Balach v Office of the Director of Public Prosecutions

Earlier today in the matter of Hayes v The Director of Public Prosecutions [2019] NSWSC 378 I gave reasons for allowing an appeal by consent which deal with the judicial obligation of magistrates to give reasons in matters to which s 182 of the Criminal Procedure Act 1986 (NSW) applies. I made observations about the need, in appropriate cases, to consider whether, even when the matter is dealt with in the absence of the defendant, because of the operation of s 182(3), s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies. I will not repeat what I said in the case of Hayes but this judgment should be read in the light of the reasons I gave then.

The appeal is brought to this Court under the provisions of s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) which provides a right of appeal to this Court to a person convicted or sentenced in the Local Court but "only on a ground that involves a question of law alone". The parties agree that the learned magistrate's decision is affected by an error of law because the reasons given fail to measure up to the legal standard. I agree this ground involves a question of law alone, as is clearly established by the authorities: eg Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.

The plaintiff was pulled over for a random breath test at 1.53am on 23 December 2017. The roadside teat was positive, and a breath analysis test at Redfern Police Station returned a reading of 0.052 grams of alcohol in 210 litres of breath. That, of course, is just over the low range threshold.

A court attendance notice was issued and the plaintiff sought to take advantage of the written plea procedure under s 182 of the Criminal Procedure Act. He provided a covering letter, indicated he was pleading guilty and, in mitigation, wrote:

I should also say that he told the police at the time of his arrest that he had consumed about five alcoholic drinks, including shots and cocktails, between 5pm and 6.30pm on 22 December 2017. This is about eight hours before he was breath-tested.

He wrote a letter to the Court dated 31 December 2017 in which he made the following substantial points: He said his circumstances are exceptional; he requested "the jury" to decide the case in his absence since he was leaving the country, which he substantiated that with a copy of his one-way airline booking confirmation; and he gave no forwarding address in Pakistan.

The matter came before her Honour Magistrate Milledge on 22 January 2018. I point out, under s 182(3), a person who takes advantage of the s 182 procedure is not required to attend court and is taken to have attended before the Court on the date the matter was dealt with. As I refer to in my earlier judgment, s 193 is applicable because it requires the Court, in the case of a guilty plea, if the accused person does not show cause why he or she should not be convicted, or have not an order made against him or her, to convict on the plea of guilty. I have also referred in Hayes to s 209 of the Criminal Procedure Act which makes clear that s 10 applies to proceedings heard in the absence of the accused person.

The entirety of the transcript of the hearing before her Honour is as follows:

The principles relating to the obligations of magistrates to give reasons in this context were discussed by Bellew J in Roylance v Director of Public Prosecutions [2018] NSWSC 933 (at [12]-[15]) which I set out:

I observe that the discharge of the obligation need not be onerous, nor the reasoning elaborate, given the workload that magistrates confront each day. Succinctness is a virtue that should be strived for. As McHugh JA (as his Honour then was) said in Soulemezis (at 282D) where no appeal lies against findings of fact (as here) it is enough if the “judgment reveals the ground for, although not the detailed reasoning in support of, [the] finding of fact.”

However, it is necessary, as Bellew J said, that the decision be explained. I must say that her Honour went some way towards that with her pithy remarks after she indicated the penalty that would be imposed. However, with respect, it was not quite sufficient and, for the reasons I discussed in Hayes, although this is not the subject of the parties’ agreement, I think, with respect, that her Honour fell into error by saying "I cannot put him on a bond because he is not here".

If there is a practice in the Local Court of not considering s 10 of the Sentencing Procedure Act when matters are dealt with under s 182, for the reasons I have discussed in Hayes, I am of the view that it is contrary to law. The practice should no longer be followed. Naturally, most cases will not raise s 10, and it need not be expressly adverted to in reasons given in those cases, s 209 of the Criminal Procedure Act notwithstanding. But this case did raise s 10, in as much as it was a very low reading, as her Honour observed, the plaintiff had no criminal record and, apparently, on the material he provided, he was otherwise a person of good character. Her Honour was not bound to give him a s 10 bond, of course, but the issue was squarely raised even in the terse or taciturn material that she had before her.

I am satisfied that, in accordance with the agreement of the parties, a ground of appeal under s 52 has been made out. Because of the plaintiff’s absence overseas, the summons was filed out of time. There is no objection to an extension of time from the Director. I am satisfied from the affidavit of his solicitor Martin Vazquez, affirmed on 1 March 2019, that time should be extended until the date of the filing of the summons, which was 14 December 2018.

The parties have provided a form of consent order and I am happy to make orders in those terms: