Hayes v Office of the Director of Public Prosecutions

This matter comes before the Court by way of an appeal from the Local Court of New South Wales under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW). That provision confers a right on a person convicted or sentenced in the Local Court to appeal to this Court, but only on a ground that involves a question of law alone.

In this case the plaintiff and the defendant agree that orders should be made extending the time for bringing the appeal, which was filed out of time, and, in substance, allowing the appeal on the basis that the learned magistrate erred in law by failing to give adequate reasons for the conviction and sentence imposed on the plaintiff on 29 March 2018 for the offence of possessing a small amount of the prohibited drug, cocaine.

I have reviewed the matter in chambers with the assistance of, with respect, the very detailed and helpful written submissions provided by Ms Langley of the Office of the Director of Public Prosecutions and I agree that the learned magistrate has failed in her judicial obligation to provide reasons.

The obligation to give reasons has been dealt with in a very similar context quite recently by Bellew J in Roylance v The Director of Public Prosecutions [2018] NSWSC 933. That matter, like this matter (and the next matter in the list), concerned a matter that was dealt with by way of a written admission of guilt under s 182 of the Criminal Procedure Act 1986 (NSW). Bellew J set out the obligations of a magistrate in such circumstances (at [12] to [15]) in the following terms:

Essentially, even though the matter was dealt with in the absence of the accused person, the magistrate remained under a duty to give reasons in a way which expressed her or his findings clearly and which enabled the parties to understand the basis for the decision to record a conviction and impose the particular fine.

I should say as I will detail below that the circumstances of this case as disclosed on the s 182 document which is before me, raised for consideration whether this was an appropriate case for the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). I will briefly set out those circumstances.

The offending occurred on 1 February 2018. Police who had another person under surveillance observed the plaintiff get into the front passenger seat of a small car in Barangaroo. The car made two manoeuvres each over a short distance, changing location on each occasion, which may suggest an attempt to avoid police detection, until the plaintiff was seen to leave the vehicle, which then left the scene. He was stopped by nearby police who asked if he was in possession of a drug. He admitted that he was, and later, when interviewed by the police, said that he purchased the drug for $300 for personal use. The amount of the drug involved was 0.57 of a gram.

He was dealt with by a court attendance notice and elected to lodge a written plea under the provisions of s 182 of the Criminal Procedure Act. He attached some references in his written plea said:

As was clear on the evidence before the court below, Mr Hayes had no criminal record at that time.

The matter first came before the Local Court before Magistrate Huntsman on 16 March 2018. Her Honour, with respect, appreciated from the plaintiff's use of the word "leniency" that Mr Hayes, by implication, was asking that no conviction be recorded under s 10 of the Act. Her Honour then decided to adjourn the matter to allow Mr Hayes the opportunity "to come in person if he wants leniency or otherwise he is going to be convicted". The matter was stood over for a period of two weeks. Unfortunately, when the Registrar of the Court notified Mr Hayes of the adjournment, no mention of the opportunity being afforded was provided and he did not appreciate that he was expected to appear personally to appear in person, if he wished, to make a case for “leniency”.

The matter was next listed before her Honour Magistrate McIntyre on 29 March 2018. I can take judicial notice that doubtless on the last day before the Easter break, her Honour had a very busy list. In any event the transcript of the whole of the proceedings is as follows:

I accept the fine is modest enough for the type of offending that her Honour was dealing with. However, the obligation to give reasons is an important judicial duty, even in small matters. It is an aspect of the principle that justice must not only be done, but must be seen to be done. The obligation to give reasons in simple cases dealt with under s 182(3) need not be onerous. Given the allowance that must be made for the workload in the Local Court, succinct reasons are appropriate, but they need to measure up to the legal standard Bellew J described in Roylance.

As I have said, clearly s 10 was in play in this case on the facts as they appeared both in the police facts, which were before her Honour, and in the matters put forward in mitigation on the written plea under s 182. Her Honour had to make some brief, succinct assessment of objective seriousness. Her Honour also had to explain why in her opinion the matter was not an appropriate one for the leniency which the plaintiff sought. It has to be borne in mind that however succinct adequate reasons may be, they need to engage with the issues put forward for determination by the parties and explain, shortly, why a decision is made one way rather than the other. That did not happen here.

I formed an impression from the evidence in this case, and from the material in the next case I will deal with, the matter of Balach v The Director the Public Prosecutions [2019] NSWSC 377, that something of a practice may have developed in the Local Court of not considering whether the application of s 10 is appropriate in proceedings dealt with in the “absence” of the defendant even when the defendant has taken advantage of the procedure available to him or her under the Act of having the matter dealt with on a written plea under s 182(3). Any such a practice seems to me to be contrary to the provisions of the Criminal Procedure Act. And I say this even if it is understandable that a judicial officer may prefer a personal appearance by the accused person if called upon to consider the section. The advantage of assessing an offender personally before passing sentence, as part of that process, should not be overlooked.

But s 193(1) of the Criminal Procedure Act is in the following terms:

It seems to me, reading those provisions together, and in the context of the whole of Part 2 of Chapter 4, especially Divisions 2 and 3, of the Criminal Procedure Act, that it is necessary for the Court to turn his or her mind to the question of whether a conviction should be recorded; that is to say whether s 10 is available to the particular accused person, even if that person has lodged a s 182 written plea to have the matter dealt with under s 182(3). I am not suggesting that every case will throw up a live question about the application of s 10. Obviously, the magistrate needs to deal with the issues as they appear to her or him on the material actually before the Court. In the vast majority of cases there will be no question of the application of s 10 and, in such matters, it would be unnecessary for the magistrate to tarry over that question. But when it does arise, as it obviously arose in this particular case, any practice adopted by the Court of not considering s 10 because the accused person is not present in court (although she or he is taken to have attended), with respect, should no longer be followed.

I think I can illustrate the point here by reference to the affidavit of the plaintiff filed, mostly, to explain his delay in bringing the appeal. He is a person with accounting-type qualifications, operating in the financial services industry. It is quite apparent that for many jobs in that industry having a criminal record is a positive disqualification. Indeed, the affidavit attaches a form of contract of employment for a job the plaintiff was offered which required him to warrant that he has no criminal record. Such requirements are not unusual in the modern workforce in service industries, and so much, it must be said, was made apparent in his s 182 document.

The summons was filed late. It was late for the reasons explained in the affidavit. First, Mr Hayes had no appreciation that his application had not been properly dealt with. Secondly, he in fact was labouring under the misapprehension that no conviction had been recorded because none was mentioned in the letter from the Court; only the fine was mentioned. It was not until he was unsuccessful in two job applications that he appreciated his mistake about what is now his criminal record.

Other proceedings, perhaps misguided, were taken in the Local Court to have the conviction set aside, but the Court held that it had no jurisdiction to deal with the matter in the form in which it was brought and no issue is taken with that decision in this appeal.

Given the absence of any objection to the lateness of the appeal from the defendant and given the importance of the principle involved I propose to extend time to allow the appeal to be brought.

The parties have agreed on the form of order that should be made and a consent order signed by the solicitors for the parties has been handed up.

My orders are, in accordance with the consent order: