Parkinson v Alexander
[2016] ACTSCFC 1
•15 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | Parkinson v Alexander |
Citation: | [2016] ACTSCFC 1 |
Hearing Date: | 3 November 2015 |
DecisionDate: | 15 April 2016 |
Before: | Murrell CJ, Refshauge and Wigney JJ |
Decision: | Application dismissed. |
Catchwords: | WORDS AND PHRASES – “Conviction” – whether conviction has an ordinary meaning – whether a finding of guilt is a conviction PRACTICE AND PROCEDURE – Appeals to Supreme Court from finding of guilt – Magistrates Court Act 1930 (ACT) s 208(1)(b) PRACTICE AND PROCEDURE – Appeals to Supreme Court where “non-conviction order” is a possible penalty HUMAN RIGHTS – Appeal rights – whether the Human Rights Act 2004 (ACT) aids interpretation – where appeal is sought after fair hearing |
Legislation Cited: | Court of Petty Sessions Ordinance (No. 2) 1930 (ACT) ss 207, 208 Court Procedure Rules 2006 (ACT) r 5172(1) Supreme Court Act 1933 (ACT) s 13(2) |
Cases Cited: | Balthazar v The Queen [2012] ACTCA 26 Bloxham v Wyte (2013) 278 FLR 365 Walsh v Law Society of New South Wales (1999) 198 CLR 73 |
Texts Cited: | Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy) The Right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation, 32nd sess, (8 April 1988) Human Rights Committee, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 90th sess, UN Doc CCPR/C/GC/32 (23 August 2007) |
Parties: | Leesa Alexander (Applicant) Sarah Jane Parkinson (Respondent) |
Representation: | Counsel Mr J White SC (Applicant) Mr K Archer (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Kamy Saeedi Law (Respondent) | |
File Number: | SCA 80 of 2015 |
THE COURT:
The application
The respondent was charged with two counts of making a false accusation of an offence to police (contrary to s 715 of the Criminal Code 2002 (ACT)) and three counts of public mischief (contrary to s 396 of the Crimes Act 1900 (ACT) (Crimes Act)).
On 26 August 2015, the Chief Magistrate found the offences “proved”, and endorsed each bench sheet “offence proved”. On this application, the parties accepted that, in finding that the charges were proved, the Magistrates Court made findings of guilt.
The Chief Magistrate did not use the word “convict”. The matter was adjourned for sentence on 30 October 2015. We infer that, in accordance with common practice, the Chief Magistrate declined to use the word “convict” because her Honour wished to leave open the possibility that she may sentence the respondent by making a “non-conviction order” under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The sentencing hearing did not proceed because, on 23 September 2015, the respondent filed a Notice of Appeal against her conviction. Section 216 of the Magistrates Court Act 1930 (ACT) (MCA) provides that, if a person appeals against conviction, the conviction is stayed until the appeal is finalised.
The respondent considered that, as the Magistrates Court had found that the offences were proved, there was a right to appeal because s 208(1)(b) enables a “person convicted” to appeal against the “conviction”, and (as the respondent reasoned) the term “conviction” includes a finding of guilt.
The applicant (the informant in the Magistrates Court) applied under r 5172(1) of the Court Procedures Rules2006 (ACT) (CPR) to strike out the appeal as incompetent, contending that the Supreme Court lacks jurisdiction under s 208(1)(b) of the MCA to entertain an appeal against a finding of guilt because a finding of guilt does not amount to a “conviction”.
The issue is whether, for the purposes of s 208(1)(b) of the MCA, a finding that an offence is proved (a finding of guilt) is a “conviction” which renders an offender a “person convicted”. If it is, then the appeal is competent.
Pursuant to s 13(2) of the Supreme Court Act 1933 (ACT) (SCA) the question of whether the appeal is competent was referred by a single judge to the Full Court. As the Court observed in Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 256 at [20], “the discretion [to refer a matter to the Full Court] may be enlivened where a matter involved an important question of principle or a matter of public importance.” This matter involves both questions.
General principles
An appeal is not a creature of the common law, but a right conferred by statute (in this case, the MCA). When deciding the nature of an appeal right it is necessary to closely examine the relevant statute: Walsh v Law Society of New Wales (1999) 198 CLR 73 per McHugh, Kirby and Callinan JJ at [50]; Byrnes v The Queen (1999) 199 CLR 1 per Kirby J at [84]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [57].
Statutory construction requires the Court to take a textual and purposive approach: Project Blue Sky Inc v ABC (1998) 194 CLR 355.
Chapter 14 of the Legislation Act 2001 (ACT) (Legislation Act) guides the interpretation of ACT Acts and statutory instruments, but it is not a comprehensive statement of the law of interpretation: s 137 of the Legislation Act.
Section 139(1) of the Legislation Act relevantly provides that “[i]n working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.” Section 138 provides that:
working out the meaning of an Act means—
(a)resolving an ambiguous or obscure provision of the Act; or
(b)confirming or displacing the apparent meaning of the Act; or
(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d)finding the meaning of the Act in any other case.
In relation to (c), in Eastman v Besanko (2010) 244 FLR 262, relying on the Shorter Oxford Dictionary (6th ed, 2007), at [88] Dowsett J opined that:
The word “unreasonable” means “(n)ot endowed with reason; irrational ... . Not based on or acting in accordance with reason or good sense”.
Section 140 of the Legislation Act provides that, “[i]n working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole”.
Section 141 of the Legislation Act provides that:
(1) In working out the meaning of an Act, material not forming part of the Act may be considered.
…
(2)In deciding whether material not forming part of an Act should be considered in working out the meaning of the Act, and the weight to be given to the material, the following matters must be taken into account:
(a)the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole;
(b)the undesirability of prolonging proceedings without compensating advantage;
(c)the accessibility of the material to the public.
Materials that do not form part of an Act include notes and certain headings: s 127 of the Legislation Act.
Part 1 of the Dictionary to the Legislation Act contains definitions of terms that are commonly used in Acts, but contains no definition of “conviction”. It does contain the following definition of “found guilty”:
found guilty, of an offence, includes—
(a)having an order made for the offence under the Crimes (Sentencing) Act 2005, section 17 (Non-conviction orders—general); and
(b)having the offence taken into account under the Crimes (Sentencing) Act 2005, section 57 (Outstanding additional offences taken into account in sentencing).
The Human Rights Act 2004 (ACT) (HRA) is also relevant to interpreting Territory laws. Section 30(1) of the HRA provides that a law of the Territory “must be interpreted in a way that is compatible with human rights”, so far as it is possible to do so.
