Regina v Sirocic [2000] NSWCCA 327

New South Wales Court of Criminal Appeal

CITATION : Regina v Sirocic [2000] NSWCCA 327 FILE NUMBER(S) : CCA 60646/99 HEARING DATE(S) : 14 April 2000 JUDGMENT DATE : 25 August 2000

PARTIES : Regina v Chris Julian Sirocic JUDGMENT OF : Priestley JA at 1; Foster AJA at 19; Smart AJ at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DCCrim 99/52/0260 LOWER COURT JUDICIAL Christie DCJ OFFICER :

COUNSEL : Crown - C.K. Maxwell QC Respondent - J.S. Stratton SOLICITORS : Crown - S.E. O'Connor Respondent - T.A. Murphy CATCHWORDS : Stated case - Crown appeal against inadequacy of sentence Criminal Appeal Act LEGISLATION CITED : Justices Legislation Amendment (Appeals) Act 1998Act Traffic Act 1907 CASES CITED: DPP v Cassell (1995) 80 A Crim R 160 DECISION : 1. Questions 1 and 2 submitted to the court by Christie DCJ answered yes.; 2. Order of District Court under s 133F set aside.; 3. Matter remitted to District Court for determination in accordance with this court's reasons and orders.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60646/99

PRIESTLEY JA FOSTER AJA SMART AJ

Friday, 25 August 2000

REGINA v SIROCIC

1 PRIESTLEY JA: On 14 April this year the court answered two questions of law set out by Christie DCJ in a case he stated for the determination of this court pursuant to s 5B of the Criminal Appeal Act. The effect of the answers to the questions was that Christie DCJ had been wrong in not imposing at least the statutory minimum period of disqualification from driving, as stipulated in the Traffic Act 1909, upon Mr Sirocic, in a Crown appeal to the District Court from the decision of a magistrate in a Local Court. Christie DCJ had disqualified Mr Sirocic for twelve months when, as this court held, he was bound to have disqualified him for at least two years. 2 After answering the questions in the case stated, the court enquired of counsel for the appellant and the respondent what orders, if any, the court should make. After some discussion of the question, counsel were requested to file written submissions. 3 The point of the court's question to counsel was whether the court could do anything more than simply answer the questions in the case stated. In their written submissions counsel for both the appellant and the respondent contended that the court should order that the order of Christie DCJ disqualifying the respondent from driving for twelve months be set aside. However, counsel for the respondent went further and submitted that the conviction should also be set aside. Subject to this difference, both counsel were then agreed that Christie DCJ should be directed to determine the matter in accordance with the reasons for judgment of this court already delivered. Whether directions of this kind should be given has not been an easy question to answer. 4 The difficulty arises from the reluctance of Parliament, when amending s 5B in 1998, to make explicit provision for the situation that has arisen in this case. 5 Section 5B was added to the Criminal Appeal Act in 1924. Until it was amended by the Justices Legislation Amendment (Appeals) Act 1998 No 137 (Act 137/98), it read as follows: " 5B Case stated from District Court . A judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. " This amendment did not apparently number the original part of s 5B as subs (1) but in what follows, I will assume, as subs (2) does, that it was so numbered. 6 By judicial decision it became established that a judge could only submit a question of law to the Court of Criminal Appeal pursuant to the section before the judge had decided the appeal in the course of which the question of law arose See, for an example, and some discussion of the authorities DPP v Cassell (1995) 80 A Crim R 160.. In practice, this sometimes made the section difficult to use. A little later in these reasons, I set out that part of the debate in the Legislative Council on the Bill which became Act 137/98 which is relevant to the question that has arisen in this case. From it, it appears that the amendment to s 5B was intended to reduce the practical difficulties of using the section. In the result, Schedule 2 of Act 137/98, by cl 2.8[1], amended s 5B as follows: " Insert at the end of section 5B: (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. " 7 Subsection (2) as enacted was in the form proposed by the government when the Bill was presented to parliament. When the Bill was in Committee in the Legislative Council, some amendments were proposed. These were eventually not adopted. In the debate about them, the very question that is now before the court was discussed and some of the history lying behind the amendment was put on record. The relevant debate appears at pp 10414 to 10416 of the New South Wales Parliamentary Debates (Hansard) for the Third Section of the Fifty-first Parliament, Legislative Council, 23 November 1998. It seems to me to be useful to set out this discussion in full. " Schedule 2 The Hon j.p. hannaford (Leader of the Opposition) [9.08 pm] by leave: I move Opposition amendments Nos 16 and 18 in globo: No 16 Page 49, schedule 2.8[1], line 17. Insert '(not being a prosecutor)' after 'subsection (1)'. No 18 Page 50, schedule 2.8[2], line 4. Insert '(not being a prosecutor)' after 'subsection (1)'. These amendments are the result of advice given to me by the Bar Association. It is appropriate