Morgan v District Court of New South Wales

[2017] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Morgan v District Court of New South Wales [2017] NSWCA 105

Hearing dates:

10 May 2017

Decision date:

23 May 2017

Before:

Beazley ACJ at [1];
Macfarlan JA at [8];
Meagher JA at [9]

Decision:

1. Pursuant to UCPR, r 59.10(2), extend the time for the applicant to file the summons in this proceeding to 8 June 2016.
2. Set aside the orders made by the District Court on 30 May 2014.
3. Order the District Court to determine the appeal in proceeding 2013/00262932 by setting aside the applicant’s conviction ordered by the Local Court at Tweed Heads on 7 January 2014.
4. Direct the Registrar to cause a memorandum that the conviction has been set aside to be endorsed on the conviction in accordance with Crimes (Appeal and Review) Act 2001 (NSW), s 73.
5. Order the State of New South Wales to pay any reasonably incurred disbursements and witness expenses of the applicant in the proceeding in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – relationship between criminal jurisdiction at first instance and jurisdiction on appeal by way of rehearing – review of decision of District Court in its criminal jurisdiction on appeal from Local Court – where Local Court committed jurisdictional error by summarily hearing indictable offence and convicting applicant – whether District Court committed jurisdictional error by dismissing appeal – whether misconstruction of statutory elements of offence by inferior court constitutes jurisdictional error

   

CRIMINAL LAW – particular offences – offences relating to postal services, telecommunications and computers – meaning of “offensive” in Criminal Code (Cth), s 474.17(1) – whether Criminal Code (Cth), s 474.17(1) limited to communications received by persons in s 474.17(2)

  ADMINISTRATIVE LAW – judicial review – relief – where only one order that inferior court could make consistent with Supreme Court’s reasoning – whether Supreme Court should make that order in exercise of supervisory jurisdiction

Legislation Cited:

Constitution, s 73
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 19, 20
Crimes Act 1914 (Cth), ss 4G, 4J
Criminal Appeal Act 1907 (UK), s 3
Criminal Code (Cth), s 474.17
Criminal Procedure Act 1986 (NSW), s 7
District Court Act 1973 (NSW), s 176
Judiciary Act 1903 (Cth), ss 23, 68
Justices Act 1902 (NSW), s 122
Local Court Act 2007 (NSW), s 9
Supreme Court Act 1970 (NSW), s 69
Telecommunications Act 1997 (Cth), s 7
Uniform Civil Procedure Rules 2005 (NSW), rr 59.3, 59.10

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208; (2012) 232 IR 86
Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305
Brown v Commonwealth Director of Public Prosecutions [2016] NSWCA 333
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Calvin v Carr [1980] AC 574 at 590
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Council of the Shire of Werribee v Kerr (1928) 42 CLR 1
Court v Feng [2013] WASC 320; (2013) 279 FLR 143
Craig v South Australia (1995) 184 CLR 163
Craig v The King (1933) 49 CLR 429
Crane v Director of Public Prosecutions [1921] 2 AC 299
Crowther v Sala [2008] 1 Qd R 127; [2008] QCA 133
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Director of Public Prosecutions (NSW) v Burns (2010) 207 A Crim R 362; [2010] NSWCA 265
Dyason v Butterworth [2015] NSWCA 52
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; [2009] HCA 18
Kirk v Industrial Commission (2010) 239 CLR 531; [2010] HCA 1
Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26
Lazarus v Independent Commission Against Corruption [2017] NSWCA 37
Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
Monis v The Queen [2011] NSWCCA 231; (2011) 215 A Crim R 64
Pantorno v The Queen (1989) 166 CLR 466
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Russell v Bates (1927) 40 CLR 209
Spanos v Lazaris [2008] NSWCA 74
Thiess Pty Ltd and Hochtief AG v Industrial Court of NSW (2010) 78 NSWLR 94; [2010] NSWCA 252
Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Wende v Howarth (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416
Wishart v Fraser (1941) 64 CLR 470

Texts Cited:

Strabo, Geographica

Category:

Principal judgment

Parties:

Morgan (Applicant)
District Court of New South Wales (First Respondent)
State of New South Wales (Second Respondent)

