R v Johnson

[2024] NSWDC 452

District Court

New South Wales

Medium Neutral Citation:

R v Johnson [2024] NSWDC 452

Hearing dates:

21 August 2024

Date of orders:

26 August 2024

Decision date:

26 August 2024

Jurisdiction:

Criminal

Before:

Bennet SC ADCJ

Decision:

(1) The application by the Crown for an order pursuant to s 22B, Bail Act 2013 that the accused be detained is refused.

(2) The application for a warrant for the accused’s arrest is refused.

Catchwords:

CRIMINAL PROCEDURE – Jurisdiction – Accused serving a custodial sentence in another state – Jurisdiction of the Local Court – Accused’s presence within NSW for entering pleas – warrants – ex officio indictment – interstate prisoner transfer.

Legislation Cited:

Bail Act 2013 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Prisoner (Interstate Transfer) Act 1982 (NSW).

Category:

Procedural rulings

Parties:

Malcolm Edward Johnson (Defendant)
The Crown (Prosecution)

Representation:

Solicitors:
Office of the Director of Public Prosecutions: S Norman
R Harrison (Defence)

File Number(s):

2023/00229046

JUDGMENT

Introduction

1. Malcolm Johnson, the accused, is currently serving sentences of imprisonment in Victoria imposed on 21 February 2024 by the County Court for offences of incest. His non-parole period is not due to expire until November 2029.

2. He is also the subject of prosecution in New South Wales for comparable offences to which he entered pleas of guilty whereupon a magistrate made orders for his committal for sentence to the District Court of New South Wales.

3. The lawfulness of the processes by which these steps were implemented must now be considered in the determination of applications by the Crown now before this court.

4. The Crown with the accused’s acquiescence asks the court for orders which if granted will found an application to the Attorney General for the transfer of the accused from Victoria to New South Wales pursuant to the Prisoner (Interstate Transfer) Act 1982 (NSW) for continuation of the proceedings here. However, I find that the circumstances in which the pleas of guilty were entered, including the conduct of the proceedings in which orders for committal for sentence were made, were not according to law and there is therefore no basis upon which the orders sought may be made. Consequently, the relief the parties seek must be refused.

5. The applications were first before the District Court in Albury on 21 August 2024 when the parties’ provided documents and an outline of the orders sought. The matter could not proceed further on that day and were adjourned to later in the sittings for further argument. Subsequently I reserved judgment until 26 September 2024 for my decision and judgement. On that day I announced my decision and orders with my judgement to be published that day on Caselaw.

The Offences

6. There is a Crown bundle comprising an amended charge certificate of 17 April 2024 signed on behalf of the Director or Public Prosecutions, an agreed statement of facts dated 2 May 2024 describing the offences, and the accused’s antecedent records in Victoria and New South Wales.

7. There are three offences for which the accused was issued future Court Attendance Notices contrary to s 78A(1) Crimes Act 1900. They are expressed identically and allege that between 25 April 2022 and 13 September 2022 he had sexual intercourse with a close family member above the age of 16 years. The maximum penalty for this offence is imprisonment for eight years.

8. During the time frame charged the complainant lived in Victoria and the accused in New South Wales at his property where she visited and stayed and where the offences occurred. During the same time period the offender visited the complainant in Victoria.

9. On 23 September 2022, the offender was arrested and charged in Swan Hill, Victoria for comparable offences in that State.

10. On 17 July 2023 police in New South Wales charged the accused for his offences here by way of future Court Attendance Notices, but he was not presented to a court in New South Wales at that time and there was no bail determination. The accused was in custody bail refused in Victoria in November 2023. On 21 February 2024, at Melbourne County Court, he was sentenced for the Victorian offences including a non-parole period of 5 years 7 months to expire in 2029, the sentence to be served in custody.

11. On 28 May 2024 by way of an AVL between a gaol in Victoria and the Albury Local Court the accused entered pleas of guilty to the New South Wales offences and was thereupon committed for sentence to the District Court, Albury. He did not sign the agreed facts but via AVL confirmed that they are agreed.

The Proceedings via AVL

12. The accused pleaded guilty from his custodial setting in Victoria presented to the Magistrate’s Court in New South Wales via AVL. A solicitor represented him in the court. The magistrate ordered that he be committed for sentence in the District Court. The arrangements by which this occurred were informal, unsupported by a notice moving the court for the proceedings to be so conducted and were facilitated with the cooperation of the Victorian gaol authorities and by arrangement with Albury Local Court.

The Applications

13. The Crown’s applications are with the accused’s acquiescence. The Crown and the accused want the proceedings finalised as expeditiously as possible. However, as the accused is serving a sentence in Victoria he may not be sentenced in New South Wales until he is brought here either at the conclusion of the custodial component of his sentence unless, through administrative arrangements upon procedures provided by the Prisoners (Interstate Transfer) Act 1982 (NSW) corresponding to which there is applicable legislation in Victoria as a participating State, he may be transferred here to finalise his proceedings. The procedures include steps that would be required of the Attorney General. If the applications succeed the Crown with the accused’s acquiescence intends to seek from the Attorney-General an order for the transfer of the accused from Victoria to New South Wales.

14. S 18 of the Prisoners (Interstate Transfer) Act 1982 (NSW). provides,

Where a person who is the subject of an arrest warrant issued in accordance with the laws of New South Wales is imprisoned in a participating State, the Attorney General may give to the Attorney-General of the participating State a written request, accompanied by a copy of the warrant, for the transfer of the person to New South Wales to be dealt with according to law.

15. The Crown would apply to the Attorney General under this provision.

16. S 19 of the Act provides,

Where:

(a)  a person is imprisoned in a participating State,

(b)  the person is the subject of an arrest warrant issued in accordance with the laws of New South Wales, and

(c)  the Attorney-General of the participating State has given a notice, in writing, to the Attorney General that the Attorney-General of the participating State has consented to a request made by the person to be transferred to New South Wales to enable the person to be dealt with according to law,

the Attorney General shall either refuse to consent, or consent, to the transfer and shall give to the Attorney-General of the participating State notice, in writing, of the Attorney General’s refusal or consent.

17. The accused has not sought to enliven this section, but his solicitor joins the Crown in the pursuit of the steps for which s 18 provides. This requires an arrest warrant defined in s 5 of the Act:

“arrest warrant” means a warrant to apprehend, a warrant to arrest or a warrant to commit a person to prison, but does not include:

(a)  such a warrant, where the term of imprisonment which the person to be apprehended, arrested or committed under the warrant is liable to serve is default imprisonment, or

(b) a warrant to secure the attendance of a witness.

18. The Crown proceeds in a two-step process.

19. First it seeks an order for the detention of the accused in New South Wales relying upon s 22B, Bail Act 2013, and if granted, thereupon would take the second step and apply for a warrant for the accused’s arrest upon which it would then request the Attorney General of New South Wales to make a request of the Attorney General of Victoria for the transfer of the accused to New South Wales to face sentence for the offences which he acknowledged in the AVL proceedings between the Victorian gaol and the Albury Local Court.

20. There are two alternatives suggested for the warrant for the accused’s arrest.

The Detention Application

21. The Crown’s detention application rests upon the accused’s pleas of guilty which it says enlivens s22B, Bail Act 2013. The bases for this is the absence of a bail determination until this, and the objective seriousness of the charges, in consideration of which the Crown’s submits that detention is appropriate. The Crown asks for a warrant for the accused’s arrest on the basis that he will not and cannot because of his present sentence in Victoria be present for any sentence proceedings listed in this Court until 2029, unless the Attorney General grants the request to approach the Victorian authorities for his transfer to New South Wales for which there must be an appropriate warrant.

22. The offences are incest contrary to s78A(1) Crimes Act 1900.

23. The Crown submits a detention application is necessary for otherwise the accused will have been convicted by reason of his pleas of guilty and awaiting sentence with no bail determination, and a sentence of full-time imprisonment is inevitable considering the objective facts upon which sentence is to be determined, and the antecedent history the accused has accumulated.

24. Upon pleas of guilty the accused would be taken to be convicted: s 22B(5) Bail Act 2013. The Crown is unaware of any special or exceptional circumstance that exist for the purposes of s22B(1)(b), Bail Act 2013. None is advanced on behalf of the accused. The Crown submits that bail should not be granted or dispensed with, and the accused should be bail refused and detained between the conviction and before sentencing for offences for which he will suffer full time detention, for there are no special or exceptional circumstances.

Application for a Warrant

25. The Crown submits s 39(1) Bail Act 2013 is enlivened upon the grant of the detention application, whereupon the court may issue a warrant remanding the accused to a correctional centre in New South Wales. The Crown asks the Court to exercise its power pursuant to this provision to not render the order for detention otiose.

26. S 39(1) Bail Act 2013 provides,

(1)    A court or authorised justice may, if bail is refused to an accused person or is revoked, issue a warrant remanding the accused person to a correctional centre or other place of security.

27. The parties argue that the warrant of remand authorising the accused’s detention could be endorsed to refer to the Victorian gaol where the accused is held, for it would fall within the appropriate construction of the phrase “or other place of security.”

28. The Crown submits that the court may also issue a bench warrant upon the absence of the accused from court when the detention is ordered.

Consideration

29. I am not persuaded that these options are available or appropriate.

30. The difficulty I perceive is that there was no jurisdiction in the Local Court to accept the pleas of guilty from the accused appearing via Audio Visual Link from a Victorian gaol, and upon them make orders of committal for sentence.

31. The arrangements by local authorities in each jurisdiction whereby interstate prisoners are presented by Audio Visual Link to a court sitting in New South Wales are according to my understanding informal and upon cooperative arrangements whereby a prisoner is presented extraterritorially to the court dealing with them. As attractive as this might appear in the interests of expedition and efficiency, unless there is a lawful bases upon which the prisoner in another State may be presented as in this case the orders made in the Local Court are of no effect and there is no jurisdiction in the District Court to take the further steps that are sought.

32. The parties note that there is no provision of which they are aware which proscribes the presentation of an inmate in an interstate gaol for proceedings in New South Wales as occurred here, and no authority was found in their research of the appellate court decisions to guide in one direction or another.

33. I do not agree with this analysis. The proceedings must be conducted according to law, and this requires the person charged to appear in court, or, to appear remotely by way of Audio Visual Link for which the law provides if the prisoner is within New South Wales. The Evidence (Audio and Audio Visual Links) Act 1998 (NSW) in Part 1B provides for the use of Audio Visual Links within places in NSW for appearances of accused detainees in proceedings in NSW courts. The following provisions are relevant to this question (emphasis added):

5BA Accused detainee to appear physically in physical appearance proceedings.

(1) An accused detainee who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in physical appearance proceedings concerning the offence must, unless the court otherwise directs, appear physically before the court.

(2) Subsection (1) does not apply to any bail proceedings that—

(a) occur during a weekend, or

(b) occur on a public holiday, or

(c) occur during each period commencing on 24 December and ending on the first Friday following 31 December, or

(c1) occur during any other vacation or holiday period of the court that is specified in the rules of court, or

(d) occur on each of the days on which the Local Court Annual Conference is held in any year, or

(e) relate to an accused detainee who is being held in custody at a place prescribed by the regulations.

(3) Subsection (1) does not apply if the parties to the proceeding consent to the accused detainee appearing before the court by Audio Visual Link from any place within New South Wales at which the accused detainee is in custody other than the courtroom or place where the court is sitting.

(4) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.

(5) The court may make such a direction only if it is satisfied that it is in the interests of the administration of justice for the accused detainee to appear before the court by Audio Visual Link from a place within New South Wales at which the person is in custody other than the courtroom or place where the court is sitting.

