Arlo Murray Selby v Director of Public Prosecutions (NSW)

[2013] NSWSC 223

Supreme Court

New South Wales

Medium Neutral Citation:

Arlo Murray Selby v Director of Public Prosecutions (NSW) and anor. [2013] NSWSC 223

Hearing dates:

21 March 2013

Decision date:

25 March 2013

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1.The amended summons filed by the plaintiff on 18 March 2013 is dismissed.

2.The plaintiff is to pay the costs of the first and second defendants.

Catchwords:

Judicial review - plaintiff charged with criminal offences in the Local Court - failure on the part of the plaintiff to comply with orders of the Local Court regarding provision of submissions in support of an application under s. 91 of the Criminal Procedure Act - application under s. 91 deemed to be abandoned by operation of practice note - application to set aside decision of the Magistrate - application to stay proceedings - evidence that the plaintiff's failures to provide instructions caused termination of grant of legal aid - application dismissed

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited:

Dietrich v R (1992) 177 CLR 292
Moss v Brown [1979] 1 NSWLR 144
Faltas v McDermid (SC (NSW) 30 July 1993 Allen J unreported)

Category:

Procedural and other rulings

Parties:

Plaintiff - Arlo Murray Selby
1st Defendant - Director of Public Prosecutions (NSW)
2nd Defendant - Local Court of New South Wales

Representation:

Plaintiff - in person
1st Defendant - H Langley
2nd Defendant - submitting appearance
Plaintiff - Self
1st Defendant - S C Kavanagh, Solicitor for Public Prosecutions
2nd Defendant - Crown Solicitor for New South Wales

File Number(s):

2013/00066164

Judgment

Introduction

1. By an amended summons filed on 18 March 2013 the plaintiff seeks a number of orders which are pleaded in the following terms:

(1)   Set aside the decision of the Chief Magistrate (of the Downing Local Court) on the 5 February 2013 that has abandoned and waived my rights to a section 91 application.

(2)   New dates be set pursuant to the Local Court practice notes in respect of the previous and current charges placed before the Downing Centre Local Court including H47288040.

(3)   Such further or other orders that this Honourable Court deems fit.

(4)   A stay of proceedings in the Local Court in relation to Local Court matter H47288040 until such a time as the outcome of this matter is reached.

1. The amended summons was supported by an affidavit of the plaintiff sworn on 4 March 2013 which was read without objection. In addition, the plaintiff tendered two letters, both dated 11 March 2013, from the Legal Aid Commission. He also tendered a receipt issued by the Local Court of New South Wales for the payment of a deposit for the cost of transcripts of the occasions on which criminal proceedings brought against him have come before the Local Court. The relevance of those documents is more fully set out below.

1. The first defendant, who has opposed the making of the orders sought, relied on an affidavit of Helen Langley, solicitor, sworn 20 March 2013.

1. The second defendant filed a submitting appearance.

The application for an adjournment

1. The matter came before me upon referral from the Registrar. Ms Langley, who appeared for the first defendant and for whose assistance I am very grateful, explained to me that criminal proceedings against the plaintiff are again before the Local Court on 26 March 2013 and that, for this reason, the determination of the plaintiff's application was urgent.

1. In the course of submissions the plaintiff, who appeared unrepresented, made what I understood to be an application for an adjournment. The reasons advanced in support of that application were essentially twofold.

1. Firstly, the plaintiff submitted that he was prejudiced by the fact that he had only just been served with a copy of the affidavit of Ms Langley. In advancing this submission, the plaintiff referred to having been served with "two volumes of paperwork".

1. Secondly, the plaintiff submitted that in order to determine his application I would require the transcripts of the various occasions on which the related proceedings had come before the Local Court, and in particular, a transcript of the proceedings which took place before the Chief Magistrate on 5 February 2013. The receipt he tendered, to which I referred earlier, established that he had applied for those transcripts but that they would not be available for several weeks.

1. As to the first matter, and as I observed to the plaintiff in the course of the hearing, his description of Ms Langley's affidavit as "two volumes of paperwork" grossly overstates the position. Ms Langley's affidavit is, in fact, a little over three pages in length. In general terms, it sets out a history of the related proceedings before the Local Court. To the extent that documents are annexed to it they are thirteen pages in length. Eight of those pages comprise the charge sheets and the statement of facts. The contents of all of those documents are, as I pointed out to the plaintiff, well within his knowledge. The remaining pages comprise printouts from Justice Link recording the outcomes on the occasions on which the charges against the plaintiff have come before the Local Court. The fact that the charges came before the Local Court on those dates, and the respective outcomes, are also matters which are necessarily within the plaintiff's own knowledge.

1. In these circumstances, I am not persuaded that the service of the affidavit of Ms Langley has caused the plaintiff any prejudice.

1. As to the second matter, I am not satisfied, for the reasons more fully set out below, that the transcripts to which the plaintiff referred are necessary for a proper determination of his application.

1. For these reasons I have concluded that I should refuse the adjournment sought and proceed to determine the plaintiff's application.

THE FACTS

1. Although, in the course of the hearing, the plaintiff sought to take issue with some of the matters to which Ms Langley deposed in her affidavit, I am satisfied, on the basis of that affidavit, of the following.

1. On 28 February 2012, the plaintiff was charged with the following offences:

(1)   use false instrument with intent (Crimes Act 1900 s. 300(2));

(2)   make false statement to obtain money (Crimes Act 1900 s. 178BB);

(3)   obtain credit by fraud (Crimes Act 1900 s. 178C).

1. On 5 February 2013 the plaintiff was charged with an additional offence of obtaining money by deception (Crimes Act 1900 s. 178BA).

1. It is not necessary, for the purposes of this application, to deal with the precise nature of the allegations made against the plaintiff. They are more fully set out in the statement of facts annexed to Ms Langley's affidavit.

1. The charges against the plaintiff first came before the Local Court on 29 February 2012 and have been before that court on various occasions since that time. On some of those occasions orders have been made to facilitate the service, by the first defendant, of a Brief of Evidence.

1. On 25 October 2012 the matter came before Deputy Chief Magistrate Mottley. On that occasion Ms Miers, solicitor, appeared for and with the plaintiff. Her Honour made orders for the service of two outstanding statements which, I infer, were required to complete the Brief of Evidence. Her Honour also made orders that the plaintiff file and serve any submissions in support of an application under s. 91 of the Criminal Procedure Act 1986 ("the CPA") on or before 15 November 2012. She then adjourned the matter until 20 November 2012 in order to fix a hearing date for any such application.

1. It should be noted that s. 91 of the CPA facilitates the making, by a person charged with an indictable offence or offences, of an application that a Magistrate direct the attendance, at committal proceedings, of a witness who has made a statement upon which the prosecution intends to rely. In the event that an accused person makes such an application and the prosecution consents, a Magistrate must give the direction sought. In any other circumstances, the direction may be given only if the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.

1. On 20 November 2012 the matter came before the Chief Magistrate. On that occasion Ms Miers, who had previously appeared for the plaintiff, advised that she was no longer acting for him. As a result, the plaintiff appeared unrepresented before the Chief Magistrate, at which time his Honour made an order that the plaintiff file and serve any submissions in support of his application under s. 91 of the CPA by 15 January 2013. His Honour further directed the first defendant file and serve any submissions in reply by 22 January 2013, and stood the matter over for mention to 22 January 2013.

1. In circumstances where one of the plaintiff's complaints is that he has been denied procedural fairness, it is relevant to note that the effect of his Honour's orders on 20 November 2012 was to grant the plaintiff an extension of time in which to serve any submissions in support of his proposed application under s. 91 of the CPA. It is reasonable to infer that his Honour took that course because of the fact that the plaintiff had found himself without representation. It is also relevant to note that his Honour suggested to the plaintiff on that occasion that he make an application for legal aid.

1. When the matter came before the Chief Magistrate on 22 January 2013, a Mr Norbet Kelvin, of Hancocks Solicitors, informed the court that he anticipated his firm being instructed by the plaintiff in the event that a grant of legal aid were made. Mr Kelvin also indicated that in the event that this occurred, and his firm did receive instructions to act for the plaintiff, he anticipated instructions to waive any right the plaintiff might have to a committal hearing. In these circumstances, the matter was adjourned until 5 February 2013.

1. The plaintiff sought to emphasize that Mr Kelvin had no instructions to waive any right to a committal hearing. As I endeavoured to point out to the plaintiff, on the evidence before me Mr Kelvin did not, at any time, represent to the Chief Magistrate that he had any instructions at all. He simply indicated that this may be the case at some time in the future.

1. On 5 February 2013 the matter again came before the Chief Magistrate, at which time the plaintiff was represented by Ms Chu, a solicitor from the Legal Aid Commission. On that day, the proceedings were further adjourned until 5 March 2013. The relevant Justice Link entry is in the following terms:

"Defendant is still seeking legal aid. Adjourned for committal - no more adjournments. Section 91 deemed to be abandoned".

1. The Chief Magistrate's reference to the plaintiff's application pursuant to s. 91 being deemed to be "abandoned" was a reference to the provisions of Practice Note COMM1 which applies to criminal proceedings in the Local Court in which persons are charged with indictable offences which may proceed to committal hearing. The provisions of that Practice Note include the following:

5. First mention - strictly indictable matters

5.1 At the first mention, unless a plea of guilty is entered, orders will be made for:

(a) the service of the brief in 6 weeks, and

(b) further mention for reply to the brief in 8 weeks.