Representation:

Counsel:
In person (Applicant)
P Herzfeld (Second Respondent)

  Solicitors:
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2016/175488

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 May 2014

Before:

Blanch CJ of DC

File Number(s):

2013/262932

Headnote

[This headnote should not be read as part of the judgment]

The applicant was charged with using a carriage service in a manner that reasonable persons would regard as being offensive, contrary to Criminal Code (Cth), s 474.17. The charge came before the Local Court to be dealt with summarily notwithstanding that the applicant did not consent to summary disposition. In convicting the applicant, the Local Court Magistrate described part of an email sent by the applicant to the licensees and principals of two hotels as “calculated to wound the feelings” of its recipients. The applicant unsuccessfully appealed her conviction in the District Court. Due to technological failure, there was no transcript or other documentary evidence of reasons in that Court.

The applicant sought judicial review of the District Court orders. The State accepted that those orders should be set aside for jurisdictional error.

Held (Meagher JA, Beazley ACJ and Macfarlan JA agreeing), allowing the application:

(i) As the Local Court lacked jurisdiction to hear and determine the charge summarily without the applicant’s consent, the District Court committed a jurisdictional error by hearing and dismissing an appeal from the conviction: [23], [30].

(ii)   The meaning of “offensive” in Criminal Code, s 474.17 was as stated in Monis v The Queen [2011] NSWCCA 231; (2011) 215 A Crim R 64 at [44] (Bathurst CJ), but it was unnecessary to decide whether a failure to apply this construction constituted jurisdictional error: [33]–[34].

(iii)   The offence in Criminal Code, s 474.17(1) is not restricted to communications directed to persons listed in s 474.17(2): [40]–[42].

(iv) In such circumstances, the orders of the District Court should be set aside and the District Court ordered to decide the appeal by setting aside the conviction: [6], [47].

Judgment

1. BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Meagher JA with which I agree. I make the following additional remarks.

2. As is apparent from his Honour’s reasons, an important issue in this matter is the appropriate relief that this Court should grant, having regard to the fact that the Local Court also acted without jurisdiction, but in circumstances where it could not be said that, on the application of the correct legal test, the charge against the applicant must be dismissed.

3. In Director of Public Prosecutions (NSW) v Burns (2010) 207 A Crim R 362; [2010] NSWCA 265, the District Court, on an appeal against conviction under the Crimes (Appeal and Review Act) 2001 (NSW) (the CAR Act), had determined that the defendant had a lawful excuse for the possession of certain implements such as to be not guilty of the offence. An order was made quashing the conviction. That order was not an order that could be made under the CAR Act. The order that should have been made was that the conviction be set aside: see s 20(1).

4. The matter came to this Court by way of judicial review pursuant to the Supreme Court Act 1970 (NSW), s 69. Having determined that the correct order that should have been made by the District Court was that the conviction be set aside, the question arose as to the orders to be made by this Court in circumstances where the District Court had determined the defendant was not guilty of the charge.

5. At [52]-[55], I considered (Campbell JA agreeing) the complications that this part of the legislative scheme presents. In essence, I was not convinced that the District Court had any implied power of remitter (cf Basten JA in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [19]ff). Rather, I considered that the orders that could be made by the District Court were the orders for which the CAR Act provided, namely, the orders that may be made under s 20, together with the requirement in s 73 that the registrar is to cause a memorandum that the conviction is set aside to be endorsed on the conviction. As I explained at [55], that is sufficient for the prosecuting authorities to determine whether any, and if so, what, further steps should be taken in the matter.

6. In my opinion, for the reasons I explained in Burns, those are the appropriate orders in this case, notwithstanding that in this case it has not been established that no offence was committed, that being a matter that remains undetermined for the reasons given by Meagher JA. It will be a matter for the prosecuting authorities to take whatever course they now determine, presumably having regard to the reasons of this Court.

7. Whilst the CAR Act does not require that an order be made directing the Registrar to comply with s 73, it would not be inappropriate to do so, to ensure that there is no inadvertent failure to comply with the procedures prescribed by the Act.

