Collier v Cook

[2012] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Collier v Cook & Ors [2012] NSWCA 50

Hearing dates:

22 March 2012

Decision date:

22 March 2012

Before:

Campbell JA

Decision:

Notice of Motion dismissed with costs.

[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.]

Catchwords:

APPEAL AND NEW TRIAL - practice and procedure - stay of proceedings - where stay of Local Court criminal proceedings sought in Supreme Court - stay refused - appeal to Court of Appeal - appeal and prerogative relief proceedings not to fragment criminal proceedings except in exceptional circumstances - stay of order that has been carried out impossible

APPEAL AND NEW TRIAL - practice and procedure - where stay of Local Court criminal proceedings sought in Supreme Court - appellant seeks stay to prevent anticipated imprisonment - lack of evidence to confirm this would be outcome - not a case of urgency - stay not available to prevent outcome one merely fears may result

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:

AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 73 NSWLR 302
Clyne v Director Public Prosecutions (Cth) (1984) 154 CLR 640
Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202
Collier v Director of Public Prosecutions [2011] HCASL 177
Joosse v ASIC (1998) 73 ALJR 232
McBride v Walton (NSWCA, Handley JA, 27 August 1993, unreported)
Oates v Williams (1998) 84 FCR 348
R v Iorlano (1983) 151 CLR 678
Sankey v Whitlam (1978) 142 CLR 1

Category:

Principal judgment

Parties:

Marion Louise Collier (Applicant)
Sen. Cons. Kelly Edwards, Cons Kate Lancer, Sen. Cons. Melanie Morgan & Nathan Cook (Second Respondents)
NSW Magistrate Jan Stevenson (Second Respondent)
The Local Court (NSW) (Third Respondent)

Representation:

Solicitors
M Collier, in person (Applicant)
Crown Solicitor's Office (First Respondents)
Submitting Appearances (Second and Third Respondent)

File Number(s):

2012/88605

 Decision under appeal 

Jurisdiction:

9111

Date of Decision:

2012-03-16 00:00:00

Before:

Davies J

File Number(s):

2012/68854

Judgment - ex tempore on application for stay of local court proceedings pending leave to appeal

1. HIS HONOUR: This is the hearing of a notice of motion dated 17 March 2012. It is filed in an application for leave to appeal that Mrs Collier brings against four police officers, a magistrate called Ms Stevenson, and the Local Court of New South Wales.

1. The decision against which Mrs Collier seeks leave to appeal was given by Davies J on 16 March 2012 in proceedings numbered 2012/68854 which were then entitled Marion Collier v Director of Public Prosecutions. The defendants to those proceedings have altered since then.

1. The final relief that Mrs Collier sought in those proceedings was a total of twenty-nine prerogative orders relating, in various different ways, to some criminal proceedings that she has been involved in in the Local Court. Some explanation is needed concerning those criminal proceedings.

1. On 7 April 2010 Mrs Collier was convicted and sentenced in the Local Court in respect of six traffic offences. An application that she made to the District Court to review those convictions did not succeed. She sought prerogative relief in the Court of Appeal against the refusal of the District Court to uphold the objections that she had to the conviction. However, the proceedings in the Court of Appeal were dismissed on 25 July 2011: Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202. Further detail concerning the criminal proceedings against Mrs Collier can be found in that judgment and I will not repeat it here.

1. After the decision in the Court of Appeal Mrs Collier applied to the High Court of Australia for special leave to appeal against the Court of Appeal's decision. That application was dismissed on 26 October 2011 on the ground that the papers that were filed did not reveal any arguable question of law or other error which would justify a grant of special leave to appeal: Collier v Director of Public Prosecutions [2011] HCASL 177.

1. Mrs Collier is still of the view that the convictions on 7 April 2010 were erroneous. However, when their correctness has been tested in every available court that is a question that is now foreclosed.

1. The sentence that was imposed on Mrs Collier on 7 April 2010 included a requirement to enter a good behaviour bond for twelve months and to accept certain conditions. Those conditions included a condition to participate in alcohol addiction counselling as directed and to participate in drug addiction counselling as directed. Mrs Collier objects to the conditions as she maintains that she does not have the slightest problem concerning alcohol addiction or drug addiction. In consequence she has not signed the bond.

1. Execution of the orders in the criminal proceedings were stayed pending the determination of the proceedings in the Court of Appeal and I gather that there was a further stay, or a de facto holding-off taking action, concerning those orders pending the determination of the application for special leave to appeal to the High Court.

