R v Doyle - [2001] NSWCCA 252

No judgment structure available for this case.

Reported Decision:
123 A Crim R 151

New South Wales

Court of Criminal Appeal

CITATION: R v DOYLE [2001] NSWCCA 252

FILE NUMBER(S): CCA 60399/00

HEARING DATE(S): 21 May 2001

JUDGMENT DATE:
21 May 2001

PARTIES :

Regina
Edward Emmett DOYLE

JUDGMENT OF: Spigelman CJ at 57; Hulme J at 1; Howie J at 49

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70063/98

LOWER COURT JUDICIAL
OFFICER : Hulme J

COUNSEL : Crown: DG Staehli
Appellant: CB Craigie

SOLICITORS: Crown: Commonwealth DPP
Appellant: DJ Humphryes

DECISION: See paragraph 79

- 26 -

No: 60399/00

SPIGELMAN CJ

HULME J

HOWIE J

REGINA -v- Edward Emmett DOYLE

JUDGMENT

1. Those made and imposed by Mr K S Anderson SM on 7 February 1985 in respect of charges:

(i) That Edward Emmett Doyle, between the 2nd day of December 1981 and the 12th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Society Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Adam Scott Richardson, which said representation he knew to be untrue, with a view to obtaining money.

(ii) That Edward Emmett Doyle, between the 25th day of February 1982 and the 13th day of July 1983, at Sydney in the State of New South Wales, did impose upon Department of Society Security, a department of Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Kevin Michael Roberts, which said representation he knew to be untrue, with a view to obtaining money.

(iii) That Edward Emmett Doyle between the 10th day of March 1983 and the 29th day of April 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Robert John Poole, which said representation he knew to be untrue, with a view to obtaining money.

(iv) That Edward Emmett Doyle, between the 25th day of January 1983 and the 27th day of June 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Donald William Matley, which said representation he knew to be untrue, with a view to obtaining money.

(v) Having goods in custody reasonably suspected of being stolen or otherwise unlawfully obtained.

2. Those made and imposed by Sudano DCJ on 14 October 1985 in respect of charges:

(i) That Edward Emmett Doyle, between the 2nd day of December 1981 and the 12th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Adam Scott Richardson, which said representation he knew to be untrue, with a view to obtaining money.

(ii) That Edward Emmett Doyle, between the 25th day of February 1982 and the 13th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Kevin Michael Roberts, which said representation he knew to be untrue, with a view to obtaining money.

(iii) That Edward Emmett Doyle, between the 10th day of March 1982 and the 29th day of April 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Robert John Poole, which said representation he knew to be untrue, with a view to obtaining money.

(iv) That Edward Emmett Doyle, between the 25th day of January 1983 and the 27th day of June 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Donald William Matley, which said representation he knew to be untrue, with a view to obtaining money.

2 As their terms suggest, the four matters dealt with by Sudano DCJ were the same as the first four charges dealt with by Mr Anderson SM. Following his original conviction, Mr Doyle appealed to the District Court. He said the notice of appeal was prepared by another person and he was not aware he omitted the goods in custody charge. In due course Mr Doyle abandoned his appeals against conviction although he would appear to have had some success on the topic of sentence.

"Appeal withdrawn and dismissed. Conviction confirmed. Order and term of recognisance confirmed in all respects. Quash order for community service work. No order as to costs."

4 The record of the Commonwealth Director of Public Prosecutions is to similar effect, although I should perhaps add that, according to a letter of 23 March 1987 from the Office of the Director or Public Prosecutions, the quashing of the community service orders, or at least the recording of an order to this effect, was a mistake.

5 In a document entitled "Grounds of Appeal" filed in this Court, Mr Doyle has said that he seeks leave to withdraw his pleas of guilty to four counts of imposing on the Commonwealth. In that document he said nothing about the goods in custody charge although, when the matter was raised during the course of the hearing, leave was given to amend the document so that Mr Doyle could seek to withdraw his plea of guilty to the goods in custody charge also.