8. MACFARLAN JA: I agree with the orders that Meagher JA proposes and with his Honour’s reasons for judgment.

9. MEAGHER JA: On 7 January 2014, the applicant, Ms Morgan, was convicted in the Local Court of using a carriage service in a way “that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive”. That conduct was a federal offence under Criminal Code (Cth), s 474.17(1), and an indictable offence because it was punishable by imprisonment for a period exceeding 12 months: Crimes Act 1914 (Cth), s 4G. With the consent of the prosecutor and accused, it was able to be dealt with by a court of summary jurisdiction: Crimes Act, s 4J. The Local Court is invested with jurisdiction to deal with offences that may be dealt with summarily: Criminal Procedure Act 1986 (NSW), s 7(1); Local Court Act 2007 (NSW), s 9(c). And it has “like jurisdiction” in respect of offences against a Commonwealth law: Judiciary Act 1903 (Cth), s 68(2). But, as it now appears, the applicant never consented to the summary disposal of the charge against her.

10. In dealing with the charge, the Local Court (Magistrate Heilpern) held that the applicant contravened s 474.17(1) by sending an email which a reasonable person would in any circumstances find to be “offensive”. The applicant appealed to the District Court against that conviction pursuant to Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), s 11(1). That appeal by way of rehearing was conducted by reference to the evidence in the original Local Court proceedings: CAR Act, ss 18(1). It was heard and dismissed by Blanch CJ of DC on 30 May 2014. The applicant now seeks to have the orders of the District Court set aside in the exercise of the Supreme Court’s supervisory jurisdiction under Supreme Court Act 1970 (NSW), s 69. By reason of District Court Act 1973 (NSW), s 176, judicial review of orders made in the exercise of that Court’s criminal appellate jurisdiction was limited to relief for jurisdictional error: Spanos v Lazaris [2008] NSWCA 74 at [14]–[15] (Basten JA, Beazley and Bell JJA agreeing). Because the applicant’s summons in this Court seeking judicial review was filed more than two years after the District Court decision, she requires an extension of the three-month period allowed by Uniform Civil Procedure Rules 2005 (NSW), r 59.10. That extension is not opposed and the interests of justice require that it be granted.

Proceedings in the Local Court and the District Court

11. On 12 August 2013, the applicant sent an email to the licensees of two hotels in the Byron Bay Area – the Hotel Great Northern and the Railway Friendly Bar – and the principals of the company described as the “owner” of each of those establishments. The reason for doing so appears in the subject line at the top of the email, which reads:

Re: Update - Life Ban from Hotel Great Northern, Railway Friendly Bar and “all Mooney Hotels”.

12. The greater part of the email refers to proposed legal proceedings to be brought by the applicant in relation to that ban, and the applicant’s responses to arguments made in support of the ban. The second-last paragraph of the email reads:

The following information is not a threat, it is an attempt to educate - though I concede that comprehending the lesson requires a greater intelligence than that demonstrated by Hannah and Amber to date. Be grateful that I am the sort of person who always resolves disputes lawfully - others would have arranged for Amber and Hannah to star in a ‘snuff f**k’ movie, put a bullet in Mike’s head, sold [their child] to a brothel in a third world country - leaving Tom and Cath alive to wonder whether or not it is really worth f**king over a person simply because you can. Old Celtic saying - Mooney being an Irish name, I trust the Mooney Clann will comprehend the message: “Never start a War without considering the possibility that, should you loose the War - all men will be killed; all women raped and enslaved; and all children butchered”.

13. On 30 August 2013, a Court Attendance Notice was served on the applicant. It charged that she “did use a carriage service, namely [her email address] in such a way that reasonable persons would regard that use as being offensive, contrary to subsection 474.17 (1) of the Criminal Code (Cth).” The provision containing that subsection provides:

474.17   Using a carriage service to menace, harass or cause offence

(1)   A person is guilty of an offence if:

(a)   the person uses a carriage service; and

(b)   the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years.

(2)   Without limiting subsection (1), this subsection applies to menacing, harassing or causing offence to:

(a)   an employee of an NRS provider; or

(b)   an emergency call person; or

(c)   an employee of an emergency service organisation; or

(d)   an APS employee in the Attorney-General’s Department acting as a National Security Hotline call taker.

