Director of Public Prosecutions v Davidson

[2024] ACTSC 372

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Davidson

Citation: 

[2024] ACTSC 372

Hearing Date: 

14 November 2024

Decision Date: 

14 November 2024

Before:

Mossop J

Decision: 

(1) Pursuant to s 90A of the Magistrates Court Act 1930 (ACT), the proceedings be continued in the Magistrates Court on 28 November 2024 at 9:30am.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to withdraw plea of guilty – application to remit proceedings to Magistrates Court pursuant to s 90A of Magistrates Court Act 1930 (ACT) – requirement to remit matter to Magistrates Court – no discretion where requested by accused – application to withdraw leave unnecessary – proceedings remitted to Magistrates Court

Legislation Cited: 

Criminal Code (Cth), s 400.9(1A)

Criminal Code 2002 (ACT), ss 603(5), 603(7)

Magistrates Court Act 1930 (ACT), ss 90A

Cases Cited: 

R v Johnston [2016] ACTSC 28

Parties: 

Director of Public Prosecutions

Nathan James Davidson ( Accused)

Representation: 

Counsel

M Howe ( DPP)

FJ Purnell SC ( Accused)

Solicitors

Director of Public Prosecutions

CODA Criminal Law ( Accused)

File Numbers:

SCC 127 of 2023

SCC 128 of 2023

MOSSOP J:

1․Nathan Davidson has pleaded guilty to four charges:

(a)Trafficking in a controlled drug other than cannabis, namely, cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CAN 3184/2023).

(b)Trafficking in a controlled drug other than cannabis, namely, methamphetamine and N,N-Dimethylpentylone, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CAN 3185/2023).

(c)Trafficking in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code 2002 (ACT) (CAN 3186/2023).

(d)Dealing with money reasonably suspected of being the proceeds of crime with a value of less than $100,000, contrary to s 400.9(1A) of the Criminal Code (Cth) (CAN 3187/2023).

2․The proceedings were before me on 5 February 2024. They have had a significant history since then, which it is unnecessary to relate.

3․Today, Mr Purnell SC, who appears for Mr Davidson, has sought an order pursuant to s 90A of the Magistrates Court Act 1930 (ACT) that the proceedings be continued in the Magistrates Court. He has referred me to the decision of Refshauge J in R v Johnston [2016] ACTSC 28. In that case, there was both an application to withdraw a plea of guilty and an application for an order under s 90A(9). Refshauge J said (at [15] to [20]):

15.The test for withdrawing a plea of guilty has been set out clearly in this jurisdiction in R v Gomez (2007) 1 ACTLR 145.

16.It is, however, not necessary to determine whether Mr Johnston would be able to make out that test. In R v Livas [2013] ACTSC 214 at [12], I held that the court had no discretion where the accused or a lawyer representing the accused (or the informant) asks that an order under s 90A(9) of the Magistrates Court Act be made. The court must then make such an order.

17.As a result, the prosecution, very properly, accepts that the matter must be continued in the Magistrates Court as requested.

18.The effect of that order, as set out in R v Livas at [13]-[15], is that, as provided for in s 90A(13)(a) of the Magistrates Court Act, “the proceedings must be continued in all respects as if the accused person had not pleaded guilty”.

19.Accordingly, the application for leave to withdraw the plea of guilty is unnecessary once an order under s 90A(9) of the Magistrates Court Act is made and the proceedings continue as if Mr Johnston had pleaded not guilty.

20.The request having been made, the prosecutor concedes that there is no discretion. Accordingly, I will order that the matter continue in the Magistrates Court.

There will then be a committal hearing, which could be subject to appropriate dispensation under s 88A of the Magistrates Court Act or proceed as a “paper committal” under s 90AA of that Act so as to enable it to be heard with the trial of his co-accused.

4․Mr Howe, who appeared to prosecute the matter, did not submit that the decision of Refshauge J in Johnston was wrong, or that it was not applicable in the circumstances of this case. Therefore, the position is as it was in Johnston, that the request for an order under s 90A having been made, there is no discretion. In those circumstances, I will make an order under s 90A.

5․The order of the Court is:

(1)Pursuant to s 90A of the Magistrates Court Act 1930 (ACT), the proceedings be continued in the Magistrates Court on 28 November 2024 at 9:30am.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 6 December 2024