Tuxford v Director of Public Prosecutions

1. [1]

   By way of Amended Summons, the plaintiff Robert Tuxford seeks orders that the decision of Magistrate Barko in the Local Court on 9 March 2023 to commit the plaintiff for trial in the District Court be set aside, and that the matter be remitted to the Local Court at the Downing Centre for committal according to law.

Amended Summons

1. [2]

   The plaintiff seeks the following relief:-

   1. (1)

      An extension of time to file the Summons for leave to appeal, pursuant to Part 51B rule 5(5) of the Supreme Court Rules 1970.

   2. (2)

      A grant of leave to appeal, pursuant to s 54(1) of the Crimes (Appeal and Review) Act 2001.

   3. (3)

      Set aside the order of the Local Court at the Downing Centre committing the plaintiff for trial in the District Court of New South Wales, pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001.

   4. (4)

      Remit the matter to the Local Court at the Downing Centre for committal according to law, pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001.

   5. (5)

      No order as to costs.

   6. (6)

      Such further or other order as the Court thinks fit.

2. [3]

   The plaintiff relies upon the following grounds of appeal:-

   1. (1)

      The Magistrate erred in law in failing to ascertain whether or not the plaintiff was pleading guilty to the offences before committing the plaintiff for trial.

   2. (2)

      The Magistrate erred in law in failing to determine whether a case conference was required to be held before committing the plaintiff for trial.

3. [4]

   The defendant does not oppose an extension of time to file the Summons for Leave to Appeal, accepts that ground 1 of the appeal in the Amended Summons constitutes a question of law alone for the purposes of the Crimes (Appeal and Review) Act 2001 (CARA), does not oppose a grant of leave pursuant to s 54(1) of the CARA and concedes that the Magistrate erred in law by failing to ascertain whether or not the plaintiff was pleading guilty to the offence charged before committing the plaintiff for trial as required by s 95(4) of the Criminal Procedure Act 1986 (CPA). The defendant submits that in circumstances where the plaintiff has established error with respect to ground 1, it is unnecessary to decide ground 2 of the appeal.

4. [5]

   The defendant submits that in all of the circumstances it is appropriate for the Court, in accordance with s 55(3)(a) of the CARA to set aside the order of the Local Court committing the plaintiff for trial in the District Court, remit the matter to the Local Court for committal according to law and make no order as to costs.

Evidence

1. [6]

   The plaintiff relies on two affidavits. The first is an affidavit of Karen Psaltis, Legal Aid solicitor, affirmed on 5 September 2023, annexing:-

   1. (1)

      A letter to the Local Court, seeking an adjournment by consent for charge certification to be finalised;

   2. (2)

      Charge certification;

   3. (3)

      Transcript of the Local Court proceedings on 9 March 2023; and

   4. (4)

      A chronology of the matter from 13 April 2023 (the date that the transcript was requested) to 17 August 2023 (the date that the Amended Summons was filed in the Supreme Court).

2. [7]

   The second affidavit is of Michael Bellingham sworn on 27 July 2023. Mr Bellingham is the solicitor for the plaintiff. He sets out the procedural history of the matter from 23 August 2022 to 23 March 2023.

Legislative Framework

1. [8]

   Part 2 Division 8 of the CPA relates to committal for trial and sentence. Section 95 provides:-

2. [9]

   Sections 53, 54 and 55 of the CARA provide:-

Background

1. [10]

   The plaintiff has been charged with one count of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900. A charge certificate was signed on 9 December 2022 and charge certification occurred on 15 November 2022. An initial date for case conferencing was set for 24 January 2023. The case conference was delayed a number of times and did not take place prior to the matter returning to the Local Court on 9 March 2023. On that day, the matter came before Magistrate Barko in the Local Court at the Downing Centre.

2. [11]

   Before his Honour, the solicitor for the plaintiff, Mr Bellingham, acknowledged that a case conference had been adjourned on a number of occasions, but he noted that an induced statement was to be provided by a related person. Mr Bellingham sought a further six week extension to 20 April 2023. The following exchange took place between his Honour, Mr Bellingham and the prosecutor:-

3. [12]

   His Honour asked again for the next date for committal in the District Court at Sydney. The Prosecutor told his Honour that the dates were either 31 March 2023 or 14 April 2023. His Honour then made the following orders:-

Disposition

1. [13]

   In this case, Magistrate Barko erred by failing to ascertain whether or not the plaintiff pleaded guilty to the offence for which he stood charged. The failure to do so involved a question of law alone within the meaning of s 53(3) of the CARA: see Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960 at [26] per Yehia J (Coles). So much is conceded by the defendant. Section 95(4) of the CPA provides that before committing an accused person under s 95, a Magistrate must ascertain whether or not the accused person pleads guilty to the offences which are proceeded with. This is mandatory, and for good practical reason.

2. [14]

   In Coles, Yehia J observed at [27] – [29]:-

3. [15]

   Further, in Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 (Hijazi), Button J said at [15] – [18]:-

4. [16]

   The evidence before me discloses that further material was served by the Crown on 23 March 2023. The plaintiff’s solicitor says that as a result of receiving that evidence, he would advise his client to enter a plea to an appropriate charge with amended facts. Thus, in the instant case, if the matter is not remitted to the Local Court, the plaintiff may well be deprived of a 25% discount for a plea of guilty to which he would have been entitled had the matter proceeded before his Honour according to law.

5. [17]

   The plaintiff succeeds on his first ground of appeal and is entitled to the relief he seeks. It is therefore unnecessary to deal with ground 2. However, in deference to Mr Odgers’ submissions on s 76 of the CPA, I adopt Button J’s comments in Hijazi at [24]:

Leave to Appeal

1. [18]

   The plaintiff requires leave to appeal pursuant to s 53(3) of the CARA and an extension of time. He submitted that the following factors militate in favour of a grant of leave and an order extending time to file the Summons:-

2. [19]

   The defendant does not oppose the grant of leave. In my opinion, in the circumstances of this case, and for the reasons advanced by the plaintiff, leave should be granted.

Orders

1. [20]

   I make the following orders:-

   1. (1)

      I grant the plaintiff an extension of time pursuant to Part 51B r 5(5) of the Supreme Court Rules 1970 to file the Summons in this matter.

   2. (2)

      I grant the plaintiff leave to appeal pursuant to s 54(1) of the Crimes (Appeal and Review) Act 2001 against the order of Magistrate Barko of 9 March 2023 committing the plaintiff for trial in the proceedings 2022/221661.

   3. (3)

      I set aside the order of the Local Court at the Downing Centre committing the plaintiff for trial in the District Court of New South Wales in the proceedings 2022/221661 pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001.

   4. (4)

      I remit the matter to the Local Court at the Downing Centre for committal according to law, pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001.

   5. (5)

      No order as to costs to the intent that each party bear his and its own costs.