New South Wales Supreme Court CITATION : Keys v West [2004] NSWSC 883 HEARING DATE(S) : 16/0904 JUDGMENT DATE : 30 September 2004 JUDGMENT OF : Shaw J DECISION : (1) Standover these proceedings to allow the defendant to consider whether she does want to make an application under s 100G of the relevant state legislation and to give liberty to apply to have the matter restored to the list in this Court if either party desires to do so. (2) Order that there be no order for costs, on the basis that the matters raised by the plaintiff involve difficult questions of law and it was in the public interest that they be determined, at least in the absence of Ministerial review. This may seem an unusual step but I think that the discretion of this Court extends to enable a "no costs" order to be made in the particular circumstances of this case. CATCHWORDS : That an order made by Local Court Magistrate was not available as a matter of law - That the order was to the effect that the defendant be discharged pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth), upon entering into a recognizance in the sum of $1000 and to be of good behaviour for eighteen months - and, that the defendant should pay court costs. - Contravene Social Security Act 1991 (Cth) s1350 - Job Search Allowance - Newstart Allowance - Discharge of offenders without proceeding to conviction - Whether the magistrate erred in discharging the defendant despite an earlier conviction Crimes (Sentencing Procedure) Act 1999 (NSW) s10 Crimes Act 1900 (NSW) s 556A (repealed) LEGISLATION CITED : Crimes Act 1914 (Cth) s 19B Justices Act 1902 (NSW) (repealed) s 75A, 75B, 75C, 75D, 75E, 75F, 80, 100D, 100E, 100F, 100G Road Transport (Safety and Traffic Management) Act 1999 (NSW) Social Security Act 1991 (Cth) s1350 Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 Cobiac v Liddy (1969) 119 CLR 257 Davies v Griffiths [1937] 2 All ER 671 Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 Dixon v McCarthy [1975] 1 NSWLR 617 Ex Parte Kelly; Re Teece (1966) 85 WN (Pt 1) (NSW) 151; [1966] 2 NSWR 674 CASES CITED : Kinney v Green (1992) 29 NSWLR 137 Maxwell v R (1995) 184 CLR 501 McLachlan v Pilgrim & Anor [1980] 2 NSWLR 422 Mulcahy v Clark [1991] Tas R 115 R v Judge Crowe; Ex parte Rees (1985) 39 SASR 398 Re Stubbs (1947) 47 SR (NSW) 329 Saffron & Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 PARTIES : Paul Keys Gloria Elaine West FILE NUMBER(S) : SC 10703 of 2004 COUNSEL : D Moorehouse (Plaintiff) SOLICITORS : G Walsh (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 78975/03/119 FILE NUMBER(S) : LOWER COURT Mr Flack JUDICIAL OFFICER : - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST SHAW J 30 September 2004 10703 OF 2004 PAUL KEYS v GLORIA ELAINE WEST JUDGMENT 1 SHAW J: This is an attack by the plaintiff, Mr Keys, on an order made on 9 October 2003 by a magistrate in the Local Court of New South Wales said to be pursuant to s 19B(1)(d) of the Crimes Act 1914 (Cth). The order, which is argued by the plaintiff not to have been available as a matter of law, was to the effect that the defendant, Ms West, be discharged pursuant to the relevant section of the Crimes Act, upon entering into a recognizance in the sum of $1000 and to be of good behaviour for eighteen months. Furthermore it was ordered that the defendant should pay court costs. 2 The offence alleged against the defendant was one based upon the then current s 1350 of the Social Security Act 1991 (Cth). The defendant had been convicted of that offence on 31 March 2000, following an ex parte hearing under the then current s 75A – 75F of the Justices Act 1902 (NSW). As I understand the process which had been followed, the defendant had been apprehended on 21 April 2003 pursuant to a warrant which had been issued on 5 April 2000 pursuant to an order made by a magistrate. The information and summons for an offence under the Social Security Act was exhibited at the Local Court in Liverpool on 17 January 2000 and was served according to uncontested evidence on the defendant on 6 March 2000. Thus, the defendant was given notice of the alleged offence prior to the conviction. The charge, in summary, alleged that the defendant, during the period 1995 to 1999, had contravened the Social Security Act 1991: in that she did knowingly obtain payment of a social security payment under that Act, namely Job Search Allowance and then Newstart Allowance which was not payable at all because the value of her assets exceeded the allowable asset limit. 3 The central point made by the plaintiff is that the discharge of the defendant on 9 October 2003 was not in accordance with law. The effect of the order was to discharge the defendant without proceeding to conviction, whereas the defendant had already been convicted for the offence in question on 31 March 2000. That conviction stood at the time of the impugned order and that, absent from the substantive application to the Local Court to annul a conviction, the learned magistrate had no power to ignore or set aside the fact of conviction in relation to the defendant. 4 Section 19B of the Crimes Act 1914 (Cth) concerns the discharge of offenders without proceeding to conviction, and is therefore analogous, broadly speaking, with the well-known New South Wales provisions which were contained in s 556A of the Crimes Act 1900 (NSW) and are now contained in s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The relevant provision empowers the court despite finding the charge proved to dismiss the charge or to discharge the person without proceeding to conviction, subject to the person complying with certain conditions, including a requirement of good behaviour, reparation or restitution and the giving of a "security". 