Devitt v Ross

1. [1]

   HIS HONOUR:

Nature of proceedings

1. [2]

   At the hearing of this matter, Ground 4 was withdrawn. The only defendant was the arresting police officer. Leave was granted to the solicitor for the defendant to withdraw from the proceedings, having filed submissions challenging the jurisdiction of this Court to hear the Summons. Leave was also granted to Ms Webster SC to appear on behalf of the Director of Public Prosecutions (DPP) as an amicus curiae.

2. [3]

   The evidence before the Court was an affidavit of Mr Felton, the solicitor for the plaintiff, affirmed 27 June 2018 (AB 11-57) to which is annexed material from the District Court file and the Local Court file. The plaintiff also relied upon a second affidavit of Mr Felton, affirmed 2 October 2018 (AB 77-100). That second affidavit annexed further material from the Local Court and the District Court and other material which was not before the Local Court at the time of the hearing, and which related to the plaintiff’s medical treatment.

3. [4]

   The DPP relied on the affidavit of Ms Helen Langley, sworn 23 October 2018, annexing copies of the records of the District Court and including material from the Local Court file, not included in the material annexed to Mr Felton’s affidavits.

Factual background

1. [5]

   The plaintiff pleaded guilty to shoplifting, custody of a knife in a public place, resist arrest and use offensive weapon (folding knife) to resist arrest.

2. [6]

   At the time of sentencing, he was aged 49 and homeless. He was on a disability pension because of his low intelligence/cognitive difficulties and mental health. The pre-sentence report (AB 31-32) spoke of a prior diagnosis of schizophrenia, anxiety and bi-polar disorder and of him having been prescribed anti-psychotic drugs by Justice Health since entering custody. There was reference to a history of self-harm and suicide ideation, including threats to self-harm while in custody in February 2017.

3. [7]

   The police facts (AB 26-27) recorded that at approximately 5pm on 7 December 2016 the plaintiff was seen taking a t-shirt from a hanger in the H & M clothing store in Pitt Street, rolling it up and putting it inside his jeans before leaving the store without paying. He then walked through an arcade onto Elizabeth Street where he put on the stolen t-shirt. Store security contacted police and told them the plaintiff’s location outside 55 Elizabeth Street.

4. [8]

   The offences, other than the shoplifting, were alleged to have taken place between 5.40pm and 5.50pm. As police approached the plaintiff, he took a small folding blade knife from his jeans pocket, opened it and pointed the blade at the police, at the same time assuming a fighting stance. The officers believed that they (and others) were at risk. Senior Constable Ross drew his service revolver and Constable Mungovan drew his Taser. Police told the plaintiff to drop the knife but he continued to move forward until he was within approximately two metres of police.

5. [9]

   Apparently believing that Senior Constable Ross was about to fire his pistol, the plaintiff, still holding the knife at chest height, turned and ran along Elizabeth Street towards King Street. Constable Mongovan fired his Taser, striking the plaintiff in the back. The plaintiff fell to the ground, lacerating the bridge of his right eyebrow on the concrete footpath.

6. [10]

   He was arrested, handcuffed and the two barbs removed from his back. He was then taken to Sydney City Police Station, after which he was taken to the Sydney Eye Hospital, where he received three stitches to his right eyebrow before being returned to the police station and charged.

7. [11]

   He was refused bail by police and bail refused by Magistrate Grogan on 8 December 2016. The plaintiff has been in custody since 7 December 2016.

8. [12]

   Pleas of guilty were entered on 6 February 2017 at a time when the Local Court was also informed that the DPP was not making an election in the matters (AB 18/Langley, Annexure F, p 16). The matters were stood over for sentence to 15 February 2017.

9. [13]

   On 15 February 2017 the sentence proceedings were listed before her Honour Magistrate Freund. The solicitor from the Legal Aid Commission, then acting for the plaintiff, who had represented him in December 2016, said that she did not want her client on the audio-visual screen at that stage.

