Keys v West

[2006] NSWSC 136

Reported Decision: 160 A Crim R 535
65 NSWLR 668
198 FLR 37

New South Wales

Supreme Court

CITATION:	KEYS v. WEST [2006] NSWSC 136 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Monday 21 November 2005
JUDGMENT DATE :	17 March 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	The summons should be dismissed. The plaintiff is ordered to pay the defendant’s costs of the proceedings.
CATCHWORDS:	Defendant convicted after ex-parte hearing - conviction recorded on bench sheet - conviction had not been annulled - warrant issued for apprehension of the defendant for sentence - magistrate discharged the defendant pursuant to s.19B(1)(d), Crimes Act 1914 - whether there was power to discharge teh defendant despite teh earlier conviction - meaning of the word "conviction" - whether or not the order made in the ex-parte proceedings constituted a "conviction" within the meaning of s.19B(1)(d).
LEGISLATION CITED:	Crimes Act 1914 (Cth) Social Security Act 1991 Justices Act 1902 (NSW) Crimes (Local Court of Appeal and Review) Act 2001 (NSW) Magistrates Courts Act 1952 Offenders' Probation Act 1913-1953 (SA) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Maxwell v. The Queen (1995-96) 184 CLR 501 Burgess v. Boetefeur (1844) 7 Man. & G. 481 DPP v. McCoid [1988] VR 982 DPP v. Helou [2003] NSWCA 301 Dixon v. McCarthy (1975) 1 NSWLR 617 Regina v. Holton [2004] NSWCCA 214 Regina v. Stone [2005] NSWCCA 344 Frodsham v. O'Gorman (1979) 1 NSWLR 683 Regina v. Collins (1994) 76 A. Crim. R. 204 Griffiths v. The Queen (1977) 137 CLR 293 Kinney v. Green (1992) 29 NSWLR 137 S v. Recorder of Manchester (1971) AC 481 Regina v. Tonks (1963) VR 121 Kopuz v. District Court of NSW (1992) 28 NSWLR 232 Saffron v. DPP (1989) 16 NSWLR 397 Mulcahy v. Clark (1991) Tas. R. 115 Cobiac v. Liddy (1969) 119 CLR 257 Della Patrona v. DPP (Cth) (No. 2) (1993) 38 NSWLR 257 Application by the Attorney General under s.37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under s.9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] 51 NSWLR 305 Re Stubbs (1947) 47 SR(NSW) 329
PARTIES:	Paul KEYS v. Gloria Elaine WEST
FILE NUMBER(S):	SC No. 10703 OF 2004
COUNSEL:	CDPP: D. Moorhouse Deft: G. Walsh
SOLICITORS:	CDPP: Commonwealth Director of Public Prosecutions Deft: G. Walsh
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	N/A
LOWER COURT JUDICIAL OFFICER :	Flack, LCM.
LOWER COURT DATE OF DECISION:	21/11/2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

FRIDAY 17 MARCH 2006

No. 10703 of 2004

PAUL KEYS v. GLORIA ELAINE WEST

JUDGMENT

1 HIS HONOUR: The plaintiff filed a summons dated 11 March 2004 in which he claims orders that:-

(a) The order made by Mr. Flack, Magistrate, on 9 October 2003 at the Liverpool Local Court, discharging the defendant pursuant to s.19B(1)(d) of the Crimes Act 1914 (Cth) , be set aside.

(b) An order whereby the defendant is sentenced for the offence against s.1350 of the Social Security Act 1991 for which she was convicted on 31 March 2000.

2 In the statement of grounds to the summons, the plaintiff relied upon the following:-

(a) On 9 October 2003, Mr. Flack, Magistrate, ordered that the defendant be discharged pursuant to s.19B(1)(d) of the Crimes Act 1914 upon entering into a recognisance, self in the sum of $1,000, to be of good behaviour for 18 months. That sentence was not available at law because the defendant had been convicted in the Local Court on 31 March 2000.

