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

1. 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.

1. 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.

1. 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.

1. 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.

1. So far as the convictions are concerned, they have already been considered both by the Court of Appeal and in the context of stay proceedings by Davies J on 16 March 2012, in respect of which, on 22 March 2012, Justice Campbell dismissed a notice of motion in the Court of Appeal seeking leave to appeal. The amended summons filed 2 November 2012 seeks a prerogative writ quashing the conviction and sentence of 7 April 2010. As I have said, that has already been decisively dealt with by the Court of Appeal.

1. An order is also sought in relation to the conviction and sentence on 26 March 2012. As I have said, on 26 March 2012 no conviction was entered but the bonds were revoked. As appears from what I have already said, there was no basis for revoking those bonds under section 97 of the Act and accordingly that order is invalid. Since no conviction was entered on 26 March 2012, prerogative relief in relation to any asserted conviction is plainly inappropriate.

1. The plaintiff also seeks an order in the nature of prohibition that Magistrate Stevenson be removed from any lower court proceedings. I decline to make any such order. Although I have identified an error of law, the earlier proceedings were in fact vindicated by subsequent litigation. There is no basis upon which I should make any order as sought. Whether or not the magistrate should deal with any further matter that might arise, for example, if the plaintiff were to decline to enter into a bond in accordance with the magistrate's original order, is a matter that can be determined by administrative arrangements within the Local Court.

1. The summons next seeks an order that the magistrate, Sergeant Donaghy and Registrar Nicholls be referred to the appropriate authorities for criminal charges to be filed against them. I have read the submissions of the plaintiff in relation to those matters. There is no basis upon which any such order could or should be made.

1. The plaintiff also seeks an order that this court should bring before it the magistrate, Sergeant Donaghy and Registrar Nicholls "for their actions of contempt of court of the Local Court of New South Wales". There is no basis for making this order and I decline to do so.

1. Lastly, the plaintiff orders an order of the court for "Costs and compensation payable to the plaintiff by the State of New South Wales in the amount of $2,500,000". Firstly, in light of my orders, far from the defendant or defendants being required to pay the plaintiff's costs, the plaintiff must pay the defendants' costs. Secondly, there is no possible basis in any of the material provided by the plaintiff that could justify an order in the amount claimed, even if, which is not the case, damages can be obtained in proceedings of this kind. It follows that the summons must be dismissed.

1. It is not therefore necessary to deal with the notice of motion which concerns procedural questions such as compliance with notices to produce.

1. (I should mention that when dealing with the question of costs the plaintiff left the Court.)

1. As a matter of formal procedure, I dismissed the summons as not disclosing any proper basis under r 13.4 of the Uniform Civil Procedure Rules 2005, accepting that the defendant has to show that the summons is doomed to fail. It is evident from the submissions of the plaintiff and the facts to which I have adverted that this is so.

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Decision last updated: 11 December 2012