COLLIER v DIRECTOR PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and HANDLEY JA 13 September 1994, 13 September 1994 [1994] NSWCA 54 Appeal to District Court — order for destruction of tomahawk made without jurisdiction — order of District Court contains order of destruction — whole order contains error of law on face of record — HELD — order invalid in entirety — order quashed — Anderson v The Judges of District Court of New South Wales (1992) 27 NSWLR 701. JUSTICES — appeals from to District Court — powers of District Court on appeal — power to confirm, quash a set aside "order" — accused conviction in Local Court of remaining upon inclosed lands and behaving in offensive manner — appeals to District Court — offensive behaviour allegedly involved use of tomahawk — judge (Holt DJC) concludes that offence charged made out — confirms conviction — proceeds to fine accused, orders payment of witnesses expenses and orders destruction of tomahawk - HELD: (Gleeson CJ; Kirby P and Handley JA concurring) (1) The judge had no jurisdiction to make order for destruction of tomahawk; (2) The order of destruction was part of the "order" of the District Court on the appeal; (3) An order on the matter of certiorari must issue to the District Court to quash the whole of the order made and the part of the order relating to the destruction of the tomahawk could not be severed. Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 applied. Gleeson CJ This is a summons seeking prerogative relief in the nature of an order of certiorari. As things have turned out, it is possible to dispose of the matter on a relatively narrow ground. However, it is convenient to state in a summary form the background circumstances of the case before going to deal with that ground. The proceedings in question arise out of an incident that occurred on 24 February 1988. The incident involved the claimant, Mrs Collier, and her solicitor, or former solicitor, Mr Carlsund. Mr Carlsund alleged that the claimant, uninvited, entered his office and that an altercation occurred following which he requested her to leave. According to Mr Carlsund the claimant refused to leave, produced a tomahawk from a plastic bag in her possession and spoke words of a threatening nature to him in relation to the use that she might possibly make of the tomahawk. The police were summoned and Mrs Collier was arrested and she was charged with three offences. She was charged with assault under s61 of the Crimes Act 1900, with possession of an offensive implement under s10 of the Summary Offences Act 1988 and with remaining upon inclosed lands and behaving in an offensive manner contrary to the provisions of s4A of the Inclosed Lands Protection Act 1901. In 1990 the Director of Public Prosecutions made a decision not to proceed with the assault charge. In September and October 1990, the second and third charges were dealt with at the Camden Local Court. The second charge was dismissed but Mrs Coleman was convicted on the third charge and fined $200. 2 UNREPORTED JUDGMENTS Mrs Collier then appealed to the District Court. Her appeal was heard on 14 April 1993 by his Honour Judge Holt QC. After hearing afresh the evidence of all the witnesses in the case, including Mrs Collier herself, Holt DCJ concluded that the charge of an offence against s4A of the Inclosed Lands Protection Act had been made out. His Honour then made an order which was clearly intended to be an order dismissing the appeal from the Magistrate and confirming the conviction. His Honour then came to reconsider the matter of penalty. He fined the claimant $300 and ordered her to pay witnesses' expenses in respect of two amounts of $375 and $250 respectively. He allowed the claimant two months to pay. After what appears from the transcript to have been some very brief discussion between the legal representatives of the respective parties and his Honour, his Honour then said: "T order that exhibit C, the tomahawk, be destroyed but that order be delayed and exhibit C to remain in the custody of the police until 30 days from today's date." It has been common ground in this appeal that Holt DCJ had no jurisdiction to make that order in relation to the tomahawk. It is not possible from a reading of the transcript to establish the ground upon which his Honour considered that he might have had such jurisdiction. However it may be noted that s10 of the Summary Offences Act 1988 provides in, subs2, that if a person is convicted of an offence under that section the court may in addition to any penalty it may impose make an order that the offensive implement be forwarded to the Crown. It is possible that Holt DCJ mistakenly believed that the provisions of s10 of the Summary Offences Act were in some way applicable to the matter before him. In fact, of course, Mrs Collier was not convicted of an offence under s10 of the Summary Offences Act and that provision did not provide any jurisdictional foundation for the order made by Judge Holt. Mr Lakatos of counsel, who appeared for the Director of Public prosecutions in the proceedings before this Court, has been unable to point to any jurisdictional basis for his Honour's order, and has conceded that there was no such basis. Accordingly, it has been common ground before this Court that the order for forfeiture of the tomahawk was made without jurisdiction. The bulk of the submissions made to this Court by Mrs Collier were directed towards an attack on the order made by Holt DCJ dismissing the appeal from the Magistrate and confirming the conviction for an offence under s4A of the Inclosed Lands Protection Act. In truth, Mrs Collier's submission in that respect amounted, in substance, to a criticism of the factual decision made by Holt DCJ. Having read the transcript of the proceedings, it suffices for me to say that no error of law on the part of Holt DCJ has been demonstrated by Mrs Collier. It is not for this Court to rehear the merits of the matter. Mrs Collier failed before the Magistrate and before Holt DCJ on factual issues and she is not entitled to have this Court review the factual merits of the case. Nevertheless, because of the absence of jurisdiction to make the order relating to the forfeiture of the tomahawk Mrs Collier is entitled to succeed in the present proceedings. Mr Lakatos very properly drew our attention to the decision of this Court in the case of Anderson u The Judges of the District Court of New South Wales (1992) 27 NSWLR 701. He made no application to reopen the decision in Anderson and he conceded, correctly, that on the authority of that decision, which is not URJ COLLIER v DIRECTOR PUBLIC PROSECUTIONS (Handley JA) 3 distinguishable from the present case, the orders made by Holt DCJ cannot be taken to be severable for the purpose of these proceedings. If an order in the nature of certiorari is made it will, on the authority of Anderson, be an order that must go to the whole of the orders made by Holt DCJ. The consequence of that will be in effect that the order for forfeiture of the tomahawk will be set aside and there will, presumably, be a fresh hearing before a District Court Judge of the charge of an offence against s4A of the Inclosed Lands Protection Act and also, presumably, a re-agitation of the question of penalty. It should be added that no argument has been advanced on behalf of the opponent to the effect that prerogative relief ought to be refused on discretionary grounds. In particular, no point has been taken about the delay (which was substantial) between the time when Holt DCJ made his orders and the time when the present proceedings were commenced. Kirby P I agree. Handley JA I also agree. My agreement, however, should not be seen as an acceptance that in all circumstances and for all purposes an order of the District Court in its criminal appellate jurisdiction is not capable of severance if it is partially invalid. Anderson v The Judges of the District Court of New South Wales (1992) 27 NSWLR 701 was not challenged in these proceedings and I express no view one way or the other as to whether it stands as acceptable authority for that proposition. Subject to that I agree with the reasons and orders proposed by the Chief Justice. Gleeson CJ: The orders will be as I have proposed. 1. Order that the record of the District Court be brought up so that the order of Judge Holt QC in the adjudication of the appeal to that court by the claimant, Marion Louise Collier, may be quashed. 2. Order that the matter be returned to the District Court in order that the adjudication of the claimant's appeal to that court from the order of the Magistrate be determined and dealt with according to law. 3. I order that the first opponent, the Director of Public Prosecutions, pay the claimant's costs of the summons. Counsel for the Appellant: In Person Solicitors for the Appellant: In Person Counsel for the Respondent: J Lakatos Solicitors for the Respondent: Solicitor for Public Prosecutions