(6) Without limiting the factors that the court may take into account in determining whether it is in the interests of the administration of justice to make a direction under subsection (1), the court must take into account such of the following factors as are relevant in the circumstances of the case—

(a) the risk that the personal security of a particular person or persons (including the accused detainee) may be endangered if the accused detainee appears in the courtroom or place where the court is sitting,

(b) the risk of the accused detainee escaping, or attempting to escape, from custody when attending the courtroom or place where the court is sitting,

(c) the behaviour of the accused detainee when appearing before a court in the past,

(d) the conduct of the accused detainee while in custody, including the accused detainee’s conduct during any period in the past during which the accused detainee was being held in custody in a correctional centre or detention centre,

(e) the potential for disruption of the accused detainee’s participation in a rehabilitation or education program if the accused detainee were to be transported to, and appear in, the courtroom or place where the court is sitting,

(f) safety and welfare considerations in transporting the accused detainee to the courtroom or place where the court is sitting,

(g) the efficient use of available judicial and administrative resources,

(h) any other relevant matter raised by a party to the proceeding or other applicant for the making of the direction.

(7) ….

(8) ….

5BB Accused detainee to appear by audio visual link in criminal proceedings other than physical appearance proceedings.

(1) An accused detainee who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in criminal proceedings concerning the offence (other than physical appearance proceedings) must, unless the court otherwise directs, appear before the court by Audio Visual Link.

(2) Subsection (1) does not apply unless the necessary Audio Visual Links are available or can reasonably be made available.

(3) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.

(4) The court may make such a direction only if it is satisfied, after taking into account any factors that are relevant in the circumstances of the case together with any factors that are specified in rules of court, that it is in the interests of the administration of justice for the accused detainee to appear physically before the court.

(5) ….

34. “Accused detainee” and “physical appearance proceedings” are defined in section 3.

“Accused detainee” means a person who is being held in custody in a correctional centre, detention centre, police station or other place of detention and includes, in relation to a proceeding for a summary offence, a defendant who is so being held.

“Physical appearance proceedings” means the following—

(a)  any trial (including an arraignment on the day appointed for the trial) or hearing of charges,

(b)  any inquiry into a person’s fitness to be tried for an offence,

(c)  any proceeding relating to bail—

(i)  brought before a Magistrate or justice in respect of the period between the person being charged with the offence and the person’s first appearance before a court in relation to the offence, or

(ii)  on a person’s first appearance before a court in relation to the offence.

35. The Act provides in the heading for Part 1B (emphasis added),

Part 1B   Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts

36. Consistent with this are sections 5BA and 5BB.

37. S 5BA applies to an accused who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in physical appearance proceedings concerning the offence. They must, unless the court otherwise directs, appear physically before the court. However, their physical appearance is not required if the parties’ consent to appearance by Audio Visual Link from within New South Wales where the accused is in custody.

38. S 5BB applies to an accused detainee who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in other than physical appearance proceedings. Unless the court otherwise directs, the accused is to appear before the court by Audio Visual Link. The court may make a direction for the accused to appear personally only if it is satisfied, after taking into account any factors that are relevant in the circumstances of the case and any factors specified in rules of court, that it is in the interests of the administration of justice for the accused detainee to appear physically before the court.

39. There is no provision which expressly accommodates the presentation of this accused person from gaol outside of New South Wales for the conduct of the proceedings in which he was charged and acknowledged his guilt. The definition of “accused detainee” does not extend to include those in custody outside of New South Wales unless that is to be implied from the legislation and the context in which it operates. I am satisfied that it is not to be implied from the terms used in the legislation understood in the context of the nature of the proceedings to which the accused would be subject if within New South Wales.

36. If the legislation were intended to operate to provide for the presentation of an accused person from beyond the jurisdiction in custody elsewhere to answer charges and then be the subject of orders of a court for the further conduct of the proceedings the intention would be in express terms. The proper construction of the provisions in Part 1B of this Act is that they apply to a detainee in custody in a facility as described in the definition within New South Wales.

37. If I am correct in finding that the Magistrate had no jurisdiction to make the orders that followed the informal presentation of the accused with future Court Attendance Notices, the order committing the accused to the District Court for sentence is of no effect.

