Lee v Director of Public Prosecutions (NSW)

[2004] NSWCA 172

CITATION:	Lee v DPP (NSW) & Anor [2004] NSWCA 172
HEARING DATE(S):	3 May 2004
JUDGMENT DATE:	9 June 2004
JUDGMENT OF:	Mason P at 1; Giles JA at 2; Campbell AJA at 3
DECISION:	(1) Leave to appeal granted. (2) Appeal allowed as to the terms of the remittal order but otherwise dismissed. (3) The remittal order be set aside and in lieu thereof the following order made: that the proceedings be remitted to the magistrate who made the order appealed from to be heard and determined. (4) No order as to costs.
CATCHWORDS:	Appeal - Justices Act 1902 - remittal order set aside - remitted to magistrate appealed from - appeal otherwise dismissed - meaning of s 109(d) Justices Act 1902 (now repealed) - judge's determination on appeal of the magistrate's decision is not disturbed, except for the remittal order - remitted to magistrate who heard the matter as per s 109(d) Justices Act (1902).
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act, 2001 Justices Act, 1902 Supreme Court Act, 1970
CASES CITED:	Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Downes v DPP (2000) NSWSC 1054
PARTIES :	Adam James Lee (Appellant) Director of Public Prosecutions (NSW) (1st Respondent) Patricia June O'Shane (2nd Respondent)
FILE NUMBER(S):	CA 40982/03
COUNSEL:	R. Bonnici (Appellant) P. Lakatos (1st Respondent) A.R. Eckhold (Sol) (2nd Respondent)
SOLICITORS:	Allars Mottee Hannaford (Appellant) S.C. Kavanagh (1st Respondent) I.V. Knight (2nd Respondent)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	13184/02
LOWER COURT JUDICIAL OFFICER :	James J

CA: 40982 of 2003
CL: 13184 of 2002
MASON P
GILES JA
M W CAMPBELL AJA


Wednesday 9 June 2004

ADAM JAMES LEE v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR

Judgment

1 MASON P: I agree with Campbell AJA.

2 GILES JA: I agree with Campbell AJA.

3 M W Campbell AJA: This is an application for leave to appeal and an appeal heard concurrently from an order made by James J on 13 October 2003 which quashed orders of the Magistrate of 11 September 2002 dismissing informations laid against the claimant alleging:

(a) that (he) on the 14 November 2001 at Five Dock did dishonestly obtain for himself as managing director of Caring Funerals a valuable thing to wit, a New South Wales Teacher’s Credit Union cheque to the amount of $3309.50 by deception namely accepting payment from William Jones regarding funeral and cremation services for the late Daisy Jones which were not properly rendered.

and
(b) that (he) on the 19 November 2001 did attempt to dishonestly obtain for himself as managing director of Caring Funerals money to wit, $6585.00 by deception, namely, billing Rose Davidson for funeral and burial expenses for the late Errol Davidson which were not properly rendered.

4 The Magistrate submitted to what ever order this Court might make.

5 As I shall propose that leave be granted it is convenient to refer throughout to the appellant. When the matter came on for hearing counsel for the appellant, after indicating pleas of not guilty, then said:

I averred (sic) to the actual charges your Worship on the basis that it does not disclose an offence at criminal law.

6 Since he did not contend that the informations were defective, this presumably was meant to assert that the appellant would have no case to answer.

7 Thereupon the Magistrate permitted, indeed at one point encouraged, counsel to embark upon a narration, exposition and submission During this address counsel said:

“there is no offence in Law on the basis of the situation and the facts as they are here.”

8 It is convenient to adopt the summary of the initially said to be uncontested facts as set out by Justice James as follows:

(1) In his address before the magistrate in the Local Court counsel for Mr Lee stated a number of facts, which he asserted, and also made number of submissions.
(2) The facts as stated by counsel for Mr Lee in his address before the Magistrate included the following:-
(3) Mr Lee was the “funeral director” of a business known as Caring Funerals.
(4) On 31 October 2001 a woman named Daisy Jane Jones died. A contract was made between the business and a relative or relatives of Ms Jones that the business would perform funeral services by cremating Ms Jones’ body.
(5) On 1 November 2001 a man named Errol Davidson died. A contract was made between the business and a relative or relatives of Mr Davidson that the business would perform funeral services by burying Mr Davidson’s body.
(6) By mistake Ms Jones’ body was put in the wrong coffin and on 5 November 2001, when the cremation of Ms Jones’ body was to have taken place, it was Mr Davidson’s body, and not Ms Jones’ body, which was in fact cremated.
(7) In his address counsel for Mr Lee then told the Magistrate that, according to a statement by a Mr Ebbott, an employee of the business Caring Funerals (this employee’s name is variously spelt in the transcript), Mr Ebbott was told on 6 November by Mr Lee about the mistake which had been made in cremating Mr Davidson’s body. Counsel for Mr Lee indicated to the magistrate that his client disputed this part of Mr Ebbott’s statement.
(8) On 7 November 2001, Mr Davidson’s body having been cremated on 5 November, Ms Jones’ body was put in the coffin which had been intended to hold Mr Davidson’s body. Pavers or bricks were put in the coffin to make it heavier, Ms Jones’ body being lighter than Mr Davidson’s would have been. On 7 November the coffin containing Ms Jones’ body was buried as being a coffin containing Mr Davidson’s body.
(9) Counsel for Mr Lee then told the Magistrate that, according to Mr Ebbott’s statement, on 8 November Mr Ebbott told Mr Lee that the relatives of both deceased would have to be told about the mix-up which had occurred but Mr Lee did not agree that the relatives should be told what had occurred. Mr Ebbott subsequently spoke to a chamber magistrate and then to the Department of Health.
(10) On 12 November 2001 a representative of the Department of Health, a Mr Cannata, spoke to Mr Lee about the matter.
(11) On 14 November the business sent an account of $3,309.50, which included a cremation fee, to a relative of Ms Jones and on the same day the account was paid.
(12) On 19 November 2001 the business sent an account for $6,585.00 to a relative of Mr Davidson for the burial of Mr Davidson. This account was never paid.
(13) On 23 November 2001 the coffin which contained Ms Jones’ body was opened and Ms Jones’ body was exhumed and identified. The business refunded the amount which had been paid by Ms Jones’ relative.

