Bagshaw v Office of the Director of Public Prosecutions

WHITE JA: There is before me this morning a notice of motion filed by the applicant, Mr Leith Bagshaw in which he seeks the following relief:

The background to Mr Bagshaw’s filing that notice of motion is as follows. On 15 January 2015 it appears that Magistrate Connell in the Fairfield Local Court imposed sentence on Mr Bagshaw in relation to his convictions on various offences, including in relation to a charge of menacing driving. The magistrate ordered Mr Bagshaw to pay a fine of $1,000, disqualified him from driving for 12 months, and ordered him to enter a good behaviour bond for a period of three years. Mr Bagshaw appealed from that sentence and also purportedly appealed from convictions entered in his absence in the Local Court. In due course, his appeal against conviction was dismissed. An application for review of that decision was dismissed by the Court of Appeal on 6 December 2016 (Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340).

On 30 May 2017 his Honour Judge Colefax heard Mr Bagshaw’s appeal against sentence. By the conclusion of submissions his Honour advised Mr Bagshaw, in substance, that if he persisted with his appeal against sentence, he faced the prospect of a more severe sentence being imposed. This warning was expressed in strong terms and Mr Bagshaw withdrew the severity appeal. On 30 May 2017 Colefax DCJ made orders that included the following:

On 16 June 2017 Mr Bagshaw filed a summons invoking the supervisory jurisdiction of this Court and sought:

The application for review is made pursuant to s 69 of the Supreme Court Act 1970 (NSW). A hearing date for the summons seeking the review of the orders of Colefax DCJ has been set for 1 February 2018. Section 69C(2) and (4) of the Supreme Court Act provide relevantly:

Neither the respondent nor any other person has applied for any contrary order or direction that would prevent the stay of execution provided for by s 69C from operating.

Mr Bagshaw has not, so far as I can see, filed any affidavit that sets out the facts giving rise to his notice of motion seeking return of the driver’s licence. He informed the registrar at a directions hearing in substance that the police had taken his licence from him. He informed me that, at the registrar’s suggestion, he had provided a copy of s 69C to the police, but they tore it up. It is not clear to me whether he has spoken to anyone responsible for keeping the records in the motor registry about the effect of s 69C in imposing a stay of the sentence confirmed by Colefax DCJ and reimposed by him. On 7 November 2017 the registrar wrote to the Chief Executive of Roads and Maritime Services (“the RMS”) advising that a summons was filed on 16 June 2017 to the Court of Appeal with respect to the orders of Colefax DCJ of 30 May 2017 and that the summons is listed for hearing on 1 February 2018. The registrar stated that:

It does not appear that Mr Bagshaw has ascertained from the RMS whether, as a result of the registrar’s letter, his traffic record has been or will be updated pending the determination of his summons for review.

In Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53 Mr Tay had instituted proceedings in the supervisory jurisdiction with respect to a judgment of the District Court in respect of his convictions for traffic offences. One of the consequences of the conviction was that his licence had been suspended and a period of disqualification imposed. Basten JA made a declaration that the effect of the proceedings having been commenced under s 69 of the Supreme Court Act in respect of the judgment of the District Court was to stay the operation of the order that Mr Tay was disqualified from holding a driver’s licence. As in this case, it appears that the only parties to the application at that time were the applicant and the Director of Public Prosecutions. His Honour said:

Mr Bagshaw asked that I make a declaration to similar effect in the present case. He also sought an order as sought in his notice of motion requiring the police to return his licence. Having regard to the course taken by Basten JA in Tay v Director of Public Prosecutions (NSW) I am content to make a declaration as to the effect of the filing of the summons seeking review under s 69 of the Supreme Court Act having regard to the operation of s 69C(2) and (4). However, if an order is to be sought against a police officer or the Commissioner of Police for the return of Mr Bagshaw’s licence, or if an order were to be sought requiring correction of the records of the RMS, then it would be necessary for the relevant police officer or the Commissioner of Police or the RMS to be joined as a respondent to Mr Bagshaw’s notice of motion in which any such relief against those persons would be sought.

It may be that the making of a declaration to the effect of that made by Basten JA in Tay v Director of Public Prosecutions (NSW) will resolve the present issue. That is to say, it may well be that armed with the declaration no further relief will be needed and Mr Bagshaw’s licence will be returned. However, it may be that there are grounds on which Mr Bagshaw is presently disqualified, or his licence is suspended, which do not depend upon the orders of the Local Court and the orders of the District Court with which the current proceeding in this Court is concerned. As proposed by the Director of Public Prosecutions I will incorporate a rider in the declaration to be made so as to avoid the possibility of any misapprehension as to the scope of the declaration.

The notice of motion will stand over for 21 days to the registrar’s list. If it is necessary for Mr Bagshaw to amend his notice of motion by joining further parties or by seeking any further relief, then he will have leave to amend his notice of motion accordingly and should file and serve the amended notice of motion within two weeks so it can be returned before the registrar in three weeks’ time, that is, on 4 December 2017. As Ms Kelly who appears for the Director of Public Prosecutions observes, there appears to be no affidavit served that addresses the facts which Mr Bagshaw would wish to establish in support of the relief. Any affidavit in support of the notice of motion should also be served within 14 days.

For these reasons, I make the following declarations and orders: