Director of Public Prosecutions (NSW) v Dodds

[2005] NSWCA 115

CITATION:	Director of Public Prosecutions (NSW) v. Dodds & Anor. [2005] NSWCA 115
HEARING DATE(S):	11 April 2005
JUDGMENT DATE:	11 April 2005
JUDGMENT OF:	Sheller JA at 29, 33; Hodgson JA at 1; Hunt AJA at 30
DECISION:	Summons and cross-claim both dismissed.

CATCHWORDS:	CRIMINAL LAW - Appeal - Appeal to District Court against sentence imposed by Local Court - Time limits - Notices of appeal lodged out of time - Subsequent application for leave to appeal out of time - Errors in application - Whether correctable by amendment - Court informed appeal withdrawn - Mistake as to instructions - Whether consequent order dismissing appeal appropriate - Whether denial of procedural fairness.
LEGISLATION CITED:	Crimes (Local Courts Appeal Review) Act 2001 ss. 11, 13-16, 29, 62, 67
PARTIES:	Director of Public Prosecutions (NSW) - claimant Glen Hopton Dodds - 1st opponent District Court of New South Wales - 2nd opponent
FILE NUMBER(S):	CA 40087/05
COUNSEL:	Mr. P. Lakatos for claimant Mr. R. Hulme SC with Mr. H. Altan for 1st opponent Submitting appearance for 2nd opponent
SOLICITORS:	S.C. Kavanagh for claimant S.E. O'Connor for 1st opponent I.V. Knight for 2nd opponent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/62/0303
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ and Nicholson DCJ

CA 40087/05

SHELLER JA
HODGSON JA
HUNT AJA

Monday 11 April 2005

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) V. DODDS & ANOR.

Judgment

1 HODGSON JA: On 27 September 2004, there came before Finnane DCJ a matter involving a proposed challenge brought by Glen Hopton Dodds to sentences imposed on him in the Brewarrina Local Court. On that day, Finnane DCJ made orders recorded as follows:

Appeal withdrawn - convictions and orders of magistrate confirmed - appeal dismissed.

2 On 11 November 2004, Nicholson DCJ made an order that the orders made on 27 September 2004 be vacated.

3 On 3 February 2005, the Director of Public Prosecutions New South Wales commenced these proceedings in the Court of Appeal seeking an order that the order of Nicholson DCJ be quashed. On 1 April 2005, Mr Dodds put on a cross claim seeking an order that the orders of Finnane DCJ be quashed.

4 I will outline the circumstances giving rise to these proceedings.

5 On 20 April 2004, Mr Dodds was sentenced at Brewarrina Local Court for offences of assault occasioning actual bodily harm and two charges of common assault. The sentences were concurrent sentences of twelve months imprisonment with a non-parole period of six months, commencing on 9 May 2005.

6 Mr Dodds was in prison for a time at Bathurst Gaol and was moved to Long Bay Gaol at about the end of May or early June 2004. He gave evidence before Nicholson DCJ that prior to that time, while at Bathurst Gaol, he put on an application to appeal from the sentences, giving it to a corrective services officer there. No such application has since been located.

7 On 15 June 2004, he lodged a document entitled “Notice of Appeal to the District Court” stating that he was appealing against sentence on the ground that the penalty was too severe. On 22 June 2004, he lodged a further similar document, although this one did not specify the offences in respect of which the alleged penalty was too severe.

8 On 25 June 2004, Mr Dodds lodged a further document entitled “Criminal Appeal Act 1912” and “Notice of Application for Extension of Time for Notice of Application for Leave to Appeal”. This document identified the court of trial as the Brewarrina District Court and the date of conviction or sentence as 20 April 2004. The reasons for the appeal being out of time were given as

I already put an application form in, however, they never received it.

9 On 20 August 2004, Mr Dodds lodged a further document entitled “Justices (Amendment) Act 1978 Application for Leave to Appeal to the District Court”, identifying orders appealed from as having been made on 20 April 2004 and giving as the reasons for being out of time:

I believe that I did put an appeal in within the specified time, however, being in gaol may have slowed the process down.

10 According to District Court records, there came before Finnane DCJ in the District Court on 27 September 2004 an “Application for Leave to Appeal” by Mr Dodds against orders of the Brewarrina Local Court made on 20 April 2004. On that occasion, Mr Dodds was represented by a solicitor who conveyed to the court that the appeal was withdrawn. Finnane DCJ made the orders set out at the beginning of the judgment.

11 On 3 November 2004, the proceedings brought by Mr Dodds were relisted for mention before Nicholson DCJ for the purpose of an application to vacate the “dismissal order”. Nicholson DCJ stood this application over to 5 November 2004 and it was heard on this date.

12 Evidence was led that what the solicitor conveyed to Finnane DCJ was as a result of a misunderstanding, that Mr Dodds did not give instructions to withdraw the appeal, and that at all times his intention was that his attempted challenge to the sentences imposed on him should proceed.