that I should put on the record the advice from the association. In a letter dated 23 March 1998 to the Attorney General the association suggested an alteration to the proposed amendment to section 5B of the Criminal Appeal Act 1912 contained in the 1997 bill, which was the precursor to this bill. The Bar Association notes that the 1998 bill is in the same form as the 1997 bill in this respect. The second reading speech delivered on 17 September 1998 does not touch upon this issue. The Bar Association letter of 23 March 1998 referred to the report of the Justices Act review steering committee. The Committee proposed an amendment to section 5B. The Bar Association advice stated: Recommendation 3.1.14 of the 1992 Committee proposed amendment to s 5B. The Committee proposed that a convicted person be able to appeal to the Court of Criminal Appeal after determination of the appeal on a question of law, but recommended no change to the existing right of the prosecution to seek the stating of a case before acquittal but not afterwards. The amendment contained in the 1998 Bill would enable a question of law to be submitted under s 5B for determination even though the appeal proceedings during which the question arose have been disposed of. The 1998 Bill allows both the convicted person and the unsuccessful prosecutor after an acquittal to request the submission of a question of law from the District Court to the Court of Criminal Appeal. The Association submits that the view of the 1992 Committee should be supported. A distinction should be drawn between the right of a convicted person and the right of an unsuccessful prosecutor to seek a stated case. The prosecutor must seek a stated case prior to the making of orders upholding the appeal and dismissing the information. The prosecutor should be in a different position because of the rule against double jeopardy and the fact that the appeal is the second hearing of the matter. The prosecutor should be in a position to determine whether a stated case is to be sought prior to the making of orders acquitting the appellant. The Association submits that the proposal of the 1992 Committee accords with this principle and should be supported. No reason has been advanced for rejecting this proposal. The association contends that the legislation should follow the model proposed by the 1992 Committee in this respect. The Association's letter of 23 March 1998[to the Attorney General] observed that the proposed amendment to s 5B does not contain any time restriction for an appeal by way of stated case after the appeal proceedings have been disposed of. The 1998 Bill continues this omission. It may be that it is intended that any time be fixed by the Criminal Appeal Rules . If this is not the case, however, the Association submits that some time limit, perhaps 28 days after conviction (which might be extended by leave of the Court of Criminal Appeal) should apply to convicted persons. I asked the Bar Association certain questions about that advice. As I understand it, the result of the government's amendment is that if a person were found not guilty and acquitted, the prosecution would be able to seek a stated case to have the law clarified. If on that appeal the prosecution were found to be justified in its position, the law would be clarified but the person, having been acquitted, would walk free (my emphasis). If a person were convicted, that person would be able to seek the stated case after being convicted. I should have thought it preferable that if the Crown received advice that the court intended to acquit but the Crown strongly believed that the decision on the point of law were wrong, the Crown would be able to appeal at that point, before the formal acquittal. In that way, if the Crown's submission were upheld the court would be found to be wrong before actually acquitting the person, and the court would convict that person. As I am informed, that opportunity will not be available because of the amendment to the legislation. People will be acquitted and a stated case taken. On the stated case the Court of Appeal may decide that the lower court was wrong but, notwithstanding that, the person would walk free (my emphasis) . I do not think that is what is intended by the Government. Certainly it has been a major problem for the Direction of Public Prosecutions [DPP]. The Hon j.w. shaw: He has been consulted. He agrees with what the Government has done. The Hon j.p. hannaford : This was a major problem for the previous DPP; I have not discussed it with the present DPP. The previous DPP found that this issue arose from time to time. This matter was to be dealt with in a bill before the House prior to prorogation of the Parliament in 1994. The Government will clarify the issue. I hope that in this regard the Bar Association is wrong. The Government will be severely criticised if the effect of its amendment is that the court could proceed with an acquittal that may be overridden on a point of law by the Court of Appeal without there being opportunity for correction of the acquittal. I understand that to be the effect of the government's amendment (my emphasis) . The community would not agree with that approach. The Hon j.w. shaw (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [9.16 pm]: The Government opposes these amendments. The Justices Legislation Amendment (Appeals) Bill