Collier v NSW Police Service - [2012] NSWSC 1525

Supreme Court

New South Wales

Medium Neutral Citation: Collier v NSW Police Service [2012] NSWSC 1525
Hearing dates: 29 November 2012
Decision date: 29 November 2012
Jurisdiction: Common Law
Before: Adams J
Decision:
1. The NSW Police Service is removed as a party and Kate Lancer is substituted as first defendant.
2. The sentence of 26 March 2011 is quashed.
3. Plaintiff to pay the defendants' costs.
4. Summons dismissed.

Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Category: Interlocutory applications
Parties: Marion Louise Collier (plaintiff)
NSW Police Service (first defendant)
Local Court of New South Wales (second defendant)
Magistrate Ian Stevenson (third defendant)
Representation:
Self-represented (plaintiff)
Crown Solicitor's Office NSW (defendant)

File Number(s): 2012/201151

EX TEMPORE Judgment

In this matter the plaintiff seeks various orders by way of summons filed on 27 June 2012 seeking relief under s 53 of the Crimes (Appeal and Review) Act 2001 and prerogative relief under s 69 of the Supreme Court Act 1970, together with an application for contempt of court under s 55 of the rules.

The instigating procedures which led to this summons occurred in the Local Court. On 30 June 2010 the plaintiff was charged by Court Attendance Notice with six traffic offences alleged to have occurred on that day. On 7 April 2010 she was convicted and sentenced in relation to all six charges. The court required her to enter into two bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999.

It is apparent from the transcript of proceedings in the Local Court on 26 March 2012 from what fell from the learned magistrate that, as it happened, the bonds which had been prepared and that she was required to sign in the office had added to them a condition that the plaintiff was to undertake drug and alcohol counselling. The magistrate said, "It was never my intention that Mrs Collier should go down that path." It is evident, therefore, that the bonds which she refused to sign were bonds which contained a condition which was not imposed by the magistrate. It follows, therefore, that Mrs Collier had not "[failed] to enter into...a bond in accordance with the order" (see s 97B of the Crimes (Sentencing Procedure) Act 1999). However, the magistrate, having said that Mrs Collier "had not entered the bonds", revoked her order in relation to the two bonds and in lieu thereof imposed fines.

In my view, there being no bonds available for the plaintiff to sign that were "in accordance with the order", there was no basis for revoking the bonds and sentencing the offender. It follows, therefore, that the order sentencing the plaintiff must be quashed. Accordingly, bonds which accord with the order of the magistrate need to be prepared in the office of the Local Court and Mrs Collier notified of them and given reasonable time to enter into them.

So far as the convictions are concerned,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1525
Decision Date: 29 November 2012

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Marion Louise Collier, self-represented, filed a summons against the NSW Police Service, Local Court of New South Wales, Magistrate Ian Stevenson, and others, seeking relief under the Crimes (Appeal and Review) Act 2001, prerogative relief under the Supreme Court Act 1970, and an order for contempt of court. The summons arose from a dispute over the imposition of conditions in bonds required under the Crimes (Sentencing Procedure) Act 1999, which the plaintiff had refused to sign. The plaintiff sought to challenge her conviction and sentence, as well as the conduct of the magistrate and others involved in the proceedings.

The court was required to determine whether the plaintiff's summons disclosed a proper basis for relief under the statutes and rules cited. The court had to consider whether the magistrate had erred in imposing an additional condition in the bonds, whether the plaintiff's convictions and sentences were valid, and whether the plaintiff's claims against the magistrate and others for contempt and criminal charges were justified. The court also had to decide whether the plaintiff was entitled to costs and compensation from the defendants.

The court found that the magistrate had indeed erred in imposing an additional condition in the bonds, which was not part of the original order. As a result, the sentence imposed on 26 March 2011 was quashed. The court also found that the plaintiff's convictions and sentences had already been considered by higher courts and were therefore not subject to the relief sought in the summons. The court further found that there was no basis for referring the magistrate and others for criminal charges or for finding them in contempt of court. Finally, the court found that the plaintiff was not entitled to costs and compensation from the defendants, and ordered her to pay the defendants' costs instead.

The court dismissed the summons, quashed the sentence of 26 March 2011, and ordered the plaintiff to pay the defendants' costs. The NSW Police Service was removed as a party and Kate Lancer was substituted as the first defendant.

Orders