Grant v Local Court of New South Wales

[2015] NSWSC 356

Supreme Court

New South Wales

Medium Neutral Citation:	Grant v Local Court of New South Wales and Anor [2015] NSWSC 356
Hearing dates:	2 March 2015
Decision date:	02 April 2015
Before:	Johnson J
Decision:	1. Time is extended to 5 February 2015 to institute an application for leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 against the order of the Magistrate of 20 August 2014. 2. Leave to appeal granted against the order of the Magistrate of 20 August 2014, but dismiss the appeal; 3. The Further Amended Summons (as constituted by the Supplementary Notice filed on 5 February 2015) is dismissed. 4. No order as to costs of the proceedings.
Catchwords:	CRIMINAL LAW - appeal against interlocutory decision in Local Court refusing leave to withdraw guilty plea - s.53(3)(b) Crimes (Appeal and Review Act) 2001 - Plaintiff pleaded guilty to common assault - whether Magistrate applied incorrect principles - whether Magistrate erred in law in provision of reasons - no error of law demonstrated - appeal dismissed ADMINISTRATIVE LAW - judicial review - s.69 Supreme Court Act 1970 - prerogative relief - no error of law demonstrated - appeal dismissed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Supreme Court Act 1970
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 Director of Public Prosecutions (NSW) v Scheibel [2004] NSWCA 187; 145 A Crim R 576 Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 L v Lyons [2002] NSWSC 1199; 56 NSWLR 600 Moloney v Collins [2011] NSWSC 628 R v Grant [2012] NSWSC 1491 R v Hamieh [2010] NSWCCA 189 Re Don [2006] NSWSC 1125 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; 155 A Crim R 37
Texts Cited:	---
Category:	Principal judgment
Parties:	Deborah Grant (Plaintiff) Local Court NSW (First Defendant) Director of Public Prosecutions (NSW) (Second Defendant)
Representation:	Counsel: Mr CJ Bruce SC (Plaintiff) Local Court NSW - Submitting Appearance (First Defendant) Ms JE Davidson (Second Defendant) Solicitors: Randall Legal (Plaintiff) Crown Solicitor’s Office (First Defendant) Solicitor for Public Prosecutions (Second Defendant)
File Number(s):	2014/256246
Publication restriction:	---

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JUDGMENT

1. JOHNSON J: By Further Amended Summons (constituted by Supplementary Notice filed on 5 February 2015), the Plaintiff, Deborah Grant, seeks to challenge a decision made in the Casino Local Court on 20 August 2014 refusing leave to withdraw a plea of guilty to a charge of common assault contrary to s.61 Crimes Act 1900.

2. The Plaintiff seeks leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 or, in the alternative, prerogative relief in the nature of certiorari under s.69 Supreme Court Act 1970. Both avenues are limited to questions of law alone.

3. The First Defendant, the Local Court of NSW, filed a submitting appearance in the proceedings. The Second Defendant, the Director of Public Prosecutions (NSW), appeared in the proceedings to contest the claim for relief.

Grounds of Appeal

4. The Plaintiff relies on the following grounds of appeal:

1. Ground 1 - the Magistrate applied the wrong principles of law when considering the Plaintiff's application to withdraw her plea of guilty.

2. Ground 2 - the Magistrate failed to give adequate reasons for dismissing the application.

Factual Background

5. On 7 December 2012, the Plaintiff was convicted in this Court of hinder investigation of a serious indictable offence contrary to s.315(1)(b) Crimes Act 1900. She was sentenced by Bellew J to 12 months’ imprisonment wholly suspended on the condition that she enter into a good behaviour bond pursuant to s.12 Crimes (Sentencing Procedure) Act 1999: R v Grant [2012] NSWSC 1491.

6. On 7 October 2013, the Plaintiff was charged with common assault of her ex-partner contrary to s.61 Crimes Act 1900.

7. On 23 October 2013, the Plaintiff appeared before the Casino Local Court represented by Ms Claire Hilton who entered a plea of not guilty to the charge. The matter was stood over for hearing on 23 January 2014.