6 The reference followed an application made by Mr Doyle under s 474D of the Crimes Act 1900 (NSW) and my conclusion that, notwithstanding Mr Doyle had pleaded guilty to the offences, "there (was) a doubt or question" as to his guilt". Subject to an argument to which I am about to come, in light of my reference, s 474E of the Crimes Act requires that each matter be dealt with as an appeal under the Criminal Appeal Act 1912.

7 That argument is that the sections of the Crimes Act mentioned do not apply to summary convictions but only to those consequent on indictment. This conclusion is supported, so it is said, by the terms of the Criminal Appeal Act . Indeed, it is pointed out that Doyle in October 1996 lodged in this Court an application for an extension of time to appeal against his conviction before Sudano DCJ, which application was, on 17 December 1986, dismissed as incompetent.

"The sections mentioned in the Second Schedule, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried."

"on receiving a reference under s 474C(1)(b) or 474E(1)(b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912 and that Act applies accordingly."

10 I turn to the merits of the appeal, if I may so describe it. In support of his application to withdraw his pleas of guilty, Mr Doyle denies his guilt and claims that he was induced to plead guilty to the charges and abandon his appeal as a result of improper pressure exerted on him by investigating police officers.

11 There is no doubt that in an appropriate case a plea of guilty will be allowed to be set aside and a conviction entered on the basis of such a plea regarded as a miscarriage of justice and quashed - Regina v Laberti (1991) 55 A Crim R 120, Regina v Sagiv (1986) 22 A Crim R 73, Regina v Murphy (1965) VR 1887, Regina v Chiron (1980) 1 NSWLR 218. As was recognised in Regina v Maxwell (1996) 184 CLR 501 at 511, Cincotta (unreported, CCA, 1 November 1995) and Regina v Davies (unreported, CCA, 16 December 1993) a plea of guilty by someone who denies his guilt and resulting only from threats is, unless perhaps the case against the accused is overwhelming, one such case.

12 Nevertheless, the task of someone wishing to withdraw such a plea is not an easy one. After all, he has solemnly confessed his guilt in open court and would ordinarily have stood by without protest while the Court is, so it is later claimed, deceived by the evidence adduced by the prosecution. That task is not made easier when, as in this case, the application to revisit the matter is long delayed and the applicant has, as Mr Doyle has, a length history of dishonesty and thus lacks a degree of credibility.

13 Furthermore, there is little by way of evidence of any significant motive for the police to have dealt with Mr Doyle in the way he asserts. Mr Doyle gave evidence that it was to provide justification for an unjustified arrest and detention. Another possibility is that the police involved wished to demonstrate to him their power, presumably with a view to obtaining some co-operation from him in the future. However, there is no direct evidence of that latter proposition.

14 But there is other evidence. After the passage of time since 1985 it is, unsurprisingly, not as complete as one might wish but nevertheless it is of some significance.

15 Copies of apparently unsigned statements of the principal investigating officer, Sergeant Macmillan, and Detective Senior Constable Roth indicate Mr Doyle was arrested soon after 9.40am on 3 June 1983. A document in the form of Form 7 under the Bail Act entitled "Reasons for Bail Decision by an Authorised Officer" purporting to have been signed by Sergeant Second Class A W McDonald, indicates refusal of bail on 4 June and, it seems likely that at the earliest, formal charging occurred very late on 3 June.

16 According to that statement of Sergeant Macmillan, he had seen Mr Doyle and another person, Mr Mahoney, in a motor vehicle in the Paddington area. He then spoke to them, inter alia, asking Mr Doyle if he had any identification on him. The latter handed Mr Macmillan a wallet which, on inspection, was seen to contain a driver's licence in the name of a Mr Richardson of an address different from where Mr Doyle was living. Saying that he believed the licence was either stolen or unlawfully obtained, Detective Macmillan then arrested Mr Doyle.

17 The statement goes on to say at the police station Detective Macmillan told Mr Doyle that he had been making a lot of enquiries about him and Mr Mahoney and that he believed Mr Doyle had been involved in a number of false pretence and fraud matters and had been using a number of addresses. Reference is made to the administration of the usual caution and further conversation occurring. Detective Macmillan said that he intended to search a number of nominated premises. According to the statement, Mr Doyle told Detective Macmillan that he was welcome to do. Detective Macmillan refers to similar conversations with Mr Mahoney.

