McGee v R

[2024] NSWDC 125

District Court

New South Wales

Medium Neutral Citation:

McGee v R [2024] NSWDC 125

Hearing dates:

21, 27 March 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Criminal

Before:

J Smith SC DCJ

Decision:

The application for leave to appeal is dismissed

Catchwords:

CRIME – section 11A of the Crimes (Appeal and Review) Act 2001 (NSW) – application for annulment – where leave to apply for second annulment refused in the Local Court – whether the District Court has jurisdiction to entertain an appeal

STATUTORY INTERPRETATION – considering the context and legislative purpose of provisions

Legislation Cited:

Courts Legislation Amendment Act2004 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Criminal Procedure Amendment (Justices and Local Court) Act 2001 (NSW)

Justices Act 1902 (NSW)

Cases Cited:

ASIC v King (2020) 270 CLR 1

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 380

Coco v R (1994) 179 CLR 427

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398

Lee v New South Wales Crimes Commission (2013) 251 CLR 196

McKenzie v R [2010] NSWDC 78

Miller v DPP [2004] NSWCA 90

Nguyen v Nguyen (1990) 169 CLR 245

Texts Cited:

Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)

Category:

Principal judgment

Parties:

Colin John McGee (Appellant)
Rex (Respondent)

Representation:

Solicitors:
J Sinclair (Appellant)
S Matchett (Respondent)

File Number(s):

2023/127562

Publication restriction:

NA

Judgment – EX TEMPORE

1. The applicant, Mr McGee was charged with three offences: contravene Apprehended Domestic Violence Order, intimidation and armed with intent to commit an indictable offence.

2. On 21 April 2023, he was granted bail with respect to those offences and the matter was adjourned to 26 April 2023 in order to fix a hearing date. On 26 April 2023, a solicitor from the Legal Aid Commission, appearing for Mr McGee, indicated that they were not instructed on the brief. The registry was directed to notify Mr McGee that he must contact the Legal Aid Commission or to attend in person. A further adjournment was granted to allow this to take place.

3. When the matter was next listed for hearing; that is, on 9 May 2023, Mr McGee did not attend court and had not instructed the Legal Aid Commission. The solicitor appearing for Mr McGee was granted leave to withdraw and Mr McGee was convicted pursuant to section 196 of the Criminal Procedure Act 1986 (NSW). An arrest warrant was issued to bring Mr McGee before the court for sentence pursuant to section 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. On 17 May 2023, the warrant was executed and Mr McGee was granted bail. On 6 June 2023, an application brought by Mr McGee was granted and the conviction that had been entered on 9 May 2023 was annulled. Pleas of not guilty were then entered to all charges and the matter was listed for hearing on 25 August 2023.

5. On 25 August 2023, Mr McGee failed to appear and a further section 196 conviction was recorded. This time, the Aboriginal Legal Service who had appeared, were granted leave to withdraw. An arrest warrant was issued to bring Mr McGee before the court for sentence.

6. On 13 September 2023, Mr McGee was brought before the court and bail was granted.

7. On 27 September 2023, a further annulment application was listed for hearing. On that day, Mr McGee did not attend court and a further warrant was issued. On 15 October 2023, that warrant was executed and Mr McGee did not apply for bail. On the following day, 16 October 2023, Mr McGee did apply for bail but bail was refused. The matter was adjourned to 6 November 2023 for a further annulment application. The master coversheet for that day signed by her Honour Local Court Magistrate Humphreys noted that leave was required. On 16 November 2023, her Honour Local Court Magistrate McLaughlin refused to grant leave and the application was dismissed.

8. On 22 January 2024, Mr McGee lodged an application for leave to appeal from her Honour’s orders. That application was eventually listed to be heard by me in Albury on 21 March 2024. Prior to the hearing, I arranged for my associate to bring to the attention of the parties the decision of Bennett SC DCJ in McKenzie v R [2010] NSWDC 78 in which his Honour found that this court did not have jurisdiction to hear an appeal from a decision refusing to annul a conviction unless leave had been given in the Local Court to apply for the annulment. The parties were given time to consider and to make further submissions about the court's jurisdiction and the matter was adjourned until today.

Parties’ Contentions

9. Both parties contend that this court does have jurisdiction under section 11A of the Crimes (Appeal and Review) Act 2001 (NSW) to hear an appeal from a decision refusing to grant leave to make a further application for annulment. The principal authorities relied upon by the Crown were Coco v R (1994) 179 CLR 427 and Lee v New South Wales Crimes Commission (2013) 251 CLR 196. In those decisions, the High Court held that any intention by Parliament to interfere with fundamental rights must be clearly manifested by unmistakable and unambiguous language. In respect of the Crimes (Appeal and Review) Act, the Crown relied upon the decision of Miller v DPP [2004] NSWCA 90 in which the Court of Appeal held that section 100K of the Justices Act 1902 (NSW), the predecessor provision to section 8 of the Crimes (Appeal and Review) Act, was to be read broadly as its purpose was to liberalise the circumstances in which convictions by Magistrates where the accused had not appeared could be annulled. The Crown submits that on this approach, the court's power under section 11A, as part of the legislative scheme to avoid obvious injustice, should be widely construed so that it applies to decisions to refuse to grant leave to apply to annul a conviction under section 4 of the Crimes (Appeal and Review) Act.