(b) On 31 March 2000, the defendant had been convicted in Bankstown Local Court after an ex-parte hearing in accordance with s.75A to s.75F of the Justices Act 1902 (NSW) , for the offence against s.1350 of the Social Security Act 1991 .

(c) The conviction entered on 31 March 2000 has not been annulled.


(d) On 12 October 2004, an application under s.4(1) of the Crimes (Local Court of Appeal and Review) Act 2001 (NSW) for annulment of the sentence imposed on the defendant on 9 October 2003 (whereby the defendant was discharged pursuant to s.19B(1)(d) of the Crimes Act 1914) was heard before Mr. Flack, Magistrate, at Liverpool Local Court. Mr. Flack, Magistrate, declined to annul the sentence on 9 October 2003 and dismissed the plaintiff’s application.

(e) That the defendant should be sentenced for the offence against s.1350 of the Social Security Act 1991 on the basis of the conviction of 31 March 2000.

3 The proceedings by way of summons to this Court pursuant to s.56 of the Crimes (Local Court Appeal & Review) Act 2001 accordingly seek to appeal that part of the decision of the Local Court which related to sentence.

4 The summons was supported by an affidavit of Ashika Kumar, solicitor, sworn 3 May 2004 and filed on that date.

Background

5 The defendant, Gloria Elaine West, was born on 8 August 1944.

6 On 17 January 2000, an Information and Summons was taken out in respect of which the defendant was charged with an offence contrary to s.1350 of the Social Security Act 1991 in that between 19 May 1995 and 20 April 1999 at Sydney it is alleged that she contravened s.1347 of the Social Security Act in that she knowingly obtained payment of social security payments under that Act, namely, Job Search Allowance and then New Start Allowance which was not payable by reason of the fact that the value of her assets exceeded the allowable asset limit.

7 The annexures and exhibits to Ms. Kumar’s affidavits verifies the following:-

(a) That the defendant was served personally with the summons by David Portelli.

(b) That during the course of the ex-parte hearing on 31 March 2000, the matter proceeded pursuant to the provisions of s.75A to s.75F of the Justices Act 1902 (NSW) .

(c) That during the course of the ex-parte hearing on that date, a statement of facts was tendered to the Local Court.

(d) That at the conclusion of the ex-parte hearing on 31 March 2000, Mr. Clugston, Magistrate, convicted the defendant for an offence against s.1350 of the Social Security Act and ordered a warrant to be issued for the apprehension of the defendant for sentence pursuant to s.80AA of the Justices Act .

8 In addition to the above primary facts, the affidavit evidence establishes that a warrant was issued on 5 April 2000 pursuant to s.80AA and that the defendant was apprehended pursuant to the warrant on 21 April 2003, some three years after the warrant was issued.

9 On 29 May 2003, the defendant was taken before the Bankstown Local Court and was granted bail.

10 Pursuant to the provisions of the Justices Act and the later provisions of the Crimes (Local Court Appeal and Review) Act, the time limit for making an Application for an Annulment of the conviction was time-barred. In this respect, such an application would have had to have been made within two years from the date of conviction.

11 The Commonwealth Director of Public Prosecutions confirmed that the amount overpaid of $39,841.62 was repaid by way of Garnishment payment on 6 September 1999.

The Magistrate’s decision: 9 October 2003

12 On 9 October 2003, an application was made to Mr. Flack that the defendant be dealt with pursuant to the provisions of s.20BQ of the Crimes Act 1914. At the conclusion of proceedings on 9 October 2003, Mr. Flack dismissed the defendant’s application pursuant to s.20BQ. The magistrate then discharged the defendant pursuant to s.19B(1)(d) of the Crimes Act 1914 upon her entering into a recognisance on the terms earlier stated.

13 On 6 November 2003, an application was made by the Commonwealth Director of Public Prosecutions under s.4(1) of the Crimes (Local Court Appeal and Review) Act for annulment of the sentence imposed on the defendant on 9 October 2003.