14. The expression “carriage service” has the meaning given to it in s 7 of the Telecommunications Act 1997 (Cth), namely “a service for carrying communications by means of guided and/or unguided electromagnetic energy.” Those communications include email.

15. Magistrate Heilpern concluded that the applicant’s use of a carriage service to send an email containing the paragraph at [12] above constituted the offence. In relation to that part of the email from “Be grateful” to “simply because you can”, his Honour held:

In my view, that sentence goes way beyond the pale. It quite clearly is and the defendant admitted, it was an attempt to shock. It is beyond rude, it is beyond inappropriate, it is offensive, however one defines offensive. It was clearly calculated to wound the feelings and a reasonable person would think that it is calculated to wound the feelings of persons who receive that.

16. Addressing the remaining words of the extracted paragraph, he continued:

In my view … that sentence taken into consideration of the sentence immediately before, is offensive within the meaning of the Commonwealth legislation. Any reasonable person reading that would, in any circumstances, find that to be offensive.

17. As is noted above, the applicant’s appeal to the District Court was heard on 30 May 2014. The evidence of the police prosecutor as to what happened on that occasion includes the following:

6.   His Honour Chief Judge Blanch took time to read those documents. He then heard submissions from Morgan. I recall that those submissions included the fact that her intention in sending the email was not to be offensive but rather educative. The hearing continued for 10 minutes, or perhaps 15 minutes at most. No other documents were handed up or relied upon by either party.

7. I do not recollect there being any discussion in relation to the correct legal test to be applied to the word “offensive” as used in s. 474.17(1) of the Criminal Code in the Schedule to the Criminal Code Act 1995 of the Commonwealth. Nor was there any discussion about whether the correct test had been applied in the Local Court below.

8.   At the conclusion of Morgan’s submissions, his Honour determined that the appellant’s appeal against conviction was dismissed, and the discussion turned to penalties. …

18. There is no transcript of that proceeding available because the transcription equipment failed. There is also no record of any reasons which may have been delivered by the Chief Judge.

Proceedings in this Court

19. By her summons, the applicant seeks the following orders:

1.   That a time extension for filing be granted by the Court.

2.   That the Court makes null and void the Judicial Decision made by Judge Reginald Blanch (to uphold the wrongful conviction by Magistrate David Heilpern).

3.   That the Court makes an Order that NSW POLICE remove the false – Defamatory - information, of which the Applicant is subject, from the Police databases.

4.   That the employees of the Department of Police and Justice involed in the Conspiracy to wrongfully arrest, charge, prosecute and convict the Applicant for the non-existent Offence (by wording) and an Offence that is impossible to commit via sending an email to licensees and owners of pubs, be charged and prosecuted for relevant Offences – includes Perverting the Course of Justice.

5.   That the Applicant be paid compensation for being subjected to the ordeal inflicted by employees of the State of NSW - including (but not confined to) NSW Police; Office of the Director of Public Prosecutions; Office of the Crown Solicitor.

20. The orders sought in paragraphs 3, 4 and 5 may be put to one side. They do not seek any relief or remedy which may be granted in the exercise of the jurisdiction conferred or confirmed by s 69.

21. The applicant appeared in person, having declined the opportunity to be represented by a solicitor funded by a grant of legal aid. Her stated reason for having done so is that as “a Druid (Celtic Pagan Priest) … being represented by a solicitor in Court is not an option.” According to Strabo, druids were once held in such high regard that they could quell any private or public dispute, including a stand-off between opposing armies: Geographica at 4.4.4. Their jurisdiction was divine and limitless. By contrast, and fortunately for the applicant, the jurisdiction of Australian inferior courts is statutory and limited.

22. The State does not contest that the order of the District Court dismissing the appeal should be quashed on the basis of jurisdictional error. It has identified two grounds justifying that relief, neither of which is relied on in the applicant’s summons. First, it submits that the District Court misconstrued the word “offensive” in s 474.17 and thereby misconceived the nature of its function so as to commit a jurisdictional error. Secondly, it submits that the Local Court lacked jurisdiction to hear the charge without the applicant’s consent to summary disposal and that the District Court’s appellate jurisdiction was subject to the same limitation. As this second ground goes to the root of that Court’s jurisdiction to proceed to hear and determine the applicant’s appeal, it should be dealt with first.