10. [14]

    There followed a brief discussion about the matter between her Honour and the solicitor before the court papers were handed up. Her Honour noted that the plaintiff had a knife and that the police officer had to pull out his revolver. Her Honour said in relation to the revolver and the Taser “that could have gone down south pretty quickly as well”. There was a reference to the plaintiff’s prior offending, noting that the New South Wales record was not very big. The plaintiff had not mentioned anything about mental health. Her Honour noted, however, that the Victorian record of offences was substantial and included an armed robbery. The pre-sentence report, which had been prepared (AB 31-32) was handed up. It directly raised mental health issues on the part of the plaintiff.

11. [15]

    Her Honour asked the solicitor what it was that she wanted (T.3.8, AB 46). The solicitor replied that she wanted to have the matter stood over for a full psychiatric review. Her Honour then went off the bench to enable the solicitor to speak to an identified nurse to see if he knew how to get a Community Treatment Order organized. This was not opposed by the police prosecutor.

12. [16]

    Photographs of the knife were handed up. It had a blade of approximately 5cms in length.

13. [17]

    Upon resumption, the solicitor told the court “we’ll just have to deal with him according to law and the seriousness of what happened”. The solicitor indicated an intention to tender the pre-sentence report already referred to (T.5.10, AB 48).

14. [18]

    Her Honour intervened to propose that the plaintiff be brought onto the screen. While the parties were waiting for the AVL connection to be made, there was a discussion about the maximum term for each of the four offences. Her Honour expressed concern about the seriousness of Sequence 4 (use knife to resist arrest), referring to the maximum term of 12 years and identifying that in accordance with R v Doan (2000) 50 NSWLR 115, she was looking at a fixed term of 2 years (T.6.16-6.46, AB 49).

15. [19]

    The sentencing outcome proposed was outlined (T.6, AB 49) – a 5 year bond for the shoplifting and other matters and in relation to Sequence 4, a 2 year fixed term. In general discussion, the police prosecutor located a copy of the plaintiff’s Queensland record, which was tendered without objection.

16. [20]

    Her Honour inquired as to the maximum term for a first offence of “custody of a knife in a public place” and noted the maximum term was 6 months. While they awaited the AVL connection, her Honour went off the bench saying “You work out where you want to go and we’ll go from there” (T.8.24, AB 51).

17. [21]

    Upon resumption, the plaintiff was present via AVL, and the sentence hearing commenced in formal terms. Her Honour listed the four offences with which he was charged arising from his conduct on 7 December 2016. He adhered to his pleas of guilty. Her Honour noted that as a result, she had called up the bond he had been given on 28 October 2016 for larceny (s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) bond for 12 months) because he was in breach of that bond.

18. [22]

    Her Honour then heard submissions in mitigation. The plaintiff’s solicitor outlined his recent medical history and his being on anti-psychotic medication. The plaintiff agreed he had been coping with schizophrenia since at least the 1990s and said it was controlled by medication.

19. [23]

    The solicitor asked about the incident of 7 December 2016. The plaintiff said that what contributed to his threatening the police with the knife was the private security personnel. He was going to give the shirt back. When he saw the police coming towards him “I just contributed to my – I threatened with a knife, yeah, but I think it’s embellished a lot of that police report … First they – because the Tasers that I was dropping the knife OK I evaded them. That’s when they shot me with four Tasers. I should be dead. You know electrocution it was like … the knife threat was momentary. It wasn’t – I wouldn’t, you know. I never approached – lunged at the police more than, half a metre”. The plaintiff said he was not taking his medication at the time (T.10.17-10.51, AB 53). The plaintiff said that his destitution probably aggravated his thinking. He could get food and coffee but that was not enough. He was imprisoned in Queensland for a total of 2 years and also in Victoria for 2 years. The Victorian Department of Justice got him “onto a disability pension at Thomas Embling” (Langley, Annexure H, pp 24-26, T.11.25, AB 54).

20. [24]

    The solicitor submitted that an awareness had been shown in his responses. It was conceded that the Sequence 4 offence was “very, very” serious. The solicitor believed he was the sort of person who should be on a Community Treatment Order, although it was accepted that they were not dealing with the matter that way. The solicitor noted that his New South Wales record was not serious, although he had some serious matters on his interstate records. The solicitor asked the court to be as lenient as possible.

