Stephens v Director of Public Prosecutions [2019] NSWSC 761 | Case summary

Factual and procedural background

As noted above, on 16 February 2018, the plaintiff was convicted of two counts and was sentenced on each count to a good behaviour bond of two years and was fined $750.00, totalling a fine of $1,500.00.
On the same day, the plaintiff filed a notice of appeal in the District Court against his conviction and sentence pursuant to s 11 of the CAR Act. Section 11(1) provides that "[a]ny person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both)".
The matter was heard by Bozic DCJ on 1 June 2018 and 14 September 2018. During the hearing, in response to concerns expressed by his Honour, the defendant conceded that the two counts with which the plaintiff had been charged were duplicitous.
On 20 November 2018, Bozic DCJ delivered judgment, setting aside the plaintiff's conviction on one of the counts and confirming the Magistrate's order in respect of the other count.
On 23 January 2019, the plaintiff filed a summons seeking to appeal against his Local Court conviction under s 52 of the CAR Act. No appeal was sought to be brought from the decision of Bozic DCJ, nor was any application made for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). Such relief could not have been sought from me, sitting as a single judge in the Common Law Division (see s 48 of the Supreme Court Act, which assigns judicial review proceedings in respect of decisions of the District Court to the Court of Appeal) and, in any event, counsel for the plaintiff, eschewed any suggestion that Bozic DCJ's decision was tainted with jurisdictional error.
Section 52(1) of the CAR Act provides that: "Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone."
It is also desirable to set out s 53(1) of the CAR Act. As discussed below, the plaintiff in his submissions sought to differentiate between appeals as of right on a question of law under s 52 and appeals requiring leave on a question of fact or mixed law and fact under s 53. Section 53(1) provides as follows: "(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court."
The terms of ss 29 and 60 of the CAR Act should also be noted. Section 29 provides that: "(1) No appeal may be made to the District Court under this Part against a decision of the Local Court: (a) in relation to an environmental offence against which an appeal may be made under Part 4, or (b) that is or has previously been the subject of an appeal or application for leave to appeal to the District Court under this Part, or (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) No application to set aside or vary any conviction or sentence of the Local Court that could be the subject of an appeal under this Part may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part."
Section 60 provides that: "A person may not appeal to the Supreme Court under this Part against a decision of the Local Court: (a) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under this Part, or (b) that is or has previously been the subject of an appeal or application for leave to appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912."