8. On 23 January 2014, the Plaintiff, represented by Mr Philip Crick, entered a plea of guilty to the charge and the matter was stood over for sentence.

9. In accordance with usual practice, the breach proceedings before Bellew J were to be determined first: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at 388 [28].

10. On 18 June 2014, the Plaintiff was called up before Bellew J for breach of the s.12 bond. During the course of the Plaintiff's evidence under cross-examination, she provided an account of the incident giving rise to the charge of common assault, which appeared to call into question her plea of guilty. As a result, Bellew J adjourned the hearing to allow the Plaintiff to obtain further legal advice as to the course that she wished to take in relation to the charge before the Local Court.

11. On 20 August 2014, the Plaintiff applied unsuccessfully for leave to withdraw her guilty plea before Magistrate Heilpern in the Casino Local Court. It is this decision which is the subject of the present appeal.

The Application for Leave to Withdraw the Plea of Guilty before the Local Court

12. Before moving to the grounds of appeal, it is appropriate to set out parts of the reasons of the Magistrate declining to grant the Plaintiff leave to withdraw her plea of guilty. In doing so, it should be kept in mind that the judgment constitutes an ex tempore decision delivered at the conclusion of an interlocutory hearing in the Local Court. Further reference will be made to this aspect in determining the second ground of appeal.

13. Placed before the Magistrate on the application to withdraw the plea were an affidavit of the Plaintiff sworn 9 July 2014 and an affidavit of Mr Crick sworn 7 August 2014. No oral evidence was given on the application. The matter proceeded by way of submissions by reference to the documentary material.

14. His Honour commenced his decision by noting that the leading authority was the judgment of Howie J in Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; 155 A Crim R 37 (“Wong”).

15. Referring to the decision in Wong, the learned Magistrate noted that the onus lay upon the Plaintiff to establish that leave to withdraw the plea should be allowed, and that what must be shown is “a good and substantial reason on the balance of probabilities for varying a plea”. His Honour observed that “such matters ought be dealt with with a caution bordering on circumspection”.

16. The learned Magistrate continued (T2.20, 20 August 2014):

“What must be shown Is that it was not a free and voluntary confession, or the plea of guilty was not attributable to a genuine consciousness of guilt, or that the plea was induced by threats or impropriety. That is not a closed definition of the circumstances, but it does cover the issues that are being raised. Firstly there is self-defence being raised and that is the basis upon which the plea needs to be changed or is sought to be changed, and the second reason that is given, is that as I understand it, the plea of guilty was entered into on the day of hearing, because the defendant was not - was concerned about what could happen if her children were called to give evidence in the matter.

In essence, those two overlap, but of course the fear of having your children being called to give evidence is not a defence as it were, to any eventual charge, but it certainly is a relevant factor to be taken into account in a change of plea, where it is indicated that self-defence is to be relied on.

In essence, the real test is whether or not the plea of guilty was a matter of free choice or not. At or about para 37, Howie J talks about pleas of convenience and says in effect that if an applicant takes advice that is given, enters a plea of guilty as a result of a free choice to do so, as to what is in his or her best interests, then that admission of guilt ought to be taken on face value, again I am paraphrasing, I do not have the judgment in front of me.”

17. The learned Magistrate then continued (T2.42, 20 August 2014):

“In this case, what is clear is that the defendant, the applicant, had legal advice on several occasions from Mr Crick, both in the initial plea and also on the day of hearing. It is true that it was made clear to the applicant that she either, if she pleaded not guilty then he was not going to represent her because she had not followed up her Legal Aid, but of course not being represented is not a reason to - is not given as the reason that a plea of guilty was entered into. That advice was not only given on the first day, it was also given by telephone the day before the hearing and also at court, this court the following morning, on the day of the hearing ‘I've decided to plead guilty.’ Mr Crick then says he   says words to the applicant:

'You understand if you plead guilty you're accepting the facts as they are in the facts sheet, if you want to dispute the facts then you need to lodge the Legal Aid Review Committee form and seek an adjournment for a disputed fact hearing.’

Ms Ward (as said) [the Plaintiff] said, ‘I just want to plead guilty and get this over with’, Mr Crick said ‘even if you plead guilty today, the matter won't be finalised today because the Supreme Court suspended sentence will be called up and we should ask for a pre-sentence report’.”