10. The applicant generally adopts the Crown submissions. He further submits however that an appeal is available under section 12 of the Crimes (Appeal and Review) Act from the conviction entered in the absence of the accused, but with leave. He argues in addition that the words "against the refusal" in section 11A is broad enough to encompass the refusal of leave and includes all things incidental to the refusal of leave. He draws support from section 28 of the Crimes (Appeal and Review) Act which empowers this court to exercise any function that the Local Court could have exercised in the original jurisdiction proceedings.

11. Finally, Mr McGee argues that any narrow construction of section 11A of the Crimes (Appeal and Review) Act would leave the unreasonable result that the Local Court could extinguish a right of review of its own motion.

Consideration

12. Much of what the parties say can be accepted. The central question is the extent of this court’s jurisdiction under section 11A of the Crimes (Appeal and Review) Act. It is the very first duty of any court to satisfy itself that it has jurisdiction: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415. Appeals are creatures of statute: Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 [2]. Thus, it is a matter of statutory construction to determine both the jurisdiction to entertain an appeal in the first place and the nature of the appeal that is to be determined.

13. As with any question of statutory construction, this task is to be approached by determining the meaning of words used, having regard to their context and purpose and to the mischief at which the provision was directed: ASIC v King (2020) 270 CLR 1 [23] – [71]. Context is to be understood in a broad sense and considered in the first instance: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 380 at 408.

14. Section 11A of the Crimes (Appeal and Review) Act provides:

(1) any defendant whose application under section 4 for annulment of a conviction has been refused by the Local Court may appeal to the District Court against the refusal.

(2) an appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application.

(3) not more than one appeal may be made under the section in respect of any particular conviction.

15. That section was inserted into the Crimes (Appeal and Review) Act by the Courts Legislation Amendment Act2004 (NSW), Schedule 3 [1]. The amending Act also amended section 13 of the Crimes (Appeal and Review) Act so that it applied to appeals under section 11A. Of note, it inserted in Schedule 3 [2] the words "or the relevant application under section 4 is refused". Thus, the 3-month cut-off date for applications for leave to appeal out of time, like the appeal itself under section 11A(1), is directed to the refusal of an "application under section 4".

16. The subject of the appeal, on the ordinary meaning of the words of section 11A, is an "application under section 4 for annulment of a conviction that has been refused by the Local Court". Before turning to examine section 4 which provides the context for the appeal under section 11A, it is important to note the mischief which was sought to be addressed by the introduction of section 11A. In the second reading speech on the introduction of the Courts Legislation Amendment Bill 2004, the Parliamentary Secretary explained as follows:

Currently, when a person charged with a criminal offence in the Local Court does not appear, the matter can be dealt with in his or her absence. When this occurs, a right to seek a rehearing of the matter exists under section 4 of the Crimes (Local Courts Appeal and Review) Act 2001. However, if this application for rehearing is refused, the only recourse for the defendant is to appeal to the District Court. This current process uses the District Court’s valuable time and resources and deprives the defendant of any right to appeal from the finding. If this subsequent application to the District Court is granted, there must be a complete hearing of all evidence in the District Court. To overcome this, the proposed amendment clarifies in section 11A that a right of appeal from the decision of the Magistrate to refuse a rehearing be allowed to the District Court, and that the District Court be granted the ability to order for a full hearing in the Local Court. The amendment allows only one appeal to the District Court from the Local Court.

17. Section 4 of the Crimes (Appeal and Review) Act provides:

(1) an application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held.

(1A) an application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if:

a. in the case of an application for annulment of a conviction – the defendant was not in appearance before the Local Court when the conviction was made; or

b. in the case of an application for annulment of a sentence – the defendant was not in appearance before Local Court when the sentence was imposed.

(1B) a defendant may not make an application for annulment of a conviction or sentence under this section if the defendant had lodged a notice in writing under section 182 of the Criminal Procedure Act 1986 in respect of the offence for which the defendant was convicted or the sentence was imposed.

(2) an application under this section must be made:

a. within two years after the relevant conviction or sentence is made or imposed; or

b. if an application has been made to the Attorney General under section 5 within that two-year period, within two years after the application under section 5 has been disposed of under this part.

(3) except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter.

(4) an application must be in writing, and must be lodged with the registrar of the Local Court.