18 Later, according to the statement, such searches occurred in Mr Doyle's presence and Detective Macmillan took possession of a large number of papers found. By way of example, one group, in the name of Robert John Poole, was a motor vehicle driver's licence, a health benefits card, a savings bank book and a sickness benefit review form. There were similar groups of documents in the names of other persons mentioned in the imposition charges on which Mr Doyle was convicted.

19 The statement purports to record a number of admissions by Mr Doyle following which Detective Macmillan informed him that he would be charged with "goods in custody of the driver's licence that you had in your possession and conspiracy in respect of the fraud matters." In the statement Detective Macmillan said that following this interviewing of Mr Doyle and Mr Mahoney and visits to the premises relevant to the police investigation, he then attended to other matters concerning Mr Doyle and later in the evening Mr Doyle was charged.

20 Although no doubt the matters to which Detective Macmillan referred would have taken some time, the timing of the arrest and formal charging leads me to the view that the obligation on the police to bring Mr Doyle before a court as soon as reasonably possible (see Williams v Regina ) (1986) 161 CLR 278 at 300 and 313; Michaels v Regina (1995) 184 CLR 117 at 122 et seq 129) was breached.

15.2.53 Metropolitan CC Illegally use (7 charges)

4.10.54 Paddington PS Suspected person

30.9.55 Paddington PS Stealing (2 charges)

24.4.57 Sydney QS Breach of recognisance

18.5.60 Central PS Stealing

28.7.60 Central PS False pretences (not before court - recognisance forfeited)

14.3.61 Ryde PS Stealing

13.6.61 Paddington PS 3 traffic offences (not before

8.9.61 Brisbane PS Stealing (remanded for return to NSW.

15.12.61 Paddington PS Traffic offence

11.10.62 Parramatta PS Stealing (remanded for return to Victoria)

27.10.62 Melbourne PS Larceny

3.12.61 Oakleigh PS Larceny

4.6.63 Central PS Stealing (note before court - recognisance forfeited)

6.7.63 Central PS Consorting (not before court - recognisance forfeited)

6.7.63 Central PS Stealing

3.11.77 Waverley PS Goods in custody

False pretences (9 charges)

"The accused has convictions for 18 offences from 1950 to 1981 for assault and rob, rape, larceny, assault, aid and abet, false pretences and it is felt that he could be regarded as a person who would not comply with his bail undertaking and attend court."

" ... the antecedents indicate that from 1953, I think, to 1978 his (i.e. Mr Doyle's) conduct was exemplary."

Waverley PS 7.3.78 GIC

25 No conclusion is open but that the references to convictions for assault and rob, rape and assault in the Form 7 signed by Sergeant McDonald are incorrect. Indeed, written submissions by the Crown Solicitor to me during my original consideration of the matter conceded as much. The criminal history indicates that the information given to Mr Anderson on 7 February 1985 as to Mr Doyle's antecedents was also incorrect.

26 No innocent explanation of the erroneous reference on two occasions to details of Mr Doyle's prior record occurs to me, particularly if, as his statement says, Detective Macmillan had been making a lot of enquiries about Mr Doyle.

27 A third matter to which reference should be made is the progress of the matter through the Magistrate's Court. Despite the extent of the incriminating evidence apparently obtained on 3 June 1983, the matter seems to have been long delayed. The summons seems to have been returnable for 28 June 1984, but it was adjourned to November. In December 1984 it was before Mr Leader SM, who expressed misgivings about its summary disposition. What happened about those misgivings is not recorded. The matter was then before the Court on 25 January and 1 February before its final disposition on 7 February 1985.

28 One can well understand Mr Leader's misgivings. The Courts have taken a fairly stern view of deliberate defrauding of the Social Security system - see Regina v Luu (unreported, CCA, 7 December 1984) which refers to that having been the view of the Courts for some time. For more recent examples see Regina v Purdon (unreported, CCA, 27 March 1997) and Regina v Mears 53 A Crim R 141. And deliberate defrauding to the tune of $19,738.60 is what it was alleged Mr Doyle had done. Yet the choice of charges and court was calculated to minimise the penalty on Mr Doyle.