District Court’s jurisdiction on appeal from ultra vires summary conviction

23. Criminal Procedure Act, s 7(1) confers jurisdiction on the Local Court to deal with any offence “that is permitted or required to be dealt with summarily”. The applicant was charged with an indictable offence. The offence was not permitted or required to be dealt with summarily by Criminal Procedure Act, s 6. It was able to be dealt with summarily with the consent of the prosecutor and applicant accused: Crimes Act, s 4J(1). However, the State accepted that the applicant did not give any such consent. She was unrepresented. The evidence did not suggest that she had been advised of the effect of s 4G or provide any basis for inferring that she had given the required consent. The Local Court therefore lacked jurisdiction to hear and determine the charge against the applicant.

24. This conclusion does not imply that the District Court had no jurisdiction with respect to the appeal from the Local Court conviction. Under CAR Act, s 11, the District Court has jurisdiction to hear and determine an appeal against conviction or sentence (or both) by a person “who has been convicted or sentenced by the Local Court”. In construing such a provision, references to “conviction” (and persons “convicted”) are presumed to include purported convictions that are liable to be set aside as made without jurisdiction (and persons so convicted).

25. The leading English authority for this presumption is the judgment of Lord Atkinson (with which Lord Dunedin concurred) in Crane v Director of Public Prosecutions [1921] 2 AC 299. Section 3 of the Criminal Appeal Act 1907 (UK) gave a person “convicted on indictment” a right of appeal to the Court of Criminal Appeal. Although characterising the trial at first instance in that case as “a nullity”, Lord Atkinson concluded (at 323) that the accused was “still a person convicted on an indictment within the meaning of that section, since those words cannot mean validly convicted, otherwise the statute would be futile and unworkable.”

26. In Russell v Bates (1927) 40 CLR 209, the High Court considered the meaning of Justices Act 1902 (NSW), s 122, which gave every person imprisoned or made to pay a fine by the conviction or order of a justice a right of appeal to the Court of Quarter Sessions. The plurality (Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ) stated the position shortly (at 213):

We do not think it necessary to decide whether the Magistrate had, or had not, jurisdiction to hear these cases together, for we are unable to agree with the conclusion that if there was no jurisdiction there was no adjudication from which an appeal lay to the Court of Quarter Sessions: Crane’s Case is, we think, a decisive authority to the contrary.

27. As Kirby J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [220], citing Calvin v Carr [1980] AC 574 at 590, which in turn cites Crane and Russell: “However logically intriguing may be the rival theories of invalidity of defective orders, those theories cannot, as a practical matter, be invoked to remove an invalid decision from the scope of appellate or other review.”

28. Accordingly, the District Court had some jurisdiction with respect to the conviction appeal. But the extent of that appellate jurisdiction depended upon the Local Court’s original jurisdiction with respect to the charge against the applicant. The relationship is most clearly seen in an “appeal in the strict sense”, where the appellate court’s function is “simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [12] (Gleeson CJ, Gaudron and Hayne JJ). The appellate jurisdiction of the High Court conferred under s 73 of the Constitution is an appeal understood in that sense. In Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109, Dixon J said of that appellate jurisdiction that the power conferred “although implying the fullest authority to ascertain whether the judgment below ought, or ought not, to have been given, contains nothing to suggest that this Court is to go beyond the jurisdiction or capacity of the Court appealed from.” In Craig v The King (1933) 49 CLR 429 at 444, Evatt and McTiernan JJ observed, in dealing with an appeal from the Court of Criminal Appeal of this State, that “the High Court becomes, pro tanto, the Court of Criminal Appeal” in the sense that “the functions of the High Court are assimilated precisely to those of” that Court. A statement to the same effect was made by Mason CJ and Brennan J in Pantorno v The Queen (1989) 166 CLR 466 at 475.

