Hammond v Director of Public Prosecutions

[2013] NSWSC 888

Supreme Court

New South Wales

Medium Neutral Citation:	Hammond v DPP [2013] NSWSC 888
Hearing dates:	16 November 2012
Decision date:	01 July 2013
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	Amended summons dismissed
Catchwords:	APPEAL - conviction appeal - appeal from Local Court to Supreme Court - error of law - whether magistrate erred in making a finding of guilt on a date other than the nominated hearing date - statutory construction of ss 190, 196 Criminal Procedure Act 1986 - meaning of "first return date" - no denial of procedural fairness where notice of court attendance date given - amended summons dismissed
Legislation Cited:	Criminal Procedure Act 1986 Australian Human Rights Commission Act 1986 (Commonwealth)
Cases Cited:	Coco v R [1994] 179 CLR 427 DPP v Yeo [2008] NSWSC 953 House v The King [1936] HCA 40 ; 55 CLR 499 Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330 R v Alexandroaia [1995] NSWCCA (7 July 1995) Watts v Bendigo and Adelaide Bank Ltd (No. 3) [2011] FCA 186
Category:	Principal judgment
Parties:	Jeremy Hammond - Plaintiff DPP - Defendant
Representation:	Counsel PM Winch SC - Plaintiff J Girdham SC - Defendant Solicitors Aboriginal Legal Service (NSW/ACT) Ltd - Plaintiff Solicitor for Public Prosecutions - Defendant
File Number(s):	2012/00203187-1

Judgment

1. The plaintiff was convicted on 29 February 2012 by a magistrate at Dubbo Local Court, in his absence, of breaching an apprehended violence order (AVO). The Director of Public Prosecutions has taken over the conduct of the proceedings as the defendant.

1. By way of an amended summons filed on 17 September 2012, the plaintiff seeks orders allowing the appeal, setting aside the conviction and remitting the matter to Dubbo Local Court for rehearing.

1. The alleged error of law concerns the construction of s 196 of the Criminal Procedure Act 1986 (the Act) and whether the magistrate was entitled to convict the plaintiff on a date that was not the nominated hearing date.

The Criminal Procedure Act 1986

1. Division 3 of Part 2 of Chapter 4 of the Act is headed "Hearings". Part 2 deals with trial procedures in lower courts of summary jurisdiction.

1. Section 190 provides :-

1) On the first return date for a court attendance notice in any summary proceedings, or at such later time as the court determines, the court must set the date, time and place for hearing and determining the matter.

(2) The court must notify the accused person of the date, time and place, if the accused person is not present.

(3) However, if the accused person is not present at the first return date and has not lodged a written plea of not guilty in accordance with section 182, the court may proceed to hear the matter on that day at its discretion.

1. Sections 192 to 195 provide for the hearing of a matter on the day set down for the hearing, where both the prosecutor and the accused person are present.

1. Section 194 is therefore to be construed on the basis that a hearing of the charge is being undertaken, and the accused person is obliged to enter a plea. It provides :-

(1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person's guilty plea, the court must proceed to hear and determine the matter.

(2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person.

1. Sections 196 to 200 prescribe the procedure to be followed where an accused person is absent.

1. Section 196 and 197 relevantly provide :-

196 (1) If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division.

(2) ..............................................................................

(3) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing.

197 (1) Instead of hearing and determining a matter in the absence of the accused person, the court may, if it thinks that the matter should not proceed on the specified day or without the accused person, adjourn the hearing to another day for mention or for hearing.

(2) If a warrant is issued for the arrest of the accused person, the Magistrate or authorised officer before whom the accused person is brought after arrest may specify the date, time and place to which the proceedings are adjourned.

1. Section 198 provides for the entry of a not guilty plea in the absence of the accused person. Section 199 stipulates the material that is to be considered in the absence of an accused person. Section 200 allows the court to require the prosecution to adduce additional material in the absence of an accused person.

1. Section 202 provides :-

(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.

(2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.

(3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing.

The History of the Proceedings Below

1. On Sunday, 26 February 2012, the plaintiff was taken to Dubbo Local Court to appear before the registrar in respect of a breach of an apprehended violence order. He was represented by the Aboriginal Legal Service (ALS). The registrar granted the plaintiff conditional bail and adjourned the proceedings to 29 February 2012 at Dubbo for mention.

