Toufik Omar v Director of Public Prosecutions

[1999] NSWSC 676

Reported Decision: 109 A Crim R 454

New South Wales

Supreme Court

CITATION:	Toufik Omar v DPP [1999] NSWSC 676 revised - 23/12/99
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	12789/98
HEARING DATE(S):	07/06/99
JUDGMENT DATE:	6 July 1999
PARTIES :	Toufik Omar v Director of Public Prosecutions
JUDGMENT OF:	McInerney J at 1

COUNSEL :	Mr Bruckner (Plaintiff) Ms R Burgess (Defendant)
SOLICITORS:	Grahame W Howe & Co. (Plaintiff) S.E. O'Connor. (Defendant)
CATCHWORDS:	Criminal law and Procedure. Juvenile. Jurisdiction of Children's Court. Ex Parte hearing and proceed to conviction. Application to annul convictions where accused not aware of adjourned date. Abuse of process.
ACTS CITED:	Crimes Act 1900 Traffic Act 1909 Justices Act 1902. Children (Criminal Proceedings) Act 1987 Public Service Act
CASES CITED:	Ex parte Walker; Re Goodfellow (1944) 45 SR(NSW) 103. Young v Kenny & Ors, SC (NSW)unreported 4 September, 1992 per Abadee J. R v Hodder (1988) 33 A Crim R 295.
DECISION:	Summons Dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Tuesday 6 July 1999

McINERNEY AJ

12789/1998: TOUFIK OMAR vDIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

1   HIS HONOUR: The plaintiff by way of summons seeks declarations in the following terms:

(1) A declaration that, when the second defendant convicted the plaintiff on 11th March 1998, at Bidura Children’s Court of offences pursuant to ss154A and s527C Crimes Act 1900 and s4 and s6 of Traffic Act 1909 those convictions were invalid.

(2) An order that the aforesaid convictions be quashed.

2 On 29 December 1997 the plaintiff was arrested and charged at Mascot Police Station with offences pursuant to ss154A and 527C of the Crimes Act 1900 (Illegal use of motor vehicle and goods in custody) ss 4(1) and 6(1) (a) of the Traffic Act 1909 , (driving in a manner dangerous and unlicensed driver). He was initially refused bail, but conditional bail was granted at the Police Station on 30 December 1997. He signed a bail undertaking to attend Bidura Children’s Court on 20 January 1998.

3   On 20 January 1998 at Bidura Children’s Court the plaintiff did not appear and Mr. Scarlett SCM adjourned the matters to 18 February 1998. The bench papers indicate the purpose of the adjournment was ‘ex P’. Bail was continued and the papers were marked ‘R to N’ (Registry to notify).

4   A notice of continuance of bail addressed to the plaintiff at his home address notifying him of the adjourned date was signed by a prescribed officer, certified that this form was given to the child “by delivering it to the person personally”, the Clerk of the Local Court also signed a notice of adjournment addressed to him at his home address.

5   On 18 February 1998 the plaintiff did not appear, and the matter was adjourned to 11 March 1998. A notice of a continuance of bail was sent to the plaintiff at his home address notifying him that the matter was adjourned to that date. A notice of adjournment, addressed to the plaintiff at his home address was also signed by the Clerk of the Local Court.

6   On 11 March 1998 the plaintiff did not appear, the second defendant, a Children’s Court Magistrate, heard the matter. On that day he found the offences proved beyond reasonable doubt, convicted the Plaintiff and ordered s80AA warrants to issue for the arrest of the plaintiff.

7 On 22 September 1998 the plaintiff applied for an annulment of the convictions under s100A of the Justices Act on the basis that he was not notified of the adjourned date. That application was dismissed, the Magistrate taking the view that the convictions were not pursuant to ss 75, 75A, 75B or 76 of the Justices Act.

8 Prior to amendments which commenced in August 1998 the power of a Magistrate to hear a matter ex parte was governed by ss 75, 75A, 75B and 76 of the Justices Act . The Justice Act applies to criminal proceedings before the Children’s Court and is subject to Part 2 of the Children (Criminal Proceedings) Act 1987 and the rules of the Children’s Court: s27(2) of the Children (Criminal Proceedings) Act . There is nothing in the rules or Part 2 of this Act which prohibits a Children’s Court Magistrate from hearing a matter ex parte.

9 Section 12(1)(a) and (b) of the Children (Criminal Proceedings) Act provides

“(1) if criminal proceedings are brought against a child the following matters must be explained to the child:
(a) the nature of any allegations made against the child, and

(b) the facts that must be established before a child can be found guilty of the offence with which the child is charged “

Subsection 2 provides that:

“Until those matters are explained to the child the Court shall not proceed further.”


Section12.2A, however, provides that:

“If

(a) the child fails, apparently without reasonable excuse, to appear when criminal proceedings are before the Court and
(b) those matters have not been explained to the child,
subsection (2) does not, in the child’s absence, prevent the Court from proceeding further.”


10 Sections 75 and 75A of the Justices Act , as they then were, applied only where a summons or attendance notice had been issued. Section 75B only applied to prosecutions of the Public Service Act or other prescribed Acts. However, s76(1) applies to the hearing of informations and complaints. This section gives a power to Magistrates to hear or further hear a matter in the absence of either or both of the parties, if the matter has been adjourned.

11 Information may be in any form as long as it sufficiently states the offence. The laying of the information invests a Magistrate with jurisdiction. It is not necessary for the existence of jurisdiction that the person charged be present when an information is laid, see ex-parte Walker; Re Goodfellow (1944) 45 SR(NSW) 103 at 106-108 and Young -v- Kenny & Ors ( unreported 4 September 1992, Abadee J).

12 The plaintiff was charged by the police on 27 December 1997 and the informations were laid 20 January 1998. When these charge sheets were placed before the Magistrate in the Children’s Court, the Magistrate was invested with jurisdiction and had power to adjourn the matters and once the matters had been adjourned the second defendant had power to hear the matters ex-parte and proceed to conviction, R-v-Hodder (1988) 33 A Crim R 295 . There was material before the second defendant to indicate the plaintiff had been notified of the adjourned date. He had power under s76 to hear and determine the matters and he had a discretion to record convictions as the plaintiff was over 16 years of age: s14(1)(b) of the Children (Criminal Proceedings) Act . Therefore it is submitted the convictions are valid.

13 The learned Magistrate before whom an application was made pursuant to s100A of the Justices Act for an application to annul the convictions under that section came to the conclusion for some reason not really clear to me that she had no power to do so. S100A(1) is in the following terms:

“Subject to this section, application may be made by or on behalf of any person ( in this Part referred to as the applicant ):
(a) against whom, in his absence, a conviction has been made upon the hearing and determination of his case under section 75, 75A or 76, or
(b) upon whom a penalty has been imposed pursuant to section 75B,
for the annulment of that conviction or penalty.”

14   It appears the learned Magistrate having concluded that she had no power dismissed the application. The matter now comes before me by the plaintiff to seek a declaration in the terms that the convictions recorded are invalid.

15 Section 76 of the Act as it then was has been subject to consideration by the Court of Criminal Appeal in R-v-Hodder, (supra). In that case it was held that as a matter of construction of the relevant provisions in the Justices Act 1902 NSW ss74, 75, 75A,76 permitted the Magistrate to convict and sentence in the absence of the defendant. The Court held to construe s76 in that way does not import any risk of injustice in as much as the hearing from which the adjournment arose would have in itself been a validly constituted hearing, either with the defendant present or else with proof of service having been presented.

16   Street CJ said at 298:

“The specific phrase in s.76 authorising the Court to proceed with the hearing as if such party or parties were present appears to me to confer on the Court all the powers available to it, if the parties were present at the hearing including the power to convict and to sentence.”


17   Attached to an affidavit of Mr. Peter Bruckner, the plaintiff’s solicitor, is a copy of the transcript of the proceedings before Children’s Court Magistrate J.A. Huber and I must say that I have had some difficulty in understanding exactly why it was that Her Worship came to the conclusion that she did not have power to deal with these matters. Her Worship noted it was an ex parte hearing which she said “isn’t a 75 application” , and then she said, “I don’t have the power”. The reference was made to s75B .

18   The learned Magistrate in argument referred to the application as being an ex parte hearing, which she said: “ isn’t a section 75 application” . Mr. Bruckner who then appeared for the plaintiff, stated the determination was made pursuant to s.75, to which the learned Magistrate replied, “ that section was based upon a summons or attendance notice”, noting that he was refused bail and then entered bail, (see T.6). Then for some reason the Police Prosecutor seemed to accept that the matter was governed by the provisions of s75.

19 The Police Prosecutor in argument referred to s100A(3)(b) which enabled a Magistrate to annul a conviction or penalty where the hearing of the information was adjourned because the defendant would not have been aware of the adjourned date. The learned Magistrate accepted that provision enabled her to deal with the matter. She recognised she only has the power to annul the convictions if the convictions fall within sections 75, 75A, 75B and 76 . She then referred to the provisions of s80AA , which forbids an order that a person be imprisoned unless that person was present at the time the order of imprisonment was made.