"29A(1) Any person who, with intent to defraud, by any false pretence obtains from the Commonwealth or from any public authority under the Commonwealth any chattel, money, valuable security or benefit, shall be guilty of an offence.

(2) Any person who, with intent to defraud, by any false pretence causes or procures any money to be paid, or any chattel, valuable security or benefit to be delivered or given by the Commonwealth or by any public authority under the Commonwealth to any person, shall be guilty of an offence. Penalty: imprisonment for five years.

29B Any person who imposes or endeavours to impose

upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence.
Penalty: imprisonment for two years.

30 Furthermore, dealing with the matters summarily as occurred meant the maximum period of imprisonment that could be imposed on each charge was even less, one year, and the maximum, even if accumulation was resorted to, was, I think, three years. That said, it must be recognised it is not unusual for the police to proceed summarily when proceedings on indictment are an option. Thus, of itself, the course taken in this respect does not provide an indication of impropriety on the part of the police.

31 In this connection mention might also be made of the fact the information in Sergeant Macmillan's statement indicates Mr Doyle must have been guilty of far more than the one goods in custody charge, in respect of the document Sergeant Macmillan said he found, although as the purpose of those documents, if one accepts the accuracy of the statement, was presumably in furtherance of the imposition on the Commonwealth, one can well understand the omission of additional goods in custody charges.

34 These references to a forged passport are unsupported by any mention of such charge in Sergeant Macmillan's statement, the proceedings before Mr Anderson or Mr Doyle's criminal history. The nature of the offence is such that if Mr Doyle had been found in possession of a forged passport, it strikes me as unlikely that no charge would have been preferred. Of course the note "not contradicted" by defence in the Form 8 of 4 June 1983 does provide some support for the allegation and indicates that Mr Doyle was willing to go along with what he now sees as a false allegation, albeit, one must recognise that it is not unlikely that if Mr Doyle's complaints are well founded, the same considerations are likely to have operated in this regard as in connection with his pleas of guilty.

1. There is the long period of custody before Mr Doyle was brought before a court.

2. There are the erroneous statements as to Mr Doyle's record given or recorded when bail was refused by Sergeant McDonald on 4 June 1983 and when Mr Doyle was sentenced on 7 February 1985.

3. There is the suggested possession of a forged passport but the absence of any charge referable to it.

4. There is the long period between charge and sentence.

5. There was the bringing of charges under s 29B of the Crimes Act when the circumstances described in the statement of Detective Macmillan and apparently not contradicted supported a charge under s 29A, a section carrying a substantially higher penalty.

6. There was the decision to proceed summarily when the degree of criminality was substantial.

36 One might add, although I do not suggest it is entitled to significant weight, there was also Mr Doyle's appeal against sentence which was both light and one a man with his record almost certainly knew to be light.

37 The principal investigating officer of the offence with which Mr Doyle was charged was, as I have said, Detective Sergeant Macmillan. I recorded in my reasons for referring the matter to the Court that he has been interviewed on behalf of the Crown, denies the allegations raised by Mr Doyle but does not recall any of the details put before the Court.

38 The Crown did seek to read an affidavit he had recently made for these proceedings but, for reasons which were then given, that course was not permitted.

39 A number of the matters to which I have referred demonstrate the power of the police. For example, the exaggeration of Mr Doyle's record and the reference to a forged passport was calculated to deny him bail. The minimisation of his record and the choice of charges was calculated to result in a light sentence.

40 It was submitted on behalf of the Crown that it was necessary, if Mr Doyle was to succeed, that the two matters to which I have referred be brought home to Detective Macmillan before they could be used in support of Mr Doyle's claims. In my view, although it is a matter of inference, the evidence is such that these matters have been brought home.

41 On the other hand, there is Mr Doyle's plea and the withdrawal of his appeal, although as the point of this application is that these matters were induced by threats against him, it may not be appropriate to give more than limited weight to those matters. I observed also, in the course of my reasons for referring the matter to the Court of Criminal Appeal, although there was some, there was less denial by Mr Doyle of his guilt than I would have expected in the material with which I was provided. However, it is proper to recognise Mr Doyle was then without legal aid and the deficiency has been cured by an affidavit provided to this Court.

