Peyton v Nobbs
[2000] NSWSC 43
•15 February 2000
CITATION: PEYTON & ANOR v NOBBS & ANOR [2000] NSWSC 43 CURRENT JURISDICTION: Civil FILE NUMBER(S): SC 12627/99 HEARING DATE(S): 10 February 2000 JUDGMENT DATE: 15 February 2000 PARTIES :
James Peyton and Leanne Hackett (Plt)
Kaylene Leslie Nobbs (1D)
Ross Clugston (2D)JUDGMENT OF: Newman J
LOWER COURT
JURISDICTION :Local Court LOWER COURT
FILE NUMBER(S) :147/99 LOWER COURT
JUDICIAL OFFICER :Ross Clugston LCM
COUNSEL : P O'Donnell (Plt)
J Papayanni (1D)
Submitting Appearance (2D))SOLICITORS: Smythe & Mallam (Plt)
Ramrakha Jenkins (1D)CATCHWORDS: Jurisdiction of court pursuant to s 104(4) of the Justices Act 1902 - whether rulings relating to pleadings and an application for extension of time may be an interlocutory order LEGISLATION CITED: Justices Act 1902
Prevention of Cruelty to Animals Act 1979CASES CITED: Singh-Brar v Connors, unreported, 25 March 1994
R v Steffan (1993) 67 A Crim R 506
R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
R v Lisoff 1999 NSWCCA 364DECISION: Both applications for leave to appeal dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONNEWMAN J
TUESDAY, 15 FEBRUARY 2000
12627/99 - PEYTON & ANOR v NOBBS & ANOR
JUDGMENT
1 HIS HONOUR: These are applications for leave to appeal and cross appeal lodged by the informant and the defendant pursuant to s 104(4) of the Justices Act 1902 as amended against rulings made in the Bankstown Local Court on 13 September 1999 by his Worship, Mr Clugston LCM.
2 Additionally, the defendant in this Court (who was the defendant below) seeks an order extending time by twenty-eight days to lodge her cross appeal.
3 In view of the importance of the matter I am of the view that I should grant that extension of time.
4 This matter is important because it is one of the first matters to come before this Court under amendments made to the Justices Act in relation to appeals from magistrates to this Court which came into effect on 1 September 1999.
5 As I have already mentioned the matters which the parties have agitated before this Court arose as a consequence of events which occurred on 13 September 1999 when his Worship delivered the decision which is now under review.
6 Prior to 1 September 1999 appeals from magistrates to this Court were brought either by way of stated case or by way of relief being sought by an aggrieved party in the nature of prerogative relief.
7 The amended legislation by s 104 allows appeals by both defendants and informants in the Local Court on specified grounds.
8 Relevantly, following a final determination by a magistrate dismissing proceedings, an informant may appeal to this Court on a ground involving a question of law alone. See s 104(2)(b).
9 In the matter now before the court, as I have said, the parties seek leave to appeal pursuant to s 104(4). That section is in the following terms:
“104(4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.”
10 Here both parties have urged rulings made prior to the final determination of the matter before him were interlocutory orders thus entitling them to challenge those decisions with the leave of the court.
11 Before his Worship the defendant stood charged with forty six counts of aggravated cruelty upon an animal in breach of s 6(1) of the Prevention of Cruelty to Animals Act 1979. Six counts in contravention of s 5(3)3(c) of that Act, namely failing to provide veterinary treatment to such an animal in breach of that section and finally one count of failing to provide sufficient food to such animal being in breach of s 8(1) of that Act.
12 The defendant before his Worship had contended:-13 In the event his Worship ruled:-
(b) that certain of the informations laid were duplicitous in contravention of s 57 of the Justices Act .
(a) that an extension of time given by the justice before whom the summons had been originally laid was ultra vires, and
14 It should be noted that s 57 of the Justices Act encapsulates the common law in relation to the pleadings on indictment. It states:-
(2) that certain of the informations laid were in fact duplicitous within the meaning of s 57 of the Justices Act .
(1) that the extension of time granted was intra vires, and
“Every information shall be for one offence only, and not for two or more offences.”
15 Accordingly the informant seeks leave to appeal against his Worship’s decision that the form of certain of the informations laid was duplicitous and the defendant seeks to cross appeal on the basis that his Worship erred in ruling that the extension of time granted in relation to certain of the summons laying informations was a valid exercise of power.
16 While it is not necessary for the purposes of determining the matter before me to deal in detail with the nature of the allegations before the Local Court, those allegations in the summons involved matters relating to the care of 176 cats and one dog which were seized by the informant’s officers and which were allegedly in the care of the defendant.
17 Prior to the amendment of the Justices Act creating s 104 in its present form no appeal lay to this Court either by way of stated case or prerogative relief in relation to an interlocutory order. See Singh-Brar v Connors, Studdert J, unreported, 25 March 1994.