20   The transcript of the proceedings in the Children’s Court before Mr. Longley, SM, is annexed to the affidavit (28 May 1999) of Ms B. Scheepers. It appears whilst His Worship recorded convictions on each of the matters, he did not proceed to make an order for imprisonment, and authorise the issue of a s80AA warrant for the apprehension of the plaintiff for the purpose of sentencing.

21 The learned Magistrate in the present matter concluded because it was a s80AA matter, that she did not have the power to deal with the application then before the Court, and went on to say he was not convicted by means of s75 . As I have stated previously, the Police Prosecutor appeared to agree with that statement. Her Worship noted the various charges which she referred to, related to s80AA , and then went on to say that these matters were all dealt with in the plaintiff’s absence and they do not fall within s75 . She then dismissed the application.

22 It is not disputed between the parties that a summons or attendance notice had not been served on the plaintiff and therefore s75 did not apply. S76 , however, applies to hearings of informations and complaints and enables a Magistrate power to hear a matter in the absence of either party.

23 There was no reason, therefore, to prevent the original Local Court Magistrate from hearing and determining the action in the absence of the defendant and I see no valid reason, pursuant to s.100A(3)(b), which would have prevented the Magistrate from hearing the application based on the plaintiff being unaware of the adjourned date. In my view the learned Magistrate was in error in determining she had no such power.

24 It is now submitted that in the light of that decision it would be an abuse of process for the first defendant to argue that the convictions were pursuant to either s.75,75A,75B or 76 of the Justices Act . It is submitted that would involve re-litigation of an issue already decided. The authority quoted is Rogers -v- The Queen , (1994)181 CLR 251. That was a case where there was an indictment containing four counts of armed robbery and the prosecution sought to rely on admissions in three of four records of interview made by the accused. The first and second records contained admissions concerning counts 1 and 2. The fourth contained admissions concerning counts 3 and 4. The judge rejected the tender on the ground that the records were not made voluntarily. The accused was acquitted on counts 1 and 2 and convicted on counts 3 and 4. In 1992 he was indicted on a further eight counts of armed robbery. On the trial the prosecution proposed to rely on the fourth record of interview to support its case on six of the counts and on the third record in support of the fourth count. It was held by the Court by majority that the tender of the records of interview would be a direct challenge to the 1989 determination and in the circumstances would be an abuse of process.

25   It is submitted here that for me to deal with this matter would be an abuse of process. I cannot accept that submission.

26 The question here to be determined is whether the Local Magistrate, who originally dealt with the matter ex parte, was exercising a jurisdiction conferred by s76 of the Justices Act . The conclusion reached by Magistrate Huber relates to a possible error of law. In my view there is nothing to prevent the plaintiff from seeking an order of this Court correcting that error. In my view there is no basis for the submission, and it is not necessary in these circumstances to consider in detail the ambit of res judicata or issue estoppel. In my view it is clear that the matter was dealt with pursuant to s.76 and I cannot understand why that was overlooked by the Magistrate in her determining that she had no power.

27 Alternatively it is submitted the convictions were not pursuant to s76 . No oral argument was addressed to this matter. It only arose when the plaintiff’s counsel volunteered that he would make written submissions. If it was being relied on, I should have had oral submissions on the matter.

28 It is now submitted, however, that pursuant to s76(2) , that the proceedings must be determined on the date on which they were adjourned. It is submitted that under those circumstances the local Court does not have the power to adjourn the matter for ex parte hearings and thus the convictions are ultra vires.

29   The defendants submit whilst it is conceded that the papers were marked ‘ex P’ by Scarlett SCM on 20 January 1998, it was also noted that the plaintiff’s bail was to continue and the Registry was to notify the plaintiff of the adjourned date. A notice of continuance of bail was served on the plaintiff and a notice of adjournment addressed to the plaintiff at his home address was completed by the Clerk of the Local Court. A similar procedure was carried out on the adjournment of 18 February 1998.

30   Quite clearly the purpose of the adjournment was to notify the plaintiff of the date for hearing of the matter and had he attended Court the matter could be heard in his presence. When the matter was called on, the plaintiff’s name was called outside the Court, and that being the case, there was an expectation the matter would proceed automatically in his absence.

31 In my view, in the circumstances, the second defendant had the power under s76(2) to deal with the matter, in those circumstances the summons will be dismissed.

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Last Modified: 12/23/1999