Does “conviction” have an “ordinary meaning”?
The applicant submitted that the “ordinary meaning” of “conviction” is the formal entry of a conviction, and the rejection of the possibility that a non-conviction order will be made. The applicant submitted that there is a well-recognised difference between a “finding of guilt” (in effect, a finding that an offence has been proved) and a “conviction”; a conviction can be entered only after a finding of guilt, but a finding of guilt does not necessarily result in the entry of a conviction.
Decisions concerning the meaning of “conviction” in other legislation cannot determine the meaning of “conviction” as used in the MCA. As McHugh, Gummow and Heydon JJ said in McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at [40], “[i]t would be an error to treat what was said in construing one statute as necessarily controlling the construction of another.”
However, some guidance may be obtained from the common law and from decisions interpreting the word “conviction” in other legislation.
At common law, the term “conviction” has a “wide and somewhat equivocal meaning”: Travini v Starczewski (2009) 169 ACTR 1 (Travini) at [48]. The answer to the question of what amounts to a conviction depends upon the context in which the question is asked: Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 507.
In Davies v Ryan (1933) 50 CLR 379 (Davies v Ryan), the High Court (Evatt J) considered whether an order of dismissal made under the Court of Petty Sessions Ordinance (No. 2) 1930 (ACT) (Ordinance No. 2) (the predecessor to the MCA) could be appealed to the High Court. Section 207 of Ordinance No. 2 provided:
The High Court shall have jurisdiction to hear and determine appeals from all rulings, orders, convictions or determinations of the Court.
Section 208 of Ordinance No. 2 provided:
Any party to any proceedings in the Court [of Petty Sessions] who is aggrieved by or dissatisfied with an order or conviction of the Court may ... apply to the High Court for leave to appeal to the High Court against such order or conviction.
At 382, Evatt J decided that there was a right to appeal an order of dismissal. In reaching that conclusion, his Honour observed that the heading to the relevant part of the legislation referred to appeals from “decisions” of the Court of Petty Sessions, and said that “decision” was a term of wide import. His Honour noted that, in s 207 of the Ordinance No. 2, appellate jurisdiction was conferred in respect of “all rulings, orders, convictions or determinations” of the Court of Petty Sessions.
In Cobiac v Liddy (1969) 119 CLR 257, the appellant, who had a prior conviction for driving under the influence of alcohol, came before a magistrate for another such offence. For a “second offence” of that type, the “penalty” was a mandatory minimum period of imprisonment. The magistrate found the new offence to be proved but, “without convicting” the appellant, he “dismissed” the charge. One issue before the High Court was whether the magistrate had been obliged to impose the mandatory penalty. Barwick CJ, Kitto and Owen JJ held that the magistrate had been entitled to dismiss the new charge without imposing a mandatory penalty because, in the particular statutory context, there had been no conviction for the new charge.
Windeyer J reached the same conclusion. In so doing, his Honour placed reliance on the association between the expressions “without convicting” and “dismissed”. At 271–3 Windeyer J discussed the various meanings that may be accorded to the term “conviction”. His Honour noted that, at common law, there was a distinction between “conviction” and “judgment”, and a person who was found guilty and bound over to come up for judgment when called upon (rather than merely bound over to be of good behaviour) was “convicted”. It followed that not everyone who was “convicted” was sentenced, but a person could not be punished unless he or she had been convicted first.
A similar problem led to a different outcome in Price v Police [2008] SASC 119. In that case, the Court considered whether a motor vehicle offence in respect of which no conviction had been recorded should be taken into account in determining whether a later motor vehicle offence was a “subsequent offence”. The answer to that question depended upon the meaning of the word “convicted”. Kelly J found that, having regard to the intent and policy of the relevant legislation, an offence for which no conviction had been recorded was to be taken into account in determining whether an offence was a “subsequent offence”. At [18] his Honour said:
It is trite to state that the word “conviction” must take its meaning from the context in which it appears. The term “conviction” is an ambiguous term, sometimes used in the narrow sense as indicating merely that a person has been made the subject of a finding of guilt and sometimes used in the wider sense of the finding of guilt combined with the sentence of the court. Without a determination of guilt, there can be no conviction, however the converse does not necessarily apply because a determination of guilt will not in all cases amount to a conviction: Attorney General v Smith (2002) TASSC 10 per Crawford J.
In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, the High Court was asked to determine the standard of proof required to enter a conviction for unlawful failure to pay certain customs and excise duties, contrary to the Customs Act 1901 (Cth) (Customs Act) and the Excise Act 1901 (Cth). Section 248 of the Customs Act provided that there was a right to appeal “from any conviction order”. Hayne J observed that, when considering this question, focus should be placed upon the types of order which are to be made in the proceedings; in that case, a “conviction”. Hayne J (with whom Gleeson CJ and McHugh J agreed) observed, at [137], that:
[t]he word [conviction] has long been recognised as being used in various ways. In particular, there may well be a question whether conviction depends upon verdict or plea, or upon the sentence of the court. What is clear, however, is that where the Customs Act and Excise Act speak of ‘‘conviction’’ they speak of an adjudication by the court that the defendant has contravened a provision of the Act. The adjudication sought is in no relevant way different from the adjudication that occurs when a person accused of crime pleads guilty to, or is found guilty of, that crime, and the court accepts or determines that the accused is criminally responsible for that offence.
(Footnotes omitted)
At [138], his Honour concluded that, before there could be a “conviction”, “the requisite elements of the contravening conduct” must be established beyond reasonable doubt.
In NSW, it is well accepted that in the case of a jury trial, for the purposes of the Criminal Appeal Act 1912 (NSW), a person is “convicted” when the jury returns a verdict of guilty: R v MAJW (2007) 171 A Crim R 407.
In Hinton v The Queen (2000) 177 ALR 300, the Federal Court distinguished the right to appeal against a jury verdict under s 24 of the Federal Court of Australia Act 1976 (Cth) from the position in New South Wales and Victoria. At [15], the Court said:
[t]he term “conviction” has sometimes been understood, in context, to mean the complete orders made by a court after finding an accused person guilty of an offence. These orders will include both the finding of guilt and the sentence passed as a consequence.
(Citations omitted)
There is a line of South Australian cases dealing with s 163 of the Justices Act 1921 (SA), which provided that “there shall be an appeal to the Supreme Court from every conviction, order and adjudication of the court of summary jurisdiction” (emphasis added). Those cases hold that, in the context of s 163, the expression “conviction” meant the final adjudication of the court, including the penalty: Peters v Lawson (1980) 23 SASR 418. On the other hand, in Fry v Jennings (1983) 25 NTR 19, the Court held that s 163 of the Justices Act 1928 (NT), which provides for an appeal from a “conviction, order, or adjudication” (emphasis added), permits an appeal from a finding that a charge is proved on the basis that such a finding is an “adjudication”.
In Rail Infrastructure Corporation v Page (2008) 179 IR 398, the appellant had been “found guilty” of an offence. The NSW Industrial Relations Commission considered s 5AA of the Criminal Appeal Act 1912 (NSW), which enables a person “convicted of an offence” by the Supreme Court exercising summary jurisdiction to appeal “against the conviction (including any sentence imposed)…”. The Commission observed that, in the context of s 5AA, “conviction” and “sentence” are discrete concepts: at [17]. The Commission concluded that, where there has been a plea of not guilty, a merits hearing, the giving of reasons and a finding of guilt, there is a “conviction” for the purposes of s 5AA. The Commission observed that more recent authorities suggested that “conviction” does not require the formal announcement or recording of a conviction: at [39].
In Eastman v Director of Public Prosecutions [No 2] (2014) 9 ACTLR 178, the Court considered the meaning of “conviction” in s 430 and pt 20 of the Crimes Act (which deals with inquiries into convictions). At [33], the Court said:
In our opinion, when used in Pt 20, the word “conviction”, applying as it does both to summary trials and trials on indictment, simply means the finding by the tribunal of fact (magistrate, judge or jury) that the person is guilty of the relevant offence.
As these cases illustrate, the word “conviction” has no “ordinary meaning”; it may be used in a narrow way to refer to a finding of guilt (that an offence has been proved) or it may be used in the broadest sense, as meaning that criminal proceedings have been finalised in that the offender has been sentenced. However, it is worth noting that the Court was referred to no case concerning the right to appeal from a “conviction” in which “conviction” was held to mean the formal pronouncement or formal recording of a conviction.
Section 208(1)(c) of the Magistrates Court Act
Part 3.10.1 of the MCA, which is entitled “Criminal appeals—jurisdiction of Supreme Court”, contains only s 207. Section 207 provides:
207 Jurisdiction of Supreme Court
(1)The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrates Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others:
(a) appeals to which division 3.10.2 (Appeals in criminal matters) applies;
(b) reference appeals under division 3.10.2A (Reference appeals in criminal matters);
(c) review appeals under division 3.10.3 (Review appeals in criminal matters).
(Emphasis added)
As Penfold J noted in Bloxham v Wyte (2013) 278 FLR 365 (Bloxham) at [49], the introductory words emphasise that there must be an adequate statutory basis from which to infer the availability of an appeal from the Magistrates Court to the Supreme Court. See also Burow v The Queen [2015] ACTCA 61 at [57].
Section 208(1) of the MCA lists the criminal decisions from which there is an appeal right. In part, it provides for:
(b)an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375;
(c)an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375;
(Emphasis added)
Sections 113 and 114 of the MCA concern the outcome of proceedings on information. Sections 374 and 375 of the Crimes Act concern the summary disposal of indictable matters.
Although neither party submitted that a finding that an offence is proved is an “order” within the meaning of s 208(1)(c) of the MCA conferring a right of appeal under that provision, as both parties referred to s 208(1)(c) in their submissions, we will refer briefly to s 208(1)(c) before we turn to consider s 208(1)(b).
In declining to rely on s 208(1)(c) of the MCA, the applicant adopted the reasoning of Penfold J in Bloxham where, at [35]–[46], her Honour discussed whether a finding of guilt was an “order” within the meaning of s 208(1)(c) of the MCA. Her Honour concluded that, while a finding of guilt may be a pre-requisite to the making of an “order”, it is not itself an “order”. At [45], her Honour said:
That is, “order”, absent any extended meaning given by a definition, seems to require something that, in very general terms, requires or causes something to be done or to happen — something more than a mere finding that certain things are the case.
The respondent accepted that a finding of guilt is not an “order” within the meaning of s 208(1)(c) of the MCA, but for a different reason. The respondent noted that ss 113 and 114 of the MCA distinguish between a “conviction” (the alternative outcome to a dismissal) and an “order” (an outcome that differs in nature from a “conviction” or “dismissal”). The respondent submitted that, in a similar way, s 208 distinguishes between a conviction outcome (a finding of guilt) and an order outcome.
A consideration of the way in which the MCA deals with the commencement of criminal proceedings may lend support to the respondent’s approach. In the MCA, all criminal proceedings are commenced by information: s 25 of the MCA. The Dictionary to the MCA defines “information” to include a complaint brought to enforce a criminal penalty or forfeiture. Section 208 may be designed to be consistent with s 25 and with ss 113 and 114 in that all the provisions recognise the difference between a conviction outcome (the outcome of an information that charges a criminal offence) and an order outcome (the outcome of an information that is a complaint brought to enforce a criminal penalty or forfeiture), and to provide for an appeal from each outcome.
In Travini at [32], Refshauge J observed that the reference to “order” in s 208 may relate to the historical entitlement of the Magistrates Court to make an order upon a defendant to a civil proceeding commenced by complaint, rather than (as we have observed in the preceding paragraph) to the different types of outcome that may occur in criminal proceedings (conviction/ dismissal) and criminal penalty/ forfeiture enforcement proceedings (an order).
In any event, neither party submitted that s 208(1)(c) of the MCA confers a right to appeal from a finding that an offence is proved (a finding of guilt).
“Conviction” in the Magistrates Court Act
“Conviction” is defined in the Dictionary to the MCA in a manner that is unhelpful for present purposes. It provides:
conviction—
(a)means conviction by a magistrate for an offence; and
(b)for division 3.9.3 (Reciprocal enforcement of fines against bodies corporate)—see section 166A.
In Travini, Refshauge J considered the meaning of “conviction” in s 208(1)(b) of the MCA. Travini was decided before s 208(1)(g) was introduced into the MCA; s 208(1)(g) now provides a specific right to appeal against a driver licence disqualification order. In Travini the appellant had pleaded guilty to driving with a prescribed concentration of alcohol in his blood. He was convicted, fined and disqualified from driving. On the appeal, the appellant was concerned about licence disqualification. A s 17 non-conviction order would have meant that he avoided mandatory disqualification. A question arose as to whether the Court had jurisdiction to entertain an appeal against licence disqualification, and this prompted a consideration of s 208(1). At [54] and [56], Refshauge J opined that the term “conviction” in s 208(1)(b) of the MCA includes both a finding of guilt preparatory to the imposition of a non-conviction order and the formal recording of a conviction. Consequently, his Honour found that the Court had jurisdiction to deal with the appeal.