18. His Honour then proceeded in the following way (T3.13, 20 August 2014):

“There are two comments that I would make in respect of Mr Crick's advice there. It is (a) correct, (b) the adjournment would have been almost inevitable had there been an appeal lodged, pursuant to section I think 14 of the Legal Aid Commission Act, and in the end an adjournment would have been granted. But the reason given to Mr Crick on the day was ‘I want to get it over with, I want to plead guilty.’

That incidentally is consistent with the evidence that is given in evidence-in-chief [of the Plaintiff] in the Supreme Court, namely question 45:

‘Q. In terms of hitting him [the Complainant], what are the reasons you hit him?

A. I lost it.

Q. You don't say he was about to hit you on this day, do you?

A. No.

Q. So you're not claiming you acted in self-defence?

A. Not really.

Q. When he touched you, did that bring up a memory of what had occurred in the relationship? A. Yes.’

In other words, what was being built up by Mr Ozen, acting for the applicant in the Supreme Court on the breach of her s 12, was factors in mitigation. There was nothing in examination-in-chief that indicated that she was not guilty. Mr Ozen of course is very experienced Counsel, I have no doubt that if at any time he had been instructed that the defendant viewed herself as not being guilty, then that would have been raised, instead it is only when the Crown Prosecutor begins to ask questions in leading cross-examination that he says - he introduces the whole concept of self-defence, and says ‘are you saying you acted in self-defence’ and effectively the applicant just agrees with that.”

19. His Honour then turned to the stated basis of the application (T3.47, 20 August 2014):

“I am informed now that she wishes to change her plea because of the fact that the - she wishes to claim she acted in self-defence.

I note further that the issue of self-defence was never raised with Mr Crick, nor was it ever raised with Mr Crick that she had concerns about her children giving evidence, but whatever concerns she had about her children giving evidence then, no longer exist quite clearly because she now wishes to plead not guilty, which may or may not result in her children giving evidence, but now she is determined to do that.”

20. His Honour referred to the context in which the issue had emerged before the Supreme Court (T4.7, 20 August 2014):

“Of course what I am entitled to assume throughout this legal mess, there is one thing that is really clear, and that is that she is fighting for her liberty in the Supreme Court, in breach of a s 12 bond. That is the truth of it, and of course if she is not guilty of the offence of common assault that comes before this court then she is not in breach of the s 12 bond and she does not go to gaol on that. And that is, reading between the lines, one of the reasons why I need to view the application with caution, bordering on circumspection.”

21. His Honour then concluded the judgment in the following way (T4.15, 20 August 2014):

“Having read all of the material and made the above comments, I am not satisfied that there are good and substantial reasons for the plea to be allowed to be withdrawn. The reasons for that are that the plaintiff had legal advice, fulsome legal advice about her options. She did not raise self-defence at any time with her previous legal representative, she did not raise self-defence in her evidence-in-chief before the Supreme Court and the issue with her daughters no longer seems to be playing on her mind. As a result, the application is dismissed.”

Ground 1 - Alleged Failure to Apply Correct Legal Principles

Submissions of the Plaintiff

22. The basis of the Plaintiff's application before the Local Court to withdraw her plea of guilty was an assertion that she had pleaded guilty to the common assault charge because she feared that if her daughters were called to give evidence to support her case, that she committed the assault in self-defence, they would be in danger of harm at the hands of her ex-partner.

23. Mr Bruce SC, for the Plaintiff, submits that the Magistrate applied a "strict interpretation" of Wong at 46 [37] to resolve the Plaintiff's application, without having regard to the general principles of law on the issue referred to in the preceding paragraphs of that judgment.

24. Howie J said in Wong at 46 [37]:

"But if the Plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it."

25. The Plaintiff submits that this was not the issue that the Magistrate had to decide. The issue at hand was, on the Plaintiff's submission, whether the plea of guilty "was not really attributable to a genuine consciousness of guilt" on the basis that it was overborne by a concern for her daughters.

