Shephard v Director of Public Prosecutions (NSW) - [2003] NSWSC 83

No judgment structure available for this case.

Reported Decision:
57 NSWLR 455

Supreme Court

CITATION: Shephard v Director of Public Prosecutions (NSW) [2003] NSWSC 83

HEARING DATE(S): 03-04/02/03

JUDGMENT DATE:
28 February 2003

JUDGMENT OF: James J at 1

DECISION: Appeal allowed

CATCHWORDS: Criminal law - indictable offences dealt with summarily - Pt 2 Div 3 subss (18) - (27)

LEGISLATION CITED: Pt2 Div3 Criminal Procedure Act
s75A-75F, s100D, s100K Justices Act

CASES CITED: R v Fisher (2002) NSWCCA 188
Cowan v The Police (1994) 75 A Crim R 24
Tassell v Hayes (1987) 163 CLR 34

PARTIES :
Maurice Richard Shephard v Director of Public Prosecutions

FILE NUMBER(S): SC 13034/2002

COUNSEL: D Jordan - Plaintiff
PI Lakatos - Defendant

SOLICITORS: Douglas Humphreys
SE O'Connor

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 00039773/02/147

LOWER COURT
JUDICIAL OFFICER : Mr Gary Still

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Friday 28 February 2003

13034/02 Shephard v Director of Public Prosecutions (NSW)
JUDGMENT

1 This is an appeal pursuant to Pt 5 of the Justices Act in which the plaintiff Maurice Richard Shephard claims orders pursuant to s 109(a) of the Justices Act quashing (1) his conviction on 4 June 2002 at the Newtown Local Court on a charge of breaking and entering and committing a serious indictable offence (stealing) on 2 May 2002 (2) an order made in the Newtown Local Court on 29 August 2002 refusing an application made by him under s 100D of the Justices Act that his conviction on the charge of breaking entering and stealing be annulled, and a consequential order that the proceedings against him on the charge of breaking entering and stealing be remitted to the Newtown Local Court to be dealt with according to law. The person shown as being the defendant to the appeal in the Court documents which have been filed in the appeal is the police officer who was the informant in the prosecution of the plaintiff in the Local Court. It was common ground on the hearing of the appeal that the proper defendant to the appeal was the Director of Public Prosecutions and, to the extent to which it may be necessary, I make an order substituting the Director of Public Prosecutions as the defendant.

2 The appeal was instituted out of time but at the hearing of the appeal counsel for the defendant informed the Court that the Director did not oppose the making of an order extending the time for the institution of the appeal and I make such an order.

3 The history of the prosecution of the plaintiff is set out in an affidavit by a solicitor in the employ of the Legal Aid Commission, who since about August 2002 has had the carriage of the matter for the plaintiff. At the hearing of the appeal there was no dispute about the facts deposed to by the solicitor in her affidavit.

4 On 2 May 2002 the plaintiff was charged with breaking entering and stealing and with a back-up charge of goods in custody. The charges were mentioned in the Newtown Local Court on 21 May 2002, when they were adjourned to 4 June 2002.

5 On 4 June 2002 there was no appearance by the plaintiff at the Newtown Local Court. By some means the Local Court magistrate had been informed that the plaintiff claimed to be ill. However, the magistrate said “I don’t accept that” (that is, that the plaintiff was ill). In the absence of the plaintiff the magistrate, purporting to act pursuant to ss 75A to 75F of the Justices Act, which sets out a scheme for ex parte proceedings where a defendant fails to attend, convicted the plaintiff on the charge of breaking entering and stealing and issued a warrant for the arrest of the plaintiff. The prosecution was then given leave to withdraw the charge of goods in custody.

6 On 24 June 2002 the plaintiff was arrested and later that day he was granted bail.

7 On 29 August 2002 the magistrate who had convicted the plaintiff on the charge of breaking entering and stealing refused an application made by the plaintiff’s solicitor under s 100D of the Justices Act that the conviction made in his absence be annulled.

8 After 29 August 2002 there were delays in the transcript of the proceedings on 4 June 2002 and on 29 August 2002 becoming available and these delays explained the late institution of the appeal.

