HUGHES v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and MAHONEY 15 March 1994 PREROGATIVE WRITS — order in the nature of certiorari — grounds for — allegation that order of District Court made in excess of jurisdiction — alleged denial of natural justice — sentence — increased sentence — imposition of custodial sentence in lieu of fines — alleged failure of District Court judge to warn the accused of the risk of the imposition of a custodial sentence in order to permit the accused to consider application to withdraw appeal to District Court from Local Court sentence — Local Court magistrate finds claimant guilty of having goods in custody contrary to s 527C Crimes Act 1900 — imposes fines — claimant appeals to District Court — District Court Judge (Karpin DCJ) states her impression that magistrate "dealt leniently with" claimant — brings to attention the power of the Court to impose "a more severe penalty" — states "I will certainly be looking at a custodial option" — held: (1) The District Court Judge had sufficiently disclosed that she was contemplating imposing a custodial sentence in lieu of the non custodial sentence appealed from; (2) Accordingly, there was no denial of procedural fairness to the claimant. Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (CA) applied DISTRICT COURT - appeal - criminal jurisdiction - magistrate imposes non custodial sentence - whether District Court judge sufficiently signalled consideration of non custodial sentence - held: She did. Observations by the Court on the limits of the duty of District Court judges as explained in Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (CA) considered. Crimes Act 1900, s527C. Justices Act 1902, s132B. ORDERS Summons dismissed with costs. Gleeson CJ In this matter I will ask the President to give the first judgment. Kirby P Before the Court is an application, by summons, by Ms Michelle Hughes (the "claimant"). The claimant seeks an order setting aside a sentence of five months imprisonment imposed upon her in the District Court on 29 November 1993. Consequentially, she seeks orders that the proceedings be remitted to the District Court to be determined according to law and for the provision of bail pending such re determination by the District Court. The background of the case can be briefly stated. On 31 July 1991 the claimant was convicted in the Local Court on three charges of having goods in custody reasonably suspected of being stolen or unlawfully obtained, pursuant to s527C of the Crimes Act 1900. Following such conviction she was ordered to pay a fine of $200 in relation to one charge. On each of the other two charges she was ordered to pay a fine of five penalty units, ie $500, being the maximum provided by law in respect of those offences. The appellant appealed to the District Court against such conviction and sentence. The appeals came for hearing before Karpin DCJ. The hearing proceeded on a defended basis. However, it was conducted by the tender of the depositions taken in the Local Court. Karpin DCJ then proceeded to consider the matter afresh as the law provides. 2 UNREPORTED JUDGMENTS In due course, Karpin DCJ dismissed the claimant's appeal against conviction. On 29 November 1993, her Honour convicted the claimant. However, instead of confirming the order of the magistrate, she sentenced the claimant to five months imprisonment to be served by way of periodic detention commencing on 10 December 1993. The complaint which brings the matter to this Court is the assertion on the part of the claimant that, in proceeding as she did, Karpin DCJ failed to give adequate warning to the claimant that she stood in peril of an effective increase in the sentence, namely by the provision of a new sentence which involved a deprivation of her liberty. The principle applicable to this complaint was stated in this Court in Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (CA) in reasons given by me with the concurrence of Handley and Sheller JJA. I reminded myself of the convention which had existed for many years in appeals to the District Court under s122 of the Justices Act 1902. This was that a judge, contemplating an increase in sentence, would signal that possibility to the appellant or the appellant's representatives. In particular, where the judge was contemplating an increasing of a sentence from a fine or some other non custodial sentence to a custodial sentence the signal was invariably given, according to this convention. The convention was based upon a variant of the principle of double jeopardy. In the case of Parker, the convention had not been observed by the District Court judge. This Court affirmed the convention by stating that a failure by a judge, in an appeal to the District Court, to disclose what he or she was contemplating when he or she was contemplating the imposition of a custodial sentence in lieu of a non custodial sentence would amount, at least in the circumstances proved there, to a denial of procedural fairness so as to attract the entitlement to relief in the nature of certiorari. This Court would provide such relief pursuant to s69 of the Supreme Court Act, 1970. It did so in Parker's case. Nothing I said or intended to convey in Parker suggested that it was necessary for a judge arguendo to make so plain the contemplated intention to impose a custodial sentence that the judge would, in effect, be threatening an appellant or indicating a pre judgment of the issue still subject to further argument. Until the final order is made, a judge is duty bound to keep his or her mind open and to consider all the matters that are put to the judge before proceeding to the final decision. In this case, the transcript of the proceedings before Karpin DCJ has been examined by this Court. On 25 August 1993 her Honour said this: "\..