42 That is not to say I am inclined to determine this matter on the basis that I believe Mr Doyle. His record of dishonesty is such that I would hesitate to do so. Nor did I regard him as an impressive witness. Inter alia, his evidence as to the circumstances in which he pleaded guilty, then having lawyers appearing for him but on the day of sentence did not, was not persuasive. It is proper also to recognise that after the passage of time and the likely distribution of any records which there might have been, cross-examination of Mr Doyle may well have been more limited than had the charges been contested in 1985, or thereabouts.

43 I should for completeness, however, record that Mr Doyle denied having the licence Sergeant Macmillan's statement asserted was found on him; denied that papers as alleged by Sergeant Macmillan had been found and at the addresses indicated, that after being taken to the police station he was refused access to a telephone and a lawyer and told by Sergeant Macmillan that he (Sergeant Macmillan) would decide when Mr Doyle was to go before a magistrate and whether he would receive bail.

44 Mr Doyle also asserts that Sergeant Macmillan, on being told by Mr Doyle that he did not want to participate in that interview, said that he, Sergeant Macmillan, did not need Mr Doyle and he would conduct the interview himself.

45 I am, nevertheless, satisfied that Mr Doyle's convictions should be quashed. There was clearly impropriety in the conduct of the police, impropriety of a nature to create such cause for suspicion as to other improprieties also, to lead me to the view that Mr Doyle's convictions on the charges mentioned amounted to a miscarriage of justice.

46 In conclusion, I would add my concurrence in the reasons of the Chief Justice and Howie J as to the interpretation and operation of Part 13A of the Crimes Act.

47 The question arises whether the Court should order a new trial. I would propose that the Court not do so. It seems to me that the passage of time since 1983 or 1985 will have made such an order futile.

48 SPIGELMAN CJ: I invite Howie J to deliver the next judgment.

49 HOWIE J: I agree with the reasons given by Hulme J as to the disposition of this matter but would wish to make a few comments of my own in relation to the question of whether or not this Court has jurisdiction to determine the application before it as referred by his Honour.

50 It was argued before this Court that the decision of Wood CJ at CL in the Application of Pearson (1999) 46 NSWLR 148 was wrongly decided and should not be followed by this Court. In that decision the Chief Judge reviewed extensively the provisions relating to appeals and reviews of convictions and the arguments placed before him in relation to whether or not this Court had jurisdiction under Part 13A to deal with summary offences and concluded that it did. I respectfully agree with his Honour’s decision.

51 One of the difficulties in construing the terms of Part 13A having regard to other provisions relating to the mechanisms for review of summary convictions which were in place at the time Part 13A in its present form was enacted is that those provisions have changed from time to time. In relation to both the provisions for review of convictions by the Local Court and appeals to the District Court the legislature has on occasions both limited the scope of these jurisdictions and extended them. As a result it is difficult to reach any conclusion about what was the intention or policy of the legislature at any particular point in time in relation to the power of the courts to review summary convictions.

52 It should be noted that, in respect to the most significant convictions which were the subject of this reference, that is the imposition charges, the reference relates, like Pearson, to convictions imposed in the District Court on appeal under s 122 of the Justices Act . True it is that the applicant purported to withdraw the appeals, but in disposing of the matters the District Court Judge confirmed the convictions and re-sentenced the applicant. In those circumstances, and being prior to the enactment of s 132B of the Justices Act (which permitted the District Court to make orders and re-sentence an appellant where leave had been granted for the appeal to be withdrawn), the convictions and sentences which are subject to the reference are those of the District Court and not the Local Court.

53 Where there has been an appeal to the District Court and that Court has made orders determining the appeal, as it did in this case, the appellant would be unable to seek an annulment of the convictions under pt 4A of the Justices Act because there would no longer be any conviction by the Local Court which could be annulled under the provisions of that Act. Unless Part 13A of the Crimes Act applies to a conviction and sentence imposed on appeal to the District Court, the applicant would have no avenue open to him to have the conviction and sentences for the offences of imposition reviewed by a court and quashed if justice required such a result.