The applicant noted that, in jurisdictions other than the ACT where courts are empowered to make orders in the nature of a non-conviction order, it is usual to find a specific right to appeal such orders. For example, s 19B(3) of the Crimes Act 1914 (Cth) specifically confers a right to appeal a decision that a charge is “proved”, and that right is expressed to be the same right as that which the appellant would have had “if the court had convicted him or her of the offence”. In New South Wales, without proceeding to conviction, a court may make an order dismissing a charge or conditionally discharging the offender: s 10 Crimes (Sentencing Procedure) Act 1999 (NSW). Under s 10(5) of that Act, the person against whom such an order is made has the same right to appeal on the ground that they are not guilty of the offence “as the person would have had if the person had been convicted of the offence”.
We accept that, by specifically conferring a right to appeal from a non-conviction order, the Commonwealth and New South Wales appeal provisions acknowledge a significant distinction between a finding of guilt and a conviction. However, in the ACT, neither the MCA nor the Sentencing Act makes express mention of an appeal from a finding of guilt that founds a non-conviction order. In those circumstances, little can be made of the legislative provisions in other jurisdictions.
Sections 113 and 114 are contained in pt 3.6 of the MCA, which deals with proceedings for offences that are punishable summarily. They provide:
113 Proceeding at hearing on defendant’s confession
If the defendant is present at the hearing ... and if the defendant has no cause to show, the court may convict the defendant, or make an order against the defendant accordingly.
114 If defendant does not admit the case
(1)This section applies if the defendant does not admit the truth of the information.
...
(3)Having heard each party and the evidence, the court must decide the information and do 1 of the following as justice requires:
(a)convict the defendant;
(b)make an order on the defendant;
(c)dismiss the information.
(Emphasis added)
Sections 113 and 114 of the MCA imply that a “conviction” is inextricably related to a finding of guilt; that there will either be a conviction or a dismissal. They do not speak of a third option, a finding of guilt followed by a non-conviction order. We make this observation on the assumption that the expression “make an order against/ on the defendant”, in ss 113 and 114 refers to an order to enforce a criminal penalty or forfeiture, and does not extend to the making of a non-conviction order: (see [39] above).
Division 3.10.2 of the MCA is entitled “Appeals in criminal matters”. Section 208 provides:
208 Appeals to which div 3.10.2 applies
(1)Each of the following appeals is an appeal to which this division applies:
(a)an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead):
(i) the person whose fitness to plead was decided;
(ii) anyone who appeared at the proceeding in which the decision was made;
(iii) anyone else with the leave of the court;
(b)an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375;
(c)an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375;
(d)an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section 374 or section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed;
(e)an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
...
(f)an appeal from an order of the court under the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders—amendment and discharge);
(g)an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum.
...
209 Institution of appeal
(1)An appeal must be instituted by the appellant filing a notice of appeal in the office of the registrar of the Supreme Court within the period of 28 days after the conviction was entered, the order or decision was made or the sentence or penalty imposed, or within any further time the Supreme Court allows.
...
(Emphasis added)
Section 208 distinguishes between a “conviction” (s 208(1)(b)), an “order” made under ss 113 or 114 of the MCA or under ss 374 or 375 of the Crimes Act (s 208(1)(c), which is discussed at [34]–[42] above), a “sentence or penalty” imposed on a “convicted” person (s 208(1)(d)) and an “order” imposed under pt 3.2 or 3.3 of the Sentencing Act (s 208(1)(e)). As the Sentencing Act consolidates sentencing in the ACT and as all sentences imposed under parts 3.2 and 3.3 of the Sentencing Act are imposed by “order”, it is difficult to understand the utility of including both ss 208(1)(d) and 208(1)(e) in the MCA; the provisions referred to in s 208(1)(d) are procedural and jurisdictional provisions relating to sentencing in the Magistrates Court and all the substantive sentencing provisions are contained in the Sentencing Act.
Like s 208, s 209 speaks of “conviction”, “order”, “decision”, “sentence” and “penalty” in the alternative, and does not identify as a separate concept the finding of guilt or the finding that an offence has been proved.
Section 218 of the MCA confers upon the Supreme Court wide appellate powers in relation to Magistrates Court decisions, but makes no reference to a finding of guilt, or a finding that an offence has been proved. Section 218 picks up the terms “decision”, “conviction”, “order”, “sentence” and “penalty” that are used in s 208. It provides:
(1)On an appeal to which this division applies, the Supreme Court may—
(a)confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court …
Generally, in relation to appeals in criminal and related matters, the MCA uses the expressions “decision”, “conviction”, “order” and “sentence or penalty”. The rights of appeal in s 208(1)(b) can be compared to those in ss 208(1)(d) and (e). The former relate to appeals against “conviction”, and the latter relate to appeals against sentence or sentencing orders.
In relation to neither appeal provisions nor other provisions does the MCA use the expression “finding that an offence has been proved”, “finding of guilt” or any equivalent expression. Nowhere does the MCA expressly acknowledge any distinction between a “conviction” and a finding of guilt. Nor is there any express mention of non-conviction; rather, the distinction is between conviction and dismissal. There is no recognition that a finding of guilt may result in a non-conviction order made under s 17 of the Sentencing Act.
On the other hand, throughout the MCA, a distinction is drawn between “conviction” and “sentence”. As Refshauge J observed in Travini, at [52], both the general approach of the MCA and the particular approach taken in s 208 are to distinguish between the two principal stages in the criminal justice process, i.e. conviction (including conviction in the sense of finding that an offender is guilty) and sentence; conviction precedes and is separate from sentence.
History of the appeal provisions in the Magistrates Court Act
The MCA (then Ordinance No. 2) was enacted in 1930, when non-conviction orders were an emerging concept in Australia. In 1942, the concept was first introduced in the ACT: see [59] below. The MCA has been the subject of piecemeal amendment, but it has never been thoroughly reviewed.
In 1930, the Court of Petty Sessions Ordinance 1930 (ACT) was repealed and replaced with Ordinance No. 2. The appeal provisions were contained in pt XI, which was entitled “Appeals from the Decisions of the Court of Petty Sessions”. Relevantly, s 207 provided that the High Court was to hear “appeals from all rulings, orders, convictions or determinations of the Court [of Petty Sessions].” Section 208 provided that a person “aggrieved by or dissatisfied with an order or conviction of the Court [of Petty Sessions]” could appeal to the High Court. Why s 208 spoke of “an order or conviction” but s 207 spoke of “all rulings, orders, convictions or determinations” is unclear. It would seem that s 208 was not intended to limit the wide scope of the appellable decisions referred to in s 207. In effect, Davies v Ryan adopted that approach.