1. On 24 November 2011, it appears that a warrant was issued against Mrs Collier, apparently relating to her failure to enter the bond. Mrs Collier maintains that there were some irregularities concerning her being notified of the proceedings instituted by that warrant. However, the proceedings came to be before the Local Court at Penrith and the Local Court ordered that the proceedings be transferred to Bathurst, which is on the circuit in which Magistrate Stevenson sits. That transfer has now taken effect and the proceedings are due to be listed before Magistrate Stevenson on Monday of next week.

1. The orders that Mrs Collier seeks in the notice of motion that I am now dealing with have as their substantial core an order for a stay of proceedings on the conviction and sentence that was imposed on 7 April 2010 and a stay of proceedings concerning any enforcement of any sentence that was imposed in those proceedings. There is also an application for a stay of proceedings of orders made at the Penrith Local Court on 17 February 2012 remitting the charge to the Western District of New South Wales.

1. It appears from the judgment of Davies J that a corresponding application made before him seeking a stay of the Penrith transfer order might not have been pressed. If that, indeed, were so he would not have made any error in not granting a stay of the order of the Penrith Local Court requiring the transfer, but that situation is not altogether clear. However, it is not necessary to sort out exactly what happened before Davies J concerning an application for a stay of that order because any application for a stay of that order that is made now absolutely must fail. It is impossible to have a stay of an order that has already taken effect: McBride v Walton (NSWCA, Handley JA, 27 August 1993, unreported); AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 73 NSWLR 302 at [16], [93].

1. That is not, however, the more important of the orders that Mrs Collier seeks. The more important order that she sought from Davies J, and that she now seeks from this court, was a stay of the proceedings on the conviction and sentence that have been transferred to Magistrate Stevenson. As I said before, those proceedings are due to be listed before Magistrate Stevenson on Monday of next week.

1. The order that was sought from Davies J for the stay of proceedings before Magistrate Stevenson was necessarily an interlocutory order that was to operate pending the hearing of the substantive applications for prerogative relief. The application before me today is thus an application for a stay of proceedings in the Local Court pending the hearing of an application for leave to appeal against the decision of Davies J.

1. Mrs Collier made various submissions to me relating to irregularities, as she saw them, in the course of the criminal proceedings so far. One of them arose under s 95A of the Crimes (Sentencing Procedure) Act 1999. Section 95A provides:

"(1)A good behaviour bond may contain a condition requiring the offender to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2)A good behaviour bond may not contain such a condition unless the court is satisfied:

(a)that the offender is eligible to participate in the intervention program in accordance with the terms of the program, and

(b)that the offender is a suitable person to participate in the intervention program, and

(c)that the intervention program is available in the area in which the offender resides or intends to reside, and

(d)that participation by the offender would reduce the likelihood of the offender committing further offences by promoting the treating or rehabilitation of the offender.

(3)This section does not limit the power of a court under section 95(c) to impose a condition on a good behaviour bond as to participation in any program for treating or rehabilitation that is not an intervention program.

(4)This section does not limit the kinds of conditions that may be imposed on an offender by means of any other order or direction under this or may other Act, so that such an order or direction may include a condition of a kind referred to in subsection (1) or (3)."

1. Mrs Collier appears to be of the view that the bond ordered on 7 April 2010 requires her to participate in an intervention program. It is not at present clear to me whether this is correct, because "intervention program" is given a definition by s 3 of the Crimes (Sentencing Procedure) Act which makes the meaning of the words "intervention program" depend on their meaning in the Criminal Procedure Act 1986. Section 347 of the Criminal Procedure Act makes provision for there being intervention programs, participation in which is a possible sentencing option. Those intervention programs are ones that are promulgated by regulation. It is not at present clear to me that Mrs Collier has been ordered, by the terms of the bond, to participate in any intervention plan or program.

1. She also pointed to s 96 of the Crimes (Sentencing Procedure) Act. It requires that a court that makes a direction that provides for an offender to enter into a good behaviour bond must ensure that all reasonable steps are taken to explain to the offender various matters. She contends that that explanation was never given to her. It is of some importance, however, that s 96(2) provides that a good behaviour bond is not invalidated by a failure to comply with the section. All the prerogative orders that Mrs Collier seeks are ones that, necessarily for prerogative orders, are based upon acting beyond jurisdiction or a failure to exercise jurisdiction. Even if it were correct that she had not been given an explanation of the good behaviour bond, and it was necessary for it to be given to her at some time before the time she actually signed it, that would not mean that anyone had acted outside jurisdiction.

1. I see no basis on which either of the sections to which Mrs Collier refers could arguably bring about the consequence that next Monday's proceedings in the Local Court are beyond jurisdiction.

1. She also has informed me that there were some problems with the manner in which she was notified of the proceedings that were initiated on 24 November. She is of the view that the condition of the bond is unreasonable. She says that a Mr Thomson, who appeared before Davies J as a amicus curiae, but who has a connection with one or other of the State Government's legal assistance offices, did not behave appropriately. She is still of the view that her original conviction was wrong. None of those matters, in my view, could found prerogative relief, because none of them go to whether the Local Court next Monday will be acting outside jurisdiction.