26. The Plaintiff submits that on the day she changed her plea to guilty, she was not given appropriate advice from her legal representative, Mr Crick, as to the calling of her daughters to support her claim that she was acting in self-defence, as he made no enquiries of the Plaintiff as to what her defence was.

27. The Plaintiff further submits that the affidavits of the Plaintiff and Mr Crick, which were before the Local Court, differed on substantive issues and that his Honour made no definitive findings on the credibility of either the Plaintiff or Mr Crick.

28. The Plaintiff submits that there was no evidence before his Honour which contradicted the Plaintiff's affidavit evidence as to her pleading not guilty before the Local Court, and that her daughters were witnesses to the incident. The Plaintiff submits that this evidence was confirmed to a great extent in evidence given on oath before Bellew J in the Supreme Court.

29. The Plaintiff takes issue with parts of the Magistrate's remarks, including his Honour's finding that "she did not raise self-defence at any time with her previous legal representative, she did not raise self-defence in her evidence-in-chief before the Supreme Court and the issue with her daughters no longer seems to be playing on her mind" (see [21] above).

30. In relation to these remarks, Mr Bruce SC submits that:

"There is no reference in these remarks to the instructions that the Plaintiff gave Ms Hilton as set out in paragraph 2 of her affidavit. The Magistrate either completely ignored them or failed to properly read the Plaintiff's affidavit. True it is that Mr Crick (according to his affidavit) gave the Plaintiff advice as to her options up to and on the day the matter was listed as a defended hearing but that advice only went to her representation on the day and what the effect would be if she pleaded guilty. No appropriate advice was provided in any way in relation to what the Plaintiff's defence may have been, which was significant bearing in mind that the matter had been expedited as a defended hearing because it was a 'domestic violence' related matter…"

Submissions of the Second Defendant

31. Ms Davidson, counsel for the Second Defendant, submits that the Magistrate's approach to the application was in fact entirely consistent with the general principles governing an application for leave to withdraw a plea of guilty.

32. Counsel submits that the Magistrate:

"[H]ad noted various formulations of principle relevant when an application to withdraw a plea raises those issues, referring to whether the plea was attributable to a genuine consciousness of guilt or induced by threats, as well as to whether it was a free and voluntary confession, adding that this was not a ‘closed definition of the circumstances’.”

33. Ms Davidson submits that the Magistrate's reference to the issue of free choice being the "real test", which the Plaintiff takes issue with, indicates that his Honour was appropriately concerned with the two matters raised by the Plaintiff which could potentially affect the integrity of her plea. That is, the issue of self-defence and the Plaintiff's alleged concern for the safety of her children. Counsel submits that the Magistrate's ultimate concern was, correctly, whether a "good and substantial reason" to allow the Plaintiff to withdraw her plea had been made out.

34. In relation to the alleged deficiency of the legal advice provided by Mr Crick, the Second Defendant submits that the totality of the evidence before Magistrate Heilpern on that issue did not raise doubt as to the integrity of the plea.

35. In relation to the Plaintiff's submission that she entered the guilty plea out of fear for her daughters' safety, the Second Defendant submits that his Honour did not err in his application of principle. Counsel submitted that it was open to the Local Court to take the view that the evidence did not establish that the Plaintiff held such fear for her daughters' safety as to induce her guilty plea and so as to provide a "good and substantial reason" to allow the plea to be withdrawn.

Consideration

36. The principles governing an application to withdraw a plea of guilty are well settled. In R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20, I summarised those principles as follows at 27-28 [41]-[48]:

"41   There is a well-recognised discretion to allow a person leave to withdraw a plea of guilty, at least prior to conviction: Maxwell v The Queen (1995-1996) 184 CLR 501; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37; R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380; Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158.

42   The Court may, in the exercise of discretion, grant leave to a person to withdraw a plea of guilty at any time before sentence is passed: Griffiths v The Queen (1977) 137 CLR 293 at 334-335; Maxwell v The Queen at 522. Each case must be looked at in regard to its own facts and a decision made whether justice requires that such a course be taken: R v Davies (1993) 19 MVR 481; R v Lars (1994) 73 A Crim R 91 at 109-110.

