Hall v R

1. [1]

   SIMPSON JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, Jason Daniel Hall, seeks leave to appeal under s.5F Criminal Appeal Act 1912 with respect to a decision by a Magistrate to grant leave to the prosecutor, under s.263(2) Criminal Procedure Act 1986, to elect out of time to have certain offences dealt with on indictment.

3. [3]

   The Applicant brings the application under s.5F Criminal Appeal Act 1912, which, by reference to s.5F(1)(a), permits an appeal against an interlocutory judgment or order in “proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court”.

4. [4]

   The Applicant contends that the decision of the Magistrate falls within s.5F(1)(a) as it constitutes the preliminary step in committal proceedings and forms part of committal proceedings which the Crown seeks to pursue.

5. [5]

   The Crown submits that this application falls outside the terms of s.5F so that the application for leave to appeal is incompetent.

Factual Background

1. [6]

   The proceedings involving the Applicant have had a somewhat protracted history before various courts.

2. [7]

   The decision under challenge in this Court is that of Magistrate Crompton made at the Downing Centre Local Court on 5 August 2015: Director of Public Prosecutions (NSW) v Hall [2015] NSWLC 12. His Honour granted leave under s.263(2) for the prosecution to elect to have certain offences dealt with on indictment after the time fixed by the Local Court for such an election had expired.

3. [8]

   The decision made on 5 August 2015 followed an earlier purported s.263(2) grant of leave which was challenged on appeal under the Crimes (Appeal and Review) Act 2001.

4. [9]

   On 29 June 2015, in circumstances where both parties acknowledged that error had occurred at first instance, Campbell J allowed the appeal and remitted the matter to the Local Court for determination according to law: Hall v Director of Public Prosecutions [2015] NSWSC 839.

5. [10]

   It was that remitted proceeding which was determined by Magistrate Crompton on 5 August 2015.

6. [11]

   On 2 September 2015, the Applicant filed in this Court an application for leave to appeal under s.5F against the Local Court decision on 5 August 2015.

7. [12]

   The following appears to be the procedural history of the matters relevant to the present application.

8. [13]

   Sequence No. H55095540 involved an allegation of take and drive conveyance without consent (a Table 2 offence). The offence is alleged to have been committed on 13 February 2014. The first mention of the matter was on 5 August 2014. The brief was to be served by 13 September 2014. As will be seen, the election was to be made by that date. A s.263 election was made on 28 September 2014. The Local Court was informed of the election on either 14 or 21 October 2014.

9. [14]

   Sequence No. H55458321 included the following offences allegedly committed in June and July 2014:

10. [15]

    These charges were first mentioned on 8 August 2014. Brief service orders appear to have been made on 13 August 2014 with a reply on 26 September 2014. A s.263 election was to be made by that date. On 28 September 2014, a s.263 election was directed by the Director’s delegate. On 21 October 2014, the election was noted in Court.

11. [16]

    Sequence No. H55121852 included the following offences allegedly committed on 1 August 2014:

12. [17]

    These matters came before the Local Court on 2 August 2014. A brief service order was made on 13 August 2014 with a reply date of 26 September 2014. An election under s.263(1) was to be made by that date. An election was made on 1 October 2014 and the election was noted in Court on 17 October 2014.

13. [18]

    The first s.263(2) application was heard in the Local Court on 3 November 2014, this being the decision quashed by Campbell J on 29 June 2015.

14. [19]

    The proceedings against the Applicant have not reached the District Court as yet.

15. [20]

    It will be seen from material placed before the Local Court that the Applicant has a substantial criminal history, and was on parole and subject to a s.9 good behaviour bond at the time of the offences which have attracted s.263 election.

Is the Application for Leave to Appeal Competent?