29. An appeal under CAR Act, s 11 is not an appeal in the strict sense, but an appeal “by way of rehearing on the basis of the evidence given in the original Local Court proceedings, except as provided by section 19”: CAR Act, s 18(1). For this reason, statements about the High Court’s appellate jurisdiction are not necessarily applicable to an appeal to the District Court: Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; [2009] HCA 18 at [39] (French CJ, with whom Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ agreed). Most fundamentally, a court embarking on an appeal by way of rehearing is bound to decide according to the facts and the law as they stand at the time the court makes its order, rather than at the time the order appealed from was made: Council of the Shire of Werribee v Kerr (1928) 42 CLR 1 at 20–21 (Isaacs J); Dignan at 107 (Dixon J); Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208–209 (Windeyer J); Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 (Mason J); Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, McHugh, Gummow and Hayne JJ). Consistently with that position, the District Court hearing an appeal under s 11 is permitted, in limited circumstances, to receive fresh evidence (s 18(2)) and evidence from the court below in person (s 19).

30. However, even in an appeal by way of rehearing, “the jurisdiction of an appellate court is confined to the jurisdiction exercised by the first instance court”: Thiess Pty Ltd and Hochtief AG v Industrial Court of NSW (2010) 78 NSWLR 94; [2010] NSWCA 252 at [73] (Spigelman CJ, Beazley JA agreeing). This general proposition could be displaced by a statutory provision that permits the appellate court to hear and determine matters outside the jurisdiction of the first instance court. But the CAR Act contains no such provision.

31. When the charge against the applicant came before the Local Court, that Court had authority, and a “first duty”, to decide whether it had jurisdiction to hear and determine the charge summarily: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 (Griffith CJ). Therefore, had the District Court identified the want of jurisdiction in the Local Court and set aside the conviction pursuant to CAR Act, s 20(1)(a), its exercise of appellate jurisdiction would not have surpassed the jurisdiction at first instance. However, by hearing and dismissing the appeal against conviction, the District Court exceeded its jurisdiction.

Misconstruction of Criminal Code, s 474.17(1)

32. The other ground for relief proceeds from the reasons of the Local Court, although the order of that Court could not be the subject of any relief whilst the District Court order remained on foot: see Wishart v Fraser (1941) 64 CLR 470; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115, esp. at [11]–[12] (Basten JA, Giles and McColl JJA agreeing). It is submitted that the Local Court misconstrued the word “offensive” in s 471.12 and thereby misconceived the nature of its function: Kirk v Industrial Commission (2010) 239 CLR 531; [2010] HCA 1 at [72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Given the police prosecutor’s evidence that there was no discussion in the District Court of the meaning of “offensive”, this Court is invited to infer that the District Court undertook or agreed in that erroneous construction and thereby also misconceived its function.

33. In Monis v The Queen [2011] NSWCCA 231; (2011) 215 A Crim R 64, the Court of Criminal Appeal considered the meaning of “offensive” in s 471.12, which applies to use of a postal or similar service but is otherwise in the same terms as s 474.17(1). Bathurst CJ (at [44]) and Allsop P (at [91], accepting the meaning proposed by the Chief Justice) held that to be “offensive” within the meaning of s 471.12, it is necessary that the relevant use:

be calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances. However, it is not sufficient if the use would only hurt or wound the feelings of the recipient, in the mind of a reasonable person.

34. That decision was affirmed by the High Court (the Court being equally divided so as to engage the application of Judiciary Act, s 23(2)(a)) in Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4. In Brownv Commonwealth Director of Public Prosecutions [2016] NSWCA 333 at [20], RA Hulme J (with whom Payne JA and Barrett AJA agreed) held that, given “the identical terms in which the respective offences are stated”, the word “offensive” has the same legal meaning in s 474.17(1) as in s 471.12.

35. In assessing whether the applicant’s email communication would be regarded by reasonable persons as offensive, the Local Court is said to have focussed on a meaning of “offensive” which the Court of Criminal Appeal specifically rejected (i.e. “hurt or wound the feelings of the recipient”) and not to have applied the more onerous construction adopted in Monis. As a result, it is said that the Local Court misconceived the nature of its function by misdirecting itself as to the elements of the offence which would enliven its power to convict.