9 The grounds of appeal, stated very broadly, are that the offence of breaking entering and stealing of which the plaintiff was convicted was an indictable offence; as an indictable offence it could be dealt with summarily by the Local Court magistrate, only if that was permitted by Pt 2 Div 3 of the Criminal Procedure Act; the requirements of Pt 2 Div 3 of the Criminal Procedure Act were not complied with; and that, consequently, the Local Court magistrate lacked jurisdiction to deal with the offence summarily.

10 It is convenient to set out some of the provisions of Div 3 of Pt 2 of the Criminal Procedure Act. This Division is headed “Summary Disposal of Indictable Offences by Local Courts”.

18. Objects of this Division

Justices Act 1902

11 Section 26 provides that regulations may be made for or with respect to elections under Div 3 of Pt 2. Section 27 prescribes maximum penalties for offences in Table 1 to Sch 1 to the Act which are dealt with summarily under Pt 2 Div 3. By subs (2) of s 27 the maximum term of imprisonment that a Local Court may impose for such an offence is, subject to the other provisions of the section, two years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term.

12 The offences listed in Table 1 to Sch 1 to the Act include in cl 8 of Pt 2 of the Table the offence of breaking entering and stealing where the property stolen does not exceed $15,000 in value. The condition that the value of the property stolen should not exceed $15,000 was satisfied in the present case.

13 It is also convenient to refer to some of the provisions of the Justices Act.

14 Scheme for ex parte proceedings where defendant fails to attend.

. . .

100D(1) An application may be made by or on behalf of a person for the annulment of any of the following:
(a) a conviction or an order (other than an interlocutory order) made in respect of the person by a Magistrate that was made in the absence of the person,
(b) a sentence imposed on the person by a Magistrate in the absence of the person.
(2) An application for an annulment of a conviction or an order made by a Magistrate or a sentence imposed by a Magistrate may also be made by or on behalf of any person who is an informant in the proceedings concerned.

15 The steps in counsel for the plaintiff’s argument can be summarised as follows.

16 1. The offence with which the plaintiff was charged was an indictable offence.

17 2. Subject to any statutory provision to the contrary, an indictable offence must be dealt with on indictment, that is a person charged with an indictable offence has a right to be tried by a jury.

18 3. In the present case the only statutory provisions which might provide to the contrary were in Pt 2 Div 3 of the Criminal Procedure Act. Section 75A to 75F of the Justices Act, which the Local Court magistrate purported to apply on 4 June 2002, do not confer any jurisdiction to deal summarily with indictable offences; these sections of the Justices Act merely authorise the Local Court to adopt certain procedures for dealing with offences which are able to be dealt with summarily.

19 4. The right of a person charged with an indictable offence to have the offence dealt with on indictment, including the right to be tried by a jury, is an important right of a criminal accused and the provisions of Pt 2 Div 3 of the Criminal Procedure Act should be interpreted, in accordance with a well recognised principle of statutory interpretation, as not abrogating or qualifying that right, unless and except to the extent that the provisions of the Act clearly so provide.

20 5. The offence with which the plaintiff was charged, breaking and entering and stealing property the value of which did not exceed $15,000, is an offence listed in Pt 2 of Table 1 to Sch 1 to the Criminal Procedure Act.

21 6. Section 20 of the Criminal Procedure Act provides that an indictable offence listed in Table 1 to Sch 1 is to be dealt with summarily by a Local Court, unless the prosecuting authority or the person charged elects in accordance with Pt 2 Div 3 of the Act to have the offence dealt with on indictment.

22 7. Section 21 of the Criminal Procedure Act provides that an indictable offence listed in Table 1 to Sch 1 is, if no election is made in accordance with this Division”, to be dealt with summarily as if it were a summary offence.

23 8. Part 2 Div 3 of the Criminal Procedure Act contains a number of provisions, the obvious purpose of which is to ensure that a person charged with an indictable offence listed in Table 1 to Sch 1 should be provided with the means of making a considered, informed decision on whether he or she should elect to have the offence dealt with on indictment. These provisions include ss 23 and 25. Under s 23 a time is to fixed by the Local Court within which any election to have the offence dealt with on indictment must be made. Under s 25, when a person charged with such an offence first appears before a Local Court in respect of the offence, the court is to inform the person charged, orally and in a written statement, of the person’s right to make an election and the consequences of not making an election. The form of the written statement is to be prescribed by regulations made under the Act and such a form has in fact been prescribed.