43   The onus lies upon the Applicant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Applicant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].

44   The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25].

45   On an application for leave to withdraw a plea of guilty, the question is not guilt or innocence as such but the integrity of the plea of guilty: R v Rae (No. 2) at 188 [21].

46   A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46. Although these principles were expressed in the context of an appeal, the same principles apply where application is made at first instance for leave to withdraw a plea of guilty.

47   Where an application is made for leave to withdraw a plea of guilty, evidence ought be adduced from the accused person as to the circumstances in which he or she came to plead guilty: Wong v Director of Public Prosecutions at 40 [14].

48   The various circumstances identified by Spigelman CJ in R v Hura (2001) 121 A Crim R 472 at 478 [32] provide assistance where application is made for leave to withdraw a plea of guilty. These are:

(1)   Where the Appellant ‘did not appreciate the nature of the charge to which the plea was entered’ (R v Ferrer-Esis (1991) 55 A Crim R 231 at 233).

(2)   Where the plea was not ‘a free and voluntary confession’ (R v Chiron (1980) 1 NSWLR 218 at 220 D-E).

(3)   The ‘plea was not really attributable to a genuine consciousness of guilt’ (R v Murphy [1965] VR 187 at 191).

(4)   Where there was ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’ (R v Sagiv (1986) 22 A Crim R 73 at 80).

(5)   Where the ‘plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’ (R v Cincotta, NSWCCA, 1 November 1995 (unreported)).

(6)   The ‘plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt’ (Maxwell v The Queen (supra) at 511).

(7)   If ‘the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt’ (R v Davies (1993) 19 MVR 481. See also R v Ganderton NSWCCA 17 September 1998 (unreported) and R v Favero [1999] NSWCCA 320)."

37. It is for the Plaintiff to demonstrate error of law before either of the forms of relief sought may be granted in this case. This Court is not undertaking a rehearing of the application for leave to withdraw the plea of guilty.

38. Ground 1 asserts that the Magistrate applied the wrong principles of law in considering the Plaintiff’s application. I am not persuaded that this is so. His Honour had a clear understanding of the relevant principles with the judgment to Howie J in Wong being of assistance in this case.

39. The Plaintiff’s complaint that his Honour erred in the findings challenged at [30] above, does not rise above a claim of factual error. It does not constitute error of law. In any event, his Honour’s focus was upon the circumstances surrounding the entry of the plea of guilty on 23 January 2014. The Plaintiff appreciated what was involved in her plea of guilty. Further, as the Magistrate noted (at [18] above), the Plaintiff conceded on oath that she had hit the Complainant other than in self-defence.

40. It was open in law to his Honour to conclude that the Plaintiff had failed to demonstrate good and substantial reasons to allow the plea of guilty to be withdrawn.

41. No error of law has been demonstrated in this respect and the first ground of appeal should be rejected.

Ground 2 - Alleged Failure to Give Reasons

Submissions of the Plaintiff

42. The Plaintiff submits that the Magistrate's reasons for refusing the application for leave to withdraw her guilty plea failed to address the case put forward in the application and, as a result, were inadequate.

43. Particular emphasis was placed on the decision in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 (“Elskaf”) in support of the proposition that Magistrates have an obligation to provide adequate reasons for their findings as part of their judicial function.

44. The Plaintiff drew the Court's attention to the following statement of Garling J in Elskaf at [58]:

“The mere statement that a witness' evidence is unreliable, without any analysis as to why that was so, or any analysis of, in this case, the nature and context of the challenge to the witness evidence, is not sufficient to discharge a magistrate's judicial obligation to give reasons."

Submissions of the Second Defendant

45. Ms Davidson submitted that his Honour's reasons for refusing the Plaintiff's applications are not lacking in clarity or sufficiency to warrant interference by this Court.

46. The Second Defendant points to the fact that his Honour's remarks constituted an ex tempore decision on an interlocutory matter in a Local Court. This Court was directed to a number of authorities for the proposition that appropriate allowance should be made for the pressures to which Local Court Magistrates are subject (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402; Acuthan v Coates (1986) 6 NSWLR 472; L v Lyons [2002] NSWSC 1199; 56 NSWLR 600).

