and a disqualification of 18 months, do you want to say anything about that? In your submission is that within a non-appellable range of penalty?" 54 Following the conclusion of submissions, his Honour indicated that he would give his decision in the matter at 11am on 28 August 1998 and remanded the claimant in custody in the meantime. 55 When the matter was called on 28 August 1998, Mr Kintominas announced his appearance for the claimant. Mr Kintominas, an experienced practitioner, had been consulted by Mr Coleman on the afternoon of 27 August 1998 and had decided that if the claimant agreed he would attempt to assist the claimant and the Court the next day. The transcript records the following exchange between his Honour and Mr Kintominas: "HIS HONOUR: Mr Kintominas? KINTOMINAS: May it please your Honour, at the request of Mr Coleman who appeared yesterday, I appear today for Mr Nitiva. I've introduced myself and I hope I can assist your Honour. Your Honour I'm not entirely certain what transpired yesterday. I've had an account from Mr Coleman. I've spoken to my friend the Crown who has been very helpful but could I perhaps, if your Honour will bear with me, there's one matter that I don't think was raised yesterday with your Honour at all. HIS HONOUR: No, I'm sorry I won't entertain any further matters Mr Kintominas. The hearing of the matter has concluded and I've prepared a judgment in the matter which I'm about to deliver. KINTOMINAS: Well it's a matter for your Honour. I could say your Honour, that you could probably say it's never too late. HIS HONOUR: Would you please resume your seat. I won't hear you any further." 56 Mr Kintominas informed this Court that he had attended court with the intention of attempting to persuade Naughton DCJ of the following matters:

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(vi) that his Honour ought to reconsider his view that imprisonment was appropriate in the circumstances having regard to the sentencing range indicated by the judicial commission statistics - a copy of which had been obtained by Mr Kintominas that morning, along with Kopuz v The Judges of the District Court (1992) 62 A Crim R 337, Ex Parte McGavin ; Re Berne (1945) 46 SR (NSW) 51, Blazevski and Morgan John Ryan v The Queen (1984) 14 A Crim R 97. Senior counsel for the DPP accepted that it was appropriate for the Court to be given this information. Mr Kintominas further informed the Court that as counsel and an officer of the Court, he considered it was his duty to resume his seat after being so directed by the trial judge and not to try and talk over his Honour. 57 Mr Kintominas was clearly placed in a very difficult situation. He had one of two choices, each of which was unpalatable and carried its own risks and consequences. This Court considers Mr Kintominas' conduct in following his Honour's direction and resuming his seat to be appropriate and proper. In saying so we do not say it would have been inappropriate for Mr Kintominas to further his attempts to put the above matters before the Court, although we do not propose to speculate as to what would have been the consequence had he done so. 58 His Honour proceeded to give judgment. He recited the facts in detail including the claimant's evidence. He said: "I do not accept the [claimant] as a witness of truth. I do not accept his alibi evidence in respect of 22 June 1997, nor do I accept his evidence that he had received no notice of the hearing in the Local Court. I do not accept his evidence that he had never been spoken to by the police about the alleged offence. I formed an unfavourable impression of the [claimant's] credit generally and specifically. In doing so I have taken into account his demeanour while giving evidence." 59 His Honour then referred to the claimant's criminal and driving records, which were not distinguished. He had two convictions for assault, one for stealing, one for breach of an apprehended violence order, one for refusing a breath analysis, one for driving whilst disqualified and one for driving contrary to a Notice. However, all matters were summary matters and only one had been dealt with by a community service order. The other convictions had been dealt with by small fines or recognisances. 60 His Honour proceeded: "Mr Coleman on behalf of the [claimant] applied before me to have the learned magistrate's finding that the offence was proved set aside on the ground that the [claimant] had not been served with process or otherwise received notice of the proceedings before [the magistrate]. He relied on Hoskins v Van Den Braak (1988) 43 NSWLR 290 for the propositions that a Court has inherent jurisdiction to set aside a judgment which has been obtained without the initiating process having first been served, and that the adversely affected party has a right ex debito justitiae (as of right) to have that jurisdiction exercised in his favour. There are a number of problems with Mr Coleman's application in the circumstances of this particular case. They are: 1. No application has been made to the learned magistrate herself, or the Local Court generally, to have the Local Court judgment set aside. … 2. No appeal has been lodged against the judgment of the learned magistrate and it is now too late to make application to appeal out of time. The time for appeal is 21 days and an application for leave to appeal out of time is barred after three months. See s 122 (1A) of the Justices Act 1902. 3. In the appeal by the Director of Public Prosecutions which is before myself the [claimant] gave oral evidence. He gave evidence in respect of his allegation that he knew nothing about the Local Court proceedings until 4 August 1998. He also gave evidence on the substantive issue of whether or not he had committed the alleged offence. He has therefore waived the alleged irregularity, or ratified it, by having me hear his evidence and determine on its merits his allegation that he did not commit the offence. 