6. Second mention

6.1 At the second mention, unless a plea of guilty is entered or there is a waiver of committal, the matter may be adjourned for not more than 6 weeks to allow for any negotiations between the parties to be conducted

7. Third mention

7.1 At the third mention, unless there is a plea of guilty or the matter proceeds by waiver of committal or paper committal, the matter is to be adjourned with orders made for:

(a) the filing and service of written submissions by the accused in support of an application under ss 91 or 93 CPA in 2 weeks, and

(b) further mention for reply in 4 weeks.

8. Fourth mention

8.1 At the fourth mention, a failure to file and serve ss 91/93 submissions in accordance with the timetable set out in paragraph 7.1 will result in a presumption that the application is abandoned.

8.2 Unless there is a plea of guilty or the matter proceeds by waiver of committal or paper committal, the matter will be listed at the first available opportunity for:

(a) the hearing of any contested ss 91 or 93 application, or

(b) a committal hearing (if there is agreement under ss 91/93).

9. Adjournments

9.1 Adjournments or other variations to the above timetable will not be granted apart from in accordance with paragraph 4.5.

9.2 Subject to paragraph 4.5, failure to finalise a brief in accordance with the above timetable will not, of itself, provide the basis for an adjournment for further time for service of the brief.

9.3 In the event the court is informed of a failure to finalise a brief in accordance with the above timetable due to delays in forensic analysis of material, the court will consider whether to grant an adjournment only if:

(a) the party seeking the forensic analysis informs the court of the date the material was sent for forensic analysis, and

(b) the court is satisfied the results of the forensic analysis are likely to assist in the determination of the committal proceedings."

1. On 5 March 2013 the matter came before Magistrate Grogin in the Local Court. On that occasion, the plaintiff appeared and was represented by Ms Sutherland, another solicitor from the Legal Aid Commission. Ms Sutherland advised the Court that the plaintiff had been granted legal aid and that the Legal Aid Commission was now acting for him. However, the Court was advised that the plaintiff had filed a summons in this court in relation to the outcome of the proceedings before the Chief Magistrate on 5 February 2013. The proceedings were then further adjourned to the Local Court on 26 March 2013, to enable the plaintiff's present application to be dealt with by this court.

1. Although, on the last occasion on which the matter was before the Local Court, the Magistrate was informed that legal aid had been granted, the evidence before me establishes that the position has since changed, and that the plaintiff is again unrepresented. In support of the orders sought, the plaintiff relied upon the fact that he is unrepresented. It is therefore necessary for me to set out the circumstances in which that has come about.

1. The two letters from the Legal Aid Commission which were tendered by the plaintiff establish that he:

(1)   failed, without explanation, to attend an appointment with a solicitor from the Legal Aid Commission which was arranged for 20 February 2013;

(2)   failed to attend a further appointment which was arranged for 4 March 2013, such failure being explained on the basis that he had "family issues";

(3)   failed, without explanation, to attend a further appointment which was arranged for 5 March 2013; and

(4)   failed, without explanation, to attend a further appointment which as arranged for 11 March 2013.

1. In these circumstances, and perhaps unsurprisingly, the Legal Aid Commission wrote to the plaintiff on 11 March 2013 advising (inter alia):

"As a result of your failure to attend appointments and provide me with sufficient instructions for the proper conduct of your case, legal aid has now been terminated."

1. The decision, of which the Local Court was informed on 5 March 2013, to grant the plaintiff legal aid, was one made in the face of three successive failures on the part of the plaintiff to attend appointments and provide instructions. It was, in those circumstances, a decision which was exceedingly favourable to the plaintiff. It is apparent that the plaintiff's fourth successive failure to attend an appointment and provide instructions was what led the Commission to terminate the grant.

SUBMISSIONS OF THE PARTIES

1. In addition to emphasizing that he is now unrepresented, and in further support of the orders sought, the plaintiff submitted that:

(i)   he has a substantive defence to the criminal charges against him, such that it is both appropriate and necessary that he have the opportunity to proceed through a committal hearing in the Local Court;

(ii)   he is entitled to defend the charges against him at the committal stage;

(iii)   he had been at a disadvantage when the matter came before the Chief Magistrate on 5 February because he had not had an opportunity to provide instructions to Ms Chu who appeared with him on that day;

(iv)   he had been denied natural justice and procedural fairness.