24 Under s 25 the court is to fix a time within which the prosecuting authority is to serve, or cause to be served, on the person charged a copy of the brief of evidence relating to the offence and a copy of the person’s criminal record (if any) known to the prosecuting authority and the prosecuting authority is required to serve a copy of the brief of evidence and a copy of the person’s criminal record (if any) within the time fixed by the Local Court. The time fixed for service of these documents must be before the time fixed by the court for the making of an election in respect of the offence. If the brief of evidence or the criminal record are not served within the time fixed, the time fixed for the making of an election must be extended. The obvious purpose of these provisions is to ensure that a person charged will have the opportunity of considering these documents, before he or she has to decide whether to make an election.

25 9. Having regard to the terms and obvious purpose of these provisions of Pt 2 Div 3 of the Criminal Procedure Act and to the principle of statutory interpretation already referred to, the words in s 21 of the Criminal Procedure Act “If no election is made in accordance with this Division” should be interpreted, not as meaning simply that the person charged has not in fact made an election to have the offence dealt with on indictment, but as meaning that the person charged has not made an election to have the offence dealt with on indictment, after the provisions of Pt 2 Div 3 including ss 23 and 25 have been carried into effect, so that the person charged has been provided with the means of making a considered, informed decision on whether he or she should make an election.

26 10. In the present case the provisions of Pt 2 Div 3 were not carried into effect. For example, no time was fixed by the Local Court within which an election would have to be made and no copy of the brief of evidence relating to the offence was served on the plaintiff.

27 11. Consequently, on the true interpretation of s 21 of the Criminal Procedure Act, it was not the case that no election had been made in accordance with Pt 2 Div 3 of the Criminal Procedure Act and the offence with which the plaintiff was charged could not be dealt with summarily as if it were a summary offence.

28 12. On 4 June 2002 when the magistrate purported to deal summarily with the offence charged against the plaintiff, the magistrate exceeded his jurisdiction.

29 It was submitted by counsel for the plaintiff that the plaintiff’s failure to appear at the Local Court on 4 June 2002 did not mean that the offence with which the plaintiff was charged could never be dealt with summarily. What the magistrate could, and should, have done on 4 June 2002 was to issue a warrant for the apprehension of the plaintiff pursuant to either s 23 or possibly s 31 of the Justices Act. If such a warrant had been issued and the plaintiff had been apprehended pursuant to the warrant and had been brought before the Local Court, the provisions of Pt 2 Div 3 of the Criminal Procedure Act, including ss 23 and 25, could have been carried into effect by the Local Court and by the prosecuting authority. If, after the provisions of Pt 2 Div 3 had been carried into effect by the Local Court and by the prosecuting authority, the plaintiff did not make an election to have the offence dealt with on indictment, the Local Court could then have properly dealt with the offence summarily. For example, if, after the Local Court and the prosecuting authority had carried into effect ss 23 and 25 of the Criminal Procedure Act, the plaintiff had not appeared in the Local Court on the date fixed by the Local Court for the making of any election, the Local Court could have proceeded to deal with the offence summarily, including proceeding under ss 75A to 75F of the Justices Act.

30 With regard to what counsel for the defendant in his submissions submitted were safeguards which would protect a person in the plaintiff’s position against any possible injustice if the interpretation of Pt 2 Div 3 contended for by counsel for the defendant was adopted, counsel for the plaintiff submitted that a person charged with an indictable offence should not be placed in a position where, in order that he should not suffer injustice, he has to rely on decisions which might or might not be made by others; for example, by the prosecuting authority itself electing to have an offence dealt with on indictment, or a Local Court magistrate declining to proceed ex parte under s 75A to s 75F of the Justices Act, or a Local Court magistrate proceeding ex parte requiring additional evidence to be provided and not simply determining the matter on the basis of the averments in the information, or if an application is brought by a person who has been convicted ex parte for the annulment of the ex parte conviction, the Local Court being satisfied that grounds have been made out for the granting of the application.