extends the right of parties to an appeal to the District Court to lodge a further appeal to the Court of Criminal Appeal on a point of law following the decision of the District Court. Currently parties may appeal only before the determination of a case. If Opposition amendment No 16 were accepted, an unsuccessful prosecutor would be able to appeal to the Court of Criminal Appeal on a point of law prior to the District Court finalising the matter but not afterwards. The DPP was consulted on this matter and advised that the present position under which a stated case must be requested prior to the making of orders by District Court judges is completely unsatisfactory. In the case of the Crown, it requires the prosecutor to be aware that the judge is about to commit an error of law such that it is necessary to stop him or her before a final order is announced. The DPP advises that there are many factors that mitigate against the procedure operating effectively. For example, a prosecutor may be reluctant to interrupt a judge in the course of giving a judgment; a prosecutor may fail, understandably, to fully appreciate an inherent error until it is too late; a judge may refuse to permit any interruption; and a prosecutor, if he or she does interrupt, may experience difficulty in obtaining instructions. The DPP further advises that in reality there are very few cases stated under that section. In the opinion of the DPP there are valid practical reasons that the procedure, if it is to be changed, be the same for both parties. Accordingly, the amendment suggested by the Opposition to prevent an unsuccessful prosecutor from appealing after the determination of the case is not supported. Similar arguments apply to Opposition amendment No 18 with regard to appeals to the Land and Environment Court. The Government is seeking to deal with the unseemly and impracticable position of prosecutors having to interrupt a judge before the judge has finalised his judgment if they are to prosecute an appeal. There is a difference of opinion between the Bar Association and the DPP. I am persuaded by the DPP that the amendment contained in the bill is an appropriate reform. Consequently, the Government opposes these amendments. The Hon j.p. hannaford (Leader of the Opposition) [9.19 pm]: I note the advice of the Attorney General as to the views of the Director of Public Prosecutions. The Bar Association and the Director of Public Prosecutions are at loggerheads as to the impact of this proposal. The Committee has to accept the advice of the Attorney General on these matters. I will not call for a division on these amendments. Our different views have been placed on the record and we will have to wait to see how the courts deal with this matter (my emphasis) . Amendments negatived . " 8 The emphasised passages show that some lawyers, who had considered the question, were of opinion that s 5B(2) in its form as passed would produce a situation where this court would answer points of law submitted to it, but that those answers would have no effect upon the decision previously made in the District Court. I deduce that the Attorney General was of the opposite opinion although he did not say so in so many words. 9 At the time s 5B(2) was inserted in the Act s 5A also dealt with questions of law submitted to the Court of Criminal Appeal. but these were questions submitted after conclusion of a criminal trial. The criminal trials with which s 5A dealt were those on indictment. Section 5A(1) dealt with questions of law submitted after conviction following trial on indictment and s 5A(2) with questions of law submitted after an acquittal following trial on indictment. Section 5A(1) provided that the court should deal with a question of law submitted pursuant to it as if it were an appeal under s 5, the main provision in the Act permitting appeals to be brought by persons convicted on indictment. It would therefore seem that if the question of law submitted pursuant to the subsection were determined in favour of the convicted person, then that person might succeed in the same way as on appeal. The position was different under s 5A(2) where the question of law was submitted to the court following an acquittal. Under subs 2 the Attorney General or Director of Public Prosecutions was to submit with the question to be determined a statement of the circumstances out of which the question arose. The Court of Criminal Appeal was bound to hear and determine any such question, but, by par (d) it was provided: " The determination by the Court of Criminal Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial. " 10 A similar provision in the Supreme Court Act 1970, s 101A, inserted in 1996, authorised the Attorney General, following a decision that a person who had allegedly committed contempt of court had not committed such contempt, to submit to the Court of Appeal any question of law arising from or in connection with the proceedings. Subsection (2) required the Attorney General to submit with the question to be determined a statement of the circumstances out of which the question arose, these words being identical with those in s 5A(2)(b) of the Criminal Appeal Act. Other subsections are in virtually the same terms as corresponding subsections in s 5A(2). The most important example, for present purposes, is that subs (4) provided that the determination of the