5 Having regard to the well-argued and detailed submissions of both parties in this case, it seems to me that the matter comes down to a short question of law, namely whether there was power to discharge the defendant despite the earlier conviction. 6 If the magistrate did err in discharging the defendant, the defendant fairly and appropriately acknowledges that if the Court finds that it was not open to the magistrate to have sentenced the defendant as he did, on the basis that such sentence was not available at law, that would amount to an error of law: Saffron & Allen v Director of Public Prosecutions (1989) 16 NSWLR 397. 7 Precedents exist to the effect that the recording of a conviction (which undoubtedly occurred in this case) is a determination of guilt. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 273 when a magistrate: announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence. 8 See also Mulcahy v Clark [1991] Tas R 115 per Zeeman J at 116. In Maxwell v R (1995) 184 CLR 501 at 509, Dawson and McHugh JJ held that a plea of guilty "does not of itself [constitute] a conviction". It is a "solemn confession" of the ingredients of the crime. However, their Honours said: a conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused (at 508). See also per Toohey J at 519; and, Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 at 263-266 per Kirby P (Priestly and Meagher JJA agreeing). 9 In McLachlan v Pilgrim [1980] 2 NSWLR 422 at 427, Yeldham J said that: an inferior court cannot set aside a conviction or order in the absence of express statutory provision 10 cf R v Judge Crowe; Ex parte Rees (1985) 39 SASR 398. 11 The last word on what constitutes a "conviction", being at least persuasive and probably binding authority, is to be found in Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 at [38] in which Howie J, with whom the other members of the Court agreed, said Penalties and disqualification apply only upon conviction for an offence under s 9 of the RT Safety Act . If a court proceeds under s 10 of the Sentencing Act so that, having found the offence proved, the court nevertheless dismisses the charge or discharges the offender without proceeding to a conviction, the court has no power to impose a fine or imprisonment. Nor does the court have power to disqualify the offender from holding a driver's licence and the automatic disqualification period does not apply: Re Stubbs (1947) 47 SR (NSW) 329. A conviction that represents a bare finding of guilt, such as would authorise the issuing of a warrant to bring an offender before the court for sentencing under s 25(2) of the Sentencing Act , does not engage the automatic disqualification period; Kinney v Green (1992) 29 NSWLR 137. 12 This passage directs one's attention to whether a "conviction" which merely represents a "bare finding of guilt" so as to authorise the issuing of a warrant to bring the offender before the court for sentencing constitutes a conviction which would debar the defendant from arguing a case pursuant to s 19B of the Crimes Act 1914 (Cth) or, in broadly equivalent terms, s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 13 Although the magistrate expressly referred, in writing, to a "conviction", I am of the view that there is a powerful case that this recording, conducted in relation to an ex parte proceeding, represents a bare finding of guilt rather than an authoritative or ultimate adjudication on the issue. I note that it is common ground that the term "conviction" is not defined in the relevant Commonwealth legislation. In Re Stubbs (1947) 47 SR (NSW) 329 at 335, Davidson J said: The expression "conviction" in itself is undoubtedly ambiguous, and for its interpretation in all the circumstances the only guide is to be found in the terms of the statute in which it appears. 14 At the relevant date, the applicable section of the Justices Act 1902 (NSW) was s 80 which provided that: After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or make an order upon the defendant or dismiss the information or complaint, as the case may require. 15 It was said, in relation to this section, by the Court of Appeal in Ex Parte Kelly; Re Teece (1966) 85 WN (Pt 1) (NSW) 151 at 157; [1966] 2 NSWR 674 at 678: This section is important in laying down the procedure before justices but it must be read in the light of the fundamental requirement of our criminal law that the two stages of the criminal trial be dealt with separately. It follows that the procedures of s 80 must be gone through twice where the court is dealing first with conviction and then with sentence. The proper procedure for justices is stated in Davies v Griffiths [1937] 2 All ER 671 at p 673, to be that they should announce the decision to convict before inquiring of the previous convictions and, that being so, the defendant or his counsel should have the further opportunity of addressing. 16 The Court went on to emphasise that conviction and sentence should be separately regarded, and that whether or not conviction and sentence must be regarded as "one act" and therefore not separable depends on the construction of the particular statute being considered (at 678). In Dixon v McCarthy [1975] 1 NSWLR 617 at 624, Yeldham J expressed the view, based upon an extensive consideration of the case law, that, at least: in some sections of the Justices Act , the expression "conviction" refers to a final determination or judgment and the complete disposal of a case…. On the other hand there are sections which clearly indicate that a finding of guilt only is denoted…. In my opinion, the expression where it appears in [another section] refers to a finding of guilt, whether or not there has been imposed a consequential penalty. 