[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: On 23 December 2020, the Court delivered judgment in Will v Brighton [2020] NSWCA 355 (the principal judgment) with a direction that the parties file short submissions by 5 February 2021 as to the appropriateness of an order Bell P proposed at [107]:
"… conditioning the grant of leave to appeal on the applicant agreeing not to press her application for leave to appeal from order (3) made by the primary judge quashing the convictions (but otherwise allowing the appeal and setting aside the primary judge's dismissal of the charges) and agreeing to the remitter of the matter to the Local Court to be determined in accordance with law."
The reasons why such an order was proposed were set out in Bell P's reasons at [97]-[106], those of Basten JA at [126] and Simpson AJA at [141]-[142]. This judgment should be read in conjunction with those reasons and the principal judgment more generally.
In short, all members of the Court considered that the interests of justice required, on the one hand, the correction of error in the interpretation and application of the defences relied upon by Mr Daniel Brighton (the Respondent) and upheld by Rothman J but, on the other hand, were deeply concerned that there had been no proper determination of the existence of the mental element of the offences before the Local Court magistrate, on the proper interpretation of s 530 of the Crimes Act 1900 (NSW), as elucidated in the principal judgment of this Court.
Will v Brighton [2021] NSWCA 8 | Case summary | Zoe
The orders, as finally made by the primary judge were, relevantly, as follows:
"(1) To the extent necessary, leave to appeal is granted.
(2) The appeal against the conviction is allowed.
(3) The conviction is quashed.
(4) The charges preferred against Daniel Brighton of two Counts of serious cruelty to a dog in contravention of s 530(1) of the Crimes Act 1900 (NSW) are dismissed."
In a separate judgment, Brighton v Will (No 2) [2020] NSWSC 925, Rothman J ordered that the prosecutor, Ms Will (the Applicant) pay the Respondent's costs of and incidental to the proceedings before him and made no order as to the costs of the Local Court proceedings.
In her submissions filed pursuant to the Court's direction, the Applicant accepted that:
"2. … an order remitting the matter to the Local Court for determination in accordance with law would be appropriate in light of the Court's observations as to the proper construction of the phrase 'with the intention of inflicting severe pain' in s 530(1) of the Crimes Act 1900 (NSW) …
3. Having regard to the course proposed in paragraph 107 of the reasons for judgment, the Applicant agrees not to press her application for leave to appeal from order 3 made by the primary judge quashing the Respondent's conviction. Instead, having regard to the Court's reasons, she seeks leave to appeal only against orders 2 and 4 of the primary judge and an order remitting the matter to the Local Court."
The consequence of allowing the appeal from orders 2 and 4 made by Rothman J but not order 3 is that, whilst the original conviction of the Respondent will remain quashed, Rothman J's order dismissing the charges preferred against the Respondent will be set aside and they will remain to be determined in accordance with law on remitter to the Local Court.
Mr Odgers SC, who appeared with Mr Sahade on behalf of the Respondent, submitted that:
"2. … given that a powerful doubt exists as to whether the respondent was properly convicted of the offences under s 530(1), bearing in mind the requirement that the prosecution must prove beyond reasonable doubt an actual, subjective, intention to inflict severe pain, order (4) made by the primary judge (dismissing the two charges) should not be set aside unless the applicant:
(a) confirms that it is the applicant's case that the respondent did have such an actual, subjective, intention in respect of the alleged offences;
(b) specifies the evidentiary basis on which the applicant contends that it can be proved, beyond reasonable doubt, that the respondent did have such an actual, subjective, intention in respect of the alleged offences; and
(c) satisfies the Court of Appeal that there is at least a prima facie case in respect of this element of the alleged offences (in the sense that there is a proper basis to exclude the rational possibility that the respondent intended to kill the dog as quickly as possible).
Absent this, the Court should exercise its discretion to refuse leave to appeal or, if leave to appeal is granted, dismiss the appeal.
3. However, if the Court does grant leave to appeal, set aside order (4) but not order (3) and remits the matter to the Local Court to be determined in accordance with the law, it is respectfully submitted that it should be made clear that the magistrate who heard the charges (McAnulty LCM) should not hear the remitted matter. The primary reason is that, if the respondent were convicted again and fell to be sentenced, account should be taken of that part of the judgment of the primary judge which criticized the sentence imposed by McAnulty LCM."
In brief reply submissions, the Applicant confirmed that it was the Applicant's case that the Respondent did have an actual, subjective intention in respect of the alleged offences but resisted any order of the kind proposed in (b) and (c) of the Respondent's submissions, as reproduced above. This was on the basis that:
"This Court is not apprised of the evidence required to assess whether there is a prima facie case in respect of the intention element of the offences with which the Respondent was charged. The Court does not have before it all of the evidence that was before the Local Court magistrate. Further, the prosecution may lead new evidence, not led at the first trial, directed at establishing the intention element of the offence."
The Applicant also submitted that "[t]his is not a case where the evidence forecloses the possibility of a conviction", and that the:
"issue of the Respondent's intention in respect of each charge is one in respect of which the magistrate 'did not make any express finding': [99] (Bell P). As such, if there is any evidentiary lacuna it is one to be filled by the prosecution on remittal."
The Applicant also submitted that, consistent with her prosecutorial duty, she would only pursue the prosecution where there were reasonable prospects of securing a conviction.
