Director of Public Prosecutions (NSW) v Jones

[2004] NSWCA 188

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Director of Public Prosecutions (NSW) v Jones [2004]  NSWCA 188

FILE NUMBER(S):
40039/04

HEARING DATE(S):            11 May 2004

JUDGMENT DATE: 18/06/2004

PARTIES:
Director of Public Prosecutions (Claimant)
Geoffrey Craig Jones (1st Opponent & cross-claimant)
District Court of NSW (2nd Opponent)
Local Court of NSW (Def to x-claim)

JUDGMENT OF:      Ipp JA Santow JA McClellan AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 03/52/0228

LOWER COURT JUDICIAL OFFICER:     Blanch J, Chief Judge of District Court

COUNSEL:
P A Johnson SC (Claimant)
J Stratton SC (1st Opponent & cross-claimant)
Submitting appearance (2nd Opponent)
Submitting appearance (Def to cross-claim)

SOLICITORS:
S C Kavanagh (Claimant)
S E O'Connor (1st Opponent & cross-claimant)
Submitting appearance (2nd Opponent)
I V Knight (Def to cross-claim)

CATCHWORDS:
Alleged jurisdictional error in District Court hearing an appeal against a refusal to annul a conviction in the Local Court
Whether refusal to annul a conviction pursuant to s 100D of Justices Act 1902 was an order capable of appeal pursuant to s 120 of Justices Act
Whether leave of District Court required to appeal pursuant to s 123 of Justices Act
"rights of appeal" under Pt 4A of Justices Act
Whether proceedings under Pt 4A are an appeal against a conviction, order or sentence in summary proceedings
Whether a decision to decline an application to annul pursuant to s 100D is an interlocutory or final order

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Justices Act1902 (NSW)

DECISION:
1. Orders made by Blanch J on 28 July 2003 allowing an appeal to the District Court against the refusal of the application to annul the conviction recorded by Bone LCM against Geoffrey Craig Jones is quashed
2. The cross-claim of the first opponet is dismissed
3. The proceedings are to be remitted to the District Court for determination according to law of the application for leave to appeal against conviction and sentence lodged by Geoffrey Craig Jones

JUDGMENT:

IN THE SUPREME COurt
OF NEW SOUTH WALES
COURT OF APPEAL

40039/04
DC 03/52/0228

IPP JA
SANTOW JA
McCLELLAN AJA

FRIDAY 18 JUNE 2004

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JONES Geoffrey Craig & ANOR

Judgment

1. IPP JA:  I agree with McClellan AJA.

2. SANTOW JA:  I agree with McClellan AJA.

3. McCLELLAN AJA:  This matter was heard together with the appeal in Director of Public Prosecutions (NSW) v Scheibel & Anor. The issue raised in these proceedings is the same as the issue determined in Scheibel, being whether there is a right of appeal against the refusal by a magistrate of an application pursuant to Part 4A of the Justices Act 1902 (NSW) to annul a conviction or sentence.

4. On 29 September 2002 the first opponent was charged with the following offences:

   (a) common assault: s 61 Crimes Act 1900 (NSW);

   (b)knowingly contravening a prohibition specified in an apprehended domestic violence order: s 5621(1) Crimes Act;

   (c) malicious damage to property: s 195(a) Crimes Act;

   (d)intimidating a police officer in the execution of his duty: s 60(1) Crimes Act.

5. On 5 February 2003 the matters were listed for hearing at the Lismore Local Court on 19 May 2003.

6. On that day, the first opponent failed to appear and was convicted in his absence of all the charges. The presiding Magistrate ordered that a warrant issue under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for his apprehension to be brought before the Local Court for sentencing.

7. On 20 May 2003 the first opponent lodged an application under s 100D of the Justices Act to have his convictions of the previous day annulled.

8. On 4 June 2003 the first opponent’s application under s 100D of the Justices Act was heard by Bone LCM sitting at Byron Bay Local Court. The application was refused. The proceedings were then stood over for sentence on 18 June 2003.

9. On 18 June 2003, the first opponent was sentenced to imprisonment for eight months with a non-parole period of six months on the charges of assault, knowingly contravening an apprehended domestic violence order and intimidating a police officer in the execution of his duty. With respect to the charge of malicious damage to property, the first opponent received a concurrent sentence of imprisonment for seven days. On the same day, the first opponent lodged an appeal to the District Court against the convictions and was granted bail.

10. On 25 July 2003 the appeal came before Justice Blanch, Chief Judge of the District Court sitting in Lismore. At the commencement of the hearing of the appeal, counsel for the first opponent said:

    “This is an all grounds appeal, but he has not lodged an application for leave to appeal out of time in respect of it. There is a preliminary issue, when he lodged the appeal he did not include any reference to a 100D application. … So we would seek your leave to amend the appeal to include an application to appeal in respect of the refusal of the 100D application. …".

11. Following further submissions, his Honour made the following orders:

    “I allow the appeal against order made by Magistrate refusing section 100D appeal. I remit the matter back to Magistrate, Byron Bay LC, for hearing of the charges of common assault, contravene AVO and intimidate police.

    In relation to charge of malicious damage, I dismiss the appeal, I confirm the conviction and quash the order of the Magistrate imposing sentence of seven days imprisonment. In lieu, I impose a fine of $100.”

12. Following remittal of the matter to the Local Court, the proceedings again came before Bone LCM on 23 October and 6 November 2003, when submissions were made as to whether the Local Court was functus officio. On 19 November 2003, Bone LCM delivered a written judgment holding that he was functus officio and had no power to further consider the charges against the first opponent.

13. On 12 January 2004 the Director of Public Prosecutions filed a summons in this Court seeking prerogative and declaratory relief. On 10 February 2004 the Director of Public Prosecutions filed the amended summons which is presently before the Court for hearing. The first opponent filed a cross-claim which seeks an order in the nature of mandamus requiring the Local Court to conduct a summary hearing of the charges.

14. For the reasons I expressed in Scheibel, I am of the opinion that no appeal lay to the District Court in relation to a decision by a magistrate to decline an application pursuant to s 100D of the Justices Act. The only course available in the District Court was to consider the applications for leave to appeal out of time and, if appropriate, any appeal in relation to the relevant convictions and sentences which were imposed.

15. As the order upholding the appeal and remitting the matter to the Magistrate was made without jurisdiction, it is appropriate for this Court to quash it. The proceedings seeking leave to appeal and the appeals should be determined in the District Court according to law. The parties agree that there should be no order for costs in these proceedings.

16. I propose the following orders:

    1.The orders made by Blanch J on 28 July 2003 allowing an appeal to the District Court against the refusal of the application to annul the conviction recorded by Bone LCM against Geoffrey Craig Jones is quashed.

    2.          The cross-claim of the first opponent is dismissed.

    3.The proceedings are to be remitted to the District Court for determination according to law of the application for leave to appeal against conviction and sentence lodged by Geoffrey Craig Jones.

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LAST UPDATED:            19/07/2004