14 On 12 February 2004, that application was heard by Mr. Flack. Written submissions were tendered by the Commonwealth Director of Public Prosecutions and by Mr. Walsh, solicitor acting on behalf of the defendant, the respondent to those proceedings.

15 The magistrate declined to annul the sentence imposed on 9 October 2003 and dismissed the application.

16 The transcript of the 12 February 2004 (p.3) records his Honour saying:-

“I am not satisfied that the recording or finding of an offence proved for the purposes then of issuing a warrant, arrest warrant to bring a person before the Court, precludes a Court subsequently from dealing with the matter by way of not recording a conviction. I so hold.”

17 A little later, his Honour stated:-

“… I am saying that the Court had power, had jurisdiction to deal with the matter by way of not recording a conviction at the final sentencing process.”

The plaintiff’s contentions

18 In his written submissions, the plaintiff formulates three propositions by way of submission:-

(a) Section 75E of the Justices Act empowered the magistrate to determine the matter, following a hearing pursuant to the ex-parte provisions, by convicting the defendant – and that conviction was recorded on the court bench sheet as “[1] D convicted [2] s.80AA warrant to issue” .

(b) The conviction having been recorded and no application having been made by the defendant for annulment of the conviction (nor other application to the Minister), it was not open to Mr. Flack, Magistrate, to determine [on 9 October 2003] that a conviction need not be recorded, the relevant provisions of the Justices Act constituting a “complete code” with respect to the annulment of a conviction.

(c) The order made on 9 October 2003 pursuant to s.19B of the Crimes Act 1914 was not available at law because such an order facilitates the dismissal of the charge [s.19B(1)(c)] or the discharge of the person without proceeding to conviction [s.19B(1)(d)], whereas the defendant had been convicted of the offence.

The history of the present proceedings in this Court

19 Following the filing of the statement of claim on 11 March 2004, the proceedings were heard on 16 September 2004 before his Honour Justice Shaw who delivered a judgment on 30 September 2004.

20 His Honour, in that judgment (paragraph [5]), observed that the proceedings involved a short question of law, namely, whether there was power to discharge the defendant despite the earlier conviction. Although not determining the issue on a final basis, his Honour observed in that judgment (at [13]) that notwithstanding the magistrate’s recording of a “conviction”, he was of the view there was a powerful case that this recording, conducted in relation to an ex-parte proceeding, “represents a bare finding of guilt rather than an authoritative or ultimate adjudication on the issue”. His Honour also expressed a view at [17] that in the absence of clear provision in the statute “my inclination would be to construe the legislative regime so as to keep alive and available the possibility of a finding of guilt without conviction, and without the imposition of a penalty. This is a fortiori, in a case where the initial hearing leading to the ‘conviction’ has been conducted ex parte …”. His Honour also referred to what seemed to him to be a strongly arguable case that no conviction should be recorded in all of the circumstances.

21 Without proceeding to finally determine the matter, his Honour at [21] observed that the defendant may have had an avenue of redress open to her, if she elected to take it, which was not statute barred. In this respect, reference was made to the provisions of s.100G of the Justices Act. The proceedings were accordingly stood over to allow the defendant to consider whether she did wish to make an application under s.100G and to give liberty to have the matter restored in the list if either party requested it.

22 The affidavit of Trent Nicoll sworn 10 August 2005 establishes that the opportunity provided to the defendant to make the application referred to by Shaw, J. had not taken place and accordingly the proceedings were re-listed before me and were heard on 21 November 2005.

Consideration

23 The provisions of s.19B(1)(d) of the Crimes Act 1914 provide, inter alia, that where a person is charged before a court with a Federal offence and the court is satisfied that the charge is true but, having regard to specified matters, it is inexpedient to inflict any punishment and “that it is expedient to release the offender on probation” then the court may, inter alia, discharge the person without proceeding to conviction in respect of (the charge), upon the person giving security as specified in the section.