Incompetence of the appeal

Rule 13.4 of the UCPR provides, relevantly, as follows: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: … (b) no reasonable cause of action is disclosed … … the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
The test for determining whether proceedings should be dismissed summarily on the basis that no reasonable cause of action is disclosed was articulated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 as follows: "… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'."
The defendant submitted that, applying this test, the plaintiff's summons was "obviously untenable and manifestly groundless". In circumstances where the orders of the Local Court sought to be challenged by the plaintiff had been superseded by subsequent orders of the District Court, the defendant submitted that there was no decision that could properly be the subject of an appeal under the CAR Act. As the defendant pointed out, the Act does not confer a right of appeal to this Court from a decision of the District Court.
In this regard, the defendant relied on the Court of Appeal's recent decision in Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 (Jamal). In that case, the appellant sought, inter alia, to challenge the conduct of the proceedings in the Local Court, despite having already appealed unsuccessfully to the District Court. Gleeson JA (White JA and Emmett AJA agreeing) found, at [52], that: "Insofar as Mr Jamal's submissions included complaints about the conduct of proceedings in the Local Court, the orders of the Local Court are no longer open to challenge. The 'all grounds' appeals to the District Court have resulted in orders of that Court which supersede the orders made in the Local Court: Templeton (a pseudonym) v Director of Public Prosecutions (NSW) at [4], citing Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32] (Meagher JA, Beazley ACJ and Macfarlan JA agreeing); Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25]; Dyason v Butterworth [2015] NSWCA 52 at [34] (McColl JA, Barrett and Gleeson JJA agreeing)."
The plaintiff contended that the District Court's determination of the matter was not a bar to commencing proceedings under s 52 of the CAR Act, which, as set out above at [11], provides for an appeal as of right on a question of law from a decision of the Local Court. The plaintiff accepted, however, that it was a bar to commencing proceedings under s 53, which, as set out above at [12], provides that leave is required to appeal to this Court from a conviction or sentence of the Local Court on a question of fact or mixed law and fact.
In this regard, the plaintiff submitted that Gleeson JA's finding in Jamal, set out above at [18], "falls short of being a rule or principle that 'all grounds' appeals to the District Court will always result in orders that supersede the orders that made in the Local Court". In support of this submission, the plaintiff relied on the fact that s 69 of the Supreme Court Act permits a party to apply to the Court of Appeal for judicial review of a decision of the District Court. That this may be an available avenue of review for a party, however, says nothing about the competency of an appeal from the Local Court to this Court, in circumstances where the District Court has already determined an appeal to it. The two procedures are quite distinct: one relates to an appeal on a question of law from the Local Court; the other involves judicial review from a decision of the District Court on the basis of jurisdictional error.
The plaintiff also relied on Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 (Nand) and Devitt v Ross [2018] NSWSC 1675 (Devitt) as authority for the proposition that, in the circumstances of this case, although an appeal under s 53 would be incompetent, an appeal under s 52 is not. The plaintiff relied on the fact that the appeals in those cases, which were deemed incompetent on the basis that the Local Court decisions the subject of challenge had been superseded by decisions of the District Court, were brought under s 53, and not s 52. But that is not to the point. The District Court decisions under challenge in those cases, as with the present case, resulted in orders being made following appeals to the District Court from the Local Court pursuant to Part 3 of the CAR Act.
In Nand, Adamson J found, at [33], that the plaintiff's appeal was incompetent as it challenged an order, that being the plaintiff's conviction in the Local Court, which was no longer operative, having regard to the subsequent orders of the District Court refusing the plaintiff's application for leave to appeal against his conviction. Her Honour referred, at [52], 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)."
Her Honour, considering the operation of s 29(1)(c) of the CAR Act, which, as set out above at [13], provides that no appeal may be made to the District Court against a decision of the Local Court that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court, stated that: "[63] 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 … 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 … [64] 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."
The same issue arose in Devitt, in which Hoeben CJ at CL, at [59]-[63], adopted Adamson J's reasoning in Nand, finding that this Court did not have jurisdiction to deal with the matter.
Adamson J's findings in Nand, which were applied in Devitt, were not limited to the operation of s 53 of CAR Act, contrary to the submissions of the plaintiff. Indeed, her Honour expressly referred to s 52 of the Act at [63], set out above at [23]. The distinction sought to be drawn by the plaintiff between ss 52 and 53 does not bear upon the general principle, applied in each of the cases referred to above, that orders made by the Local Court that are subsequently confirmed or dismissed by the District Court are not open to challenge by way of an appeal to this Court.
