R v O'Meara

[2001] NSWCCA 195

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v O'Meara [2001]  NSWCCA 195

FILE NUMBER(S):
60810/00
60179/01

HEARING DATE(S):               8 May 2001

JUDGMENT DATE: 08/05/2001

PARTIES:
Kenneth Ian O'Meara (Applicant)
Regina

JUDGMENT OF:       Mathews AJ Wood CJ at CL Newman AJ   

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):          

LOWER COURT JUDICIAL OFFICER:     Cleary LCM (60810/00); Henson LCM(60179/01)

COUNSEL:
Applicant in person
M A Wigney (Crown)

SOLICITORS:
Applicant in person
Commonwealth Director of Public Prosecutions (Crown)

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act (Commonwealth) 1914
Justices Act 1902

DECISION:
Leave to appeal declined.

JUDGMENT:

1. MATHEWS AJ: Before the Court are two applications under s 5F of the Criminal Appeal Act 1912 for leave to appeal against interlocutory orders made by two magistrates on 13 October 2000 and 20 March 2001 respectively. In each case the magistrate ordered that certain committal proceedings against the applicant be adjourned for periods in excess of eight days.

2. The background of the matter is as follows.  On 23 September 1999 the applicant was arrested and charged with four offences of defrauding the Commonwealth under s 29D of the Crimes Act (Commonwealth) 1914.  On the same day he was granted conditional bail and the proceedings were adjourned to 12 October 1999 at the Newcastle Local Court.  On that day the proceedings were again adjourned by consent to 9 November 1999.

3. The brief of evidence containing the prosecution's statements was ordered to be served by 9 November.  However, that did not take place and, on that day, 9 November, the prosecution applied for a further extension of time for service of the brief. This was granted and the magistrate ordered that the brief be served by 30 November 1999.  The proceedings were adjourned to 14 December 1999.

4. On 30 November 1999 a notice pursuant to s 48D of the Justices Act was given to the applicant by a solicitor employed by the Commonwealth Director of Public Prosecutions. This listed all of the statements contained in the brief of evidence to be relied on by the prosecution, but it was not until two days later, on 1 December 1999, that any statements were in fact served on the applicant. This was done by a Mr Brown, an officer of the Australian Tax Office.

5. On the return date, on 14 December 1999, the prosecution applied for an extension of the time for service of the statements to cover the service which had in fact occurred on 1 December 1999.  Also before the Court on that day were four notices of motion taken out by the applicant, three of them alleging that the prosecution's agents were in contempt of court because they had failed to serve the relevant statements by 30 November in accordance with the order previously made.  The proceedings were adjourned for hearing on 11 January.

6. On 11 January the matter was again listed for the hearing of the prosecution's application to extend time for service of the statements to 1 December and to hear the notices of motion filed by the applicant. The two representatives of the prosecution who had served the applicant with the brief and later with the statements were cross-examined by the applicant. It was not suggested to either of them that the statements which had been served on him on 1 December were not the statements referred to in the s 48D notice, or were not relevant to the criminal charges laid against him.

7. There were two further occasions before 13 October 2000 on which the matter was listed before the Local Court and at which the applicant attended in person. On neither occasion did he indicate to the Court or to the prosecution that the statements which had been served on him on 1 December were not the statements referred to in the s 48D notice, or that they did not relate to the proceedings before the Court.

8. The proceedings were eventually listed for committal hearing on 13 October 2000. On that date counsel for the prosecution indicated to the presiding magistrate that the prosecution was ready to proceed with the hearing. The applicant indicated that he would be objecting to the tender of the brief of evidence on the basis that he had not been served with any of the statements listed in the s 48D notice. The statements in fact served on him on 1 December 1999 related, the applicant said, to entirely different proceedings which had been taken against him under State legislation. He submitted that he should be discharged from the proceedings for lack of any admissible evidence against him.

9. This was the first time that the applicant had indicated that there was any defect in the service of the statements as required by Part 4 Division 1 Subdivision 7A of the Justices Act. This was notwithstanding that, as already mentioned, the matter had been before the Court on several occasions between 1 December 1999 and 13 October 2000.

10    The applicant, who gave evidence before the magistrate on 13 October, said that he could not recall when he first realised that the statements which were served upon him ten months earlier related to the wrong proceedings.  However, it is implicit from some of his responses that he must have known of this fact on at least some of the occasions when he appeared before the Court.  At page 30 of the transcript, the following exchange took place between the applicant and the magistrate, the applicant there being described as "the defendant":

"DEFENDANT: There is no requirement for myself to object to the admissibility of those documents.  This is the first opportunity that arises within conduct of committal proceedings.

BENCH: Well it’s not the first opportunity for you to have indicated to the representative for prosecution or to the Court that you hadn’t received copies of statements.

DEFENDANT: Yes, yes perhaps---

BENCH: You’ve had a number of opportunities to do that.

DEFENDANT: Well opportunities but not a duty to announce-

BENCH: I didn’t say you had a duty, you probably didn’t have any duty. There’s no statutory duty on you butt he onus was on the prosecution to ensure that the statements were served in accordance with the Courts direction.

DEFENDANT: That is correct.

BENCH: But the prosecution has had no knowledge that such was the case. That’s how it stands at the moment."