13 On 11 November 2004, Nicholson DCJ gave a judgment in which he accepted this evidence, and held that there was jurisdiction in the District Court to vacate orders of a judge of that court where there has not been a hearing on the merits and where the interests of justice require that they be vacated. He went on to find that the interests of justice did so require in this case. He also found that Mr Dodds had lodged an earlier notice of appeal that went missing, but did not find that it was lodged within time.

14 Criminal appeals from the Local Court are governed by the Crimes (Local Courts Appeal and Review) Act 2001 (the Act). The provisions of the Act particularly relevant to these proceedings are sections 11, 13, 14, 15, 16, 29, 62 and 67. Those provisions are as follows:

11 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence.
(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person’s absence or following the person’s plea of guilty.
(2) An appeal must be made:
(a) within 28 days after sentence is imposed, or
(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,
but (in the case of an appeal against a conviction) may not be made before sentence is imposed.

13 Late applications for leave to appeal
(1) An appeal to the District Court may be made:
(a) by any person by whom an appeal could be made under section 11, but for section 11 (2), and
(a1) by any defendant by whom an appeal could be made under section 11A, but for section 11A (2), and
(b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3),
but only by leave of the District Court.
(2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require.

14 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 11 or 11A is to be made by lodging a written notice of appeal with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in custody.
(2) A notice of appeal must state the general grounds of appeal.
(3) An application for leave to appeal under section 12 or 13 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in custody.
(4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 13, must state the reasons why an appeal or application for leave to appeal was not made within the time allowed by section 11, 11A or 12, as the case may be.
(5) On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3).

15 Documents to be forwarded to prosecutor and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to:
(a) the prosecutor in the original Local Court proceedings, and
(b) the registrar of the original Local Court, if the person is not that registrar, and
(c) the Director of Public Prosecutions.
(2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the registrar of the original Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to a registrar of the District Court.

16 Determination of applications for leave to appeal
(1) The District Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.
(2) Leave to appeal must not be granted in relation to an application under section 13 unless the District Court is satisfied that it is in the interests of justice that leave be granted.
(3) If the District Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.
(4) If the District Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.

29 Limits on appeals
(1) No appeal may be made to the District Court under this Part against a decision of a Local Court:
(a) in relation to an environmental offence against which an appeal may be made under Part 4, or
(b) that is or has previously been the subject of an appeal or application for leave to appeal to the District Court under this Part, or
(c) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5.
(2) Subsection (1) (c) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the District Court under this Part if:
(a) the Supreme Court has remitted the matter on appeal to a Local Court for redetermination, and the Local Court has redetermined the matter, or
(b) the Supreme Court has refused leave to appeal in relation to an appeal made on a ground of mixed law and fact.
(3) No application to set aside or vary any conviction or sentence of a Local Court that could be the subject of an appeal under this Part may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part.

62 Effect of defect in notice of appeal or application for leave to appeal
(1) A notice of appeal or application for leave to appeal is not invalid merely because of a defect, whether of substance or form, in the notice or application.
(2) An appeal court hearing an appeal or application for leave to appeal may amend any such notice or application if it is satisfied that the notice or application is capable of amendment and ought to be amended.
(3) Such an amendment may be made subject to such conditions as to adjournment as the appeal court thinks just.
(4) An appeal court may dispose of an appeal or application for leave to appeal, despite the relevant notice or application having not been served on an interested party, if it is satisfied that the party:
(a) is aware of the date, time and place fixed for dealing with the appeal or application and has not been prejudiced as a consequence of the notice or application having not been served, or
(b) is avoiding service of the notice or application, or
(c) cannot, after reasonable search and inquiry, be found.

67 Withdrawal of appeals and applications
(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant, but only by leave of the appeal court.
(2) In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made.
(3) Any order made by the appeal court in respect of an appeal or application for leave to appeal that is withdrawn is taken to have been made by the Local Court.

15 The primary contention of the Director of Public Prosecutions before this court was that the orders made by Finnane DCJ were final orders which had been entered, and that there was no jurisdiction in the District Court to vacate them. The Director of Public Prosecutions also submitted that in any event there never was any valid appeal or application for leave to bring an appeal out of time. No appeal was brought within the time limited by s.11 of the Act; and there was no valid application for leave to appeal out of time in accordance with s.13 of the Act, because the documents of 15 June 2004 and 22 June 2004 were notices of appeal and not applications for leave to appeal, the document of 25 June 2004 was an application to the Court of Criminal Appeal not to the District Court, and the document of 20 August 2004 was outside the three months limited by s.13(2).

16 It is convenient to consider the status of the various documents lodged by Mr Dodds.

17 The documents of 15 June 2004 and 22 June 2004 were notices of appeal lodged outside the twenty-eight day period limited by s.11(2) of the Act and thus were invalid, at least unless leave to appeal out of time was subsequently granted. No application was made at any time to amend either of these documents under s.62 so as to make either document an application for leave to appeal under s.14(3), so it is not necessary to consider whether such an amendment could be made.

18 The document of 20 August 2004 was an application for leave to appeal, but it was lodged outside the three-month period limited by s.13(3) of the Act, so it too was invalid.