1. The bail undertaking (Annexure A to the affidavit of Felicity Graham of 6 July 2012) imposed residential and reporting conditions upon the plaintiff. More particularly, the bail undertaking records the plaintiff's obligation to appear at Dubbo Local Court on 29 February 2012 at 9:30 am, "where the matter is listed for mention and before such court on such day and at such time and place as it is from time to time specified in the notice to be given or sent".

1. On 29 February 2012, the plaintiff failed to attend, although the same legal representative who appeared for the plaintiff before the registrar was in attendance.

1. The transcript of the proceedings discloses the following exchange between the plaintiff's legal representative and the magistrate :-

Graham : He has other matters at Wellington on 9 March. He is bailed to live in Wellington. The letter that we would ordinarily send our clients alerting them about their next court date has not yet been sent because it was only prepared yesterday, the first appearance having only been on Sunday 26 February. Would your Honour consider adjourning this matter which is a Wellington matter anyway.

His Honour : If it was the only matter he had I might but he already had bail in relation to driving matters ... till today and he wasn't excused and it was for reply.

Graham : I wasn't aware of that your Honour.

His Honour : ..... I figure you might not be but in those circumstances he well knew that he should be in court today or at least I take it that he would have and I'll proceed on the matters if Mr Prosecutor wishes to do so.

1. The plaintiff's legal representative asked to be heard on that matter. Following a further short discussion the magistrate allowed the matter to stand in the list so that some further enquiries might be made.

1. Following the short adjournment, the plaintiff's legal representatives renewed her request to be heard in relation to the hearing of the matter in the plaintiff's absence. The plaintiff's legal representatives repeated the submissions she had earlier made and requested that the matter be adjourned to Wellington, where the plaintiff lived and where other matters were to be heard on 9 March.

1. In the alternative, the legal representative addressed the magistrate on the terms of s 196 of the Act. Her submission was that the court had no power to finalise the matter by way of conviction under s 196, principally because, on a proper construction of Division 3 of the Act, the first return date was before the registrar on 26 February 2012, and the matter before the magistrate was in effect the second mention date.

1. Further, the legal representative called in aid s 197 which allowed for an adjournment in circumstances where a defendant is not present. For these reasons, the plaintiff's legal representative submitted that the Division contemplated a distinction between a mention and hearing date. Section 198 confirms that the plaintiff was deemed to have pleaded not guilty, so that the court had power to set a hearing date.

1. In the course of a further discussion, the magistrate agreed with the submission that s 196 was not a power to convict, rather a power to hear and determine the matter in the absence of a defendant. The magistrate noted that whilst the argument was attractive if one were to consider purely the terms of Division 3 of the Act, it was not attractive "in the sense of the administration of the Local Court because ... the court groans under the weight of numbers".

1. The submissions in response from the prosecutor maintained that if the plaintiff's construction was correct, "the Local Court is hamstrung in these matters and the efforts that the Criminal Procedure Act goes to, to streamline criminal proceedings, .. in the Local Court is entirely undone by the argument." The prosecutor went on to note that the Act did not define the word "hearing" and that s 190 on its terms allowed the court to hear and determine a matter on the first return date. The prosecutor noted that, the plaintiff's argument would unreasonably delay the finalisation of matters where a defendant appears on the first return date but then fails to appear on any subsequent occasion.

1. The magistrate's reasons were as follows :-

It is the case that it has been understood by Local Courts at least since 2001 in my experience that the absence of a person when they are bailed to appear or when they are otherwise notified that the court is sitting, dealing with a matter for mention after the first return date is a time at which s 196 of the Criminal Procedure Act allows for a finding of guilt if evidence of that service is provided and if there is an appropriately drafted court attendance notice containing an offence known to law. .................

I am of the view that a hearing in this case has a meaning which is significantly wide and includes a date of a matter being before the court for mention other than the first return date.

1. The magistrate then made a finding of guilt in respect of the offence of contravene apprehended violence order pursuant to s 196 of the Act. A warrant subsequently issued and the plaintiff appeared with representation on 7 March 2012. The warrant was revoked, bail was granted and the proceedings stood over to 9 March 2012, on which date the plaintiff appeared and was convicted of the offence.