21. [25]

    The prosecutor did not wish to be heard.

22. [26]

    Her Honour’s reasons are to be found at (T.12-13, AB 55-56). Her Honour commenced with the breach of bond as the offending on 7 December 2016 breached the 28 October 2016 bond. As a result, her Honour revoked that bond and placed him on a further 4 year good behavior bond unsupervised.

23. [27]

    Her Honour summarised the 7 December 2016 offences, i.e. stealing a T-shirt, having a flick knife in custody, the resistance to arrest and using the knife to attempt to resist arrest. Her Honour noted that what was of great concern was Sequence 4 where he threatened to use an offensive weapon to prevent lawful apprehension, causing one police officer to draw his service revolver and the other his Taser.

24. [28]

    Her Honour noted that the maximum penalty for the Sequence 4 offence was 12 years imprisonment, which the plaintiff would be facing if the matter had been taken to the District Court. Because the matter was being dealt with summarily in the Local Court, the maximum penalty was 2 years.

25. [29]

    Her Honour dealt with the offences in descending order of seriousness as follows:

26. [30]

    It was common ground that the Grounds of Appeal in the Summons raised issues of mixed fact and law. As Beech-Jones J noted in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669 at [49] the structure of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act) is that matters of fact, or mixed fact and law, may be appealed as of right to the District Court but not to this Court. Beech-Jones J suggested that a grant of leave with respect to a pure question of fact can be expected to be a comparatively rare event and when exercised, conditions may attach to its grant.

27. [31]

    Further, a complaint of error in the application of legal principle does not raise a question of law alone (R v PL [2009] NSWCCA 256 at [26] per Spigelman CJ). In JP v DPP at [48] Beech-Jones J quoted statements by Howie J in Kapral v Bunting [2009] NSWSC 749 at [48] counselling against this Court interfering with a factual decision made by a Magistrate who correctly understood and applied the law, as opposed to the situation which may be imagined where there was an error of fact of such significance that might, if not reviewed, result in a positive injustice.

Legislation regarding appeals from Local Courts

1. [32]

   Part 5 Div 1 of the Appeal Act, deals with appeals by a defendant in Local Court proceedings to this Court. A defendant may appeal to this Court as of right against conviction or sentence by the Local Court only on a ground that involves a question of law alone (s 52(1)). An appeal to this Court from conviction or sentence by the Local Court on a ground that involves a question of fact, or a question of mixed law and fact, requires leave (s 53(1)). Section 53(4) of the Appeal Act requires that an application for leave to appeal be made within the period prescribed by the Rules of Court. The relevant Rules of Court are found in Part 51B of the Supreme Court Rules (s 61 of the Appeal Act).

2. [33]

   An application for leave to appeal is instituted by filing a Summons. Such an application must be instituted within 28 days after the “material date”, which in this case was 15 February 2017 (r 5(3)/r 6(1)). This Court may extend that time at any time (r 5(5)/r 6(2)(a)). An application for an extension of time may be included in the Summons (r 5(10)(a)/r 6(3)(a)).

3. [34]

   Part 51B r 5(7)(a)-(b) requires in an application for leave to appeal that a plaintiff give a brief but specific statement of:

4. [35]

   The Court may determine an application for leave to appeal under s 53(1) by dismissing the application or by granting leave to appeal: s 54(1) Appeal Act. If the application for leave to appeal is dismissed, the Court may make such order as to the costs to be paid by the appellant as it thinks just: s 54(3) Appeal Act.

5. [36]

   If leave to appeal is granted, the Court may determine the appeal against sentence by:

6. [37]

   Section 3(3) of the Appeal Act defines “varying a sentence”. Section 3(3A) extends the power conferred on an appeal court to vary a sentence to make an order under s 10 of the Sentencing Procedure Act.

Appeals to the District Court from the Local Court

1. [38]

   Because of the jurisdictional issue which is raised in these proceedings, it is necessary to understand the procedure and rules relating to appeals to the District Court from the Local Court.