4. I have held, on the merits as an issue of fact, that it has been proved to me beyond reasonable doubt that the respondent did commit the alleged offence despite his denial on oath that he did so. He is bound by that finding of fact. 4. (sic)… I am not satisfied on a balance of probabilities that the Local Court process was not properly brought to the [claimant's] notice. I formed such a low impression of the [claimant's] credit when he gave evidence before me that I am not prepared to accept his sworn evidence on that point. The learned magistrate proceeded on the basis that she had jurisdiction to deal with the matter and I have not been persuaded that she was wrong. In the circumstances I refuse the [claimant's] application to set aside the learned magistrate's finding that the offence has been proved." 61 There was no such application before his Honour. His Honour then went on to deal with penalty. "I have been unable to find any mitigating circumstances favouring the [claimant] in this appeal. He has shown scant regard for the law relating to traffic matters and his need to be properly licensed when driving on public roads. I have not overlooked the fact that I am sentencing the [claimant] for the subject single offence and no others. See R v Di Simoni (1981) 147 CLR 383. However, the lamentable antecedents of the [claimant] demonstrate the need for a firm element of specific deterrence which, in this case, I consider to warrant a short fixed term of full-time penal custody. … … I confirm the finding of the learned magistrate that the offence has been proved. I convict the [claimant] of the subject offence. I set aside the sentence imposed by the learned magistrate, that is the order by her under s 556A of the Crimes Act 1900. In lieu thereof I sentence the respondent to three months imprisonment commencing on 27 August 1998 and expiring on 26 November 1998. I order that the [claimant] be disqualified for holding, or applying for, any type of driver's licence under the Motor Traffic Act 1909 (sic) for a period of 18 months commencing on 28 August 1998 and expiring on 27 February 2000."

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Failure to State a Case 67 His Honour did not, before pronouncing sentence, revisit the application made the previous day, that he state a case under s 5B of the Criminal Appeal Act. Section 5B provided, at the time: "A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit." 68 In Ex parte McGavin; re Byrne (1945) 46 SR (NSW) 58 at 60ff Jordon CJ stated, in relation to s 5B: "It is the duty of [the judge] to submit to the Court of Criminal Appeal any question of law to which either party to the appeal may raise and ask to be so submitted unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process." 69 In DPP v Cassell (1995) 80 A Crim R 160, Kirby P stated at 164: "Although the section is expressed in permissive terms, the obligation cast by it upon a judge of the District Court … is a rigorous one." 70 In the form it was at the time, the effect of s 5B was that once the judge has announced a determination in the matter, a case may no longer be stated for the Court of Criminal Appeal. Mr Coleman did not articulate the question of law which he proposed should be the subject of a stated case. We make no criticism of him in this regard. He was appearing in the case under extreme pressure of time, with limited opportunity to obtain instructions, with no opportunity to investigate the claimant's case and without access to research material. However, there were a number of questions of law involved, not the least of which was whether the magistrate was entitled to proceed with the hearing, given the issue as to service. If there was no proper basis for the magistrate's order, there was no proper basis for the appeal. 71 Senior counsel for the DPP initially submitted that Mr Kintominas should have risen to make an application to state a case at the end of his Honour's judgment and before the pronouncement of the final orders. However, he properly recognised that Naughton DCJ did not provide that opportunity. We agree with the claimant's submission that, as his Honour knew that had he decided to vary the magistrate's order by imposing a heavier penalty he would be requested to state a case, he should have provided an opportunity to counsel before pronouncing sentence, to state whether such application was persisted in. 72 Indeed, it should be pointed out that His Honour not only failed to state a case, he deflected Mr Coleman from the application that he do so when he stated "well there's a correct procedure to do that, and you'll have to follow the correct procedure if you want to do that". His Honour was correct when he said there was a correct procedure. That was for his Honour to state a case in accordance with his duty as explained in the authorities to which we have referred. The practice, which we assume was well known to his Honour, when a party requests that a case be stated is to adjourn the matter to enable the party seeking to have a case stated to prepare draft documents for the judge. However, the case is stated by the judge, not by the party. He was required to do so before he pronounced his orders in the matter. His Honour therefore erred in failing to state a case as requested. In particular his error was in failing to provide to the claimant the usual opportunity to prepare the necessary documentation for his Honour to enable the case to be stated. We note in passing that s5B of the Criminal Appeal Act has since been amended to permit a case to be stated upon the application of a party (as opposed to the direct initiative of a judge) after orders have been made.