24 The central issue is whether these provisions were available and authorised the magistrate, on 9 October 2003 to make the order referred to in paragraph [2(a)] of this judgment. In this respect, it is contended for the plaintiff that such an order was not available at law because it is one made without proceeding to conviction. The defendant had already been convicted for the offence in question on 31 March 2000 and on 9 October 2003 that conviction still stood.

25 The issue debated between the parties to the proceedings is whether or not the order made in the course of the ex-parte proceedings on 31 March 2000 constituted a “conviction” within the meaning of s.19B(1)(d) of the Crimes Act.

26 The case law that has examined the meaning of that term is extensive. I have been greatly assisted by the helpful written and oral submissions of Mr. P. Moorehouse of counsel, who appeared on behalf of the Commonwealth Director of Public Prosecutions and Mr. G. Walsh, solicitor, who appeared for the defendant. Those submissions refer to many of the relevant decisions on the question.

27 It is fundamental to the resolution of the issue to observe, as stated by Toohey, J. (dissenting) in Maxwell v. The Queen (1995-96) 184 CLR 501 at 519, that the meaning of the term “conviction” generally depends on determining the sense in which it is used in the statute under consideration. Similarly, Dawson and McHugh, JJ. in that case (at 507) stated:-

“The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence.”

28 Their Honours then referred to what was stated by Tindal, CJ. in Burgess v. Boetefeur (1844) 7 Man. & G. 481 at 504 [135 ER 193 at 202]:-

“The word ‘conviction’ is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury and, at other times, in its more strictly legal sense, for the sentence of the court.”

29 By way of preliminary observation, the relevant case law that has considered the word “conviction” has arisen in a number of contexts including the following:-

(a) The acceptance by the Crown of a plea of guilty in satisfaction of an indictment: Maxwell (supra) was such a case.

(b) In connection with statutes relating to the confiscation of assets that are tainted by criminal activity, eg., Director of Public Prosecutions v. McCoid [1988] VR 982 (where it was held that a person was “convicted” when a plea of guilty was accepted and he or she was remanded for sentence rather than when the person was actually sentenced. As to that approach, see also Director of Public Prosecutions v. Helou [2003] NSWCA 301.

(c) The withdrawal of a plea of guilty under s.99(1) of the Criminal Procedure Act 1986 (NSW) . However the central issue in such cases has been what constituted a “finding” to the effect that an accused person is “guilty of an offence” ).

(d) Proceedings instituted for the purposes of restraining a court from proceeding, or further proceeding, upon or in respect of convictions: Dixon v. McCarthy (1975) 1 NSWLR 617 (Yeldham, J.).

(e) The issue of “double jeopardy” in terms of s.52AA(6) of the Crimes Act 1900 (judgment of conviction was “provisional” in the sense that it remained open to the appellant in that case to be permitted to change his plea to not guilty at any time as the case had not been finally disposed of by sentence or otherwise): Regina v. Holton [2004] NSWCCA 214.

(f) Proceedings in which the word “conviction” has been used in the context of autrefois convict: Regina v. Stone [2005] NSWCCA 344.

Relevant case law on the meaning of the word “conviction”

30 It will be shortly necessary to turn to the particular provisions which were relevant to the ex-parte proceedings which resulted in the “conviction” on 31 March 2000, namely, ss.75A to 75F of the Justices Act 1902. Before doing so, a number of general principles may be taken as established in the relevant cases including the following:-

• Whilst, as already noted, it is essential to have regard to what may constitute a conviction in the general context of the statute in question, that should not preclude consideration as to whether there is anything in the statutory provisions which relevantly suggest that the common law understanding of those terms has been displaced. See by way of example, Frodsham v. O’Gorman (1979) 1 NSWLR 683, in which the meaning of “conviction” in the context of the Crimes Act 1900 was considered from the common law position. The same approach was taken in relation to the Queensland Criminal Code: Regina v. Collins (1994) 76 A. Crim. R. 204 at 210 as noted by Toohey, J. (dissenting in Maxwell (supra) at 519).