[ just want to say this: I have not had the opportunity, of course, to read the whole transcript. I therefore am not in a position to come to a concluded view about any aspect of it and I haven't heard from either of you. But what I would have to say at this stage and put on record is that, on what I have seen, it appears to me that the magistrate dealt leniently with the appellant. Now that, as I say, is a view which I'm not in a position to come to conclusively because I haven't read all the material. But even having come to that view in a preliminary sort of way it is therefore incumbent upon me, in my view, for fairness, and as I understand the law as it now stands, in accordance with the law, to bring to the attention of the appellant the power the court has in dealing with the matter de novo to impose a more severe penalty. And of course, to order costs to the Crown. And I want that to be on record... It may be that when I have read all the transcript and have had been directed to particular aspects, I will take a completely different view. But it is something which I must bring to your attention and make sure that you advise URJ HUGHES v DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 3 your client of that risk and get your instructions accordingly because its not a matter with which the appellant should be taken by surprise... " It would be difficult to conceive of a clearer or more proper indication on the part of a judge of the preliminary view which had been reached, namely that the appellant before her seemed to have been leniently dealt with in the Local Court and stood at risk that, in proceeding with the appeal to the District Court, a penalty other than the lenient penalty would be imposed by the judge. Given that, in respect of two of the three offences of which the magistrate had convicted the claimant, he had imposed the maximum fine which was available by law, the only penalty which the judge could possibly have been contemplating, which would be different from that which she provisionally regarded as "lenient", would be a penalty which involved a custodial sentence of some kind. However, the warning just quoted was not the end of the matter. When the proceedings came back before Karpin DCJ on 26 August 1993 counsel then appearing for the claimant, in answer to questions by her Honour make it clear that he had taken express instructions, as advised and that the claimant was going on with the appeal: "... COUNSEL: Yes, your Honour. Though I did say earlier in the week that there was a concession in relation to some of the items of jewellery which formed part of the charge against which we are appealing But the appeal will stay on foot. And I'll address your Honour in some detail as to that matter. But the appeal is still going on... " This statement indicates, clearly enough, that the representative then appearing for the claimant was alive to the risks to which her Honour had alerted him but aimed, nonetheless, to show that her Honour's preliminary view was erroneous. That was the claimant's perfect right. The appeal then proceeded in the way earlier described. On 22 October 1993, having confirmed the conviction, Karpin DCJ made her position even more plain. She said this: "... As I indicated at the outset... it is my view that this is a very serious matter... I do not feel bound by the view that the magistrate took. And I think it might be an appropriate matter for a pre sentence report. I certainly will be looking at a custodial option... " At that stage the proceedings were adjourned for the purpose of securing a pre sentence report. The proceedings then came back before Karpin DCJ on 23 November 1993. It was at that stage that her Honour proceeded to impose the custodial sentence now the subject of the claimant's complaint. Having regard to the passages in the transcript which I have quoted, the complaint that Karpin DCJ failed adequately to signal the possibility that she was considering a custodial option is completely hopeless. Within the authority of Parker no more was required of her Honour than she did. The suggestion that more was required of her Honour is in my view not consistent with what was said in Parker nor with, what was intended by the Court as the rule of fairness which Parker reaffirmed. I therefore would reject the contention that an error has been shown or that the procedures before Karpin DCJ demonstrated such unfairness to the complainant as to require the intervention of this Court. It is not the duty of the judge to express the possibility of a custodial sentence in a way more clear than was done in this case. Indeed to have gone beyond what was done in this case would itself doubtless be open to complaints of a different kind. Thus, it could lead to a complaint that the judge had threatened the litigant 4 UNREPORTED JUDGMENTS for exercising his or her legal rights. Or that the judge had prejudged the matter and had a closed mind unavailable to persuasion. For the claimant it was then urged that the Court should discount the judge's warnings. The claimant required leave to withdraw the proceedings pursuant to s132B of the Justices Act 1902. Such leave would, it was said, have been refused at the "belated" stage in the proceedings when Karpin DCJ gave her several warnings. I would not accept this argument. The statute permits the claimant to seek leave to withdraw the proceedings "at any time". True it is, the leave of the Court must be given. But the decision to grant, or refuse, leave would have to be exercised judicially. Not arbitrarily. The implication of s132B would appear to be that even at a late stage ("at any time") leave might be sought and granted. The careful and repeated way in which Karpin DCJ raised the point for the consideration of those then advising the claimant deny the suggestion that an application for leave to withdraw would necessarily have been futile, as is now suggested. The whole purpose of her Honour's repeatedly reverting to the matter was to ensure that the claimant's mind was alerted by her representatives to the risks which she ran by pressing on with her appeal. It should therefore not be concluded that, had an application been made to withdraw the appeal at the time the judge gave her warnings, leave would undoubtedly have been refused. I would certainly not draw that inference. ORDER For these reasons I am of the opinion that the summons should be dismissed. The claimant must pay the costs of the first opponent. Gleeson CJ I agree. Mahoney JA I also agree. The orders of the Court will be as proposed by the President. Counsel for the Claimant: R McCrudden Instructed by: J McCrudden Counsel for the Opponent (DPP): G Barr QC Instructed by: SE O'Connor, Solicitor for Public Prosecutions