The Submissions of the Parties

The Plaintiff's Submissions

1. The plaintiff submits that, as a matter of plain English, "the day, time and place set for the hearing and determination of the matter" as they appear in s 196 (1) cannot be reconciled with the day upon which a matter is listed for mention.

1. Furthermore, it is submitted that the terms "hearing", "hear and determine the matter" and "hearing and determination of the matter" as they appear in ss 194 and 202, expressly contemplate the calling and examination of witnesses and any other evidence upon which the parties rely.

1. Where a person is deemed to have pleaded not guilty in accordance with s 198 of the Act, the plaintiff contends that the appropriate procedure is to fix the matter for hearing, that is, a proceeding whereby evidence is called and submissions are made by the parties. The court fixing a matter for hearing in accordance with this procedure, is also required to notify the defendant of the hearing date in accordance with s 190 (2) of the Act. Section 196(3) provides that the notice provided to the defendant must be reasonable.

1. The procedure under s 198 confirms that procedural fairness must be accorded to a defendant. It is submitted that such a basic rule of natural justice could not be observed where a matter is determined in the absence of a defendant on a day that was not fixed for hearing : R v Alexandroaia [1995] NSWCCA (7 July 1995).

1. It is submitted that the construction of s 196 adopted by the magistrate in this matter denied the plaintiff procedural fairness. In those circumstances, it is contended that this court ought not uphold that construction where the legislation does not evince an unequivocal intention to deprive the plaintiff of a hearing : Coco v R [1994] 179 CLR 427.

1. Further reliance is placed upon a construction of the Act which is consistent with obligations imposed upon State law to be interpreted and applied, as far as language permits, so that it conforms with established rules of international law, in particular the International Covenant on Civil and Political Rights, being Schedule 2 to the Australian Human Rights Commission Act 1986 (Commonwealth). Article 4 of the Covenant provides that everyone shall be entitled to a fair and public hearing of any criminal charge against him and that, as a minimum guarantee, a defendant is to be tried in his presence.

1. The plaintiff argues that the first return date and the hearing date are the two most important dates in the progress of any matter through the Local Court and that it would therefore be unduly onerous and contrary to the interests of justice for a defendant to be convicted in his or her absence, simply because he or she missed a mention or interlocutory step in the proceedings.

1. The plaintiff also relies on a decision of Johnson J in DPP (NSW) v Yeo [2008] NSWSC 953 where his Honour emphasised the need to comply with the procedural requirements of Chapter 4, Part 2, Division 3 of the Act in circumstances where a plea of guilty was rejected. His Honour held at [46] that where a magistrate determines under s 193(2) not to accept a guilty plea on the first return date, a plea of not guilty ought be entered and "the court must set the date, time and place for the hearing and determination of the matter : s 190(1)".

The Defendant's Submissions

1. The defendant submits that the terms of s 190 give rise to three possibilities, namely that a date is set for hearing, that the matter is adjourned, or that the matter proceeds to hearing in the absence of a defendant. This may occur on the "first return date" or on any subsequent occasion.

1. The defendant submits that there is no impediment to a number of "first return" dates, in that any number of adjournments may be within the terms of "first return date" until the matter is set down for hearing. The defendant draws an analogy with an arraignment which is capable of being adjourned several times and yet does not constitute more than one arraignment.

1. The defendant relies upon Watts v Bendigo and Adelaide Bank Ltd (No. 3) [2011] FCA 186 at [29] wherein the expression "first return date" was interpreted as a reference to a listing before a judicial officer, that is, not a registrar or administrative officer. On that basis, the "first return date" in this matter was 29 February 2012.

1. The appearance before the registrar on 26 February 2012 was an appearance before an "authorised officer" for the performance of an administrative function, namely the determination of bail. The registrar was not exercising judicial power : Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330 at 358.

1. Therefore, the discretionary power to hear and make a finding of guilt was available pursuant to s 190(3).

1. The defendant maintains that the statutory scheme provided by Part 2, Division 3 of Chapter 4 of the Act evinces a clear intention that, provided notice has been given of the date and the matter is capable of being dealt with on the basis of the court attendance notice, the matter may proceed to hearing and determination other than on a day set down for hearing.

1. It is submitted that the term "hearing" is not limited to the calling and examination of witnesses. That power emerges from s 199 (1) of the Act which provides that a court may determine proceedings heard in the absence of a defendant on the basis of a court attendance notice without hearing the prosecutor's witnesses or any other evidence, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence. There was no issue taken in the instant matter that the conditions under s 199 were not met.

