Supreme Court New South Wales Medium Neutral Citation: Tuxford v Director of Public Prosecutions [2023] NSWSC 1300 Hearing dates: 31 October 2023 Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Common Law Before: Weinstein J Decision: (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) 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) 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) 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) No order as to costs to the intent that each party bear his and its own costs. Catchwords: APPEALS – procedure – leave to appeal and extension of time required – Local Court committal proceedings – error of law in failing to ascertain whether accused person pleaded guilty before committal – s 95 of the Criminal Procedure Act 1986 – error conceded – matter remitted to Local Court for committal according to law Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Supreme Court Rules 1970 Criminal Procedure Act 1986 Cases Cited: Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960 Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 Category: Principal judgment Parties: Robert Tuxford (Plaintiff) Director of Public Prosecutions (Defendant) Representation: Counsel: S Odgers SC (Plaintiff) W Liu (Defendant) Solicitors: Legal Aid (Plaintiff) Office of the Director of Public Prosecutions (Defendant) File Number(s): 2023/245538 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 09 March 2023 Before: Barko LCM File Number(s): 2022/221661 JUDGMENT EX TEMPORE REVISED 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. The plaintiff seeks the following relief:- 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. A grant of leave to appeal, pursuant to s 54(1) of the Crimes (Appeal and Review) Act 2001. 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. 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. No order as to costs. 6. Such further or other order as the Court thinks fit. 1. The plaintiff relies upon the following grounds of appeal:- 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. The Magistrate erred in law in failing to determine whether a case conference was required to be held before committing the plaintiff for trial. 1. 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. 2. 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. The plaintiff relies on two affidavits. The first is an affidavit of Karen Psaltis, Legal Aid solicitor, affirmed on 5 September 2023, annexing:- 1. A letter to the Local Court, seeking an adjournment by consent for charge certification to be finalised; 2. Charge certification; 3. Transcript of the Local Court proceedings on 9 March 2023; and 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). 1. 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. Part 2 Division 8 of the CPA relates to committal for trial and sentence. Section 95 provides:- 95 Committal timing generally (1) The Magistrate in committal proceedings is to commit the accused person for trial or sentence— (a) after the case conference certificate is filed under Division 5, or (b) if a case conference is not required to be held in the proceedings, after the charge certificate is filed under Division 4. Note— The Magistrate may, at any time, adjourn the proceedings where it appears to the Magistrate to be necessary or advisable to do so (see sections 40 and 58 (a)). (2) Despite subsection (1), a Magistrate may commit an accused person for sentence— (a) before a charge certificate is filed, if the prosecutor required to file the charge certificate advises the Magistrate that the prosecutor consents to the accused person being committed for sentence for that offence, or (b) if a charge certificate has been filed but no case conference has yet been held. (3) This section does not prevent the Magistrate from committing an accused person for trial under Division 7. (4) Before committing an accused person under this section, the Magistrate must ascertain whether or not the accused person pleads guilty to the offences that are being proceeded with. 1. Sections 53, 54 and 55 of the CARA provide:- 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves— (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom— (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court. 54 Determination of applications for leave to appeal (1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application. (3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 55 Determination of appeals (1) The Supreme Court may determine an appeal against conviction— (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. (3) The Supreme Court may determine an appeal against an order referred to in section 53 (3) (a) or (b)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. Background 1. 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. 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:- HIS HONOUR: All right. I'll just – I'll just commit it. BELLINGHAM: Twentieth of April. With further case conference – HIS HONOUR: What's the next committal dates? Just for the court. BELLINGHAM: -- commencing 27 March. PROSECUTOR: Apologies, your Honour. HIS HONOUR: What's the next committal date? Sydney District Court? PROSECUTOR: Well, the four weeks from today is 7 April, but that's a public holiday, your Honour, but – HIS HONOUR: Okay. PROSECUTOR: The Crown's position is that this matter would be adjourned. There are outstanding negotiations that – HIS HONOUR: Yes, Well – PROSECUTOR: -- have been stalled by for reasons that are outside of both parties' control. HIS HONOUR: So, maybe it will come within control between now and the committal? PROSECUTOR: Your Honour – HIS HONOUR: Have you seen the number of matters I've got today? And apparently, it's the same next week, and, apparently, it's going to go over week after week after week. 1. 