Paul Henry Johnson v Judge Phelan and Director of Public Prosecutions

[2001] NSWCA 294

Reported Decision: [2001] ACL Rep 130 NSW 431

New South Wales

Court of Appeal

CITATION:	Paul Henry Johnson v Judge Phelan and Director of Public Prosecutions [2001] NSWCA 294
FILE NUMBER(S):	CA 40073/01
HEARING DATE(S):	19 July 2001
JUDGMENT DATE:	6 September 2001
PARTIES :	Paul Henry Johnson (Claimant) Judge Phelan (1st Opponent) Director of Public Prosecutions (2nd Opponent)
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 2; Stein JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 98/42/0310 DC 98/42/0445 DC 98/42/0446
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

COUNSEL:	Claimant - In person 1st Opponent - Submitting 2nd Opponent - Helen Langley (Solicitor)
SOLICITORS:	Claimant - In person 1st Opponent - submitting 2nd Opponent - S E O'Connor
CATCHWORDS:	CRIMINAL LAW - Community Service Order - breach - warrant for arrest - Community Service Order expired - whether execution of warrants lawful - CRIMINAL LAW - ss 23, 24 Community Service Orders Act 1979 - meaning of 'proceedings' - whether referred to actual arrest or issue of warrant - ND
LEGISLATION CITED:	Crimes Act 1900 Community Service Orders Act 1979
CASES CITED:	Allerton v DPP (1991) 24 NSWLR 550 R v Hull (1989) 16 NSWLR 385 Elliott v Williams (1985) 15 A Crim R 437 DPP v Cassell (1995) 80 A Crim R 160
DECISION:	Summons dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40073/01
DC 98/42/0310;
98/42/0445;

98/42/0446

PRIESTLEY JA
MEAGHER JA
STEIN JA

Thursday, 6 September 2001

Paul Henry JOHNSON v Judge PHELAN and DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

The claimant, a litigant in person, seeks an order directing Judge Phelan to state a case for the Court of Criminal Appeal with respect to his District Court criminal proceedings. The offences for which the claimant was convicted in the District Court arose out of a Community Service Order issued in 1996, and the claimant’s arrest in 1997 for an alleged breach of such. The claimant submitted to the Court that as the Community Service Order had expired more than one month prior to his arrest, the execution of the warrant for his arrest was unlawful. The major issue in the appeal was the meaning of the word ‘proceedings’ in s 23 of the Community Service Orders Act 1979.

Per Priestley, Meagher and Stein JJA:

1) The phrase ‘proceedings for an offence’ as found in s 23 of the Community Service Orders Act 1979 does not refer to the actual arrest, but to the laying of the information for breach of the Community Service Order.

- R v Hull (1989) 16 NSWLR 385 applied

Orders:
Summons dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40073/01
DC 98/42/0310;
98/42/0445;

98/42/0446

PRIESTLEY JA
MEAGHER JA
STEIN JA

Thursday, 6 September 2001

Paul Henry JOHNSON v Judge PHELAN and DIRECTOR OF PUBLIC PROSECUTIONS (NSW)
JUDGMENT

1    PRIESTLEY JA: I agree with Stein JA.

2    MEAGHER JA: I agree with Stein JA.

3    STEIN JA: The claimant, Paul Henry Johnson, a litigant in person, seeks an order directing Judge Phelan, the first opponent, to state a case to the Court of Criminal Appeal with respect to the claimant’s District Court criminal appeal proceedings. The second opponent is the Director of Public Prosecutions (the DPP).

4 In order to understand the submissions, it is necessary to set out some of the background of the matter. On 28 March 1996 the claimant was convicted in Wollongong Local Court for ‘drive manner dangerous’. A Community Service Order of 200 hours was imposed, and he was disqualified from driving for 3 years. The claimant was also convicted on that date of ‘malicious damage’, the sentence for which was deferred under the then s 558 of the Crimes Act 1900. The claimant entered a self- recognizance in the amount of $300, to be of good behaviour for two years. The recognizance was conditioned upon his accepting the supervision and guidance of the Probation and Parole Service for such period as deemed necessary. The claimant was also ordered to pay compensation in the sum of $2,226.19 to the Police Department within twelve months.

5 On 25 September 1996 an information was laid at the Wollongong Local Court by Rhonda Freestone of the Probation and Parole Service. Within its heading, the document refers to s 23 of Act 192 of 1979 (the Community Service Orders Act 1979). The information alleged that the claimant had ‘failed without reasonable cause or excuse to comply with any requirement made by the Community Service Orders Act’. The information stated that the reason for his failure to comply was a ‘Reluctance To Finish The Work Assigned To Him & Unsuitability To Continue Work Order Due to Undocumented Medical Condition & Aggressive Attitude Towards Work Placements And The Conditions Of This Order’. The information continued to the effect that a Justice should proceed to issue a warrant for the claimant’s apprehension.

6    On the same day the informant sought and obtained the issue of a warrant for the apprehension of the claimant in order to bring him before a Magistrate to answer the allegation that he breached the CSO.

7    A further information was laid at the Wollongong Local Court on 14 October 1996 by William Bourke of the Probation and Parole Service. It alleged that the claimant had ‘failed to comply with a condition of the said recognizance, in that: Failed to keep an appointment on 24.6.96. Not complying with CSO. Present whereabouts unknown.’ The document continued:

AND I the undersigned Magistrate being satisfied by the information on oath that the said offender has failed to observe the condition of the recognizance: These are therefore to command you in Her majesty’s name forthwith to apprehend and bring to said offender before the Court to be further dealt with according to law.

8    On 13 August 1997, after receiving information that the claimant had returned to the area and was living in his car at Wombarra, police went to the area. They informed the claimant of the existence of the warrants and of their intention to arrest him. After what the second opponent describes as a ‘stand off’, the claimant walked away from the police.

9    On 15 August 1997, two police officers again went to Wombarra with the intention of arresting the claimant. Phelan DCJ, during the hearing of the appeals, found that the claimant was abusive towards the police from the outset, and that the claimant then ‘picked up a large stick from the ground and lifted it in a threatening manner… He began to walk towards Senior Constable Baird who had to retreat. He then approached the other officer with a stick held over his head… The [claimant] then picked up a steering lock which he held in one hand and a stick in the other. He said, “Come near me and I will kill you”. He then went into the nearby cemetery. A subsequent search failed to locate him’.

10    On 18 August 1997 police returned to Wombarra to arrest the claimant. According to police he was informed that he was under arrest under two outstanding warrants, and was asked to put down the stick he was holding. He ran from the police and hid within the cemetery, and when located he threatened the police by swinging the stick at them. He was then tackled, at which time be struggled violently, kicking and punching at the arresting officers. He was eventually subdued and taken to Wollongong Police Station where he was charged. When being transferred into the custody of Corrective Services, he refused to submit to a strip search and became aggressive. He allegedly spat at one of the Corrective Services Officers, striking him in the eye and mouth area.

11    The claimant was charged with common assault with respect to the Corrective Services Officer, with two counts of ‘assault police’ with respect to the events of 15 August 1997, and with assaulting police and resisting arrest on 18 August 1997.

12 On 14 October 1997, the claimant was before the Local Court with respect to the alleged breaches of the Community Service Order and recognizance. However, the Magistrate directed that no action be taken with regard to the alleged breaches of the Order and recognizance. The power of the Court to take no action is derived from s 25(1)(d) of the Community Service Orders Act (the Act) by reason of the expiry of the Order.

13    At the hearing of the summons, the claimant was under the impression that the Magistrate said that because the CSO had expired, the order was automatically revoked, therefore there was no breach of the CSO and the claimant was found not guilty. However, this was from the Claimant’s memory only without the benefit of the transcript.

14    Once the transcript was obtained by the DPP, it became clear that the Claimant’s recollection was incorrect. The Magistrate in fact said ‘Order expired 27 March 1997. No action taken to revoke order’. He did not find that the Claimant had not breached the CSO. Indeed, it appears that he said to the Claimant:

So in effect Mr Johnson what’s happened is, you’ve got away with doing sixty and a quarter hours instead of 200. That’s the end of the Community Service Order matter.

15 On 23 July 1998 Mr Lyon, Magistrate convicted the claimant of common assault and imposed a fine of $750. The claimant appealed to the District Court. Mr Still, Magistrate convicted the claimant of two counts of ‘assault police’ on 13 October 1998 and imposed s 558 recognizances in the sum of $500 to be of good behaviour for two years and accept the supervision of the Probation and Parole Service. The claimant appealed to the District Court. On 14 October 1998 Mr Maloney, Magistrate convicted the claimant of ‘resist arrest’ and ‘assault police’ and imposed two further recognizances in the sum of $500 to be of good behaviour for 12 months. The claimant appealed to the District Court.

16    All of the claimant’s appeals to the District Court were heard over several days in 1999 and 2000 by Judge Phelan. He reserved his decision in all matters and judgment was given on 19 October 2000. The claimant achieved a modicum of success. With respect to the conviction for common assault, his Honour found the offence proven but ordered that no conviction be recorded, and dismissed the appeal. Appeals were upheld and the convictions quashed with respect to five charges of assault police, assault special constable and resist arrest. On the remaining charges of assaulting police and resisting arrest, his Honour dismissed the appeals, and found the offences proven. Convictions were recorded but in lieu of the sentences imposed by the Local Courts, the claimant was to enter into a good behaviour bond for a period of 12 months for each offence.