1. The defendant further contends that a literal approach to the interpretation of s 196 would be contrary to achieving its legislative purpose, in that it would paradoxically permit the matter to be heard in a defendant's absence on the first return date pursuant to s 190, but not on any other date unless it was the day, time and place set for hearing.

1. The defendant further submits that the statutory framework provides for the efficient and timely disposal of the work of the Local Court without unnecessary and futile adjournments which would add to already substantial court lists, while nonetheless safeguarding the rights of defendants by providing that a matter can only proceed to a hearing in the absence of a defendant where reasonable notice has been received, that a plea of not guilty is entered, and that the particulars contained in the court attendance notice must be sufficient to establish the offence.

Resolution

1. I accept the defendant's contention that the "first return date" in this matter was 29 February 2012 and I would respectfully adopt what was said in that regard in Watts v Bendigo and Adelaide Bank Ltd (No. 3). The plaintiff's submission before the magistrate, that the "first return date" was the appearance before the registrar, was an attempt to escape the application of s 196 but it is unsustainable.

1. Turning to the terms of s 190, it is directed to the court's powers to fix a time for the hearing. It is clear from the structure of the provision that subsection (3) operates to qualify subsections (1) and (2). True it is that subsection (1) requires the court on the first return date to set a date for hearing, and that a reference to "date, time and place for hearing" cannot be reconciled with a date for mention. Subsection (2) simply provides for notice to be given of the hearing date to the absent accused. The preface to subsection (3), namely, "however", signals that, notwithstanding that a court is obliged to fix hearing dates in the normal course of events, it has a discretion to hear the matter on the first return date in the absence of an accused where he/she has not lodged a written plea of not guilty in accordance with s 182.

1. It is also palpably clear that the plaintiff's submissions in [24] and [25] above are correct as far as they go. However, the submission in [24] ignores the existence of subsection (3) of s 196, which operates in circumstances where the accused has been given reasonable notice of the first return date. Were subsection (3) confined to reasonable notice of the hearing date, there would be no power under s 196 to hear the matter in an accused person's absence where a hearing date had not been set.

1. The plaintiff's submission at [25] above overlooks the position occupied by s 194 in Division 3. It is premised on an accused person's presence, since it follows logically from ss 192 and 193. Similarly, s 202 simply prescribes the means by which a matter is determined. Subsection (3) of s 202 recognises that a matter may be heard in the absence of an accused person.

1. Neither the existence of s 198, or the requirements to provide reasonable notice of hearing dates and/or first return dates affects the construction of s 190(3) and s 196(3). Both of these provisions are concerned with a hearing in the absence of an accused person on the first return date. Section 198 simply confirms that an absent defendant's presumption of innocence is preserved for the purposes of that hearing.

1. To the extent that the legislature has clearly expressed an intention to streamline summary procedures in circumstances where an accused person has been served with a court attendance notice and notice of the date upon which he/she is to attend court, yet does not attend, there is in my view no denial of procedural fairness. Section 190(3) vests a discretion in the court to proceed to hear a matter in the absence of a defendant, provided the conditions for the exercise of that discretion are satisfied. They were satisfied in the instant case. The power in s 190(3) is not constrained by the fact that the matter was listed for mention, although that may be a factor that bears upon the exercise of the discretion to proceed to hearing.

1. The exercise of the discretion in s 190(3) (assuming the conditions of its exercise are satisfied) must conform to the requirements of House v The King [1936] HCA 40 ; 55 CLR 499. It is not suggested that the magistrate took into account a factor that he was not entitled to take into account, or that he failed to consider a relevant factor. His Honour was aware that the matter was listed for mention, as one might expect on a first return date. The plaintiff had ample notice of the court date, given that the bail undertaking he entered on 26 February included a requirement that he attend court on 29 February. The fact that the plaintiff may not have received the letter sent from the ALS office on 28 February was irrelevant to the issue of reasonable notice.

1. The decision in DPP v Yeo is of no assistance to the plaintiff. It was concerned with the mandatory procedure that follows upon the rejection of a plea where the accused person is in attendance.

1. For the above reasons, the amended summons is dismissed.

Decision last updated: 12 July 2013