9 It appears from the transcript before the Magistrate and from his submissions before us that counsel was firmly of the view that the deception relied upon by the prosecution was the “cover up” of the initial mistake, which had taken place, at the latest, by 6 November 2001.

10 After counsel had completed his address the prosecutor accepted the Magistrate’s invitation to respond. He endeavoured to return the matter to a consideration of the offences actually alleged in the informations. His attempt was summarised by Justice James as follows:

It was submitted by the prosecutor that there had been two contracts for the performance of a service entered into by Mr Lee as the funeral director of Caring Funerals. The prosecutor continued:-
“The service to be rendered in relation to Mr Davidson was a funeral and the service to be rendered in relation to Ms Jones was a cremation.
. . .
Certainly from 6 (November) we will allege that Mr Lee was aware of what had occurred (that is that Mr Davidson’s body had been wrongly cremated).
. . .
Certainly on face value the relatives of both deceased persons had arranged for a service to be taken in relation to their deceased families in a particular way and quite clearly that service was not provided.
. . .
The families of both persons are then billed as per the arrangements which had been originally made. Now in my respectful submission quite clearly those arrangements had not been carried out, the service had not been rendered in the way in which all of the parties had agreed.
. . .
So at that point in time (the times at which the accounts were rendered) those documents seek an amount of money which is outlined in the indictments for a service in relation to the funeral of each of their respective relatives which was not in my respectful submission properly rendered. So by Mr Lee’s conduct we allege that the deception was allowing that bill to make its way to those persons knowing that the services which had been agreed upon had not been rendered”.

11 Following a reply by counsel the Magistrate gave judgment later in the day. After introductory remarks she said:

“No evidence has yet been heard in this matter, the defence having raised at the outset the issue whether the facts disclose an offence known to law and, particularly an offence as prescribed by s 178B(a) of the Crimes Act and the Court is now considering the submissions on the point.
How does the law as I have just recited it relate to the facts of this case? The accused is the managing director of Caring Funerals which business contracted with each of the families of the two deceased persons, one Miss Daisy Jones and the other Mr Errol Davidson, to dispose of the bodies by cremation and burial respectively. Through some extreme misfortune, error or negligence the bodies were mixed up so that the last mentioned, Mr Davidson, was cremated as Miss Jones and likewise Miss Jones was buried as Mr Davidson in that sequence.
The facts disclose that subsequent to the cremation on 5 November 2001 and prior to the burial on 7 November 2001 the present accused was aware of the circumstances with respect to the bodies. The accused does not hide from that fact. It is noted that the accused attended to the overall management of the business, that a male employee attended to the mortuary duties including appropriate boxing of the bodies and that other staff were employed to deal with clerical duties, that is all to say that the accused was not involved in the day to day actual disposal procedures but in fact he did become so involved in relation to the burial service which was to have been conducted in respect of Mr Davidson but which in fact was a burial of Ms Jones.
It is inferred that the respective families attended the funeral services for which they had contracted and that the respective bodies were disposed of appropriately, albeit not in accordance with the contracts entered into with the accused’s company.
Subsequently on 14 November 2001 and on 19 November 2001 accounts were rendered to each of the families. One such was paid, the other was not. The prosecution alleges that in rendering the accounts accordingly and having received a cheque in the one instance the accused has not only practised a deception upon it to the families but thereby induced the one to pay for services not properly rendered as alleged and attempted to induce the other to pay, again for services not properly rendered as alleged.
The crucial question is whether by the deception as to whose body was disposed of in which ceremony the respective families were induced into paying. There is no doubt that they each contracted to pay for the disposal of the body of their respective family member and it is not suggested that they each would not have expected to be billed for those services as in fact they were and would have expected to pay as in fact one family did.
Notwithstanding the accused’s knowledge of the facts of the disposal of the respective deceased he did not by that deception induce or attempt to induce an act on the part of the families by which he then obtained a benefit. The deception was with respect to who was dealt with in each service not as to the actual service.
At the worst on the facts as stated the accused was negligent in the discharge of his performance under the contract and that of course gives rise to civil proceedings but does not expose him to criminal prosecution.
Accordingly then the Court accepts the defence submissions that the facts do not disclose an offence under law as charged or as alleged on the basis of the provisions of s 178BA(1) of the Crimes Act And accordingly the accused is discharged against the informations.