• In the case of a trial with a jury, the traditional position is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction: Griffiths v. The Queen (1977) 137 CLR 293.

• The relevant authorities establish that “conviction” may mean a determination that the offence has been proved or it may mean a final adjudication of guilt: Kinney v. Green (1992) 29 NSWLR 137, 139 per Carruthers, J.

• In S v. Recorder of Manchester (1971) AC 481, in relation to the word “conviction” in the Magistrates Courts Act 1952 , s.87, Lord Reid, with whom Lord Guest agreed (at 504), held that the word was used in the sense of a finding of guilt. Lord Upjohn (at 506) described the primary meaning of the word as being the judicial determination of the case, and being a judgment which involved a finding of guilt or the acceptance of a plea of guilty, followed by sentence. His Lordship said that the word was used also in a secondary sense to express a verdict of guilty before the adjudication which is only completed by sentence.

• In the context of a discussion of a plea of “guilty” upon a subsequent plea of autrefois convict , a conviction is a determination of guilt and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused: Regina v. Tonks (1963) VR 121 at 127. It was there also recognised that it may be that even a determination of guilt will not in all cases amount to a “conviction” , for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given but conviction by judgment adding “but there must at least be a determination of guilt before there can be a conviction” .

31 In Stone (supra), Hunt, AJA. analysed in considerable detail the relevant authorities in the context of autrefois convict. Specific reference was made to the decision of the Court of Appeal in Kopuz v. District Court of NSW (1992) 28 NSWLR 232. There, the privative clause in s.146 of the Justices Act 1902 was in issue (“no conviction or order of a Justice … or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court”). The Court of Appeal held (at 242-243) that, as the applicant had not been sentenced, s.146 did not prevent the grant of prerogative relief.

32 Hunt, AJA. in Stone (supra), closely examined the judgments of the High Court in Maxwell (supra). The issue to be decided in that case (Maxwell) was whether the judge had power to reject a plea of guilty to manslaughter to a charge of murder. That in turn depended on whether the appellant had been convicted at that time.

33 Hunt, AJA. expressed the opinion that the word “conviction” as used in the context of autrefois convict requires both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) to be established by the accused. Accordingly, his Honour concluded that in the absence of sentence, the plea in bar must fail (at [57]).

The provisions of the Justices Act 1902 (NSW)

34 The provisions of ss.75A to 75F of the Justices Act constitute a scheme for the determination of matters in the absence of a defendant where the defendant fails to appear on a day and at a time or place specified by a summons or attendance notice.

35 Section 75B(1) permits, where a defendant does not appear, a Magistrate to proceed to hear and determine a matter in accordance with that section and ss.75C to 75F. In that respect, the provisions of s.75D and s.75E are of particular relevance. I according reproduce them below:-

“75D Material to be considered in ex parte proceedings
(1) A Magistrate who proceeds to hear and determine a matter without the defendant may determine the matter on the basis of the information without hearing the informant’s witnesses or any other additional evidence of the informant, if of the opinion that the matters set out in the information are sufficient to establish the offence.
(2) Before determining the matter, the Magistrate must consider any written material:-

(a) given to the Magistrate by the informant, and

(b) lodged by the defendant in accordance with s.75.
(3) The Magistrate may require the informant to provide additional evidence if of the opinion that the matters set out in the information are not sufficient to establish the offence.
…
75E Determination of ex parte proceedings
(1) A Magistrate who proceeds to hear and determine a matter without the defendant may determine the matter by convicting the defendant, by making an order as to the defendant or by dismissing the information.
(2) The Magistrate may impose a penalty on the defendant or make any other order or decision about a penalty that the Magistrate may make in proceedings when the defendant and the informant are both present.
(3) However, a Magistrate must not make any of the following orders or decisions in relation to a defendant unless the defendant is present:-

(a) an order imposing a sentence of imprisonment or periodic detention on the defendant;

(b) a community service order;

(c) an order or a decision under s.558(1) of the Crimes Act 1900;

(d) any other order or decision releasing the defendant subject to conditions.
(4) The Magistrate may adjourn the proceedings to enable the defendant to appear or be brought before the Magistrate for sentencing.”