Neither party called into question the Court's power to condition the grant of leave to appeal in the way contemplated in [107] of the principal judgment. Such an order in the circumstances of the present case would be consistent with the requirement mandated by s 58(1) of the Civil Procedure Act 2005 (NSW) that the Court "seek to act in accordance with the dictates of justice" when deciding whether to make an order of a procedural nature such as a grant of leave to appeal.
Although not completely analogous, it may be noted that, not infrequently, the High Court conditions the grant of special leave to appeal upon the applicant agreeing or undertaking not to disturb the costs orders of the Court below in the event that special leave is granted and the appeal succeeds. Numerous examples of this practice are usefully digested in K Pender, "The 'Price' of Justice? Costs-Conditional Special Leave in the High Court" (2018) 42 Melbourne University Law 149, 191-198.
In our opinion, conditions (b) and (c) as sought by the Respondent (see [8] above) are not appropriate. It is not appropriate for this Court to make a prima facie assessment in respect of an element of the alleged offences, especially in circumstances where the proposed remitter of the matter to the Local Court was not as a consequence of any argument raised by the Respondent either in this Court or before Rothman J, where the Court does not have before it all of the evidence that was before the Local Court magistrate, and where the Applicant has foreshadowed that she "may lead new evidence, not led at the first trial, directed at establishing the intention element of the offence."
The Respondent invited the Court to order that the further hearing on remittal should be before a magistrate other than McAnulty LCM. However, the allocation of a magistrate to hear the matter on remittal is primarily a matter for the Local Court. The proposed order should only be made if this Court were satisfied that there would be a reasonable apprehension of pre-judgment if the magistrate responsible for the earlier conviction and sentence were to rehear the matter. Although there are good reasons for allocating the remitted hearing to a different judicial officer, if only to avoid any assertion of a reasonable apprehension of pre-judgment, it is not necessary for this Court to make such an order. In effect such an order is a form of prohibition directed to the internal management of an inferior court, which assumes that the lower court will not consider the matter properly when it arises.
The parties were also directed to file any submissions they wished to make on the question of costs.
On this question, the Applicant does not seek to disturb the costs order in the proceedings before Rothman J which were in the Respondent's favour (see [5] above) but submitted that the same approach taken below should guide the award of costs on appeal and that the Applicant, having been vindicated on the substantive challenge to Rothman J's judgment in respect of the defences which his Honour upheld, should be awarded her costs in this Court. Thus the Applicant submitted:
"7. If the Court makes the orders contemplated in paragraph 107 of the reasons of 23 December 2020, the Applicant will have been vindicated on appeal. The only matter arising for the Court's determination on appeal was whether the defence under s 530(2)(b) was established. That matter was resolved in the Applicant's favour. The Court has held unanimously that the primary judge erred in his construction of s 530(2)(b) and, consequently, in his conclusion that the defence under that provision was made out: reasons for judgment at [97] (Bell P), [124] (Basten JA) and [139] (Simpson AJA).
8. Further, it is of relevance that the proper construction of the defence under s 530(2) was the only matter agitated by the Respondent in his appeal against conviction in the court below: Brighton v Will [2020] NSWSC 435 at [5] (Rothman J). The issue raised by the Court on this appeal, as to the proper meaning of 'intent' for the purposes of s 530(1), is not one that was raised by either party below, either by way of appeal grounds or submissions. Similarly, before the Local Court, the Respondent did not contest that the elements of the offence had been established and relied only the defence under s 530(2).
9. There is no suggestion that the Applicant's conduct of the proceedings was such as to warrant a departure from the usual principle that costs follow the event.
10. In those circumstances, it would be just and reasonable to award the Applicant her costs of the application for leave to appeal and the appeal."
The Respondent, on the other hand, submitted that there should be no order as to costs on the basis that:
"Whatever the order made by the Court, the applicant will be only be partially successful - in respect of the construction of the defence under s 530(2). Even if the Court does grant leave to appeal, sets aside order (4) and remits the matter to the Local Court to be determined in accordance with the law, the applicant will not have successfully challenged order (3) of the primary judge quashing the convictions in the Local Court."
The Respondent further submitted that:
"It would not be just to require the respondent to pay the applicant's costs in circumstances where the matter must be remitted back to the original Court due to an essential matter that was not raised by the applicant in the original trial, the appeal before the primary judge or the appeal to this Court."
In any event the Respondent submitted that, if ordered to pay the Applicant's costs, he should be issued with a certificate under the Suitors' Fund Act 1951 (NSW).
Given the mixed outcome of the appeal, and the fact that, although the Applicant succeeded in challenging Rothman J's interpretation and application of the defences relied upon by the Respondent, the result of the hearing in the Court of Appeal is that his Honour's order that the convictions be set aside will not be quashed and the matter will be remitted to the Local Court, the just result is that there be no order as to the costs of the appeal.
For the above reasons we would propose the following orders:
1. Upon the Applicant agreeing not to press that part of her application for leave to appeal seeking to set aside order 3 of the orders of Rothman J on 23 April 2020, grant leave to appeal.
2. Allow the appeal from orders 2 and 4 made by Rothman J on 23 April 2020.
3. Remit the matter to the Local Court to be determined in accordance with law.
4. No order as to costs of the appeal.
[3]
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Decision last updated: 12 February 2021