18 The first question for the court to determine is whether or not two rulings which are sought to be challenged by the parties are in fact interlocutory orders.
19 In this State the question of what constitutes an interlocutory order has been the subject of judicial decision in matters involving applications made to the Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912.
20 It is relevant to note that s 5F applies not only to proceedings on indictment in the Supreme and District Courts but also to proceedings brought pursuant to s 51(a) of the Justices Act ie proceedings where a person pleads guilty to an indictable offence before the Local Court.
21 I turn then to the decisions of the Court of Criminal Appeal relating to the definition of an interlocutory order.
22 In R v Steffan (1993) 67 A Crim R 506, the Court of Criminal Appeal reviewed the relevant authorities on this point. It observed at 508 that an order is a command by the court that something be done (or not done). There the court held that rulings on evidence made during the course of a trial or an advance of it were not interlocutory judgments or orders within the meaning of s 5F.
23 The court observed at 511 that such a ruling not only cannot be entered into the records of the court nor did it command that anything be done or not done in the sense of an order of the court.
24 In R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 Gleeson CJ considered, inter alia, whether an evidentiary ruling was susceptible to appellate review. Relevantly, he observed that there was no simple and absolute test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders on the other.
25 He observed that a judgment or order is not always to be characterised as a judicial act which decides the question or one of the questions which arises for decision in the particular proceedings. He noted at 304 that “rulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference.”
26 He went on in dealing with a statement made by the judge below that he was making an order excluding “all prosecution evidence” Gleeson CJ says:
“What is important is not his Honour’s use of the word ‘order’, but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order.” (97 A Crim R, 304)
27 The matter again came before the Court of Criminal Appeal in R v Lisoff 1999, NSWCCA 364. In that case a District Court judge had ruled that DNA evidence which the Crown sought to adduce was to be excluded. The upshot of the trial judge’s ruling meant that in the absence of such evidence the Crown case would fail.
28 The court held that as the ruling in effect destroyed the Crown case, following what had fallen from Gleeson CJ in Bozatsis and Spanakakis the court thus held that his Honour’s ruling could be categorised as an order and being interlocutory in nature brought the matter within the frame work of s 5F.
29 The language used by the Court of Criminal Appeal in R v Lisoff indicates that it is only an exceptional case which will fall within the concepts adumbrated by Gleeson CJ in Bozatsis and Spanakakis.
30 An example of the limitations placed upon the concepts of what constitutes an interlocutory judgment or order may be illustrated by reference to R v Cheng 1999 NSWCCA 373 where the court refused leave to the Crown to appeal against an indication given by a trial judge that he proposed to direct the jury to acquit at the close of the Crown case.
31 How then are the two rulings of the learned magistrate in this case to be categorised?
32 I turn first to his Worship’s ruling that certain of the counts in the information were duplicitous ie no one count in the information should charge the defendant with having committed two or more separate offences.
33 It is well settled law that when an information charges two offences in the one count it is the duty of the magistrate to advise the informant of his or her right of election to proceed on only one of those offences. See Hedberg v Woodhall 1913 15 CLR 531 per Griffith and Isaacs JJ at 536.
34 Should the informant elect to proceed on only one of the offences raised plainly enough the informant’s case is weakened - but it is not destroyed. Not only that while contending that the informant’s case would in fact be weakened, counsel for the informant very properly conceded that it would be open for the informant, having regard to the number of animals involved, to seek to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995.
35 Indeed, s 104(2)(b) of the Justices Act gives the informant the right to appeal on a ground that involves a question of law alone - unlike the absolute prohibition of appeals by the Crown following an acquittal in a trial by indictment.
36 Thus, while the magistrate’s ruling might weaken the Crown case it does not destroy it nor, should the prosecution fail, prevent the informant appealing on a ground of law.
37 Applying then the principles which had fallen from the Court of Criminal Appeal in Bozatsis and Spanakakis, Steffan and Lisoff I am of the opinion that his Worship’s ruling that certain of the counts of the indictment were duplicitous does not constitute an interlocutory order and thus leave to appeal must be refused.
38 Similar considerations apply to the defendant’s cross appeal. Indeed, counsel for the defendant properly conceded that if the court were to rule that the ruling sought to be challenged by the plaintiff did not constitute an interlocutory order then the defendant’s application was also bound to fail.
39 I agree with that submission.
40 Suffice it for me to observe that if his Worship erred in finding as he did on the question of time being extended then s 104(1) provides the defendant with a right to appeal should she be convicted.
41 In other words the absence of finality is in my view, fatal to the contention that his Worship’s ruling in this latter respect constituted an order or a judgment.
42 Accordingly, both applications for leave to appeal are dismissed. I shall leave the question of costs for argument on delivery of these reasons.
0
1
2