36. The process of identifying those elements was explained in Monis by French CJ at [12]–[14] and Hayne J at [157] and in Crowther v Sala [2008] 1 Qd R 127; [2008] QCA 133 at [43]–[48] by McMurdo J (with whom Muir J agreed). Under the Criminal Code, the elements of offences are classified as physical and fault elements, and the physical element may consist of conduct or a result of conduct or a circumstance in which either conduct or a result of conduct occurs. A circumstance in which the conduct of using the carriage service is required to have occurred, and accordingly a physical element of the offence charged, was that the use would be regarded by reasonable persons as being, in all the circumstances, offensive in the relevant sense. The fault element for that physical element was recklessness, which could be satisfied by proof of intention or knowledge. In the absence of proof of intention or knowledge, it was necessary to establish that the accused was aware that there was substantial risk that the way in which the carriage service was to be used would be regarded by reasonable persons in that way and that, having regard to the circumstances known to that person, it was unjustifiable to take that risk. It is submitted by the State that, as a result of adopting the wrong meaning of “offensive”, the Local Court did not correctly enquire as to whether one of the necessary physical elements, and its accompanying fault element, had been satisfied.

37. The ultimate submission upon which this ground depended is that any misconstruction of a criminal statute that prompts an inferior court to misstate the elements of an offence involves a misconception of the court’s function so as to constitute jurisdictional error, and not merely error within jurisdiction. That submission raises difficult questions, characteristic of this kind of jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 177–178; Kirk at [72]–[73]. There is support in this Court for the view that an inferior court does not commit a jurisdictional error merely by misdirecting itself as to the elements of an offence: Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 at [38]–[39]. There are also general dicta to the effect that any incorrect formulation of the material issues to be determined could constitute jurisdictional error: see, e.g., Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208; (2012) 232 IR 86 at [76]. A further question is whether failing to identify any acts or omissions alleged to constitute an offence (the error of the Industrial Court in Kirk at [74]) is materially different to applying a less onerous standard for establishing an element or elements of an offence (one characterisation of the asserted error in this case). If the outcome of this case turned on the acceptance of this argument, it would be necessary to consider and determine these questions.

38. But the State accepts that the District Court’s order must be set aside for want of jurisdiction. For that reason, there is no realistic prospect of an appeal to the High Court against the granting of the relief sought: cf. Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]. These matters, and the fact that this Court has not had the benefit of contested argument in relation to this ground, make it unnecessary and unwise to express any concluded view about it.

The applicant’s arguments

39. The first and principal ground for relief relied on by the applicant is that the offence described in s 474.17(1) is only made out if the use of the carriage service involved a communication to a person or persons satisfying one of the four descriptions in sub-s (2). As the recipients of the email do not answer any of those descriptions, the applicant submits that the only legally available outcome of the criminal charge was that it be dismissed.

40. A carriage service is a service for carrying communications which may be between persons, persons and things, or things and things: Telecommunications Act, s 7. Accordingly, the use of a carriage service will involve a communication to someone or something. That use is the first of the physical elements of the offence described in s 474.17(1). The second is that the way in which the service is used, whether by the method of use or content of the communication, or both, would be regarded by reasonable persons as being, in all the circumstances, offensive. That characterisation of the use does not depend on the communication having been directed to any particular person or category of persons or that any such person is actually menaced, harassed or offended by it.

41. In its terms, s 474.17(1) is not limited to communications to persons described in s 474.17(2). Furthermore, that subsection is expressed to be “without limitation to subsection (1)”. The Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) 2004 (Cth) makes clear that sub-s (2) was inserted for the avoidance of doubt, and not to limit the operation of sub-s (1). It states (at p. 34):

Proposed subsection 474.17(2) is to make it clear that use of a carriage service to menace, harass or cause offence to employees of the NRS provider, emergency call persons, employees of emergency service organisations and National Security Hotline call takers (see the explanations of the definitions of ‘NRS provider’, ‘emergency call person’ and ‘emergency service organisation’) is caught by the offence in proposed subsection 474.17(1). Abuse and harassment in these circumstances is particularly serious, because of the effect it may have on the people who provide these important services and the delays it creates in handling legitimate calls (see also the offence under proposed section 474.18).

42. It follows that this argument as to the construction of s 474.17 is rejected, as it was in Court v Feng [2013] WASC 320; (2013) 279 FLR 143 at [26] (Allanson J).