36 I finally also note the provisions of s.80AA of the Justices Act 1902 (NSW) which is in the following terms:-

“(1) A Justice or Justices shall not, by any conviction, order that the defendant be imprisoned unless the defendant is present at the time the order for imprisonment is made.
(2) Where a Justice or Justices convicts or convict a defendant who is not present, the Justice or Justices may, at the time of convicting the defendant or at a later time, issue or authorise an authorised Justice to issue a warrant for the apprehension of the defendant for the purpose of the defendant’s being brought before a Justice or Justices for sentencing.”

37 The provisions of s.75E(1) plainly state that ex-parte proceedings of a matter may be a determination by conviction. The provisions of s.75E(3), however, envisage that an order by way of conviction may be made, yet no order made imposing a sentence, in particular a sentence of imprisonment or periodic detention, unless the defendant is present. In other words, in some cases at least, the conviction is based upon a determination of the guilt of a defendant and is not a final disposition of the proceedings by way of sentence.

38 This emphasises the importance of the statutory context and the particular provisions in question. In Dixon (supra), Yeldham, J. at 624 specifically identified provisions of the Justices Act as it then stood which may hold different consequences so far as a “conviction” is concerned. His Honour there stated:-

“I think it is clear that, in some sections of the Justices Act, the expression ‘conviction’ refers to a final determination or judgment and the complete disposal of a case: see, for example, ss.81, 82, 83, 87, 88, 91, 120, 122. On the other hand, there are sections which clearly indicate that a finding of guilt alone is denoted: see for example ss.52, 75B, 78, 100A, 132.”

39 In that case, Yeldham, J. determined that the expression where it appeared in s.112(1) referred to a finding of guilt, whether or not there had been imposed a consequential penalty. A similar observation, it will be noted, was made by his Honour in relation to the provisions of s.75B, as it then stood.

40 The evidence in this matter establishes that the Magistrate, on 31 March 2000, had before him the statement of facts. The statement was within the meaning of s.75D(1), “sufficient to establish the offence”. The evidence in these proceedings also establishes:-

(a) That there was a hearing and determination by the magistrate on that date, being a determination that the information established the offence charged.

(b) That the court, by entering or recording a conviction in appropriate words, provided an express indication of the fact that an ex-parte conviction was entered against the defendant pursuant to ss.75D(1) and 75E.

41 It is also clear in this case that the issue of the warrant for the apprehension of the defendant for the purposes of her being brought before a Magistrate for sentencing plainly constituted an exercise of the conviction based power provided for in s.80AA(2) of the Justices Act.

42 In relation to the second proposition earlier referred to in the plaintiff’s written submissions, I accept that the conviction having been recorded and there having been no application made by the defendant for annulment of the conviction in terms of s.100D and s.100F of the Justices Act, the conviction is one that accordingly stands.

43 In written and oral submissions, Mr. Walsh, on behalf of the defendant, contended that the ex-parte conviction amounted to no more than a recording of guilt. Mr. Walsh did not take issue with the point that if this court were of the view that the Magistrate did not have power to extend to the defendant the provisions of s.19B, then that would constitute an error of law: Saffron v. Director of Public Prosecutions (1989) 16 NSWLR 397.

44 It was central to the submission made on behalf of the defendant that whilst the defendant was convicted in her absence pursuant to the provisions of the Justices Act, she had not been sentenced and that, accordingly, she had not been “convicted” in the sense of a final disposition of the charge against her such as to prevent the court from acting under s.19B.