54 I am far from satisfied that the provisions of Part 13A of the Crimes Act , which appear on their face and by reason of s 3 of the Crimes Act and the Second Schedule to apply to summary convictions, should be read in such a way as to deprive the applicant, or those in a like position, of a remedy in respect of a conviction in the District Court after an appeal from the Local Court. Such a conviction can relate to very significant criminal activity with serious ramifications for the convicted person, including sentences of up to three years' imprisonment.

55 In my view the provisions of the Criminal Appeal Act, especially ss 6 and 12, can be construed to provide this Court with adequate and appropriate powers to deal with a matter such as the present on a reference to this Court under Part 13A.

56 Largely for the reasons given by Wood CJ at CL in Pearson I believe this court has jurisdiction to consider and determine the matter referred to it by Hulme J. It should do so in accordance with the orders proposed by Hulme J.

57 SPIGELMAN CJ : I agree with the reasons for judgment of Hulme J and also the additional observations of Howie J. I wish to add some observations of my own on the question of jurisdiction.

58 I agree with the reasons given by Wood CJ at CL in the Application of Pearson (1999) 46 NSWLR 148 pars 17-38. His Honour, in those reasons, stressed the significance of s 3 of the Crimes Act and, in my opinion, properly so. In addition to his Honour's reasons the following matters reinforce his Honour's conclusion as to the proper construction of pt 13A of the Crimes Act 1900.

59 There are two routes provided, respectively in ss 474C and 474E, dealing first, with the case of the Governor directing an inquiry and the Minister referring the case to the Court of Criminal Appeal or, secondly, an application for inquiry being dealt with by the Supreme Court and being referred by that Court to this Court.

60 The formulae in the two provisions are, in substance, identical. Both s 474C(1)(b) and 474E(1)(b) adopt the formulation of a reference "to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912."

"On receiving a reference under s 474C(1)(b) or 474E(1)(b) the Court is to deal with the case referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912 and that Act applies according."

62 The formulation adopting the words "as if the convicted person had appealed against the conviction" when placed with the provisions of the Criminal Appeal Act, means that, in substance, s 5 of that Act has been by-passed. That section permits a person convicted to appeal to the Court. The effect of s 474L is, in effect, to deem such an appeal to have been instituted. Accordingly, there is no restraint that arises upon the jurisdiction of this Court from the words which appear in the chapeau of subs 5(1), "A person convicted on indictment ..."

63 The effect of s 474L is that this Court finds its power by going directly to s 6 and, possibly, other subsequent sections, to see what orders it is empowered to make in the case of a matter that has come before it by reason of a reference under s 474L.

64 In this case, the Crown suggested there was incongruity by reason of the fact a person convicted in a Local Court would possibly have dual options for reopening a conviction. The Crown took the Court to the provisions of Pt 4A of the Justices Act . For relevant purposes that Part was in a form which was repealed and substituted by a new Pt 4A with effect from August 1998. If that Part had been applicable to the circumstances of the present appellant, it was the provisions in their form as they existed before that amendment that would have been relevant. However, nothing turns on whether or not the old s 100B or the new s 100B applies. The gravamen of the submissions was directed to the fact that if the construction favoured by Wood CJ at CL in Pearson was correct there were alternative and indeed dual, rights for persons convicted in the Local Court.

65 I do not find that there is any necessary incongruity in the case of dual mechanisms for addressing such grievances. There are distinctive differences between pt 4A of the Justices Act in both its prior and current form and pt 13A of the Crimes Act. The most significant is that under the latter, provision is made for an enquiry to occur before the matter is referred to the Court. The determination of whether or not such enquiry ought occur is a matter itself requiring some investigation.

66 In any event, the kinds of matters that may be dealt with in the Local Court are of considerable and, indeed, growing significance. More significantly, the facts and matters that may lead to a conviction being cast into doubt or question, can be of such significance as to go well beyond the traditional facts and matters that are dealt with in the Local Court, even with its growing jurisdiction.