1. [21]

   Section 5F(3) Criminal Appeal Act 1912 provides:

2. [22]

   Section 5F(1)(a) provides:

3. [23]

   Section 5F(7) provides:

4. [24]

   The earlier appeal brought by the Applicant, which was determined by Campbell J on 29 June 2015, was brought under s.53(3)(b) Crimes (Appeal and Review) Act 2001, with an alternative claim for judicial review under s.69 Supreme Court Act 1970. Section 53(3) of that Act provides:

5. [25]

   Campbell J accepted that a grant of leave under s.263(2) was an interlocutory order for the purpose of s.53(3)(b): Hall v Director of Public Prosecutions at [15]. In these circumstances, his Honour did not determine the Applicant’s alternative claim for relief in the nature of certiorari under s.69 Supreme Court Act 1970.

6. [26]

   Contrary to the approach taken by the Applicant with respect to the earlier grant of leave (where complaint was made about a suggested interlocutory order in summary proceedings), the Applicant now seeks leave to appeal to this Court under s.5F (where complaint is made about a suggested interlocutory order in committal proceedings).

7. [27]

   Section 5F(1)(a) permits an application for leave to appeal against an interlocutory judgment or order in committal proceedings. “Committal proceedings” is not defined in the Criminal Appeal Act 1912. It is plain, however, that the expression as used in that Act is intended to refer to committal proceedings under the Criminal Procedure Act 1986, where the term is defined in s.3(1) as follows:

8. [28]

   Committal proceedings are provided for in the Criminal Procedure Act 1986 in Chapter 3, Part 2 (ss.47-120). Chapter 3 is headed “Indictable Procedure” and Part 2 is headed “Committal Proceedings”.

9. [29]

   Section 263 lies within Chapter 5 of the Act which is entitled “Summary Disposal of Indictable Offences by Local Court” (ss.258-273).

10. [30]

    Sections 258-264 provide as follows:

11. [31]

    Here, the Magistrate made a procedural ruling granting the prosecutor leave to make an election out of time under s.263(2) of the Act. Prior to any election being made, all matters were to be dealt with summarily. No charge was strictly indictable.

12. [32]

    Appeals under s.5F from committal proceedings have usually involved subpoenas: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667; Attorney General (NSW) v Chidgey [2008] NSWCCA 66; 182 A Crim R 536. A ruling or decision by a Magistrate as to whether a prosecution witness should be required to attend for cross-examination at committal proceedings was held not to be an interlocutory judgment or order under s.5F in R v Colby; R v Kennedy (1995) 84 A Crim R 125. In R v O’Meara [2001] NSWCCA 340, it was said at [11] that a committal order is not an interlocutory order, but is a decision of an administrative character.

13. [33]

    The jurisdictional problem confronting the Applicant is illustrated by considering the nature of an order which he seeks if the appeal was allowed. He seeks an order setting aside the s.263(2) decision and a ruling by this Court, refusing the extension of time, so that the prosecutions will be determined summarily.

14. [34]

    This feature reinforces a conclusion that no committal proceedings have commenced against the Applicant with respect to these matters, and that the Magistrate’s ruling itself was not made in committal proceedings: s.5F(1)(a). In these circumstances, s.5F(3) is not an available avenue for appellate review of the decision.

15. [35]

    A further difficulty for the Applicant is whether the grant of leave under s.263(2) constitutes an “interlocutory judgment or order” for the purpose of s.5F(3) Criminal Appeal Act 1912. Campbell J concluded that, whilst “the matter is not free from doubt … a grant of leave under s 263(2) is an operative judicial act and is accordingly an interlocutory order for the purpose of s 53(3)(b)”: Hall v Director of Public Prosecutions at [15].

16. [36]

    The Crown submits here that the relevant decision was not an “interlocutory judgment or order” for the purpose of s.5F, relying upon AF v R [2015] NSWCCA 35 at [30]-[31]. The Crown submitted that the grant of leave to elect out of time under s.263(2) was not an order of the requisite character. It was submitted that it was not an operative judicial act, but rather the Magistrate did no more than answer a preliminary question without commanding anything more to be done: Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 at 394-395 [12]-[15].