The underlying principle was articulated by the High Court in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8, which is cited in the cases referred to above and was discussed by Basten JA (Giles and McColl JJA agreeing) in Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 as follows: "[11] In this context it is relevant that the applicant seeks relief in respect of the orders of the Local Court. Such orders would be inappropriate. In Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470, the High Court held that it was not open to a defendant to challenge the conviction and orders of a magistrate where the conviction had been affirmed by a Court of Quarter Sessions (the predecessor to the District Court). As explained by Starke J in that case (at 478): 'If the Court of Quarter Sessions had reversed the decision of the stipendiary magistrate, its judgment would have held 'the field to the exclusion' of the conviction by the stipendiary magistrate. And when Quarter Sessions affirmed the conviction, its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. … That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary.' [12] This Court has applied that principle in circumstances where a convicted defendant appealed to the District Court and to the Supreme Court, in the latter seeking statutory prohibition, and sought to withdraw the proceedings in the District Court in order to allow the application in the Supreme Court to be determined. Although there was no hearing in the District Court, and the appeals were dismissed by consent, the orders dismissing the appeals and confirming the convictions and orders in the Local Court were held to preclude any proceedings in the Supreme Court challenging the orders of the Local Court: Blacker v Parnell [1978] 1 NSWLR 616."
As Rich ACJ also explained in Wishart v Fraser, at 477, "[i]f this court were to deal with the conviction by the magistrate and quash it, the extraordinary result would follow of two orders in existence at the same time - the order of this court and that of Quarter Sessions".
Wishart v Fraser and Garde v Dowd were cited by the Court of Appeal in Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105, to which the plaintiff referred. At [32], Meagher JA (Beazley ACJ and Macfarlan JA agreeing) observed as follows: "The other ground for relief proceeds from the reasons of the Local Court, although the order of that court could not be the subject of any relief whilst the District Court order remained on foot: see Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115, especially at [11]-[12] (Basten JA; Giles and McColl JJA agreeing)."
In the present case, the orders challenged by the plaintiff are no longer operative, as they have been, on one count, dismissed, and on the other, confirmed by the District Court.
Relevantly, in Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335, Basten JA (Meagher JA agreeing) observed, at [3], that: "An appeal can arise only by virtue of statute; there is no right of appeal from a decision of the District Court on appeal from the Local Court in a criminal matter. Further, any exercise of the supervisory jurisdiction of this Court is constrained by s 176 of the District Court Act 1973 (NSW), so that it is not sufficient to identify an error of law on the face of the record as a basis for quashing or setting aside an order of the District Court. It is necessary for an applicant for review under s 69 of the Supreme Court Act 1970 (NSW) to demonstrate jurisdictional error."
Similarly, at [15], Macfarlan JA stated that: "Ms Templeton's Summons filed in this Court seeks an 'inquiry into conviction'. As she has no right of appeal to this Court, the Summons has been treated as an application for judicial review of Culver DCJ's decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW). For her Summons to succeed, Ms Templeton would in these circumstances have to establish that Culver DCJ committed jurisdictional error (see s 176 of the District Court Act 1973 (NSW); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100]; Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]-[134])." See also Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [25] per Leeming JA. As I noted earlier, there was no suggestion that Bozic DCJ's judgment was tainted with jurisdictional error.
Contrary to the submissions of the plaintiff, no relevant distinction is to be drawn between an appeal brought pursuant to s 52 and an appeal brought pursuant to s 53 in determining whether an appeal to this Court is competent. The matter is, in my opinion, governed by the Court of Appeal's decision in Jamal by which I am bound and which is consistent with the principle stated in Wishart v Fraser, which was cited in Jamal. Nor does the fact that ss 29 and 60 of the CAR Act (see [13]-[14] above) do not include as one of the limitations on appeals pursuant to Part 5 of that Act (in which ss 52 and 53 are located) appeals from a decision of the Local Court from which an appeal to the District Court has previously been brought alter the analysis. There was no need for that limitation to be spelt out in either s 29 or s 60.
Legislation is presumed not to alter common law doctrines: see, for example, Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 at 304 per O'Connor J. In Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28, the High Court observed, at 635-636, that "where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred". In Nand, Adamson J considered the application of this principle in the context of s 60 of the CAR Act as follows: "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."
Her Honour also addressed the operation of s 29 of the CAR Act at [61]-[64]. Her core findings on this point are set out above at [23]. Accordingly, ss 29 and 60 of the CAR Act should not be interpreted as altering the principle stated in Wishart v Fraser.
It follows that this appeal was incompetent. It was on this basis that I dismissed the appeal under r 13.4 of the UCPR, no reasonable cause of action being disclosed.

Stephens v Director of Public Prosecutions

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