In 1937, pt XI of Ordinance No. 2 was replaced. The new part continued to distinguish between the right to appeal against a “conviction” (flowing from a matter charged by information) and the right to appeal against an “order” (which related to a complaint). The new s 207 provided that a person aggrieved “by a conviction of the Court [of Petty Sessions] imposing a fine of Five pounds or more, or any term of imprisonment …” (the sentencing threshold) may appeal against the conviction. Section 208 provided that, where the sentencing threshold in s 207 was not reached, it was necessary to seek leave to appeal from the conviction. In describing appeal rights by reference to a sentencing threshold, the legislation used the term “conviction” in the broad sense of including sentence.
In 1958, all references to “order” in Ordinance No. 2 were omitted from ss 208(1) and (5). Section 208A was inserted to deal with appeals from “an order of the Court [of Petty Sessions]”. The effect of the amendments was that s 208 provided for appeals from “conviction” in criminal proceedings and s 208A provided for appeals from “orders” in civil proceedings.
As noted above, the first form of non-conviction order (an order under s 556A of the Crimes Act) had been introduced in 1942. In 1972, Ordinance No. 2 was amended. The existing civil and criminal appeal provisions were repealed and replaced with the following provisions:
207.—(1.)The appellate jurisdiction of the Supreme Court with respect to decisions of the Court of Petty Sessions under this Ordinance extends to the hearing and determination of the following appeals and to no others, namely:—
(a)appeals to which Division 2 of this Part applies; and
...
208.—(1.)Each of the following appeals is an appeal to which this Division applies:—
(a)an appeal, by the person convicted, from a conviction for an offence dealt with by the Court of Petty Sessions under Part VII or under section two hundred and fifty-five of this Ordinance;
(b)an appeal, by the person against whom the order is made, from an order made in pursuance of section one hundred and thirteen or section one hundred and fourteen of this Ordinance in proceedings dealt with by the Court of Petty Sessions under Part VII.;
(c)an appeal from a sentence or penalty imposed by the Court of Petty Sessions by a person convicted of an offence dealt with by that Court under section ninety A or two hundred and fifty-five of this Ordinance or under Part VII., whether or not that person appeals against the conviction in respect of which the sentence or penalty was imposed;
(d)an appeal, by the person charged, from a decision of the Court of Petty Sessions made in pursuance of—
(i) sub-section (1.) of section five hundred and fifty-six A of the Crimes Act;
(ii) sub-section (3.) of that section;
...
(e)an appeal, by a person who has given a recognizance under section five hundred and fifty-six A or five hundred and fifty-six B of the Crimes Act or by his [or her] surety ...
The Explanatory Memorandum to the 1972 amendments provided that a purpose of the new provisions was to establish that “[a]n appeal in a criminal case lies as of right in all cases and the existing requirement of leave in certain cases is abolished” (emphasis added). It seems to have been assumed that, prior to the 1972 amendments, offenders who had been dealt with under s 556A could appeal (at least with leave).
As a result of the 1972 amendments, a “person convicted” could appeal from the “conviction”, a “person convicted” could appeal from “a sentence or penalty” and a “person charged” could appeal from a “decision” under s 556A(1) or (3) of the Crimes Act. At that time, under s 556A of the Crimes Act, if a court was “satisfied” that a charge was proved, the court could either “dismiss” the charge or order the person to enter into a recognizance. The 1972 amendments meant that, if a court found a charge to be proved, the offender could appeal, regardless of whether the finding of guilt was a “conviction” within the meaning of s 208. If the finding of guilt was not a “conviction” that was appellable under s 208(1)(a) then, at least, it was a “decision” that was appellable under s 208(1)(d).
In 2002 (pursuant to s 43 of the Crimes Legislation Amendment Act 2001 (ACT)), s 556A(1) was renumbered as s 402(1). The renumbered section (s 402) was in identical terms to its predecessor (s 556A). Section 208(1)(e) of the MCA was amended to provide for an appeal “by the person charged” from a “decision” of the Magistrates Court made under s 402(1) or (3) of the Crimes Act. It remained uncertain whether, when the beneficiary of a s 402 order appealed against a finding of guilt, the appeal was by a “person convicted” from a “conviction”, or it was an appeal by a “person charged” from a “decision”.
The current s 208(1)(e) was inserted by the Sentencing Legislation Amendment Act 2006 (ACT) (for reference A2006-23). The current provision states:
208 Appeals to which div 3.10.2 applies
(1)Each of the following appeals is an appeal to which this division applies:
...
(e)an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
(iii) part 3.4 (Non-association and place restriction orders);
(iv) part 3.5 (Deferred sentence orders);
(v) part 3.6 (Combination sentences);
Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16).
...
The Explanatory Memorandum states that the purpose of the amendment to s 208(1)(e) was to update “the references to adult sentencing options in section 208(1)(e) and (f) to those available in the new sentencing scheme under the Sentencing Acts.” There was no reference to making a change to the substantive law.
In summary, the history of the appeal provisions in the MCA shows that:
(a)The general structure of the MCA and the particular structure of s 208 distinguish between the two essential stages in the criminal process: the adjudication of guilt and the passing of sentence. Nowhere does the MCA differentiate between the adjudication of guilt and “conviction”, and the MCA does not accord particular importance to the entry of a conviction.
(b)Since 1930, in the ACT there has been an avenue to appeal all criminal convictions and sentences (although, for a period, leave was required when sentences did not exceed a threshold).
(c)Prior to the introduction of non-conviction orders to the ACT in 1942, in criminal cases there was a right under Ordinance No. 2 to appeal against “conviction”, and “conviction” included sentence.
(d)Between 1942 and 1972, the MCA appeal provisions did not expressly refer to non-conviction orders.
(e)The 1972 amendments to Ordinance No. 2 created a right to appeal by a “person charged” against a s 556A “decision”, but did not clarify whether an appeal against a finding of guilt that underlay a s 556A order was an appeal against “conviction” or an appeal against a s 556A “decision”. Either way, the beneficiary of a s 556A order was entitled to appeal the underlying finding of guilt; if that finding did not amount to a “conviction”, it was at least a “decision”.
(f)When s 208 of the MCA was “updated” in 2006 to reflect the provisions of the new Sentencing Act (including the s 17 provisions relating to non-conviction orders), there was no discussion about removing any existing right of appeal.