38. For the presentation of the charges and his pleas of guilty the accused was as a matter of law required to be within New South Wales and could not participate in the proceedings as he purported to do in the absence of legislation that empowered the court to proceed in this fashion. Were it otherwise the legislation and administrative arrangements for extradition of an accused person from beyond the jurisdiction would be unnecessary, nor would the arrangements available under the Prisoner (Interstate Transfer) Act 1982 (NSW).

39. I have not overlooked the earnest and thorough submissions advanced by the parties in support of the Crown applications. I do not cavil with the sentiment that the efficient and expeditious way the proceedings might have been managed would benefit the community and the accused, but they are of no effect if unlawful.

40. Submissions on behalf of the accused concurred with the Crown’s arguments but sought a broader interpretation of the legislation to achieve the benefit of early and expeditious resolution of the proceedings against the accused in this State. I accept the argument that the objects of the Prisoners (Interstate Transfer) Act 1982 and Criminal Procedure Act 1986 include resolution of proceedings in this State notwithstanding incarceration in another State that would otherwise prevent expeditious resolution of the proceedings, but the procedures to be followed must be in accordance with the law and not upon informal cooperative arrangements between jurisdictions at locations near to the border separating them.

The Alternative Course

45. The Crown submissions adverted to the course which ought to be considered for the continuation of these proceedings.

46. S 309 Criminal Procedure Act 1986 provides,

309   Certificate as to indictment.

(1)    If an indictment has been filed in the Supreme Court or the District Court against any person not in custody, the proper officer of the Court must, if the person indicted fails to appear and plead to the indictment at any time during the sittings of the Court, issue a certificate that the indictment has been filed.

(2)    The certificate may only be issued on the application of the prosecutor or a person applying on the prosecutor’s behalf.

47. S 310 of the Act provides,

310   Warrants that may be issued on production of certificate.

(1) If the certificate under section 309 is produced to a Magistrate or an authorised officer, the Magistrate or authorised officer may issue a warrant under this section.

(2)    If the person who has been indicted is imprisoned or otherwise in custody in relation to another offence, the Magistrate or authorised officer may issue a warrant directed to the person who has custody of the person requiring the person to be detained until the person is removed from custody for trial or otherwise lawfully removed or discharged from custody.

(3)    The warrant must not be issued unless proof on oath is given that the person who is in custody is the person who has been indicted.

(4)    If the person who has been indicted is not in custody, the Magistrate or authorised officer may issue a warrant to arrest the person.

(5)    Part 4 of Chapter 4 applies to a warrant issued under this section.

48. Part 4 of Chapter 4 provides for arrest warrants and warrants of commitment, and specifically:

1. In the case of arrest warrants when they may be issued, the form they must take, their duration, by whom they may be executed, the procedures following arrest, and their revocation.

2. In the case of warrants of commitment, the power to commit to a correctional centre subject to the Bail Act, the form they must take, the procedure for taking persons to correctional centres or other places, and the effect of any defects in them.

49. I agree with the Crown submissions upon the purposes of s 309 Criminal Procedure Act 1986 by which the Crown may present an indictment in the District Court, and upon that filing the accused being a person not in custody in New South Wales will have failed to appear to plead to the indictment, whereupon the Crown may seek a certificate under s 309(1) of the Act upon the production of which a warrant for arrest may be issued under s 310(1) and s310(4), Criminal Procedure Act 1986.

50. The further alternative is for the informant police officer to seek from the Local Court the issue of a warrant for the arrest of the accused, specifying the offences. This would add further delay perhaps and is therefore the less attractive option.

51. Whatever the alternative taken, the warrants for the offences whether at first instance or issued upon the filing of an ex officio indictment would be arrest warrants within the meaning of that term as defined in s 5, Prisoner (Interstate Transfer) Act 1982 (NSW) and would found the contemplated application to the Attorney General.

Orders

52. For the reasons herein:

1. The application by the Crown for an order pursuant to s 22B, Bail Act 2013 that the accused be detained is refused.

2. The application for a warrant for the accused’s arrest is refused.

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Decision last updated: 26 September 2024