47. In any event, the Second Defendant submits that the Magistrate's reasons were sufficient:

"A fair reading of his Honour's reasons indicates that…he identified the two issues raised in the Plaintiff's case. He gave reasons for his findings in relation to each. He made reference to the inconsistent approach taken by the Plaintiff at different times in relation to both issues. His Honour's reasons make clear his view of the improbability of the Plaintiff's case in light of those inconsistencies".

Consideration

48. A failure to give reasons as required by law may itself constitute error of law. In Moloney v Collins [2011] NSWSC 628, I said at [63]-[65] (in the context of a civil hearing in the Local Court):

“63   Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration.

64   The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].

65   Appropriate allowance should be made for the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 407-408 [15]-[18].”

49. An application to permit a person to withdraw a plea of guilty is interlocutory in nature: Wong at 39-40 [10].

50. A Magistrate would be entitled to refuse to entertain a further application for an interlocutory order such as this that had already been determined by the Court, unless there was significant new material justifying the Court exercising its discretion afresh on the basis that, without new material, the further application would be fruitless: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440-441; Wong at 39-40 [10]; Director of Public Prosecutions (NSW) v Scheibel [2004] NSWCA 187; 145 A Crim R 576 at 584-585 [51]-[57].

51. The decision of the Magistrate in this case involved an ex tempore judgment delivered immediately after the interlocutory hearing at the Casino Local Court. No doubt, the application was one of many matters listed before the Court on that day. Some allowance must be made for ex tempore reasons delivered on an interlocutory issue: Re Don [2006] NSWSC 1125 at [39].

52. In considering appeals on sentence where remarks on sentence were delivered ex tempore immediately following the sentencing hearing, the Court of Criminal Appeal has stressed the need for a practical approach to be taken. In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175, the Court said at 180-181 [34]-[35]:

“34   In doing so, it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour’s reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be ‘as robustly structured as they might otherwise have been’ (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing’ (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).

35   When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour’s remarks on sentence, bearing in mind the features of an ex tempore decision.”

53. In R v Hamieh [2010] NSWCCA 189, the Court said at [32]:

“It is important to recognise, therefore, that there is a practical tension between the principles requiring oral reasons, delivered in plain English and with brevity (usually in a busy list) and the need for reasons to satisfy the requirements of the law in the particular case. Remarks on sentence are frequently delivered ex tempore and, as the Chief Justice has observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566, at [48] 577:

‘The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed’.”

54. It is important to keep statements of this type in mind, in particular when considering submissions that the Magistrate in this case erred in law in failing to give reasons as required by law.

55. It is not the duty of a Judge or Magistrate to decide every matter which is raised in argument. The decision of a particular submission may be an essential part of the reasoning towards the Magistrate’s final conclusion. It is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at 385-386.

56. In my view, reading fairly the entirety of the Magistrate’s reasons, the issues falling for consideration were addressed by his Honour. In particular, I accept the submission of the Second Defendant referred to at [47] above. It has not been demonstrated that the Local Court failed to give reasons as required by law.

57. Once again, it is necessary to keep in mind that this is not a rehearing of the application for leave to withdraw the plea of guilty. That application was considered by the Magistrate at Casino Local Court and determined in the manner outlined in this judgment. No error of law has been demonstrated in that respect.

58. The Plaintiff has not made good the second ground of appeal.

Conclusion

59. The Plaintiff has failed to demonstrate error of law on the part of the Magistrate. Accordingly, the foundation for relief, in each of the alternative ways sought by the Plaintiff, has not been established.

60. At the hearing, the Court was informed that the parties had agreed that there should be no order as to costs, whatever the outcome of the proceedings.

61. I make the following orders:

1. extend time to 5 February 2015 to institute an application for leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 against the order of the Magistrate of 20 August 2014;

2. grant leave to appeal against the order of the Magistrate of 20 August 2014, but dismiss the appeal;

3. dismiss the Further Amended Summons (as constituted by the Supplementary Notice filed on 5 February 2015);

4. no order as to costs of the proceedings.

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Decision last updated: 02 April 2015