Analysis

45 As noted in paragraph [27], the High Court’s decision in Maxwell (supra) emphasised that the answer to the question posed in the present case depends upon the context, that is, the statutory context, in which it is asked. In that respect, it is essential to have regard not only to the provisions of s.75F but to all of the provisions contained within ss.75A to 75F. Accordingly, the analysis which follows is directed towards ascertaining the content and meaning of a conviction under s.75E in its relevant statutory setting. I propose, firstly, to refer to relevant case law principles and, secondly, to consider the relevant statutory provisions in light of those principles.

46 In Cobiac v. Liddy (1969) 119 CLR 257, the High Court determined that the provisions of s.4(1)1 of the Offenders’ Probation Act 1913-1953 (SA) were not precluded by the operation of s.47 of the Road Traffic Act 1961-1967 (SA). Section 4(1)1 permitted a court of summary jurisdiction where it considered a charge proved, to proceed, without convicting the person charged, to dismiss the information or complaint. The provision there considered was similar to the former s.556A of the Crimes Act 1900 (NSW) and the provisions now to be found in s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

47 Windeyer, J. (one of the majority) examined the meaning of the word “convict” as a verb and of the noun “conviction”. There the distinction was made between conviction in the case of an indictable offence (where the word has been used of a jury’s verdict of guilty rather than of the judgment of the court following upon verdict) and as well in the context of the proceedings in a court of summary jurisdiction.

“… in more recent times it has been said that the word ‘conviction’ is sometimes used as meaning the finding of guilt; at other times, it means that finding together with the judgment … of the Court.” [per Darling, J. in Harris v. Crooke ]. “This, it seems to me, is especially so when the question arises in relation to proceedings in the court of summary jurisdiction. In a trial on indictment, the jury’s return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a Court of Petty Sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he pronounces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence: Regina v. Sheridan; Reg. v. Campbell; ex-parte Hoy …” (at p.273)

48 The latter statement contained in this extract is relied upon by the plaintiff being one which favours the plaintiff’s contention that the order imposed by the magistrate on 31 March 2000 was a “conviction” in the broad sense of that term. The plaintiff also relies upon a similar statement in Mulcahy v. Clark (1991) Tas. R. 115 per Zeeman, J. at p.116. However, such observations will only be applicable if that meaning is harmonious with the terms of the Justices Act 1902 to which I will shortly turn. In other words, it is essential to examine the provisions to determine whether there is a legislative indication that the term “conviction” in s.75F is to be given a narrow and not a broad meaning.

49 In Della Patrona v. Director of Public Prosecutions (Cth) (No. 2) (1993) 38 NSWLR 257 at 264, Kirby, P. referred to “the narrow sense” of the word “conviction”. It was held that the word may have a meaning synonymous with a finding of guilt not followed by some appropriate order.

50 In Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] 51 NSWLR 305, Howie, J. made reference to a conviction that represents “a bare finding of guilt”, such as would authorise the issuing of a warrant to bring an offender before the court for sentencing under s.25(2) of the Crimes (Sentencing Procedure) Act 1999.

51 The question in this matter is whether the term “conviction” in s.75E of the Justices Act in the form the section took at the relevant time is to be given a narrow rather than a broad meaning so as to amount only to an order or finding that the offence charged was proved.

52 There is, in my opinion, to be found within the scheme constituted by ss.75A-75F indications that the term “conviction” in s.75F is to be given a narrow rather than a broader meaning. In this respect:-

(a) Section 75E provides for at least two possible outcomes in the event that a court of summary jurisdiction makes a determination in ex parte proceedings. One is that a determination is made and a conviction thereon recorded by a magistrate who also forthwith proceeds to impose a penalty on the particular defendant. A second possible outcome (envisaged by s.75E(2), s.75E(3) and s.75E(4)) is that guilt only is determined and the proceedings then are adjourned for separate and later determination as to penalty or sentence. This second outcome in ex parte proceedings would, in terms employed by Howie, J. in the guideline judgment (referred to in [50]), suggest that the conviction is properly characterised as a “bare finding” of guilt.