Section 17 of the Sentencing Act
The issue before the Court arises because s 17 of the Sentencing Act enables a sentencing court to make a “non-conviction order” which avoids the entry of a conviction. Consequently, at the conclusion of a defended criminal hearing, it is common practice for the court to find that the offence is proved (rather than stating that the offender is convicted), thereby seeking to reserve the option of later imposing a “non-conviction order”.
Section 17 is found in Chapter 3 of the Sentencing Act, which is entitled “Sentencing and non-conviction options”. Part 3.3 is entitled “non-custodial sentences”. Within that part, s 17 provides:
17 Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b)a good behaviour order under section 13.
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
...
(Emphasis in original)
The applicant assumed that, for the purposes of the Sentencing Act, the expressions “conviction” and “non-conviction order” have opposite meanings. The applicant went on to argue that the expression “conviction” in s 208(1)(b) of the MCA is the antithesis of the expression “non-conviction” in the Sentencing Act. For the reasons that appear below, we disagree with that approach.
It should not be assumed that a “conviction” within the meaning of the MCA is the antithesis of a “non-conviction order” within the meaning of the Sentencing Act. The statutes were created at different times and for different purposes. Unless two Acts are introduced as part of one larger legislative scheme, the meaning to be accorded to a term in one Act does not necessarily inform the meaning of the term in another Act, particularly if they do not concern the same subject matter: H v Minister for Immigration and Citizenship (2010) 188 FCR 393 at 403, [38]-[39]. The MCA had its origins in Ordinance No. 2 and it deals with jurisdiction and procedures in the Magistrates Court. The Sentencing Act is recent legislation, which was designed, among other things, to consolidate legislation relating to the imposition of sentences in the ACT: see s 6(e) of the Sentencing Act.
A “non-conviction order” under the Sentencing Act is not the opposite of a “conviction” under the MCA. A non-conviction order is a creation of the Sentencing Act and it should be viewed as a form of sentence. A s 17(2)(a) non-conviction/dismissal order may be made in circumstances where it is appropriate to impose only “nominal punishment” (emphasis added). Both the consideration of “punishment” and the other considerations that inform whether a non-conviction order should be made are sentencing considerations. When a court is deciding whether to impose any sentence (including one under s 17), it must consider the sentencing purposes set out in s 7 of the Sentencing Act and the relevant sentencing considerations under s 33 of the Sentencing Act. In relation to whether a non-conviction order should be made under s 17, further considerations are identified within the section itself, and each is a sentencing consideration.
Like other sentences, a non-conviction order is a sentence imposed upon an “offender”. Section 7(1) of the Sentencing Act enables a court to “impose a sentence on an offender” for one or more of the purposes stated in that subsection. Section 8 of the Sentencing Act defines “offender” to mean “a person convicted or found guilty of an offence by a court”, confirming that the Sentencing Act (and the general sentencing process) applies to two sorts of persons: those who have been found guilty, and those in relation to whom a conviction has been entered. In other words, like the MCA, the Sentencing Act acknowledges that there are two essential stages in the criminal process: the adjudication of guilt and the passing of sentence.
The imposition of a non-conviction order following a finding of guilt is a sentencing outcome that is exceptional: Stark v Plant [2010] WASCA 74 at [18]; Proud v Sladic [2014] ACTCA 26 (Proud v Sladic). The ordinary consequence of a finding of guilt is the recording of a conviction: Balthazar v The Queen [2012] ACTCA 26 at [53].
A non-conviction order is a sentence that acknowledges extenuating circumstances (relating either subjectively to the offender or objectively to the offence) by imposing a nominal or very low level of punishment that does not involve the formal recording of a conviction. It is a sentencing outcome that recognises that indirect punishment may flow from the formal recording of a conviction, such as reputational damage or practical disadvantage associated with declaring a conviction for employment or travel purposes.
The first form of non-conviction order available in the ACT was found in s 556A of the Crimes Act 1900, which was inserted into the Crimes Act in 1942. Section 556A(1) provided that:
where any person is charged before a Court of summary jurisdiction with an offence punishable by such Court, and the Court thinks that the charge is proved, but is of opinion that ... is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the Court may, without proceeding to conviction make an order either –
(a)dismissing the charge; or
(b)discharge the offender conditionally on his [or her] entering into a reconnaissance …
(Emphasis added)
Pursuant to s 556A(2), for limited purposes (relating to the restoration of property), an order under that section had “the like effect of a conviction”. It would seem that, in s 556A(1) and (2), the term “conviction” meant the formal entry of a conviction (rather than the unequivocal finding of guilt); hence the need for ss (2).
In 1971, s 556A was repealed and replaced by the Crimes Ordinance 1971 (No. 2 of 1971). The new s 556A(1) provided that:
(1.) Where—
(a)a person is charged before the Court of Petty Sessions with an offence against a law of the Territory; and
(b)the Court is satisfied that the charge is proved but is of opinion, having regard to—
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent, if any, to which the offence is of a trivial nature; or
(iii) the extent, if any, to which the offence was committed under extenuating circumstances,
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation,
the Court may dismiss the charge or, without proceeding to conviction, by order, direct that the person be discharged upon his [or her] giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court, that—
...
The new s 556A required the sentencing court to be “satisfied” that the charge was proved before proceeding to either “dismiss the charge” or “without proceeding to conviction, by order, direct that the person be discharged upon his [or her] giving security, with or without sureties, by recognizance or otherwise…”. Note that, under the previous provision, the expression “without proceeding to conviction” attached both to a dismissal outcome and to a discharge with security outcome. This change was not explained by the Explanatory Memorandum, which merely stated that the new provisions enabled a court “to release an offender without passing sentence, to release him [or her] on recognizance subject to such conditions as the court considers appropriate”. In any event, both the earlier provisions and the new provisions recognised that there were two stages to criminal proceedings: first, the court determined whether a charge was proved; second, the court considered the appropriate punishment. In 2001, s 556A was renumbered as s 402 but without other amendment.
When the Sentencing Act was introduced, s 402 of the Crimes Act was replaced by s 17 of the Sentencing Act.
In interpreting the MCA appeal provisions, no reliance can be placed on the note to s 17 of the Sentencing Act (which is set out in [67] above). First, while a note may be used in “working out the meaning of an Act”, a note to an Act is not part of the Act: ss 127(1) and 141(2) of the Legislation Act. Second, the note to s 17 is contained in the Sentencing Act, not the MCA. The Sentencing Act was introduced many years after the MCA. In the absence of clear contrary intent, meaning and purpose cannot be retrospectively attributed to the MCA.
