Stephens v Director of Public Prosecutions (NSW)

1. [1]

   HIS HONOUR:

Introduction

1. [2]

   On 16 February 2018, in the Local Court of NSW, Mr Larry Stephens (the plaintiff) was convicted of two counts of the offence of stalking or intimidating with intent to cause fear of physical or mental harm pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

2. [3]

   This is a purported appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) by the plaintiff from the orders of the Local Court. The plaintiff, however, had previously appealed from the orders of the Local Court to the District Court pursuant to s 11 of the CAR Act. In that appeal, one count upon which he had been convicted in the Local Court was confirmed and the other was dismissed as duplicitous.

3. [4]

   By notice of motion filed on 27 May 2019, the Director of Public Prosecutions (NSW) (the defendant) who, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW), had taken over as defendant in the matter from Senior Constable Stephen Keane who had originally been named as defendant, sought orders dismissing the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the basis that the appeal was incompetent. The notice of motion was listed concurrently with the “appeal”. Given the nature of the relief sought in the notice of motion, it was appropriate that it be heard first.

4. [5]

   At the conclusion of the hearing of the notice of motion on 20 June 2019, I made an order dismissing the plaintiff’s summons with costs. This judgment sets out my reasons for making the dismissal order. Reasons in respect of costs were delivered orally at the conclusion of the hearing.

Factual and procedural background

1. [6]

   As noted above, on 16 February 2018, the plaintiff was convicted of two counts and was sentenced on each count to a good behaviour bond of two years and was fined $750.00, totalling a fine of $1,500.00.

2. [7]

   On the same day, the plaintiff filed a notice of appeal in the District Court against his conviction and sentence pursuant to s 11 of the CAR Act. Section 11(1) provides that “[a]ny person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both)”.

3. [8]

   The matter was heard by Bozic DCJ on 1 June 2018 and 14 September 2018. During the hearing, in response to concerns expressed by his Honour, the defendant conceded that the two counts with which the plaintiff had been charged were duplicitous.

4. [9]

   On 20 November 2018, Bozic DCJ delivered judgment, setting aside the plaintiff’s conviction on one of the counts and confirming the Magistrate’s order in respect of the other count.

5. [10]

   On 23 January 2019, the plaintiff filed a summons seeking to appeal against his Local Court conviction under s 52 of the CAR Act. No appeal was sought to be brought from the decision of Bozic DCJ, nor was any application made for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). Such relief could not have been sought from me, sitting as a single judge in the Common Law Division (see s 48 of the Supreme Court Act, which assigns judicial review proceedings in respect of decisions of the District Court to the Court of Appeal) and, in any event, counsel for the plaintiff, eschewed any suggestion that Bozic DCJ’s decision was tainted with jurisdictional error.

6. [11]

   Section 52(1) of the CAR Act provides that:

7. [12]

   It is also desirable to set out s 53(1) of the CAR Act. As discussed below, the plaintiff in his submissions sought to differentiate between appeals as of right on a question of law under s 52 and appeals requiring leave on a question of fact or mixed law and fact under s 53. Section 53(1) provides as follows:

8. [13]

   The terms of ss 29 and 60 of the CAR Act should also be noted. Section 29 provides that:

9. [14]

   Section 60 provides that:

Incompetence of the appeal

1. [15]

   Rule 13.4 of the UCPR provides, relevantly, as follows:

2. [16]

   The test for determining whether proceedings should be dismissed summarily on the basis that no reasonable cause of action is disclosed was articulated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 as follows:

3. [17]

   The defendant submitted that, applying this test, the plaintiff’s summons was “obviously untenable and manifestly groundless”. In circumstances where the orders of the Local Court sought to be challenged by the plaintiff had been superseded by subsequent orders of the District Court, the defendant submitted that there was no decision that could properly be the subject of an appeal under the CAR Act. As the defendant pointed out, the Act does not confer a right of appeal to this Court from a decision of the District Court.

4. [18]

   In this regard, the defendant relied on the Court of Appeal’s recent decision in Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 (Jamal). In that case, the appellant sought, inter alia, to challenge the conduct of the proceedings in the Local Court, despite having already appealed unsuccessfully to the District Court. Gleeson JA (White JA and Emmett AJA agreeing) found, at [52], that:

5. [19]

   The plaintiff contended that the District Court’s determination of the matter was not a bar to commencing proceedings under s 52 of the CAR Act, which, as set out above at [11], provides for an appeal as of right on a question of law from a decision of the Local Court. The plaintiff accepted, however, that it was a bar to commencing proceedings under s 53, which, as set out above at [12], provides that leave is required to appeal to this Court from a conviction or sentence of the Local Court on a question of fact or mixed law and fact.

6. [20]

   In this regard, the plaintiff submitted that Gleeson JA’s finding in Jamal, set out above at [18], “falls short of being a rule or principle that ‘all grounds’ appeals to the District Court will always result in orders that supersede the orders that made in the Local Court”. In support of this submission, the plaintiff relied on the fact that s 69 of the Supreme Court Act permits a party to apply to the Court of Appeal for judicial review of a decision of the District Court. That this may be an available avenue of review for a party, however, says nothing about the competency of an appeal from the Local Court to this Court, in circumstances where the District Court has already determined an appeal to it. The two procedures are quite distinct: one relates to an appeal on a question of law from the Local Court; the other involves judicial review from a decision of the District Court on the basis of jurisdictional error.