17. [37]

    If it was necessary to resolve the question in this case, I would conclude that the decision under challenge is not an “interlocutory order”. However, I am satisfied that there is a more fundamental difficulty confronting the Applicant. He cannot bring himself within the terms of s.5F as the decision under challenge, whether an interlocutory order or not, was not made in committal proceedings.

18. [38]

    I am satisfied that the Applicant’s application for leave to appeal to this Court is incompetent.

Proper Construction and Application of s.263(2) Criminal Procedure Act 1986

1. [39]

   Although it is not necessary to say more for the purpose of disposing of this application, there is utility in making some observations concerning the proper construction and application of s.263(2) Criminal Procedure Act 1986. There is an absence of authority concerning this practical provision which is exercised with some regularity.

2. [40]

   Section 263 appears at [30] above. It is noteworthy that the jurisdiction under s.263 may be exercised by a registrar: s.263(5). The present case suggests that a Magistrate will often exercise the s.263(2) jurisdiction, although this is not required by statute.

3. [41]

   Section 263(1) provides that an election to have an offence dealt with on indictment must be made within the time fixed by the Local Court. Practice Notes issued by the Chief Magistrate under s.27 Local Court Act 2007 make provision for s.263 election. Clause 5.3 of Local Court Practice Note Crim 1 states:

4. [42]

   Clause 4 of Local Court Practice Note Comm 1 provides as well for s.263 election:

5. [43]

   Clause 5.3 of Local Court Practice Note Crim 1 and Clause 4.3 of Local Court Practice Note Comm 1 appear to nominate the time fixed by the Local Court for the purpose of s.263(1) of the Act. This is done by reference to a date fixed for a different purpose (the first return date after an order is made for service of the brief of evidence, ordinarily the second mention). In practice, at this early stage of proceedings, a police prosecutor will be appearing with a process of contact with the Office of the Director of Public Prosecutions expected to be underway in cases where s.263 election is under consideration.

6. [44]

   The statute does not state what is required for s.263 “election”. There is no statement that an election is not made until it is communicated to the Local Court and/or the defendant. At the least, however, there is an implied requirement that an election will be communicated promptly to the defendant and the Local Court, to allow it to be noted that compliance with s.263(1) has occurred.

7. [45]

   The Local Court (including a registrar) is authorised by s.263(1) to fix a time for the making of a s.263 election. It may be taken that there is power to extend that time upon a proper basis, as long as the extension is granted before the expiration of the time provided for initially under s.263(1): s.48 Interpretation Act 1987. This scenario may arise in practice, given that the time fixed by way of Practice Note is a by-product of a date selected for another purpose related to service of the brief. In a particular case, the prosecutor may ask legitimately for further time to consider the election issue. Of course, s.263(2) has application only after the expiration of the time fixed by the Local Court. It is only then that the “special circumstances” requirement must be satisfied.

8. [46]

   The s.263 procedure was referred to in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 480 [95]-[96]:

9. [47]

   Reference was made, as well, in Zreika v R at 480-481 [100] to matters which the prosecutor may take into account in determining whether an election is to be made:

10. [48]

    It may be accepted that factors which contributed to the election in the Applicant’s case related to his criminal history and current sentences, and the question whether the sentencing jurisdictional limit of the Local Court was appropriate in this case.

11. [49]

    It should be emphasised that the issue for consideration under s.263(2), where the prosecution seeks the leave of the Local Court to elect to proceed on indictment out of time, is whether the Court is satisfied that “special circumstances exist” to allow that extension of time. The focus of attention is not directed to the appropriateness of an election in the particular case, but to the reasons why the decision was not made within the time allowed by the Local Court.

12. [50]

    The term “special circumstances” is used in a variety of different statutory contexts. In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, in considering the term “special circumstances” in s.44(2) Crimes (Sentencing Procedure) Act 1999, Spigelman CJ said at [59]-[60]:

13. [51]

    In applying the term, it is necessary to keep in mind the nature of the decision for which a finding of special circumstances is required. The phrase has a purposive element and should be interpreted in relation to the objective to be served: D (A Child) v White (1988) VR 87 at 91.