12 The Magistrate appears to have found that under each contract the particular method of disposal of the bodies desired by the family members, whether by burial or cremation, was immaterial or at least unimportant. This finding was made without any evidence to support it or indeed upon which the content of the contracts could be considered.

13 Despite counsel’s assertion to the Magistrate there was a range of relevant matters which were not the subject of agreement between the prosecution and the defence.

14 Examples are the content of the contracts referred to above and the date upon which the appellant found out about the initial mistake. The Magistrate’s ostensible finding that it occurred “subsequent to the cremation on 5 November 2001 and prior to the burial on 7 November 2001” was not founded upon either evidence or agreement.

15 I agree with Justice James “that the Magistrate erred in law in purporting in her judgment to determine questions which were questions of fact and which were contentious without having heard any evidence”.

16 Counsel for the appellant made a number of other submissions both before Justice James and this Court. Having considered them I think it sufficient to say that I agree with Justice James’ conclusions and the reasons therefor given in his judgment.

17 Justice James gave judgment on 8 July 2003. At the request of the parties he deferred the making of formal orders. Those orders were not made until 13 October 2003.

18 One of those orders was:

That the proceeding be remitted to the Burwood Local Court to be heard and determined according to law. The proceedings should be heard afresh by another magistrate.

19 It appears that there was debate before His Honour as to the order, sought by the solicitor for the first respondent, that the matter be heard by another Magistrate. Counsel for the appellant informed us that, whilst he opposed the order on discretionary grounds, he did not raise questions of power.

20 At the time of making of the order the Crimes (Local Courts Appeal and Review) Act 2001 provided such a power (s59(2)(a)). However, it was accepted that this matter falls to be determined in accordance with the provisions of the Justices Act 1902, (now repealed). The question arises as to whether James J had power to make the order pursuant to the provisions of that Act.

21 Appeals to the Supreme Court were dealt with under Part 5. Section 104(2) provided for appeals by informants which were limited to grounds which involve a question of law alone.

22 Section 109 provided:

Power of Supreme Court in determining appeals
The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:
(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it.
(b) increasing or reducing the sentence appealed against,
(c) such other orders as it thinks just,
(d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal.

23 It was not argued by Mr Lakatos, counsel for the first respondent, that the order made could be supported by any provision other than subsection (c) of s 109.

24 In Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, Gavan Duffy CJ and Dixon J said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which shall be exercised and the conditions and restrictions which it must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

25 Subsection (d) gave a power to remit but prescribed a restriction as to the magistrate to whom the matter may be remitted. Subsection (c) is a general expression which might otherwise have been relied upon for the same power, that is, to remit.

26 The limitation of appeals to those on questions of law makes more likely a legislative intention that the matter should return to the same Magistrate.

27 Section 114 provided:

Circumstances where Magistrate unable to hear matter
If the Supreme Court remits a matter to a Magistrate under this Part and the Magistrate who made the original conviction or order, or imposed the original sentence, has ceased to hold office as a Magistrate or is for any other reason unable to continue to hear and determine the remitted matter, the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.

28 The wording of this section clearly contemplates that a remittal is to the Magistrate who made the original conviction or order.

29 In Downes v DPP (2000) NSWSC 1054 Studdert J, after upholding a Pt 5 appeal, was asked to order that another Magistrate consider the case. He noted the provisions of s 109 (d) and s 114 and said:

Absent any such unavailability, or inability, it is otherwise contemplated in the Act that a matter remitted would go back to the same Magistrate who made the original convictions and orders.

30 It could be argued that absence of a power to remit to another Magistrate might raise problems in cases based upon actual or perceived bias, thus suggesting a wide interpretation of the power conferred by subsection (c). However, this difficulty could be avoided in an appropriate case by proceedings under s 69 of the Supreme Court Act 1970. Further, in an appropriate case, an application could be made to the Magistrate to whom the matter was remitted to disqualify himself or herself.

31 In any event it is my view that subsection 109 (d) mandates the return of this matter to the Magistrate who made the order appealed from. On that basis James J did not have the power to make the order that he did on this aspect of the matter. I consider that the appeal should be upheld on the issue and the order proposed below made in lieu.

32 The proposed outcome of this appeal is that the appellant fails upon the principal issue but succeeds upon the issue relating to the terms of the order made as to remittal. In these circumstances I consider it appropriate that no order be made as to the costs of the application for leave to appeal and the appeal.

33 I propose the following orders:

(a) Leave to appeal granted.
(b) Appeal allowed as to the terms of the remittal order but otherwise dismissed.
(c) The remittal order be set aside and in lieu thereof the following order made: That the proceedings be remitted to the Magistrate who made the order appealed from to be heard and determined.

(d) No order as to costs.

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Last Modified: 06/10/2004