Bagshaw v Office of the Director of Public Prosecutions

[2017] NSWCA 293

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bagshaw v Office of the Director of Public Prosecutions [2017] NSWCA 293
Hearing dates:	13 November 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Before:	White JA
Decision:	Refer to para [13] of judgment.
Catchwords:	ADMINISTRATIVE LAW – supervisory jurisdiction – review of decision of District Court confirming convictions, penalties, and disqualification from holding driver licence made by Local Court CRIMINAL LAW – procedure – whether disqualification from holding driver licence is stayed by application to review judgment and order of District Court – operation of s 69C of the Supreme Court Act 1970 (NSW)
Legislation Cited:	Supreme Court Act 1970 (NSW)
Cases Cited:	Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340 Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53
Category:	Procedural and other rulings
Parties:	Leith Bagshaw (Applicant) Director of Public Prosecutions (1st Respondent) District Court of New South Wales (2nd Respondent)
Representation:	Counsel: In Person (Applicant) D Kelly (1st Respondent) No appearance (2nd Respondent)   Solicitors: N/a (Applicant) Office of the Director of Public Prosecutions (1st Respondent) N/a (2nd Respondent)
File Number(s):	2017/180413
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Nil Date of Decision: 30 May 2017 Before: Colefax DCJ File Number(s): 2014/47809

Judgment

1. WHITE JA: There is before me this morning a notice of motion filed by the applicant, Mr Leith Bagshaw in which he seeks the following relief:

“1.   For the return of my South Australian license [sic].

2.   Such other order as the Court deems fit.”

2. The background to Mr Bagshaw’s filing that notice of motion is as follows. On 15 January 2015 it appears that Magistrate Connell in the Fairfield Local Court imposed sentence on Mr Bagshaw in relation to his convictions on various offences, including in relation to a charge of menacing driving. The magistrate ordered Mr Bagshaw to pay a fine of $1,000, disqualified him from driving for 12 months, and ordered him to enter a good behaviour bond for a period of three years. Mr Bagshaw appealed from that sentence and also purportedly appealed from convictions entered in his absence in the Local Court. In due course, his appeal against conviction was dismissed. An application for review of that decision was dismissed by the Court of Appeal on 6 December 2016 (Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340).

3. On 30 May 2017 his Honour Judge Colefax heard Mr Bagshaw’s appeal against sentence. By the conclusion of submissions his Honour advised Mr Bagshaw, in substance, that if he persisted with his appeal against sentence, he faced the prospect of a more severe sentence being imposed. This warning was expressed in strong terms and Mr Bagshaw withdrew the severity appeal. On 30 May 2017 Colefax DCJ made orders that included the following:

“1.   Note: Parker warning given

2.   Order: Grant leave to the appellant to withdraw the appeal

3.   Order: Appeal dismissed

4.   Order: Convictions and penalties of the Local Court are confirmed

5.   Order: Disqualification period of 12 months is confirmed and is to date from today.

The offender, LEITH GORDON BAGSHAW is convicted and is directed to enter into a good behaviour bond for 3 years pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 30 May 2017 and accept the following conditions: The offender must be of good behaviour and appear before the court during the bond term if required.

The offender, LEITH GORDON BAGSHAW, is ordered to pay the following:

Fine $1000.00.

The court disqualified the offender LEITH GORDON BAGSHAW from holding a driver's/rider's licence for 12 months.

Order: Disqualification period of 12 months is confirmed and is to date from today.”

4. On 16 June 2017 Mr Bagshaw filed a summons invoking the supervisory jurisdiction of this Court and sought:

“1. A review of the decision of H.H.J. Colefax in dismissing my application.

2. Any other order this Honorable [sic] court deems fit.”

5. The application for review is made pursuant to s 69 of the Supreme Court Act 1970 (NSW). A hearing date for the summons seeking the review of the orders of Colefax DCJ has been set for 1 February 2018. Section 69C(2) and (4) of the Supreme Court Act provide relevantly:

“69C   Stay of execution of conviction, order or sentence pending review

…

(2)   The execution of the following is stayed when proceedings seeking judicial review are commenced:

(a)     a sentence imposed as a consequence of a conviction,

…

…

(4)     The stay of execution continues until the proceedings for judicial review are finally determined, subject to any order or direction of the Court.”

6. Neither the respondent nor any other person has applied for any contrary order or direction that would prevent the stay of execution provided for by s 69C from operating.

7. Mr Bagshaw has not, so far as I can see, filed any affidavit that sets out the facts giving rise to his notice of motion seeking return of the driver’s licence. He informed the registrar at a directions hearing in substance that the police had taken his licence from him. He informed me that, at the registrar’s suggestion, he had provided a copy of s 69C to the police, but they tore it up. It is not clear to me whether he has spoken to anyone responsible for keeping the records in the motor registry about the effect of s 69C in imposing a stay of the sentence confirmed by Colefax DCJ and reimposed by him. On 7 November 2017 the registrar wrote to the Chief Executive of Roads and Maritime Services (“the RMS”) advising that a summons was filed on 16 June 2017 to the Court of Appeal with respect to the orders of Colefax DCJ of 30 May 2017 and that the summons is listed for hearing on 1 February 2018. The registrar stated that:

“In light of Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 267 [sic] Mr Bagshaw’s licence disqualification may be stayed as a result of s 69C of the Supreme Court Act 1970 (NSW). You may wish to consider whether his traffic record ought to be updated as a consequence.”