19 The document of 25 June 2004 was an application for leave to appeal lodged within the three-month period limited by s.13(3), but it was inappropriately worded in that it was entitled “Criminal Appeal Act 1912” and it was inaccurate in identifying the District Court as the court of trial. However, it correctly identified the location of the court of trial as Brewarrina and correctly identified the date of conviction or sentence as 20 April 2004.

20 In circumstances where Mr Dodds completed without legal assistance a document provided to him at the prison where he was in custody, and where one can take it that there was no relevant order concerning Mr Dodds made by any District Court at Brewarrina on 20 April 2004, the document plainly indicated an intention of Mr Dodds to seek leave to appeal out of time from the sentences imposed on him at Brewarrina on 20 April 2004, that is, sentences imposed by the Local Court. (I note that the form provided to him in fact only gave the alternatives of the District Court and the Supreme Court.) Also, the document plainly indicated an intention to seek leave to appeal to a court able to hear such an appeal, and the only such court is the District Court.

21 In my opinion, this document is capable of being amended under s.62 if this is necessary to make it clear that it is an application for leave to appeal out of time from a Local Court to the District Court. I would also note that this document would not appear to be affected by s.29(1)(c) of the Act, in that the decision had not previously been the subject of an appeal because the prior attempted appeals had been invalid.

22 I note that the document of 25 June 2004 was also deficient in that it was not lodged together with a written notice of appeal as required by s.14(3) of the Act. However, in my opinion, particularly where a notice of appeal had previously been lodged, albeit lodged out of time, this defect could also be dealt with under s.62 of the Act.

23 In all these circumstances, there is a significant question whether the orders made by Finnane DCJ were effectual and, if otherwise effectual, were within jurisdiction. There is a real question whether it is appropriate to make an order dismissing an appeal where there has been no valid appeal. In any event, if the order made was based on a stated intention to withdraw an appeal, it seems that the appropriate order should have been the grant of leave to withdraw an appeal under s.67 and not dismissal. It is also noted that in any event Finnane DCJ’s orders did not deal at all with the application for leave to appeal dated 25 June 2004 which, as indicated above, was an effectual application for leave to appeal, at least if appropriately amended.

24 It would appear therefore that, even if this Court were to quash Nicholson DCJ’s order and thus restore Finnane DCJ’s orders, this would not put an end to the matter because there would be this outstanding application for leave to appeal. Looked at in that way, the grant of certiorari to quash Nicholson DCJ’s orders would have no utility.

25 If Finnane DCJ’s orders did have any effect greater than recognising the existing invalidity of appeals brought out of time, in my opinion they could be set aside by an order in the nature of certiorari because they would in those circumstances involve an inadvertent denial of procedural fairness.

26 Very briefly, the circumstances in which they were made were that the appeals in question had been listed before Finnane DCJ for mention. The solicitor handling the case for Mr Dodds was unable to attend and arranged for a colleague to mention it, among other matters, on her behalf. She made notes for her colleague’s assistance, including a note signalling that the appeals had been lodged out of time. However, at this time she had not discussed the matter with Mr Dodds and was apparently unaware of the lodging of the application for leave to appeal out of time. The solicitor mentioning the appeal misinterpreted his colleague’s note as telling him to have the appeal dismissed, and the appeal was dismissed on the basis of that misunderstanding without instructions having been obtained from Mr Dodds.

27 In all these circumstances, in my opinion, it is not necessary for this Court to consider whether Finnane DCJ’s orders were final orders which had been entered or whether Nicholson DCJ had jurisdiction to vacate them. One course which I think is open to this Court would be to grant certiorari to quash Finnane DCJ’s orders and also to quash the orders of Nicholson DCJ, if only as a consequential matter. However, in my view, the preferable course is simply to dismiss the proceedings. Any residual effect of Finnane DCJ’s orders would be removed by Nicholson DCJ’s orders, the District Court can consider the merits of Mr Dodds’ application for leave to appeal out of time and, if leave is granted, can consider the merits of the appeal.

28 For those reasons, in my opinion, the summons and cross claim should both be dismissed.

29 SHELLER JA: I agree.

30 HUNT AJA: I would prefer to uphold the cross-claim by Mr Dodds and quash the order made by Finnane DCJ on that the basis that it was made in circumstances which amounted to a miscarriage of justice, or alternatively, as Hodgson JA has put it, an inadvertent denial of procedural fairness.

31 That miscarriage of justice has been demonstrated by the circumstances to which his Honour has referred, to which I would add one further matter which establishes that there was indeed merit in the appeal which had been dismissed by Finnane DCJ.

32 The solicitor appearing for the Crown on the application to Nicholson DCJ to vacate the order made by Finnane DCJ dismissing the appeal very fairly told Nicholson DCJ that the Crown had no objection to the substance of the application, and thought that it would be fair in the interests of justice to have the appeal heard for the first time on the merits were it not for the problem of jurisdiction. She later made it clear that the Crown thought that there was merit in the appeal, and she conceded that the appellant may have been misled as to the forms to fill in. She had been concerned only with the legal hurdles to such an appeal proceeding.

33 SHELLER JA: The orders of the court will be as proposed by Hodgson JA.

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