2. [39]

   Part 3 Division 1 of the Appeal Act deals with appeals to the District Court by a defendant. There is an appeal as of right against conviction or sentence or both (s 11(1)). Such an appeal must be made within 28 days after the sentence is imposed: s 11(2)(a).

3. [40]

   Section 13 deals with late applications for leave to appeal. An application for leave to appeal out of time must be made within three months after the relevant sentence is imposed (s 13(2)).

4. [41]

   Section 14 provides for the lodging of a written Notice of Appeal or Application for Leave to Appeal. A Notice of Appeal must state the general grounds of appeal (s 14(2)). An Application for Leave to Appeal must state the general grounds for the application and why it was not made within time (s 14(4)).

5. [42]

   Section 16 deals with the determination of applications for leave to appeal. Section 16(2) provides that leave to appeal out of time must not be granted unless the District Court is satisfied that it is in the interests of justice that leave be granted.

6. [43]

   Appeals against sentence are by way of rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be relied upon (s 17).

7. [44]

   Section 20 deals with the determination of appeals.

The jurisdictional issue

1. [45]

   The defendant provided written submissions to the effect that this Court has no jurisdiction to entertain this appeal given the dismissal of the Application for Leave to Appeal in the District Court. The defendant relied upon the reasoning of Adamson J in Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85. The plaintiff submits that the decision in Nand can be distinguished from this case and does not apply.

2. [46]

   In order to understand the argument, it is necessary to say something more about the procedural history of this matter following the plaintiff’s conviction and sentencing by her Honour on 15 February 2017.

3. [47]

   On 1 February 2018 the plaintiff completed in handwriting both a Notice of Appeal to the District Court (AB 15) appealing the sentence for threaten police, evade arrest and possession of a knife and an Application for Leave to Appeal (AB 16-17) formally applying to the District Court for leave to appeal to file the Notice of Appeal outside of 28 days, i.e. out of time.

4. [48]

   The grounds stated in the Application for Leave to Appeal referred to having to get his head level and now being on new medication. The first return date appointed for the Application for Leave to Appeal was 29 March 2018 (AB 15).

5. [49]

   On 17 July 2018 the matter came before her Honour Judge Syme. There was no transcript of what occurred before her Honour. There are, however, three documents which provide assistance. On the front of the District Court file relating to the plaintiff, there is the following handwritten notation:

6. [50]

   Part 53 r 12 of the District Court Rules relevantly provides:

7. [51]

   The Judge did not sign any entry or record but an entry was made on the appropriate computer record, i.e. Justicelink.

8. [52]

   There is authority to the effect that in the event of an inconsistency between what is recorded in Justicelink and a formal order signed by the Judge, or otherwise entered under Part 53 r 12 of the District Court Rules 1973 to the effect that the formal order prevails over what is recorded on Justicelink (Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 at [28]-[34] per Leeming JA).

9. [53]

   Because her Honour did not sign a formal order, I have concluded that what is recorded in Justicelink should prevail and reflects the order of the District Court made at the time. Although no order was signed by the Judge, Justicelink reflects the order which was “entered on the appropriate computer record”.

10. [54]

    There is a further difficulty. The Justicelink record refers to “Sentence Appeal Dismissed”. That is clearly incorrect in that there was no Notice of Appeal before her Honour because no Notice of Appeal could be filed outside the 28 day period specified in s 11 without leave. The Justicelink record is clearly referring to the Application for Leave to Appeal. If there were any doubt that that is a correct interpretation, it is resolved by the notation on the front of the District Court file which states: “*Application for leave – out of time (1 year)”. Accordingly, the Justicelink record ought be read as meaning “Application for Leave to Appeal Against Sentence is dismissed”.

11. [55]

    In the absence of any evidence or reasonable inference to the contrary, I have concluded that what occurred when this matter came before her Honour Judge Syme on 17 July 2018 was that her Honour applied s 13(2) of the Appeal Act and determined that the court had no jurisdiction to make the order sought in the Application for Leave to Appeal and accordingly, she dismissed the application and proceeded to confirm the orders made in the Local Court. I see no inconsistency between the expression “This matter was struck from the list” and “Sentence Appeal Dismissed” if the latter phrase is interpreted to be a reference to the Application for Leave to Appeal.

12. [56]

    Significantly, no challenge has been made to those orders by Judge Syme in these proceedings or otherwise.

13. [57]

    In the course of argument, the Court was referred to the decision of Director of Public Prosecutions (NSW) v Dodds and Anor [2005] NSWCA 115 where as a result of an unfortunate sequence of events, a defendant in Local Court proceedings acting for himself, sought to file a number of documents. Some of them were in time and some were not. They sought leave to appeal against orders made in the Local Court. Hodgson JA (with whom Sheller JA agreed) drew a distinction between a court dismissing an application and the application being withdrawn. There Hodgson JA relevantly said:

14. [58]

    In this case, for the reasons already indicated, the application before the District Court was an Application for Leave to Appeal out of time, not an appeal per se. In any event, there is nothing in the District Court record in this case to suggest that either party, i.e. the defendant or plaintiff, sought the leave of the court to withdraw the Application for Leave to Appeal.

15. [59]

    If that is a correct analysis, the issue raised in this case is identical to that in Nand with the result that the orders of the District Court striking out the Application for Leave to Appeal, ordering its dismissal and confirming the orders made in the Local Court, remain effective.

16. [60]

    In Nand a Notice of Motion seeking leave to traverse a plea of guilty was filed in the District Court. When the matter came before his Honour Judge Haesler SC on 22 May 2014 the prosecutor maintained that the court did not have jurisdiction to deal with the matter as the application was filed outside the time limit of three months provided for in s 13(2) of the Appeal Act. Having heard argument, Haesler SC DCJ accepted the prosecutor’s submission that the District Court had no jurisdiction to traverse the guilty plea as the plaintiff’s application for leave was out of time. His Honour did, however, proceed to make findings of fact in the event that his decision as to jurisdiction was found to be incorrect.

17. [61]

    It was against that background that Adamson J set out her reasons for upholding the finding of no jurisdiction made by the District Court and for concluding that this Court did not have jurisdiction to deal with the application:

18. [62]

    I respectfully agree with her Honour’s analysis and her Honour’s conclusions.

19. [63]

    Accordingly, the submission by the plaintiff that Nand can be distinguished from the Wishart v Fraser (1941) 64 CLR 470 line of cases because no hearing on the merits was involved, cannot be sustained. The fact that Haesler SC DCJ went on to consider the merits of the claim before him, in case his finding as to lack of jurisdiction was incorrect, does not in any way affect her Honour’s reasoning. The situation confronting Haesler SC DCJ in Nand was substantially the same as that confronting Syme DCJ in these proceedings.

20. [64]

    In the course of submissions, the DPP raised as a possibility that if all that occurred before Syme DCJ was that her Honour struck out from the list the plaintiff’s application for leave for want of jurisdiction and did nothing further, there was in fact no operative order affecting the orders in the lower court. In that case, the Wishart v Fraser line of cases would not apply and there would be nothing to prevent this Court from dealing with this application.

21. [65]

    There are two difficulties with that proposition. The first is that it is contrary to my findings as to what orders were made in the District Court in that I have found in addition to striking the matter from the list for want of jurisdiction, her Honour also dismissed the Application for Leave to Appeal and confirmed the Magistrate’s orders. The second difficulty is that the proposition is contrary to her Honour’s analysis in Nand. It follows, therefore, that this Court does not have jurisdiction to hear the plaintiff’s application and his Summons should be dismissed.

22. [66]

    No claim for costs has been made by the defendant in this matter. That is an appropriate stance given the position of the plaintiff, as disclosed in the evidence before the Local Court. He is homeless and in receipt of a disability pension. In those circumstances, the orders which I make are as follows:

    1. (1)

       The Amended Summons dated 2 October 2018 is dismissed.

    2. (2)

       There should be no order as to costs.