1. Finally, inherent in the submissions made by the plaintiff, although not specifically put, was the proposition that when the matter came before the Local Court on 5 February 2013, the Chief Magistrate committed a jurisdictional error in deeming the plaintiff's application under s. 91 of the CPA to have been abandoned, and that this decision had the effect of waiving any further rights he had in that regard.

1. Ms Langley, on behalf of the first defendant submitted that the plaintiff's application was entirely misconceived and should be dismissed. In advancing this submission, she firstly referred me to the contents of the Practice Note and to its stated purposes which include:

(1) that the legislative purposes set out in s. 260 of the Criminal Procedure Act are applied; and

(2)   that time standards for cases committed for trial or sentence are, as far as possible, complied with.

1. Ms Langley submitted that the plaintiff had not been denied natural justice or procedural fairness, nor had the Chief Magistrate committed any jurisdictional error when the matter came before him on 5 February 2013.

1. As to the first of those matters, Ms Langley pointed out that up until the matter came before the Chief Magistrate on 5 February the plaintiff had been given considerable latitude in terms of advancing any application pursuant to s. 91 of the CPA.

1. As to the second, Ms Langley submitted that the Chief Magistrate had done nothing more than apply the provisions of the practice note in the proper exercise of his discretion and that, contrary to what the plaintiff had submitted, nothing said or done by the Chief Magistrate amounted to a conclusion that the plaintiff had waived any right at all. Ms Langley submitted that there was nothing prohibiting the plaintiff from making an application under s. 91 if he wished to do so.

1. Ms Langley further submitted that there was a long line of authority which established that criminal proceedings ought not be unnecessarily interrupted by challenges to interlocutory rulings, and that the practice of doing so had been the subject of criticism. In this regard she referred me to the decision in Moss v Brown [1979] 1 NSWLR 144.

CONSIDERATION AND CONCLUSION

1. Section 27 of the Local Court Act 2007 is in the following terms:

(1)   Subject to the rules, the Chief Magistrate may issue practice notes in relation to any matter with respect to which rules may be made.

(2)   A practice note must be published in the Gazette.

(3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.

1. There was, therefore, statutory authority for the making of the practice note, the provisions of which were applied by the Chief Magistrate when the matter came before him on 5 February.

1. In my view, the Chief Magistrate did not err, in any way, in dealing with the proceedings when they came before him on 5 February 2013. He applied, as he was entitled to apply, the provisions of the practice note. Contrary to the submission put by the plaintiff, and on the evidence before me, nothing said or done by the Magistrate on that occasion amounted to reaching a conclusion that the plaintiff had waived any right.

1. Further, as matters presently stand, the plaintiff is not prohibited from renewing an application pursuant to s. 91 of the CPA. Support for that proposition can be found in the judgment of Allen J in Faltas v McDermid (SC (NSW) 30 July 1993 unreported). What should occur in that event is a matter entirely within the discretion of any Magistrate to whom such application might be made.

1. In addition, and again contrary to the submission advanced by the plaintiff, nothing said or done by the Chief Magistrate on 5 February 2013 prevents the plaintiff from having the opportunity to proceed through a committal hearing. In particular, nothing said or done by the Chief Magistrate on that day prevents the plaintiff from making submissions to a Magistrate, at a committal hearing, that in light of the evidence against him he ought not be committed for trial.

1. Further, in my view, the evidence falls substantially short of establishing that there was any denial of natural justice or procedural fairness, either as a consequence of the Chief Magistrate's disposition of the matter on 5 February, or otherwise. On the contrary, the evidence establishes that the plaintiff was given a number of opportunities to make submissions in support of an application pursuant to s. 91 of the CPA, even though the result of providing him with those opportunities resulted in the time limits for which provision was made in the practice note being exceeded.

1. As I have previously noted, the plaintiff placed significant emphasis on the fact that he is unrepresented. In doing so, he made reference to the decision of the High Court in Dietrich v R (1992) 177 CLR 292. Although not specifically pleaded in the summons, the plaintiff appeared to be advancing the proposition that I should order a stay of the Local Court proceedings until such time as he was represented.

1. Leaving aside that the decision in Dietrich was reached in the context of a person facing trial rather than committal, the evidence before me establishes that the decision to terminate the grant of legal aid which had been made in the plaintiff's favour was one which was taken as a consequence of the plaintiff's repeated failures to attend appointments and provide instructions. The fact that the plaintiff now finds himself unrepresented is, therefore, a circumstance of his own making, and cannot be relied upon in support of the orders he now seeks.

1. For all of these reasons, the plaintiff's various complaints are without merit and the amended summons should be dismissed.

ORDERS

1. I make the following orders:

(i)   the amended summons filed by the plaintiff on 18 March 2013 is dismissed;

(ii)   the plaintiff is to pay the costs of the first and second defendants.

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Decision last updated: 25 March 2013