(b) The provisions of s.75F constitute a central part of the statutory scheme. The section contemplated that the former provisions of s.556A were to be available in relation to proceedings under s.75E. In other words, the provisions of s.556A were intended to have application “before any conviction” is entered. Former s.556A contained provisions similar to those in s.10 of the Crimes (Sentencing Procedure) Act 1999. Section 10 is in the following terms :-

“Without proceeding to conviction, a court that finds a person guilty of an offence may make one of the following orders:-
(a) an order directing that the relevant charge be dismissed;
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding two years;
(c) [not here reproduced].”


(c) The fact that s.75F plainly intended that the former provisions of s.556A were to operate in relation to ex parte proceedings, is consistent with the construction that before sentence is imposed, a conviction entered cannot be one in the broad sense of that term but as an order or finding that the elements of the offence have been proved.

(d) The construction referred to in (b) tends to find some additional support in the terms of s.75E(3) which is directed to ensuring that in ex parte proceedings a person who may be subjected to one or other of the significant orders or decisions referred to in s.75E(3), be present before any final disposition of the proceedings.

53 In Kopuz v. District Court of New South Wales (1992) 28 NSWLR 232, Priestley, JA., at 243, stated that whether conviction and sentence should be regarded as a single act or separate acts depends upon the construction of the statute being considered, citing Re Stubbs (1947) 47 SR(NSW) 329 at 335, 339. For the reasons discussed in [52] above, there is, in my opinion, sufficient indication in the relevant statutory context, namely, the provisions contained within s.75A to s.75F, to provide an indication that the conviction recorded in this case is to be construed in terms of s.75F as a conviction by way of a determination as to the defendant’s guilt rather than a conviction which finally disposed of the proceedings. The legislative intention is clear that a defendant in ex parte proceedings, as in a case in which a defendant appears, was to be given the opportunity which the statute provided to persuade a court upon the making of a finding that the person is guilty of an offence, to apply to have the benefit of the former provisions of s.556A, namely, to avoid a conviction in the broader or final sense of that word from being entered and for alternative orders to be made in accordance with that provision.

54 Finally, this construction appears to be in conformity with what Mr. Clugston, the Magistrate, on 31 March 2000 envisaged when the warrant of apprehension for sentence dated 5 April 2000 was issued. The warrant records “this defendant having been convicted of this offence did fail to appear for sentence” and then proceeds to state “I command you to apprehend and bring the defendant before Mr. Clugston or another Magistrate for sentencing”. This is reflected in the learned Magistrate’s record of conviction “[1]D convicted [2] s.80AA warrant to issue”.

55 The magistrate on 31 March 2000 plainly elected not to proceed with the final disposition of the proceeding by way of determining penalty but that that should only take place following the apprehension of the defendant. Only then, when the defendant appeared before Mr. Clugston or another magistrate, would there be a final disposition by a determination of sentence. In other words, the magistrate’s evident intention was entirely in conformity with the procedures envisaged under s.75F.

56 I have accordingly concluded that:-

(a) The conviction made and recorded by the Bankstown Local Court on 31 March 2000 constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, the determination did not constitute a conviction in the sense of a final disposition of the proceedings.

(b) There was, accordingly, no conviction within the meaning of that term in s.19B of the Crimes Act 1914 (Cth) .

(d) It was therefore open to the learned Magistrate, Mr. Flack, on 9 October 2003 at the Liverpool Local Court to exercise the power to discharge the defendant, which power I find was available to him pursuant to s.19B(1)(d) of the Crimes Act 1914 (Cth) .

(d) The decision by the learned Magistrate, Mr. Flack, on 12 February 2004 that the recording of a conviction on 31 March 2000 constituted a recording or finding of an offence proved for the purposes of the issuing of a warrant pursuant to s.80AA of the Justices Act was correct in law.

57 The plaintiff has not established any error of law and is accordingly not entitled to the orders sought. The summons, accordingly, should be dismissed. The plaintiff is ordered to pay the defendant’s costs of the proceedings.

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12/09/2006 - . - Paragraph(s) 29(c), 30 (fourth dot point), 46, 52(b)