11 The prosecution was not in a position to refute the applicant's assertion as to the defects in service of the statements. The magistrate accepted his evidence on this matter. The applicant therefore sought that he be discharged for lack of evidence against him. However, the magistrate declined to take this course. Instead he invoked s 48G of the Justices Act and adjourned the proceedings to 1 December 2000. He ordered that the correct statements be served on the applicant by 27 October 2000.

12    The magistrate's reasons for granting the adjournment can be encapsulated in the following passage from the transcript at page 29:

"BENCH:  Because it is a rather extraordinary circumstance to think that on 1 December written statements were actually served on the defendant and up until this day it has been - no one has had notice or knowledge that in so far as the defendant is concerned, his assertion that he didn’t receive any statement referred to in paragraph one of the form one served on 30 November 1999. So that’s why I say it is more than just and reasonable that I further adjourn the proceedings because of that particular fact. It’s obviously an error - an oversight - it’s not explained how it could happen, if it did happen and I’ll rely on the evidence given by Mr O’Meara because his is the only evidence before me apart from the statement there which doesn’t actually indicated specifically that the statements served were in accordance with paragraph one of that form one of 30 November 1999. So the proceedings will have to be adjourned.”

13    This is the first of the two orders against which the applicant now seeks leave to appeal.  The second order was apparently made on 20 March 2001 by a different magistrate.  We do not have a transcript of the proceedings of that day, but it would appear that the applicant again sought that he be discharged from the proceedings on the basis of his outstanding application for leave to appeal to this Court.  The magistrate declined to take that course and the matter was adjourned to a date in June.

14 There are two issues raised in these proceedings. The first is whether the magistrates should have adjourned the proceedings at all. Secondly, if so, whether they were required by s 33 of the Justices Act to adjourn the proceedings for a period not exceeding eight days. As to the first of these, the decision to adjourn the proceedings was clearly a discretionary one, as is made clear by the terms of the enabling section, s 48G. That section provides:

"Without limiting the powers of the Justice or Justices to adjourn committal proceedings, the Justice or Justices shall grant such adjournments as appear to be just and reasonable as a consequence of any of the provisions of this Subdivision."

15    It is trite law that an appellate Court will intervene to correct a discretionary decision, such as whether to grant an adjournment, on rare occasions only.  To cite an oft-quoted passage from House v The King (1936) 55 CLR 499 at 504-505:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

16    In my view no such error has been shown in this case. The matters primarily relied upon by the applicant to impugn the decisions of the magistrates, particularly that made on 13 October 2000, have related to factual matters rather than to any perceived errors of law.  Accordingly, I can find no reason why we should interfere with either decision to adjourn the committal proceedings.

17    The second matter raised by the applicant is that the magistrate should not, in the absence of the applicant's consent, have adjourned the proceedings for a period exceeding eight days.

18 This submission is made in reliance upon s 33 of the Justices Act and upon the assumption it was that section which was used as a source of power in each case. S 33 provides as follows:

"1. The Justice or Justices before whom a defendant appears or is brought may adjourn the hearing of any information in any case, whether before or during the hearing, where from the absence of witnesses or from any reasonable cause it is necessary or advisable to defer the hearing or further hearing.

2. Such adjournment shall be to a time and place to be appointed by the Justice or Justices adjourning the hearing:

Provided that unless with the consent of the defendant such adjournment shall not exceed eight clear days, but this proviso does not apply where the defendant is refused bail (as referred to in section 25 of the Bail Act 1978).

19 It is at least arguable that the applicant, at least on 13 October 1999, did consent to an adjournment of more than eight days. For the transcript shows that he sought a period of at least fifty-six days in order to enable him to peruse the somewhat voluminous bundle of statements which had been shown to him on that day. The magistrate compromised by adjourning the matter for about six weeks. I am unable to tell from the available material whether the applicant's statements on the occasion of the second decision might have amounted to a consent, such as referred to in s 33(2). However this matters little as there is, in any event, a much more fundamental reason why I cannot accede to the applicant's submission in reliance upon s 33.

20 Neither of the magistrates purported to rely on s 33 when they made the orders sought to be impugned in these proceedings. They purported to rely on s 48G of the Act, the section which I cited earlier. S 33 is contained in subdivision 7 of Division 1 of Part 4 of the Justices Act. Part 4 relates to “Proceedings before Magistrates” and Division 1 to “Indictable Offences”. Subdivision 7 relates to “Committal Proceedings” and subdivision 7A, to “Written Statements in Committal Proceedings”.

21 Subdivision 7A was enacted later than the more general subdivision 7 and, in my view, it is clear that s 48G is not intended to be subject to the limitations created by s 33. This accords with generally accepted precepts of statutory construction. As Deane J said in Refrigerator Express Lines Australasia Pty Ltd v Australian Meat and Livestock Corporation (1980) 29 ALR 333 at 347:

"As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provision. 'The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ..' (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610)."

22 It follows, in my view, that the magistrate in each case was well entitled to treat s 48G as a source of power in adjourning these proceedings without any restrictions on time.

23    Accordingly, I can find no substance in any of the matters raised by the applicant in relation to either of the decisions sought to be impugned.  I would decline to give leave to appeal against those decisions.

24    WOOD CJ at CL: I agree.

25    NEWMAN AJ: I also agree.

26    WOOD CJ at CL: The order of the Court will be as Acting Justice Mathews has proposed.

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LAST UPDATED:              06/05/2002