1. The decision of Davies J was an interlocutory decision on a question of practice and procedure. A court of appeal is always very reluctant to interfere with any such decision. It is important that it is not a stay of his orders that is sought. What is sought is a stay of the proceedings in the Local Court. Whether a Supreme Court judge at first instance grants such relief is itself an exercise of discretion. There are added problems arising from the order concerning which leave to appeal is sought being not only interlocutory and on a matter of practice and procedure, but also a discretionary one.

1. A substantial basis on which Mrs Collier seeks to stay those proceedings is that, in her view, Magistrate Stevenson has behaved improperly towards her in the past and has exhibited prejudgment and bias. Mrs Collier is concerned that if the matter comes back before Magistrate Stevenson on Monday that Magistrate Stevenson will continue to behave unfairly and exhibit bias and will send her to gaol. Indeed, Mrs Collier informs me that she has been told by some unidentified police officers that she has already been ordered to be sent to gaol. While I have no reason to doubt that Mrs Collier actually holds these views, there is no scrap of admissible evidence that has been filed in this Court that suggests that they are right.

1. What she is seeking is a stay to prevent an occurrence that has not yet happened but that she fears might happen. There is a legal principle, that is so old that half of it is stated in Latin in the original, that means that if you want to get a Court order to stop the occurrence of something that has not yet happened but that you fear will happen, it is not enough to say that you are afraid it will happen.

1. As well, the order that Mrs Collier seeks is an intervention by this Court in criminal proceedings that are not yet completed. The High Court has said repeatedly that it is highly undesirable to interrupt criminal proceedings either by an interlocutory appeal or by seeking prerogative relief and that it is only in exceptional circumstances that such a course should be taken. A few examples are the R v Iorlano (1983) 151 CLR 678; Joosse v ASIC (1998) 73 ALJR 232; Sankey v Whitlam (1978) 142 CLR 1; Clyne v Director Public Prosecutions(Cth) (1984) 154 CLR 640. Others are collected in the judgment of the Federal Court in Oates v Williams (1998) 84 FCR 348.

1. In any event, the following of a regular course of procedure does not mean that Mrs Collier must be sent to gaol on Monday. Section 97 of the Crimes (Sentencing Procedure) Act provides:

"If:

(a)a court makes an order that provides for an offender to enter into a good behaviour bond, and

(b)the offender fails to enter into such a bond in accordance with the order,

the court may sentence the offender, or convict and sentence the offender, as if the order had not been made."

1. What that means is that Magistrate Stevenson or whatever other Magistrate the matter might come before is obliged to start afresh with the task of sentencing. It will be an open question whether a bond of the type that was ordered before, or any similar bond, will be imposed. The sentencing options are wide. This Court, in para [68] of its reasons for the decision in Mrs Collier's application for prerogative relief that I have earlier mentioned, expressed some views about the appropriate range of sentences. While those views are by no means binding on the Magistrate, they would presumably be of some persuasive value. In all these circumstances, I am far from clear that there is the urgency that Mrs Collier claims. In all these circumstances, I decline to make the orders sought in the notice of motion. The notice of motion is dismissed.

1. HIS HONOUR: Are any other orders needed?

1. APPLICANT: Well your Honour you've got it wrong because you've got there that Mr--

1. HIS HONOUR: Mrs Collier, I have given judgment. Do not try and question my judgment once it has been given. Any there any other orders sought?

TELEPHONE LINK DISCONNECTED BY APPLICANT

1. JOHNSON: Your Honour, I don't have instructions in relation to costs. I only received instructions very late yesterday afternoon and my client hasn't had chance to - I think I will seek an order for costs in the circumstances, your Honour and in the absence of formal instructions to that effect but preserve my client's position.

1. HIS HONOUR: Very well. Do you have anything to say about that, Mrs Collier?

1. JOHNSON: I think she might have hung up, your Honour.

1. HIS HONOUR: I think Mrs Collier may have hung up. I order the notice of motion be dismissed with costs.

1. JOHNSON: As your Honour pleases. There's one other matter your Honour and that is I accidentally had a submitting appearance for the first defendants and if I could just retrieve that from your associate and substitute it for an active appearance once your Honour's left the bench.

1. HIS HONOUR: That may be done.

1. JOHNSON: Thank you, your Honour.

1. HIS HONOUR: The court will now adjourn.

ADJOURNED

**********

Amendments

16 April 2012 - Correction of case name - McBride v Walton

Amended paragraphs: 11

Decision last updated: 10 April 2012