8. It does not appear that Mr Bagshaw has ascertained from the RMS whether, as a result of the registrar’s letter, his traffic record has been or will be updated pending the determination of his summons for review.

9. In Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53 Mr Tay had instituted proceedings in the supervisory jurisdiction with respect to a judgment of the District Court in respect of his convictions for traffic offences. One of the consequences of the conviction was that his licence had been suspended and a period of disqualification imposed. Basten JA made a declaration that the effect of the proceedings having been commenced under s 69 of the Supreme Court Act in respect of the judgment of the District Court was to stay the operation of the order that Mr Tay was disqualified from holding a driver’s licence. As in this case, it appears that the only parties to the application at that time were the applicant and the Director of Public Prosecutions. His Honour said:

“[9] Accordingly, it is appropriate to accept that the virtually identical provisions in s 69C, should be understood to have the same effect. The consequence is that upon Mr Tay commencing proceedings for judicial review of the District Court judgment, his licence suspension was automatically stayed. Because the statutory stay appears not to have found its way into the police records, with the result that he was stopped again for driving whilst disqualified in February of this year, it is appropriate that the Court make a declaration to the following effect; namely that, so far as his disqualification which formed the basis of the further offence on 28 February 2014 depended upon a judgment of the District Court made on 21 November 2013, which is the subject of the proceedings in this Court, the effect of s 69C is to stay the suspension of his driver licence. That will no doubt have consequences for the proceedings which are pending in the Local Court.

[10]    The only order I think I need make at the present stage is to declare that consequence. I do so conscious of the fact that a declaration is usually a final order, but it is nevertheless an interlocutory order in this case because it refers to the effect of a stay pending determination of the proceedings in this Court. The statute reflects the order which might otherwise be made by this Court: it does not dispose of the proceedings: cf Supreme Court Act, s 46(2)(b). No objection is taken to me (sitting alone) making an order in this form. Accordingly, I make the following declaration.”

10. Mr Bagshaw asked that I make a declaration to similar effect in the present case. He also sought an order as sought in his notice of motion requiring the police to return his licence. Having regard to the course taken by Basten JA in Tay v Director of Public Prosecutions (NSW) I am content to make a declaration as to the effect of the filing of the summons seeking review under s 69 of the Supreme Court Act having regard to the operation of s 69C(2) and (4). However, if an order is to be sought against a police officer or the Commissioner of Police for the return of Mr Bagshaw’s licence, or if an order were to be sought requiring correction of the records of the RMS, then it would be necessary for the relevant police officer or the Commissioner of Police or the RMS to be joined as a respondent to Mr Bagshaw’s notice of motion in which any such relief against those persons would be sought.

11. It may be that the making of a declaration to the effect of that made by Basten JA in Tay v Director of Public Prosecutions (NSW) will resolve the present issue. That is to say, it may well be that armed with the declaration no further relief will be needed and Mr Bagshaw’s licence will be returned. However, it may be that there are grounds on which Mr Bagshaw is presently disqualified, or his licence is suspended, which do not depend upon the orders of the Local Court and the orders of the District Court with which the current proceeding in this Court is concerned. As proposed by the Director of Public Prosecutions I will incorporate a rider in the declaration to be made so as to avoid the possibility of any misapprehension as to the scope of the declaration.

12. The notice of motion will stand over for 21 days to the registrar’s list. If it is necessary for Mr Bagshaw to amend his notice of motion by joining further parties or by seeking any further relief, then he will have leave to amend his notice of motion accordingly and should file and serve the amended notice of motion within two weeks so it can be returned before the registrar in three weeks’ time, that is, on 4 December 2017. As Ms Kelly who appears for the Director of Public Prosecutions observes, there appears to be no affidavit served that addresses the facts which Mr Bagshaw would wish to establish in support of the relief. Any affidavit in support of the notice of motion should also be served within 14 days.

13. For these reasons, I make the following declarations and orders:

1. Declare that the effect of the proceedings commenced on 16 June 2017 in the New South Wales Court of Appeal under s 69 of the Supreme Court Act 1970 (NSW) in respect of the judgment and orders of the District Court given and made on 30 May 2017 is to stay the operation of the order of the District Court that the applicant, Leith Bagshaw, is disqualified from holding a driver licence for a period of 12 months dating from 30 May 2017.

2. Declare that the effect of commencement of the proceedings referred to in declaration (1) stays the operation of the order disqualifying Mr Bagshaw from holding a driver licence until the proceedings for judicial review are finally determined by the Court of Appeal (subject to any order or direction of the Court), but does not affect any other order made by any court (other than the order of the District Court on 30 May 2017) providing for the disqualification of Mr Bagshaw from holding a driver licence.

3. Stand over Mr Bagshaw’s notice of motion filed on 17 October 2017 to the registrar’s list on 4 December 2017.

4. Grant leave to Mr Bagshaw to amend the said notice of motion as he may see fit.

5. Order that any amended notice of motion that joins additional respondents to that notice of motion and any affidavit in support of the notice of motion be filed and served by 27 November 2017.

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Decision last updated: 16 November 2017