31 Counsel for the defendant, the Director of Public Prosecutions, did not dispute most of the steps in counsel for the plaintiff’s argument. The only steps in counsel for the plaintiff’s argument which were disputed by counsel for the defendant were step 8 (to some extent) and steps 9, 11 and 12.

32 Counsel for the defendant made some general submissions about Pt 2 Div 3 of the Criminal Procedure Act.

33 Counsel for the defendant submitted that it was clear that an object of Pt 2 Div 3 of the Criminal Procedure Act was to “expedite the criminal process”, by permitting some indictable offences, which could otherwise be dealt with only on indictment, to be dealt with summarily. Counsel for the defendant pointed out that Pt 2 Div 3 could confer benefits on a person charged with an indictable offence, in the form of a more expeditious disposition of the criminal proceedings against him and a lower maximum penalty.

34 Whether the Local Court magistrate acted within or beyond the jurisdiction of the Local Court on 4 June 2002 in dealing summarily with the offence with which the plaintiff was charged depended on the proper interpretation of the provisions of Pt 2 Div 3. Counsel for the defendant accepted that the right of a person charged with an indictable offence to a trial by jury is a fundamental right “which cannot be removed or cut down otherwise than by express language” and that “the language of the statute should be construed strictly in favour of the person charged”. However, it was submitted that, even giving full weight to this principle of statutory interpretation, the right to be tried on indictment by a jury had, in the circumstances of the present case, been removed by clear words contained in the provisions of Pt 2 Div 3 of the Act.

35 It was submitted by counsel for the defendant that Pt 2 Div 3 enacts a scheme which places obligations on all of, the person charged, the prosecuting authority and the Local Court. The obligations of the person charged are (i) to appear before the Local Court (s 25(1)) and (ii) to make any election within the time fixed by the Local Court for the making of an election.

36 It was submitted by counsel for the defendant that by the express words of s 25(1) the obligations of the court under s 25(1) arise, only “when a person charged with an indictable offence listed in Table 1 to Sch 1 first appears before a Local Court in respect of the offence”. If a person charged with such an offence appears before the Local Court, the Local Court becomes subject to the obligations to address the person charged about his right to make an election and the consequences of not making an election (s 25(1)(a)) and to give the person a statement in the form prescribed by the regulations about his right to make an election and the consequences of not making an election (s 25(1)(b)); to fix a time for the prosecuting authority to serve or cause to be served a copy of the brief of evidence relating to the offence and a copy of the person’s criminal record (if any) known to the prosecuting authority (s 25(2)); and to fix a time within which any election must be made (s 23(1), s 25(2) and (3)). However, it was submitted, these obligations arise, only if the person charged appears before the Local Court. If the person charged does not appear before the Local Court, the Local Court does not become subject to any of these obligations.

37 Submissions were made by counsel for the defendant about the proper interpretation of ss 20 and 21 of the Criminal Procedure Act. It was submitted that s 20 by its clear words provides that, unless an election is made, an indictable offence listed in Table 1 to Sch 1 is to be dealt with summarily and that the words in s 21 “if no election is made in accordance with this Division” apply both to situations where the defendant has appeared and, after the provisions of Pt 2 Div 3 such as ss 23 and 25 have been carried into effect, has not made an election, and to situations where the defendant has not appeared and hence there has been no need for the provisions of Pt 2 Div 3 and particularly ss 23 and 25 to be carried into effect and the defendant has not made an election.

38 On the interpretation of the provisions of Pt 2 Div 3 contended for by counsel for the defendant, no election had been made by the plaintiff to have the offence dealt with on indictment, within the proper interpretation of those words in s 21, and the magistrate had jurisdiction to deal with the offence summarily.

39 It was submitted that no injustice would arise from the interpretation of the provisions of Pt 2 Div 3 contended for by counsel for the defendant. A person charged with an indictable offence who has been summonsed to appear before a Local Court should appear before the Local Court and, if he fails to perform his obligation to appear, it is not unjust that he should be deprived of the benefit of statutory provisions, which would have applied if he had appeared.

40 It was submitted that there were safeguards against any possible injustice to a person charged with an indictable offence listed in Table 1 to Sch 1 who does not appear in the Local Court and who, on the interpretation of the provisions of Pt 2 Div 3 contended for by counsel for the defendant, would be deprived of the benefit of those provisions.

41 If an offence falling within Table 1 to Sch 1 is a really serious offence, it is likely, even if there is no election by the person charged, that the prosecuting authority will itself elect to have the offence dealt with on indictment.

42 If a person charged does not appear, a Local Court magistrate has a discretion whether to proceed ex parte pursuant to ss 75A to 75F of the Justices Act. If the offence charged is a really serious offence, it is unlikely that a magistrate will exercise his discretion in favour of proceeding in the absence of the defendant. A magistrate may proceed to hear and determine a matter ex parte pursuant to ss 75A to 75F, only if the magistrate is satisfied that the person charged had reasonable notice of the date, time and place of the hearing. Although s 75D(1) provides that a magistrate who proceeds to hear and determine a matter ex parte may determine the matter on the basis of the information, without hearing the informant’s witnesses or any other additional evidence of the informant, under s 75D(3) the magistrate may require the informant to provide additional evidence, if of the opinion that the matters set out in the information are not sufficient to establish the offence, and in a serious matter a magistrate is likely to require the informant to provide additional evidence.

43 If a person charged with an offence listed in Table 1 to Sch 1 does not appear before the Local Court and is convicted in his absence, he can apply under s 100D of the Justices Act, as the present plaintiff did, to have the conviction annulled and, if there is a valid excuse for his not having appeared, his application for the annulment of his conviction should succeed. Under s 100K of the Justices Act a Local Court must grant an application for the annulment of a conviction made in the absence of the defendant, if inter alia the defendant was hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings or, having regard to the circumstances of the case, there is other just cause why the application should be granted. If a conviction made in the absence of the person charged is annulled pursuant to s 100D, the protective provisions of Pt 2 Div 3 of the Criminal Procedure Act can then be applied in favour of that person.

44 For the sake of completeness, counsel for the defendant referred to a number of decided cases, including R v Fisher (2002) NSWCCA 188, Cowan v The Police (1994) 75 A Crim R 24 and Tassell v Hayes (1987) 163 CLR 34 but counsel did not suggest that any of these cases were of any real assistance in deciding the present appeal.

45 Whether the Local Court had jurisdiction to deal summarily with the indictable offence with which the plaintiff had been charged depends on the proper interpretation of the provisions of Pt 2 Div 3 of the Criminal Procedure Act.

46 As counsel for the plaintiff submitted and as counsel for the defendant accepted, statutory provisions should not be interpreted as abrogating or qualifying the right of a person charged with an indictable offence to have that offence dealt with on indictment, including the right to trial by jury, unless the statutory provisions clearly so provide. If statutory provisions are open to more than one interpretation, the Court should tend to prefer the interpretation which would least qualify the right of a person charged with an indictable offence to have the offence dealt with on indictment.

47 The provisions of Pt 2 Div 3 of the Criminal Procedure Act clearly have as a purpose the purpose identified by counsel for the defendant of expediting the disposition of some charges of indictable offences by permitting some charges of indictable offences to be dealt with summarily. Furthermore, as counsel for the defendant submitted, there can be advantages for a person charged with an indictable offence in having the offence dealt with summarily by virtue of the provisions of Pt 2 Div 3.

48 However, in my opinion, a number of the provisions of Pt 2 Div 3, and particularly ss 23 and 25, also have the purpose of ensuring that a person charged with an indictable offence listed in Table 1 to Sch 1 should not be deprived of the right to have the offence dealt with on indictment, unless he has been provided with the means to make a considered, informed decision on whether he should elect to have the offence dealt with on indictment and has then not made an election to have the offence dealt with on indictment.

49 That this is a purpose of these provisions is confirmed by passages in the speech of the Attorney-General on the second reading of the Bill which inserted Pt 2 Div 3 in the Criminal Procedure Act. For example, in a passage in the speech referring to the clause in the Bill which became s 25 of the Act, the Attorney-General said:-

“This provision ensures that a person appearing before a Local Court on a charge falling within Table 1 is armed with all the material necessary to enable that person, or his or her legal advisers, to make an informed decision either to elect to have the matter dealt with on indictment or to decline to make an election”.