18. It is correct to say, as the parties submit, that this is an ameliorative provision whose purpose is to reduce the scope for unfairness that may be brought about by conviction entered in the absence of the accused. Provision for such a conviction is made under section 196 of the Criminal Procedure Act which was itself introduced as part of the same set of reforms that introduced the Crimes (Appeal and Review) Act itself, namely the Criminal Procedure Amendment (Justices and Local Court) Act 2001 (NSW) which commenced on 7 July 2003: see Schedule 182, Item 93. Prior to the introduction, a similar power was available under the Justices Act. The history of that provision is explained by Justice Young in Miller v DPP and need not be repeated here.

19. However, the ameliorative nature of section 4 of the Crimes (Appeal and Review) Act is clearly qualified by section 4(3), that requires the leave of the court for more than one application to be made for annulment in respect of a matter under section 4. It is notable that there is a more absolute limit imposed on appeals and section 11A: see section 11A(3).

20. It is important, then, to examine the nature of that qualification, namely the requirement of leave. The nature of leave, particularly in relation to appeals, is examined in Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at pages 294 to 297. At page 294, the author notes that as an appeal is a creature of statute, statutes may impose preconditions upon the rights it creates. The same reasoning applies to the right to apply for annulment. Similarly then, it may be said of section 4, that there can be no application unless leave is granted or, in more legalistic terms, that the grant of leave is a jurisdictional fact, the absence of which denies the existence of any "application under section 4 for annulment": see generally in respect of jurisdictional facts, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 [28].

21. The mischief which this limitation seeks to address is plain. Namely, it is repeated applications for annulment by accused persons who fail to appear in court at the time and place they have been notified of for the hearing of the matter. The significant workload of the Local Court was something adverted to in the Attorney General’s second reading speech of the Bill that became the Crimes (Appeal and Review) Act2001. The similar limitation in section 11A(3) is addressed to the same mischief but in respect of the District Court and in protection of its workload.

22. Once the limitations in both section 4(3) and section 11A(3) of the Crimes (Appeal and Review) Act and their purpose is understood, the only harmonious construction of section 11A(1) is arrived at by the ordinary meaning of the words; that is, that an appeal may be bought from a decision to refuse an application that has been made in accordance with section 4; that is, in the circumstances where there has already been an annulment application in a matter once that is made by leave of the Local Court.

23. That construction sits comfortably with the principle of legality explained in Coco v R. The abrogation of the right to hearing is affected in plain terms by section 196 of the Criminal Procedure Act and not by any mere implication. The legislation has turned his mind to the extent of that abrogation and ameliorated it by giving the accused the right to apply for annulment under section 4 of the Crimes (Appeal and Review) Act. However, the right that it has given is limited so that on a second application leave is required. It is true, that once an application is made, the scope of the enquiry provided by section 8 of the Crimes (Appeal and Review) Act is broad; however, that fact does nothing to undermine the fact that there is a condition of leave imposed upon the application in the first instance. Similarly, the further grant of the right to appeal, construed harmoniously with the whole act and in particular with section 4, is limited both in terms of the subject matter and the time in which an appeal may be brought with leave. By those limitations, a balance is struck between the interests of the individual and the interests of the community at large in the efficient use of the resources of the courts.

24. Recourse to section 28 of the Crimes (Appeal and Review) Act is unhelpful because that provision only applies when the District Court is "determining the appeal". Further, the result of the construction I have arrived at is not unreasonable by allowing the Local Court to have the final say as to its jurisdiction. First, there remains an appeal by leave from the conviction under section 12 of the Crimes (Appeal and Review) Act; secondly, the Local Court is subject to the supervisory jurisdiction of the Supreme Court; and thirdly, in any event, interlocutory decisions of the Local Court were previously immune from appellate review in this court: see section 121 of the Justices Act.

25. Although I have come to the same conclusion as Bennett SC DCJ in McKenzie v R, I have not done so in order to determine whether his Honour was clearly wrong. This court is not bound by its own decisions, and its approach in determining the circumstances in which it will depart from earlier decisions is a matter of practice for the court: Nguyen v Nguyen (1990) 169 CLR 245. Although I have found a small number of decisions of this court that do apply the approach taken in other courts, namely, only to depart from earlier decisions if they are clearly wrong, I am not satisfied that there is such a practice in this court to that effect.

26. If I am wrong about the question of jurisdiction, then I will have failed to exercise my jurisdiction. I am conscious of the seriousness of that possibility and of the consequences of my decision for Mr McGee whose path to challenging his conviction is made more difficult by this decision. Nevertheless, for the reasons I have given, I am satisfied that I do not have jurisdiction, and for that reason I must not entertain the application for leave to appeal.

27. Having already sought annulment of his conviction, the applicant required leave to do so again. Her Honour Local Court Magistrate McLaughlin refused to grant leave under section 4(3) and for that reason there was no application under section 4 for annulment and there is no foundation for an appeal to be brought under section 11A.

28. As the Court has no jurisdiction to hear an appeal in these circumstances, it would be futile to grant leave to appeal. The application for leave to appeal must be dismissed.

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Decision last updated: 19 April 2024