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Other Irregularities 73 When the matter was called on for hearing before Naughton DCJ at 2 pm on 27 August 1998, Mr Coleman commenced to indicate that he wished to make an application. Counsel for the DPP had at this point taken an actively helpful role in seeking to inform his Honour what it was that Mr Coleman was seeking to do. She said: "LAGANA: I've been told this morning by Mr Coleman that the [claimant] now says that he never received any notification of the matter going before the Local Court and in fact he even disputes that the person who the Crown alleges was driving whilst disqualified was himself. Mr Coleman has indicate[d] that he, in the light of those instructions, wishes to lodge - or seek leave to lodge an all grounds appeal. The difficulty for Mr Coleman is that -- HIS HONOUR: It's out of time. LAGANA: It's out of time. There is provision, I believe your Honour, outside the three months pursuant to - well firstly Mr Coleman was going to make a submission under the section that the Crown has appealed under, 131AB, that that appeal allows the matter to be opened up on the basis of an all grounds review." 74 Mr Coleman interjected - but not inappropriately so - by stating to his Honour "Yes, it was on that basis, your Honour, that I started to make - Naughton DCJ said : "I'll just hear one counsel at a time, thanks, Mr Coleman" . 75 Counsel for the DPP continued to outline various bases upon which Mr Coleman might be able to challenge the conviction. At the conclusion of this intervention by the DPP, Naughton DCJ said: "I think that I might ignore Mr Coleman's application and proceed with the matter that's presently before the court which is your appeal. If he wishes to do something about an appeal himself he can do that at an appropriate time in the appropriate way. But at the moment I'm seized of only one matter and it's your appeal." 76 The following exchange then occurred: "COLEMAN: Your Honour, I'm not quite sure how to proceed at this point, I must admit. HIS HONOUR: Well you want to appeal out of time you've got to make an application to do that and there's no such application before me. COLEMAN: Well, your Honour, I would make that appeal - that you do grant us leave to appeal out of time. HIS HONOUR: Well you don't have an application before me. You have to lodge an application for that, wouldn't you? There's none before me. COLEMAN: Your Honour, I understand in order to show under section 124A the appellant has to show -- HIS HONOUR: No, you haven't got to that stage yet, you haven't got an application before me, that's the matter you've got to address. I can't hear an application that isn't before me. COLEMAN: Your Honour, perhaps if you wouldn't mind adjourning briefly to attend the registry -- HIS HONOUR: Well I think I would mind adjourning briefly. COLEMAN: Your Honour, I'm not quite sure how to get an application before you in these circumstances. HIS HONOUR: Is there provision for a form of application, there must be? COLEMAN: I would have thought, your Honour. Your Honour, I was simply going to attend the registry and see if there was a form. LAGANA: Section 122 sets out the procedure. HIS HONOUR: Yes, I'm looking at 122. There's an absolute bar in 1A, I think. Section 122(1A), you've got three months in which to make an application for leave to appeal, and then there's an absolute bar. There's no provision for an application for leave after three months, as I see it. What was the date of the magistrate's order? LAGANA: 23 December, your Honour, 1997. HIS HONOUR: Well, you're out of time." 77 His Honour, in this discussion, overlooked the provisions of s 100A of the Justices Act as they stood, which provided for a 12 month period in which to make an application to have an order of a magistrate annulled. In our opinion, given the extreme state of Mr Coleman's lack of preparation, caused only by the matter having come to him as duty barrister late on the previous day, his Honour failed to accord the claimant procedural fairness in failing to give Mr Coleman any opportunity to consider the available range of options to challenge the order made by the Magistrate. 