Review appeals
If the applicant’s argument is correct and a finding of guilt is not a “conviction” within the meaning of the MCA, then the making of a non-conviction order directing that a charge be dismissed (under s 17(2)(a) of the Sentencing Act) would presumably result in a “dismissal”, and a question would arise about whether the sentenced person was entitled to pursue a review appeal against the “dismissal” (and the underlying finding of guilt) pursuant to s 219B of the MCA.
Division 3.10.3 of the MCA makes provision for “review appeals” in criminal matters. It provides:
219B Decisions subject to review appeal
(1)Each of the following is a decision of the Magistrates Court from which an appeal by way of review (a review appeal) may be made in accordance with this division:
(a)an order of the Magistrates Court dismissing an information dealt with by that court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375;
(b)a conviction by the Magistrates Court for an offence dealt with by that court under this Act, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375;
...
(f)a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375.
(2)In subsection (1)(f):
sentence or penalty includes a sentence or penalty imposed by an order of the Magistrates Court under—
(a) any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
...
(Emphasis added)
Whereas an appeal under div 3.10.2 of the MCA is an appeal by way of rehearing in which fresh evidence may be received, an appeal under div 3.10.3 of the MCA enables a review on the ground of prima facie error or mistake by the Magistrates Court, lack of jurisdiction, legal error or, in the case of an appeal against sentence or penalty under s 219B(1)(f) of the MCA, review on the ground that the sentence or penalty “was manifestly inadequate or otherwise in error”: s 219D of the MCA. Division 3.10.3 creates limited rights of appeal that are of particular relevance to informants. Division 3.10.3 was introduced in 1972 (then referred to as div 3 of pt XI). The relevant Explanatory Memorandum provides:
Its use is largely confined to the criminal jurisdiction and it provides a convenient means whereby decisions of the Court of Petty Sessions on questions of law may be reviewed by the Supreme Court. The procedure is available to both prosecutor and defendant. For the first time in the Territory, it will be possible for a prosecutor to appeal against the dismissal of an information charging an offence but, in such a case, the defendant’s costs of the appeal will be payable by the prosecutor whatever the outcome of the appeal.
If an offender who received a s 17 dismissal order was limited to instituting a review appeal, the offender’s appeal rights would be significantly more limited than if there was a right to appeal under s 208. Further, there would be an undesirable anomaly in relation to the appeal rights attaching to the two types of non-conviction orders that may be made under s 17 of the Sentencing Act. It would be anomalous if an offender was entitled to a “review appeal” of a non-conviction order (and the underlying finding of guilt) made under s 17(2)(a), but was not entitled to appeal the underlying finding of guilt relating to a non-conviction order made under s 17(2)(b) of the Sentencing Act.
Human Rights Act
Section 30 of the HRA provides that a law of the Territory “must be interpreted in a way that is compatible with human rights”, so far as it is possible to do so. This raises the question of whether any human right referred to in the HRA is relevant to the interpretation of s 208(1)(b) of the MCA.
In Travini at [62], Refshauge J placed some reliance on ss 22 (4) and 30 of the HRA when considering the breadth of s 208 appeal rights.
Section 29 of the HRA provides:
This part applies to all Territory laws.
“This part” is a reference to pt 4 of the HRA and includes s 30.
The HRA appears to create an exception to the general rule that meaning cannot be retrospectively attributed to legislation. The terms of s 29 indicate that legislation that pre-dates the HRA “must [also] be interpreted in a way that is compatible with human rights”; that s 30 applies to the interpretation of statutes enacted prior to the HRA, despite the fact that such statutes may have been enacted at a time when contemporary human rights concepts could not have informed the purpose of their enactment.
This approach is reinforced by the terms of the Explanatory Memorandum, presented with the introduction of the Bill, which states:
Overview of Bill
The main purpose of this Bill is to recognise fundamental civil and political rights in Territory law. In particular, the Bill ensures that, to the maximum extent possible, all Territory statutes and statutory instruments are interpreted in a way that respects and protects the human rights set out in Part 3 of the Bill.
...
Clause 29 Application of part 4
Clause 29 applies the provisions of Part 4 to all Territory laws. Territory laws are defined to mean all Territory statutes and statutory instruments. This Bill does not expressly apply to the common law although it may influence the development of the common law.
The HRA refers to two human rights which may be relevant to the interpretation of s 208(1)(b) of the MCA: the right to review of decisions in criminal cases which is contained in s 22(4) of the HRA, and the right to reputation in s 12 of the HRA.
Section 22(4) of the HRA provides that “Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court...”.
First, it is necessary to determine the scope of this right of review. For the purpose of doing so, it is necessary to consider the meaning of the expression “conviction” where it is used in the HRA.
The s 22(4) right to review of decisions in criminal cases reflects (almost verbatim) art 14 paragraph 5 of the International Covenant of the Civil and Political Rights (ICCPR).
Section 31(1) of the HRA provides that, subject to the considerations referred to in s 31(2), “International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.”
The decisions of the Human Rights Committee come within this definition. The Human Rights Committee is a body established pursuant to the ICCPR, for the purpose of considering and determining complaints alleging that a State has acted in violation of the ICCPR. From time to time, the Human Rights Committee issues interpretations, referred to as “General Comments”, on provisions of the ICCPR.
General Comment No. 32 relates to art 14 of the ICCPR. At [47], the Human Rights Committee observed that the right to review is violated “if the decision by the court of first instance is final”, i.e. not subject to review. The Human Rights Committee Comment referred to a “decision”, rather than “a finding of guilt”. Further, at [48] of the Comment, the Human Rights Committee referred to “conviction”, “convicted person” and “a finding of guilt” without distinguishing between the terms. It would seem that, in the Comment, the Human Rights Committee did not distinguish between the terms “conviction” and “finding of guilt”, using the terms interchangeably to refer to the determination of an allegation that a person has committed a criminal offence. Such an approach is consistent with that taken in Human Rights Committee, Decision: Communication No. 536/1993, 53rd sess, UN Doc CCPR/C/53/D/536/1993 (28 March 1995) (‘Perera v Australia’), where the Human Rights Committee referred to the fact that the complainant was “found guilty” and to the complainant’s “conviction” without distinction.
Applying the approach of the Human Rights Committee to the meaning of “conviction” in the HRA, “conviction” in s 22(4) of the HRA includes a finding of guilt.
Accordingly, applying s 30(1) of the HRA, the Court must, so far as it is possible to do so, interpret s 208(1)(b) of the MCA in a way that does not violate an offender’s human right to have his or her “conviction” (including the underlying finding of guilt) reviewed by a higher court.
Section 12(b) of the HRA provides that every person has the right not to have his or her reputation unlawfully attacked. This reflects art 17 of the ICCPR. The question is: does the inability of a person to appeal from a finding of guilt infringe that person’s right “not to have their reputation unlawfully attacked”? We have concluded that it does not.