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:- "PROCEEDINGS OF DPP V ROBERT TUXFORD, THERE BEING A CHARGE ON THE H ENDING 0290, ARE ADJOURNED FOR ARRAIGNMENT, SYDNEY DISTRICT COURT, 14 APRIL 2023. TODAY'S AN APPLICATION OF BAIL. BAIL'S REFUSED, AVO. THE AVO PROCEEDINGS, 28 APRIL FOR MENTION, DOWNING CENTRE LOCAL COURT. IN RESPECT OF THOSE PROCEEDINGS, PROVISION, ORDERS REMAIN IN FORCE." Disposition 1. 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. In Coles, Yehia J observed at [27] – [29]:- [27] Before I make the necessary orders, it is important to note that committal for trial to the District Court impacts upon the sentencing discount available to an offender on sentence. The application of the discounts is mandatory and there are no relevant exceptions in this case. [28] Under s 25A(2) of the CSPA, a court must not apply any other discount for the utilitarian value of a guilty plea other than the discount provided for by Division 8. [29] The failure to undertake the inquiry required under s 95(4) of the CPA potentially deprived the plaintiff of a 25% discount for an early plea of guilty, as the discount available is mandatorily reduced by s 25D(2)(b) of the CSPA once the matter is committed to the District Court for trial. 1. Further, in Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 (Hijazi), Button J said at [15] – [18]:- [15] There is an importance underlying this. It is not, as Yehia J has recently explained in Coles, mere formalism. That is because the Early Appropriate Guilty Plea (EAGP) structure that Parliament imposed by way of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) provides mandatory cut-off points in terms of discounts for pleading guilty, based quite rigidly on the timing of entry of pleas. [16] In other words, if a person is wrongly (to use a generic term) committed for trial, thereafter their opportunity to receive the benefit of having pleaded in the Local Court is irrevocably gone. There is no flexibility built into the EAGP system that would cover such cases. [17] As I say, the point of the plaintiff in these proceedings (brought pursuant to ss 53(3) and 55 of the Crimes (Appeal and Review) Act 2001 (NSW)) about s 95(4) of the Criminal Procedure Act is conceded. I accept that concession. I say that in accordance with Yehia J's judgment in Coles. I also think the recent judgment of the Court of Criminal Appeal in Stuart v R [2022] NSWCCA 182 ('Stuart') has a role to play. [18] Although one soundly appreciates that the Local Court is a very busy forum, as Stuart has shown, and as the rigour of the EAGP system shows, it is important as a judicial officer to take the time to make sure that one knows precisely what a defendant is pleading guilty to, and what they are pleading not guilty to. 1. 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. 2. 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]: …I think that there is at least a serious argument that, if the…Magistrate in this case was indeed proposing to commit, pursuant to s 76, in the absence of a case conference certificate, then that…Magistrate would have needed to have formed their own satisfaction of the matters required to be reflected upon in the section, before that step could be undertaken. Leave to Appeal 1. 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:- 1. The delays in the committal process were not the fault of the plaintiff; 2. There was no unreasonable failure on the part of the legal representative of the plaintiff to participate in a case conference; 3. Delays in bringing the appeal to the Supreme Court were not the fault of the plaintiff; 4. The plaintiff has been potentially deprived of a 25% discount for an early plea of guilty because the plaintiff will, if he enters a plea or pleas of guilty in the Local Court, be entitled to obtain the benefit of the 25% discount under s 25D of the Crimes (Sentencing Procedure) Act 1999 (CSPA). Material provided to the defence after the plaintiff was committed for trial may result in a plea of guilty. More precisely, a plea of guilty in the Local Court is possible; and 5. If the appeal is not allowed and the committal order set aside, no other remedy is available because the discount is mandatorily reduced if made in the District Court. Under s 25A(2) of the CSPA, a court must not apply any other discount for the utilitarian value of a guilty plea other than the discount provided for by Division 8. 1. 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. I make the following orders:- 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. 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. 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. 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. No order as to costs to the intent that each party bear his and its own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2023