78 The next problem relates to the manner in which his Honour dealt with the claimant's evidence. As his Honour made clear on more than one occasion, the only application he had before him was the DPP's appeal against sentence. Notwithstanding that, he made findings against the claimant in relation to the conviction, which findings he said were binding on the claimant. He also said he refused the claimant's application to set aside the magistrate's finding that the offence was proved. As we have already said, there was no such application before the court. His Honour was not therefore entitled to make any such findings nor to make any such orders. There was serious error in his doing so. To the extent that there is any order to that effect on the court record, the order is also quashed 79 The next matter which is a matter of concern is that His Honour found adversely to the claimant as a matter of credit, remarking that he had failed to call evidence to support his alibi that he was at Campbelltown at the time of the alleged offence. The difficulty with this, however, is that his Honour refused an adjournment to allow the claimant the opportunity of properly preparing his case. The Notice of Appeal, which is a pro forma document, contained little information as to the nature of the case against him and no clue as to the evidence which would be called. This was a significant limitation so far as the claimant was concerned, as he was not present at the hearing before the Magistrate, that being about the only matter which was not in dispute in this case. There is a further problem with his Honour making these particular findings of credit - they related to issues which were not before him, yet they appeared to have coloured his Honour's view of the claimant overall. 80 Another problem which we perceive with the judgment is the manner in which his Honour purported to exercise his discretion as to penalty. The maximum penalty prescribed by s 7A(2)(a) of the Traffic Act for the offence was a fine of $1000 and\or 6 months imprisonment. During the course of addresses, Naughton DCJ said: "Well, Ms Lagana, you've heard what I'm minded to do, I'm minded to impose a fixed term of three months and a disqualification of 18 months, do you want to say anything about that? In your submission, is that within a non-appellable range of penalty?" 81 In our opinion, this does not bear the mark of judicial reasoning which proceeds by determining what is the appropriate sentence given all the circumstances of the case. Rather, it gives the impression that the trial judge was more concerned with the imposing the heaviest sentence he could without coming under appellate scrutiny. That is not a proper exercise of discretion and had we been required to determine the matter, we would have held that his Honour's discretion miscarried. 82 There appears to be another error in the manner in which his Honour dealt with penalty. In R v Longshaw (1990) 20 NSWLR 554, Gleeson CJ was of the view that the reference in s 131AB(2) to the District Court's discretion required the judge to engage in a fresh exercise of sentencing discretion. The Chief Justice added at 563 that this served: "to emphasise … that a Crown appeal in a criminal matter involves an element of double jeopardy and the relevant discretionary considerations, especially in varying a sentence are not the same as those in an appeal by an unsuccessful defendant". 83 In Longshaw the question of the application of the double jeopardy principle was not directly on point. It was in Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649. There, Hunt CJ at CL (Ireland and Dowd JJ agreeing) accepted at 671 as correct the Chief Justice's statement in Longshaw and concluded: "In my view, the judge hearing an appeal by the State Director of Public Prosecutions pursuant to Div 4A of Pt 5 of the Justices Act must take the element of double jeopardy into account." 84 There is nothing in his Honour's judgment which indicates that his Honour took this principle into account. The sentence imposed satisfies us that he did not do so. We would also add that this application of this principle and the authorities to which we have referred are noted in the Butterworths Criminal Practice and Procedure NSW.

Nitiva v DPP & 2 Ors

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