The Human Rights Committee observed in General Comment 16 at [11], that “[a]rticle 17 affords protection to personal honour and reputation and States are under an obligation to provide adequate legislation to that end.”
In Mikolajová v Slovakia (European Court of Human Rights, Chamber, Application No. 4470/03, 18 January 2011) (Mikolajová v Slovakia), the European Court of Human Rights, considered the extent of this right. The Court was considering art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It had been alleged that the applicant had committed a criminal offence, but the police had not prosecuted the matter because the complainant had not supported a prosecution. The police file contained “a decision” to the effect that the applicant had committed the offence. A third party read the “decision”. The applicant alleged that their right to protection of reputation had been violated. In the particular circumstances of the case, the Court concluded that there had been a violation of the right to protection of reputation. The Court observed at [61]–[62]:
Of particular concern to the Court is the fact that the applicant had not been charged with a criminal offence but was nevertheless placed on record as a criminal offender. The Court has already had occasion to point to the risk of stigmatisation of individuals stemming from such practices and the threat which they represent to the principle of the presumption of innocence. For the Court, the damage which may be caused to the reputation of the individual concerned through the communication of inaccurate or misleading information cannot be ignored either. The Court would also observe with concern that the authorities have not indicated whether the police decision remains valid indefinitely, such as to constitute, with each communication to a third party, assuming such to be in pursuit of a legitimate aim, a continuing threat to the applicant's right to reputation.
In examining whether the domestic authorities have complied with the above-mentioned fair balance requirement, the Court must have regard to the safeguards in place in order to avoid arbitrariness in decision-making and to secure the rights of the individual against abuse. In the instant case, the Court cannot but note the lack of any available recourse through which the applicant could obtain a subsequent retraction or clarification of the terms of the police decision.
(Citations omitted)
Human rights are not absolute. They interact with other rights. As stated in s 28(1) of the HRA, human rights are subject “to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.”
A critical distinction between the facts in Mikolajová v Slovakia and those of the present case is that, in the present case, the decision that the respondent seeks to appeal was made after the respondent was afforded procedural fairness in open court. The right to a hearing was a critical safeguard against “arbitrariness in decision-making”.
The right to protection of reputation in s 12 of the HRA provides that a person has the right not to have their reputation “unlawfully attacked”. The decision of a properly constituted court cannot be characterised as an “unlawful attack” on reputation. Similarly, art 17 of the ICCPR provides that a person’s reputation is not to be the subject of “unlawful attacks”. In General Comment 16 at [3] the Human Rights Committee observed:
The term "unlawful" means that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.
Section 208 is a remedial provision
The provisions of ch 3 of the MCA are remedial in nature. They seek to redress injustices that the rigidity of the common law allowed by failing to provide for appeals. Because it is a remedial provision, s 208 should “be given a broad, and not a narrow or restricted, interpretation”: Davison & Ors v State of Queensland (2006) 227 ALR 1 at [41] per Kirby J. Of course, legislation with a beneficial purpose can only “receive as generous a construction as the actual language of those provisions permits”: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at [50] per French CJ, Hayne, Crennan and Kiefel JJ (emphasis added).
The remedial nature of the provisions in ch 3 of the MCA (including s 208) supports the view that “conviction” should be interpreted to include a finding of guilt, or a finding that an offence has been proved, because such an interpretation affords a right of appeal to all offenders against whom such a finding is made.
The applicant’s submission on fragmentation
The applicant submitted that, if there was a right to appeal against a finding of guilt as well as rights to appeal against formal conviction and sentence, the practical result would be an undesirable fragmentation of the criminal justice process.
This submission is rejected. First, the proper construction of legislation cannot depend upon whether a construction has negative practical consequences. Second, in defended proceedings in the Magistrates Court, the sentencing hearing commonly occurs immediately after the question of guilt has been decided. The determination of guilt, the entry of conviction and sentence are considered on the same day and there is no fragmentation. In cases where the sentencing hearing is adjourned to a later date, there can be no valid objection to “fragmentation” if it allows an appellant to challenge a finding of guilt before he or she is required to address sentencing considerations, including whether the finding of guilt warrants the exceptional sentencing outcome of a non-conviction order: Proud v Sladic at [42].
Conclusion
A finding by the Magistrates Court that an offence has been proved (a finding of guilt) is a “conviction” within the meaning of s 208(1)(b) of the MCA.
We reach that conclusion for the following key reasons:
(a) The word “conviction” has no “ordinary meaning”. Depending on the context in which it is used, it may refer to a finding of guilt, to the formal recording of a conviction or to the finalisation of criminal proceedings by the imposition of a sentence. See [18]–[32] above.
(b) The MCA generally and s 208 of the MCA in particular distinguish between the two principal stages in the criminal justice process: “conviction” in the sense of the adjudication of guilt, and the passing of sentence. See [33]–[54] above.
(c) Historically, under the MCA and its predecessors there has been an avenue to appeal against both a finding of guilt and a sentence, and the legislature has never stated an intention to change that approach. See [55]–[65] above.
(d) The expression “non-conviction order” in s 17 of the Sentencing Act does not inform the meaning of “conviction” in the MCA. A non-conviction order under s 17 of the Sentencing Act is best understood as a form of sentence. It relates to the second of the two principal stages in the criminal justice process. It does not relate to the first stage: the finding of guilt. See [66]–[78] above.
(e) Applying the HRA (as interpreted by reference to international human rights law), s 208 of the MCA should be interpreted in a manner that is compatible with the human right to have a “conviction” (finding of guilt) reviewed by a higher court, i.e. in s 208 of the MCA the expression “conviction” should be interpreted to mean a finding of guilt. See [83]–[102] above.
(f) The remedial nature of the provisions in ch 3 of the MCA (including s 208) supports the view that “conviction” means a finding of guilt; such an interpretation affords a right of appeal to all offenders against whom such a finding is made. See [103]–[104] above.
The application is dismissed.
| I certify that the preceding one hundred and nine [109] numbered paragraphs is a true copy of the Reasons for Judgment of the Court Associate: Date: |
Amendments
| 4 November 2020 | Amend parties to “Leesa Alexander (Applicant)” and “Sarah Jane Parkinson (Respondent)” Amend counsel to “Mr J White SC (Applicant)” and “Mr K Archer (Respondent)”. Amend solicitors to “ACT Director of Public Prosecutions (Applicant)” and “Kamy Saeedi Law (Respondent)” Remove section “Decision under appeal” | Headnote |
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