17 In the event of the profound ambiguity, which seems to arise from the labyrinthine series of cases, some of which I have referred to, and the difficulty of construing the word "conviction" in the context of a particular statute, I think weight should be given to the flexibility of remedies and the right of the citizen who is charged with a particular offence to argue to a court of competent jurisdiction that he or she, although guilty, should not be convicted of the offence and should have the availability of beneficial provisions such as s 19B of the Crimes Act 1914 (Cth). Justice favours such a course. In the absence of some clear provision of the statute, my inclination would be to construe the legislative regime so as to keep alive and available the possibility of a finding of guilt without conviction, and without the imposition of a penalty. This is a fortiori, in a case where the initial hearing leading to the "conviction" has been conducted ex parte and where subsequent proceedings, with the defendant having the benefit of a competent legal representation, has put what seems to me to be a strongly arguable case that no conviction should be recorded in all of the circumstances. 18 Before this Court, the plaintiff abandoned its pleaded contention that this Court should sentence the defendant for the offence against the social security legislation for which she was convicted in March 2000. Rather, what is contended for by the plaintiff is that the matter should be remitted to the Local Court to be heard and determined in accordance with law. 19 I accept the conventional and established view that the Justices Act is a complete code: see Yeldham J in McLachlan v Pilgrim & Anor [1980] 2 NSWLR 422. It is common ground, as I apprehend it, that the relevant legislative regime applicable to the proceedings in question was the Justices Act 1902 (NSW). That Act provided, by s 100D, for an application for an annulment of a conviction. However, s 100E of the same Act provided, in mandatory terms, that the application for annulment of the conviction "must be in writing", and, must be made within two years of the conviction or order being made or the sentence being imposed (s 100F). 20 It is common ground that by the time the present solicitor appearing for the defendant received instructions in the matter, the time limitation for an application for annulment had expired. There seems to be no leeway of choice in the legislation or discretion to allow an application to be made out of time. And it is also common ground that there was no application made in writing. Thus, it is said by the plaintiff that the conviction must stand and cannot now be challenged. 21 However, there is one avenue of redress that the defendant may have, if she elects to take this course, which is not statute barred. This remedy arises from the then applicable statutory provision in s 100G of the Justices Act which concerns decisions that may be referred for review. That section provided: 1. The Minister may refer any of the following matters to the Local Court, if an application is made by any person to the minister: (a) a conviction or an order (other than an interlocutory order) made against the person by a magistrate, (b) a sentence imposed on a person by a magistrate in the absence of the person. 2. The minister must not refer a matter unless the minister is satisfied that a question or doubt has arisen as to the guilt of the person or the person's liability for a penalty. 3. The Local Court to which a matter involving a conviction, an order or a sentence is to be referred is the Local Court in which the conviction or order was made or in which the sentence was imposed. 4. A matter referred to a Local Court by the Minister is to be treated as an application for the purposes of this Part. 5. The Minister may refer a matter under this section at any time after the conviction or order is made or the sentence imposed. 22 In my opinion, there was and is a formidable discretionary argument for the application of the remedial provisions of s 19B of the Crimes Act. In these circumstances, the relevant minister may well be persuaded that the matter should be referred to the Local Court to review the earlier conviction. This would avoid the somewhat arcane legal questions that have arisen in argument before this court. Of course, it is a matter entirely for the defendant as to whether she desires to make such an application to the Minister, but it seems to me, as at present advised, that there would be some utility in doing so. 23 Accordingly, I propose to standover these proceedings to allow the defendant to consider whether she does want to make an application under s 100G of the relevant state legislation and to give liberty to apply to have the matter restored to the list in this Court if either party desires to do so. Without being exhaustive, it may be that the defendant does not desire to make an application to the Minister, in which case this Court will decide the questions that have been agitated. It may be that the Minister will take a particular view, perhaps having regard to the observations that I have made, and presumptively will exercise a discretion in accordance with statute. In any event, I am of the view that the rights of both parties are reasonably protected by me standing the matter over generally with liberty to apply on short notice if that is desired by either party. 24 Subject to any further argument I would order that there be no order for costs, on the basis that the matters raised by the plaintiff involve difficult questions of law and it was in the public interest that they be determined, at least in the absence of Ministerial review. This may seem an unusual step but I think that the discretion of this Court extends to enable a "no costs" order to be made in the particular circumstances of this case. ********** Last Modified: 09/30/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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