Court of Appeal of the question submitted did not in any way affect or invalidate any finding or decision given in the contempt proceedings. Section 101A thus corresponded with s 5A(2) of the Criminal Appeal Act. When s 101A was inserted in the Supreme Court Act, no provision was made corresponding to s 5A(1) of the Criminal Appeal Act. 11 Section 5A(2) of the Criminal Appeal Act and s 101A of the Supreme Court Act both make it clear that their operation is not intended to affect the common law position that once there has been judgment in a criminal proceeding, there is no legal process available to the prosecuting authority to attack either an acquittal, or in the case of a conviction, the sentence. There have of course been alterations to this position by other statutory provisions, of which one of the most notable is s 5D of the Criminal Appeal Act which allows the Attorney General or the Director of Public Prosecutions to appeal to the Court of Criminal Appeal against any sentence pronounced by a court of trial in proceedings to which the Crown was a party. 12 However, s 5A(2) of the Criminal Appeal Act and s 101A of the Supreme Court Act, which allow the Crown to get answers to questions of law, after acquittal, make it quite clear that whatever the answers are, the result of the earlier proceedings cannot be affected. Section 5B is a hybrid form which in subs (1) enables either the prosecution or the accused to have questions of law asked and answered by the Court of Criminal Appeal before the District Court has given a decision, and now, in subs (2) enables the prosecution, after acquittal, or a convicted person after conviction, to get answers from the Court of Criminal Appeal to questions of law material to the completed procedure and final orders of the District Court which heard the appeal from a Local Court. 13 It seems to me that there is quite a strong argument for the propositions that, first, the words of s 5B(2) do not make it clear that the provision is intended to enable the Crown, if it obtains a favourable answer to a question it has caused to be submitted to the Court of Criminal Appeal, to go back to the District Court in which "the appeal proceedings ... have been disposed of" and ask that court to change its decision in the disposed-of proceedings by reason of the answer afterwards obtained, and, second, therefore they should not be read as if they had that effect. (The omission of words such as appeared in s 5A(2)(d) of the Criminal Appeal Act and s 101A(4) of the Supreme Court Act to the effect that the answer to the question submitted under those sections could not affect the trial decision, itself seems to me to be ambiguous, in the sense that the omission can be said to be consistent with either view of the intention of the provision in regard to the effect of its use on the previous, completed, decision.) 14 However, close consideration of the wording of parts of s 5B before amendment and of the newly inserted s 5B(2) has led me to think that that argument should not succeed. The operative words of s 5B(2), slightly transposed, are that a question of law may be submitted to the Court of Criminal Appeal under subs (1) even though the appeal proceedings during which the question arose have been disposed of. Going back to subs (1) to see what it is that may be submitted under that subsection the answer is "any question of law arising on any appeal". These words were, as already noted, regularly interpreted by the courts as meaning questions arising, and to be dealt with, prior to the decision of the appeal. It seems to me that the words in subs (2) "even though the appeal proceedings during which the question arose have been disposed of" were intended to be in sharp contrast with, and to have the opposite result to the words "on any appeal" which in subs (1) had had the limiting effect already described. That is, it seems to me that subs (2) was intended to operate in the same way in regard to its subject matter as subs (1), subject to the difference that the limiting effect of the words "on any appeal" was deliberately got rid of and the meaning changed by replacement words indicating that it did not matter whether the appeal had been disposed of or not. It follows, in my opinion, that the concluding words of subs (1), empowering the Court of Criminal Appeal to make appropriate orders after answering the questions were intended by subs (2) to apply to the Court of Criminal Appeal in deciding what to do after answering questions submitted to it pursuant to subs (2). 15 The result is, in my opinion, that once the Court of Criminal Appeal has answered questions submitted to it under subs (2), the court then "may make any such order or give any such direction to the District Court as it thinks fit" in the same way as it can in regard to answers to questions submitted under subs (1) by a judge of the District Court before decision of the appeal before that court. 16 I therefore think that the usual course under s 5B(1) should be followed and that the court should deal with the stated case by ordering that both questions be answered yes and that the matter be remitted to the District Court for determination in accordance with this court's reasons for judgment. 