50 The key words in s 21 “if no election is made in accordance with this Division” are open to the interpretation contended for by counsel for the defendant. However, I consider that these words are also open to the interpretation contended for by counsel for the plaintiff and, in my opinion, I should prefer the interpretation contended for by counsel for the plaintiff, that the words mean, if no election is made by the defendant after the provisions of Pt 2 Div 3 including ss 23 and 25 have been carried into effect. This interpretation is in accordance with a purpose of Pt 2 Div 3 to which I have referred and is consistent with the principle of statutory interpretation to which I have referred.

51 Clear words would be required in Pt 2 Div 3 to produce the consequence that a person charged loses the benefit of the protective provisions in Pt 2 Div 3, if he does not appear in the Local Court on a day on which he should have appeared. Counsel for the defendant sought to rely on the opening words of s 25(1) as amounting to clear words to that effect. However, the opening words of s 25(1) are open to the interpretation, particularly as the first word is “when” and not “if”, that they are directed only to the time at which the Local Court is to discharge its obligations, and not to the existence of those obligations. Indeed, in my opinion, the opening words of s 25(1) contemplate a the person charged with an offence listed in Table 1 to Schedule 1 will make a first appearance before the Local Court in respect of the offence.

52 I accept the submission by counsel for the plaintiff that a person charged with an indictable offence should not, in the absence of clear statutory provision, be placed in a position where, in order that he should not suffer injustice, he has to rely on decisions which might or might not be made by others, such as the prosecuting authority or a Local Court magistrate.

53 As submitted by counsel for the plaintiff, on the interpretation of the provisions of Pt 2 Div 3 contended for by counsel for the plaintiff and accepted by me, if a person charged with an indictable offence listed in Table 1 to Sch 1 does not appear before the Local Court on a day on which he should have appeared, a warrant can be issued for his arrest and, if the person charged is arrested and brought before the Local Court, the provisions of Pt 2 Div 3 can then be carried into effect and if, after those provisions have been carried into effect, the person charged does not make an election, the Local Court can proceed to deal with the offence summarily.

54 It follows from my interpretation of the provisions of Pt 2 Div 3 of the Criminal Procedure Act that the Local Court magistrate did not have jurisdiction to deal with the offence summarily and that the conviction of the plaintiff was made without jurisdiction. Consequently, the conviction of the plaintiff should be quashed and the order refusing the plaintiff’s subsequent application to have the conviction annulled should also be quashed.

55 I make orders in accordance with pars 1-5 inclusive of the summons instituting the appeal.

**********

Last Modified: 04/16/2003

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Citations

Shephard v Director of Public Prosecutions (NSW) [2003] NSWSC 83

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

2

Lipohar v The Queen [1999] HCA 65

Tassell v Hayes [1987] HCA 21

R v Fisher [2002] QCA 259

CITATION:	Shephard v Director of Public Prosecutions (NSW) [2003] NSWSC 83
HEARING DATE(S):	03-04/02/03
JUDGMENT DATE:	28 February 2003
JUDGMENT OF:	James J at 1
DECISION:	Appeal allowed
CATCHWORDS:	Criminal law - indictable offences dealt with summarily - Pt 2 Div 3 subss (18) - (27)
LEGISLATION CITED:	Pt2 Div3 Criminal Procedure Act s75A-75F, s100D, s100K Justices Act
CASES CITED:	R v Fisher (2002) NSWCCA 188 Cowan v The Police (1994) 75 A Crim R 24 Tassell v Hayes (1987) 163 CLR 34
PARTIES :	Maurice Richard Shephard v Director of Public Prosecutions
FILE NUMBER(S):	SC 13034/2002
COUNSEL:	D Jordan - Plaintiff PI Lakatos - Defendant
SOLICITORS:	Douglas Humphreys SE O'Connor

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	00039773/02/147
LOWER COURT JUDICIAL OFFICER :	Mr Gary Still