17    After convictions were recorded by Phelan DCJ the claimant indicated that he wished to appeal. He maintains that his Honour indicated to him that the only way to do so was to ask him to state case to the Court of Criminal Appeal. The transcript does not indicate that such a conversation, in the terms claimed, took place. In any event, the claimant lodged a document seeking that a case be stated by his Honour on 14 November 2000, and was advised of Phelan DCJ’s response that the District Court was functus officio and accordingly a case could not be stated. The claimant then filed a summons in the Court of Appeal on 21 February 2001. The second opponent was joined into the summons on 15 March 2001, and was represented at the hearing by Ms Langley. The first opponent filed a submitting appearance.

18 The hearing concentrated upon the claimant’s submission that the execution of the warrants for his arrest was unlawful. He referred the court to s 23 of the Act which provides:

(1) If a person in respect of whom a community service order is in force fails, without reasonable cause or excuse, to comply with the order or with any requirement made by or under this Act or the regulations in respect of the order, the person shall be guilty of an offence.

(2) Proceedings for an offence under subsection (1) in respect of a community service order shall be brought in accordance with section 24.

(3) Notwithstanding section 56(1) of the Justices Act 1902 proceedings for an offence under subsection (1) in respect of a community service order shall not be commenced at any time later than one month after the order ceased to be in force.

19 It is convenient also to set out s 24 of the Act.

If it appears on complaint in writing to a justice that a person in respect of whom a community service order is in force has failed, without reasonable cause or excuse, to comply with the order or with any requirement made by or under this Act or the regulations in respect of the order, the justice may issue a summons requiring the person to appear before the supervising court at the time specified in the summons or may, if the complaint is in writing and on oath, issue a warrant for the arrest of the person and directing that the person be brought before the supervising court as soon as possible after the person’s arrest.

20 The claimant argued that as the relevant community service order had expired on 27 March 1997, by virtue of s 16(2)(a) of the Act, and since his arrest on 18 August 1997 was some three and half months outside of the one month period referred to in s 23(3), it was unlawful. He submitted to the court that the ‘proceedings’ referred to in s 23 were his arrest, and therefore the execution of the warrants was unlawful as being out of time. This would obviously have implications for his convictions for resisting arrest and assaulting police.

21 On behalf of the DPP, Ms Langley submitted that when read as a whole, and with reference to s 24, the legislature intended that ‘proceedings’ would refer not to the actual arrest of the claimant, but to the laying of the information for breach of the Community Service Order and issue of a warrant for arrest. The laying of the informations and issue of warrants for arrest occurred on 25 September and 14 October 1996 respectively, at which time the Community Service Order was still in force. The proceeding was thereby appropriate and lawful under the Act.

22    The point of commencement of criminal proceedings was discussed in R v Hull (1989) 16 NSWLR 385, a matter in which a similar provision to s 23(3) of the Act was at issue. Gleeson CJ said that criminal proceedings ordinarily commence when one of three courses of action, or methods, are undertaken. He described these at 390 as being:

In serious cases it is common for the proceedings to be commenced by arrests without warrant. A person who has been arrested must be taken before a magistrate without delay. The arrested person may be questioned and then charged. A second method involves the issue by a justice of a warrant for the arrest of a person where an information has been sworn before a justice. Such an information, which is usually laid by a police officer or other law enforcement official, will then result in an issue of a warrant. A third method, which can be used whether the offence in question is indictable or summary, involves the issue by a justice of a summons requiring the appearance in court of the person named in the information. The summons sets out the offence that the person in question is alleged to have committed and requires the person to attend court to answer the allegation.

Grove and Studdert JJ agreed. See also Allerton v DPP (1991) 24 NSWLR 550 at 557.

23 Here the proceedings were commenced by the second method described by Gleeson CJ. The informations were laid before Justices by members of the Probation and Parole Service, and warrants were issued as a result. It was these actions, not the arrest of the claimant, which constituted the ‘proceedings for an offence’ under s 23 of the Act. It is plain that the procedure followed was in accordance with the requirements of s 24 of the Act.

24 Although the claimant is quite certain that his interpretation of s 23 is correct, his construction is plainly wrong. In any event, it is not apparent that the claimant’s contentions, assuming them to be correct, run to the information and warrant of 14 October 1996 regarding the alleged breach of the recognizance under s 558 of the Crimes Act 1900.

25    As a result, it is not necessary to consider the DPP’s contention that since Phelan DCJ had made final orders, he no longer had jurisdiction to state a case. However, this submission also appears to be correct in light of Elliot v Williams (1985) 15 A Crim R 437 and DPP v Cassell (1995) 80 A Crim R 160.

26    Accordingly, the summons of the claimant should be dismissed.

oOo