7. [21]

   The plaintiff also relied on Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 (Nand) and Devitt v Ross [2018] NSWSC 1675 (Devitt) as authority for the proposition that, in the circumstances of this case, although an appeal under s 53 would be incompetent, an appeal under s 52 is not. The plaintiff relied on the fact that the appeals in those cases, which were deemed incompetent on the basis that the Local Court decisions the subject of challenge had been superseded by decisions of the District Court, were brought under s 53, and not s 52. But that is not to the point. The District Court decisions under challenge in those cases, as with the present case, resulted in orders being made following appeals to the District Court from the Local Court pursuant to Part 3 of the CAR Act.

8. [22]

   In Nand, Adamson J found, at [33], that the plaintiff’s appeal was incompetent as it challenged an order, that being the plaintiff’s conviction in the Local Court, which was no longer operative, having regard to the subsequent orders of the District Court refusing the plaintiff’s application for leave to appeal against his conviction. Her Honour referred, at [52], to the principle that:

9. [23]

   Her Honour, considering the operation of s 29(1)(c) of the CAR Act, which, as set out above at [13], provides that no appeal may be made to the District Court against a decision of the Local Court that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court, stated that:

10. [24]

    The same issue arose in Devitt, in which Hoeben CJ at CL, at [59]-[63], adopted Adamson J’s reasoning in Nand, finding that this Court did not have jurisdiction to deal with the matter.

11. [25]

    Adamson J’s findings in Nand, which were applied in Devitt, were not limited to the operation of s 53 of CAR Act, contrary to the submissions of the plaintiff. Indeed, her Honour expressly referred to s 52 of the Act at [63], set out above at [23]. The distinction sought to be drawn by the plaintiff between ss 52 and 53 does not bear upon the general principle, applied in each of the cases referred to above, that orders made by the Local Court that are subsequently confirmed or dismissed by the District Court are not open to challenge by way of an appeal to this Court.

12. [26]

    The underlying principle was articulated by the High Court in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8, which is cited in the cases referred to above and was discussed by Basten JA (Giles and McColl JJA agreeing) in Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 as follows:

13. [27]

    As Rich ACJ also explained in Wishart v Fraser, at 477, “[i]f this court were to deal with the conviction by the magistrate and quash it, the extraordinary result would follow of two orders in existence at the same time – the order of this court and that of Quarter Sessions”.

14. [28]

    Wishart v Fraser and Garde v Dowd were cited by the Court of Appeal in Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105, to which the plaintiff referred. At [32], Meagher JA (Beazley ACJ and Macfarlan JA agreeing) observed as follows:

15. [29]

    In the present case, the orders challenged by the plaintiff are no longer operative, as they have been, on one count, dismissed, and on the other, confirmed by the District Court.

16. [30]

    Relevantly, in Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335, Basten JA (Meagher JA agreeing) observed, at [3], that:

17. [31]

    Similarly, at [15], Macfarlan JA stated that:

18. [32]

    Contrary to the submissions of the plaintiff, no relevant distinction is to be drawn between an appeal brought pursuant to s 52 and an appeal brought pursuant to s 53 in determining whether an appeal to this Court is competent. The matter is, in my opinion, governed by the Court of Appeal’s decision in Jamal by which I am bound and which is consistent with the principle stated in Wishart v Fraser, which was cited in Jamal. Nor does the fact that ss 29 and 60 of the CAR Act (see [13]-[14] above) do not include as one of the limitations on appeals pursuant to Part 5 of that Act (in which ss 52 and 53 are located) appeals from a decision of the Local Court from which an appeal to the District Court has previously been brought alter the analysis. There was no need for that limitation to be spelt out in either s 29 or s 60.

19. [33]

    Legislation is presumed not to alter common law doctrines: see, for example, Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 at 304 per O’Connor J. In Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28, the High Court observed, at 635-636, that “where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred”. In Nand, Adamson J considered the application of this principle in the context of s 60 of the CAR Act as follows:

20. [34]

    Her Honour also addressed the operation of s 29 of the CAR Act at [61]-[64]. Her core findings on this point are set out above at [23]. Accordingly, ss 29 and 60 of the CAR Act should not be interpreted as altering the principle stated in Wishart v Fraser.

21. [35]

    It follows that this appeal was incompetent. It was on this basis that I dismissed the appeal under r 13.4 of the UCPR, no reasonable cause of action being disclosed.

Orders

1. [36]

   Having found that the appeal was incompetent, it was not necessary for me to consider the grounds of appeal raised by the plaintiff’s summons as amended by his written submissions filed on 19 June 2019. Nor was it necessary for me to consider whether the plaintiff should be granted an extension of time to commence these proceedings, his summons having been filed more than 28 days after the date of the Local Court decision: see r 51B.6 of the Supreme Court Rules 1970 (NSW).

2. [37]

   For the reasons stated above, I made the following orders at the conclusion of the hearing:

   1. (1)

      Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), dismiss the plaintiff’s summons filed 23 January 2019.

   2. (2)

      The plaintiff is to pay the defendant’s costs.