17 My conclusion makes it necessary to consider the submission for the respondent that Christie DCJ's order convicting the respondent should be set aside. The magistrate from whose decision the appeal to Christie DCJ had been taken had found the respondent's offence proved, but, dismissed the information pursuant to s 556A. This had led to the appeal to the District Court being brought pursuant to s 133F of the Justices Act, a fact that appears also in the questions of law which Christie DCJ stated for submission to this court. In his reasons he also several times mentioned that he was dealing with the case as a s 133F appeal. Section 133F empowers the DPP to appeal to the District Court against any sentence imposed by a magistrate in proceedings of various kinds including the present. Hence, all that was before Christie DCJ was an appeal against sentence, which happens, because of the terms of s 556A, to have incorporated the dismissal of a proved charge. Thus, the resentencing by Christie DCJ included the conviction of the respondent. It seems to me that because the sentence, including the conviction, imposed by Christie DCJ was vitiated by an error of law, the order this court should make in returning the matter to the District Court is that the sentence he imposed be set aside. This will mean the conviction, as part of the sentence, will also necessarily be set aside. The outcome will therefore be that the matter will return to the District Court with the questions answered; that court will then be able in considering the sentence appeal under s 133F in the light of this court's answers to the questions in the stated case, to decide, on the materials before it, whether it should uphold the Crown appeal and if so what sentence (either including or not including a conviction) should then be imposed. 18 I accordingly propose that the court order: 1. Questions 1 and 2 submitted to the court by Christie DCJ be answered yes. 2. The order of the District Court made under s 133F be set aside. 3. The matter be remitted to the District Court for determination in accordance with this court's reasons and orders. 19 FOSTER AJA: I have had the advantage of reading, in draft, the judgment in this appeal of Priestley JA. I agree with the orders proposed by his Honour and with his reasons. I would add the following comments. 20 For my part, I have gained little assistance from the course and content of the Parliamentary debate set out in his Honour's reasons. So far as I can discern, the concerns of the Bar Association which are referred to were either misunderstood or lost sight of in the course of discussion. The Association raised the problem that if the Crown were allowed, in effect, to appeal by way of stated case against an acquittal, then the well established principle of "double jeopardy" would be infringed. The thrust of the Government's argument was that a Crown Prosecutor should not be put in the invidious position of seeking that a case be stated on a point of law whilst the presiding judge was, in effect, delivering judgment against him. This problem was to be addressed by the amendment to s. 5B, which would enable the Prosecutor to seek the stating of the case, after the accused had been acquitted. 21 The effect of the amendment necessarily was, however, that an accused, with the benefit of an acquittal, would be put in jeopardy of having that acquittal set aside, if the Crown succeeded on the point of law raised in the stated case. The Opposition argument appears to embrace a view that the amendment would not infringe the "double jeopardy" principle and expresses concern that an accused, having, in effect, secured an acquittal contrary to law, would nevertheless "walk free", which would incur public criticism. In the result the Bar Association's concerns were not addressed. 22 If one puts the Parliamentary discussion to one side, one is left with the problem of the construction of ss. 5B(1) and (2) in accordance with their terms. In this regard it must be noted that, in contrast to s. 5A(2), where specific provision was made for the preservation of the accused's acquittal, even where it was found by the Court of Criminal Appeal to involve an error of law, no such safeguard has been provided in the enactment of s. 5B(2). 23 As the section stands, it can operate to allow an appeal against an acquittal. It is not possible to read into it any preservation of the "double jeopardy" principle. Furthermore, it provides the Crown with a period of twenty-eight days in which to decide whether to apply for a stated case. This would appear to go much further than might be thought necessary to remove the embarrassment of a Crown Prosecutor's having to interrupt the flow of an obviously adverse judgment. 24 For the reasons given by Priestley JA, the problems involved in an appeal against acquittal do not arise in the present case. The trial judge will merely be directed to correct an obvious error of law in sentencing, arising from failure to comply with a statutory mandate. 25 Should the section be used as a vehicle for appeal against acquittal, then, it would seem, the "double jeopardy" principle can be preserved only through the exercise of the wide discretion given to the Court of Criminal Appeal by s. 5B(1). One would expect that the situations would be rare where the Court, having, in effect, corrected, for the future, an error of law would also make an order which would have the effect of reversing an acquittal. 26 SMART AJ: I agree with Priestley JA. **********