14. [52]

    In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67, Kiefel J said at [19]:

15. [53]

    In Expile Pty Limited v Jabb’s Excavation Pty Limited [2002] NSWSC 851; 194 ALR 138 at 139-140 [5], Hamilton J said:

16. [54]

    Counsel for the Applicant referred Magistrate Crompton to decisions where the term “special reasons” was considered in the context of a decision whether to direct the attendance of a witness at committal proceedings under s.93 Criminal Procedure Act 1986: B v Gould (1993) 67 A Crim R 297; Tez v Longley [2004] NSWSC 74; 142 A Crim R 122. Although general statements in these cases concerning the term “special reasons” may have provided some general assistance, it is important to keep in mind the different statutory context surrounding s.263(2).

17. [55]

    Where a s.263(2) application is made, it is necessary to consider the reasons why election was not made by the prosecution within the relevant time period, for the purpose of determining whether the Court can be satisfied that special circumstances exist for granting leave for an election to be made out of time. To this end, something is required which distinguishes the case from others - that sets it apart from the usual or ordinary case: Kiefel J in Secretary, Department of Family and Community Services v Chamberlain at [19] (see [52] above).

18. [56]

    A primary focus of the decision under s.263(2) will be any explanation as to why the prosecution did not make the election in time. The length of time since expiration of the s.263(1) time limit will be significant. In a particular case, it may be that the circumstances of the offences, and the dates upon which they were allegedly committed, will bear upon this issue as well. It may be that there are groups of charges which will need to be considered together by the prosecution, to decide whether a s.263 election ought be made. This appears to be the case here, where groups of charges were considered at about the same time, to allow a decision to be made about s.263 election.

19. [57]

    The overall administration of justice is also important, being justice as it affects the community as well as the individual: D (A Child) v White at 93. This aspect may arise if a s.263(2) refusal left the Local Court with inadequate sentencing powers to deal with the offences at hand, or where refusal may see a co-accused being dealt with separately in the District Court.

20. [58]

    Magistrate Crompton set out, in Director of Public Prosecutions v Hall at [16], the suggested special circumstances relied upon by the Crown in this case:

21. [59]

    In the course of determining to grant leave under s.263(2), his Honour referred to these features of the case and concluded at [18]-[24]:

22. [60]

    It may be seen that the matters relied upon by the prosecution concerned the nature and gravity of the Applicant’s criminal history and of the present charges, together with the inappropriateness of the Local Court (with its jurisdictional limits) sentencing the Applicant. His Honour’s reasons focused upon similar considerations. It does not appear that an argument was advanced by the prosecutor as to why the elections were not made in time. His Honour’s reasons did not advert to any explanation for the delay.

23. [61]

    Although the matters advanced by the prosecutor, and relied upon by his Honour, were not extraneous to the decision to be made under s.263(2), there ought to have been some explanation provided as to why any relevant election was not made within the time laid down under s.263(1). The statutory need for “special circumstances” requires some explanation for the relevant delay so as to justify a favourable decision by the Court under s.263(2).

24. [62]

    As mentioned earlier, these observations have been made given the absence of authority concerning the construction and operation of s.263 Criminal Procedure Act 1986.

Conclusion

1. [63]

   It is the position, however, that the present application for leave to appeal is incompetent. It is not open to this Court to take any step given the absence of authority under s.5F Criminal Appeal Act 1912 to do so.

2. [64]

   In any event, there is a further difficulty confronting the Applicant. This Court has determined that a refusal of leave under s.263(2) Criminal Appeal Act 1986 is not an impediment to the Crown bringing an ex officio indictment in the District Court charging the offences which were the subject of the s.263(2) refusal: Iqbal v R [2012] NSWCCA 72 at [15]-[24]. In these circumstances, the utility in a challenge to a s.263(2) decision is questionable.

3. [65]

   I propose that leave to appeal should be refused upon the basis that the application for leave to appeal under s.5F Criminal Appeal Act 1912 is incompetent.

4. [66]

   DAVIES J: I agree with Johnson J.