67 The present case is an example of such a situation. The issues that have arisen in this case give rise to questions of established alleged police corruption in the New South Wales Police Force, that was the subject of extensive inquiry by a royal commission. These are the kinds of matters that may very well be of such significance as to justify a reference, not only of an inquiry but, subsequent to an inquiry or pursuant to the Ministerial power under 474C(1)(b) or (c) the inquiry be of such significance as to justify consideration by this Court with a Bench of three judges rather than by a single magistrate.

68 For those reasons, I do not find any particular incongruity in there being a possibility of dual lines of redress in the case of challenges to convictions in the Local Court. It is important to recognise that there is a discretion that exists prior to any reference to this Court, in both of the routes available under pt 13A. The opening sentence of subs 474C(3) is, "The Governor or the Minister may refuse to consider or otherwise deal with a petition." Similarly, the opening sentence of subs 474E(3) is, "The Supreme Court may refuse to consider or otherwise deal with an application.”

69 It would be a proper exercise of the discretion under either of these provisions for the Governor on advice or the Minister or the Court to decide that the subject matter of the challenged conviction was such that the more appropriate application, if any, would be under pt 4A of the Justices Act.

70 The Crown also submitted that a reason for the narrower construction of pt 13A for which it contended was the doubt it said existed as to whether or not the Court would be able to order a new trial after any such proceedings. It suggested in its submissions that the only basis for any such order would be the general words found in s 12 of the Criminal Appeal Act to the effect that the Court may exercise any other powers which may, for the time being, be exercised by the Supreme Court on appeals or applications in civil matters.

"any court from which findings, sentence, order or other determination persons covered by this Act are entitled to appeal or seek leave to appeal."

72 Reference in s 8 of the Criminal Appeal Act with respect to ordering a new trial is limited to the introductory words of s 8(1), "On an appeal against conviction on indictment."

73 The Crown submitted that the restriction to matters of conviction on indictment found in s 5(1), was repeated in each of the subsequent relevant sections, namely, ss 7 and 8. However, as I noted above it is not repeated in s 6.

74 It may not be necessary to rely on the general words in s 12(1) which I have quoted above. As set out, s 474L of the Crimes Act concludes, after the use of the terminology "as if the convicted person had appealed against the conviction", with the following words "and that Act applies accordingly."

75 It may very well be that the use of the terminology "accordingly" is sufficient to ground a construction of the various provisions referring to “indictment” in the Criminal Appeal Act so as to apply as if the matter was a conviction on an indictment and that the terminology found in the Criminal Appeal Act would need to be adapted in this way. There is some support for some such construction in the terminology of ss 474C(1)(b) and 474E(1)(b) that I quoted above, both of which express the reference power in terms of empowering this Court in the following language, "To be dealt with as an appeal under the Criminal Appeal Act 1912."

76 I do not find any need to express a final opinion on this alternative construction. The possibility, if it be such, that this Court may not be able to order a new trial, would not, in my opinion, suggest any need for a narrow construction of the beneficial provisions found in pt 13A of the Crimes Act. If it were the case that a new trial were a likely outcome of any such process, then the inability to order it, if that be the correct construction of the Criminal Appeal Act, is a matter that could be taken into account in the exercise of the discretion to deal with the application under ss 474C(3) and 474E(3) to which I have referred.

77 Accordingly, I agree with the conclusion of both Hulme and Howie JJ that the Court does have jurisdiction to deal with this matter and it should exercise that jurisdiction in the manner set out in the reasons of Hulme J.

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Citations

R v Doyle [2001] NSWCCA 252

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CITATION:	R v DOYLE [2001] NSWCCA 252
FILE NUMBER(S):	CCA 60399/00
HEARING DATE(S):	21 May 2001
JUDGMENT DATE:	21 May 2001
PARTIES :	Regina Edward Emmett DOYLE
JUDGMENT OF:	Spigelman CJ at 57; Hulme J at 1; Howie J at 49

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70063/98
LOWER COURT JUDICIAL OFFICER :	Hulme J

COUNSEL :	Crown: DG Staehli Appellant: CB Craigie
SOLICITORS:	Crown: Commonwealth DPP Appellant: DJ Humphryes
DECISION:	See paragraph 79