43. The remaining grounds relied on by the applicant do not identify errors of law, whether jurisdictional or not, of the Local Court or District Court. First, the Court Attendance Notice served on the applicant did not describe a non-existent offence. It plainly charged a contravention of s 474.17(1). Secondly, as French CJ’s analysis of the physical and related faulted elements of that offence shows, it was not necessary for the prosecution to establish that the applicant intended the email to be “offensive”. Thirdly, there was no denial of procedural fairness to the applicant by reason of the fact that the police brief of evidence which was served in accordance with Criminal Procedure Act, s 183 was not tendered in evidence before the Local Court. Finally, the applicant complains about the imposition by the District Court of a good behaviour bond to which she maintains she did not agree. It is not necessary to consider this matter further because the orders made by the District Court, including under Crimes Act, s 20(1)(a), must be set aside.

Relief

44. It was submitted on behalf of the State that there were three ways in which this Court could give effect to its conclusion that the District Court exceeded its jurisdiction. The first was for this Court to set aside the orders made by the District Court on 30 May 2014 and, in place of those orders, to order that the applicant’s conviction be set aside. It was submitted, relying on Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 and Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9, that, where there is only one order the inferior court could make consistent with this Court’s reasoning, this Court may make that order in the exercise of its supervisory jurisdiction.

45. The second was to set aside the orders made by the District Court and remit the matter to the District Court for determination of the appeal, and to order that the District Court do so by setting aside the applicant’s conviction in the Local Court. The making by the District Court of that order would then attract the operation of CAR Act, s 73(1), which would require that the Registrar of the District Court cause a memorandum to the effect of that order to be endorsed on the conviction in that court.

46. The third was to set aside the orders made by the District Court and also to set aside the orders made by the Local Court on 7 January 2014. That course is said to be available once the District Court’s orders disposing of the appeal are set aside (so that they cease to “supersede” the orders of the Local Court), provided that there is only one available conclusion consistent with this Court’s reasoning which requires that the Local Court conviction be set aside: see Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305 at [91] (Basten JA), cited with approval in Dyason v Butterworth [2015] NSWCA 52 at [35] (McColl JA, Barrett and Gleeson JJA agreeing).

47. In my view, orders should be made in accordance with the second of these three alternatives identified by the State. The third would involve the making of orders quashing a conviction and order of the Local Court in circumstances where that Court has not been joined as a party, contrary to UCPR, r 59.3(4). It would also leave the appeal from that Court to the District Court in a state where it has not been finally determined. The first alternative is attended by at least some controversy, although the authority of this Court currently supports the Court’s power to make an order of the kind proposed: see Wende v Howarth (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416 at [19] (Beazley ACJ); Torbey at [99]–[101] (Basten JA, McColl and Simpson JJA agreeing). It is not necessary to resolve that controversy in order to do justice in this case.

48. There remains the question of costs. The applicant has been successful in her challenge to the orders of the District Court, albeit on a ground which did not emerge until the hearing before this Court. In those circumstances, she should be entitled to recover any reasonably incurred disbursements and witness expenses that she has incurred in the proceedings in this Court. It would not have been necessary for her to incur those costs if the criminal charge had not been prosecuted and dealt with summarily in the Local Court without her consent. Because the applicant is not a qualified lawyer under the laws of this State, she is not entitled to recover any further legal costs.

44. Accordingly, the orders I propose are:

1. Pursuant to UCPR, r 59.10(2), extend the time for the applicant to file the summons in this proceeding to 8 June 2016;

2. Set aside the orders made by the District Court on 30 May 2014;

3. Order the District Court to determine the appeal in proceeding 2013/00262932 by setting aside the applicant’s conviction ordered by the Local Court at Tweed Heads on 7 January 2014;

4. Direct the Registrar to cause a memorandum that the conviction has been set aside to be endorsed on the conviction in accordance with Crimes (Appeal and Review) Act 2001 (NSW), s 73;

5. Order the State of New South Wales to pay any reasonably incurred disbursements and witness expenses of the applicant in the proceeding in this Court.

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Decision last updated: 23 May 2017