Reported Decision: 184 A Crim R 183 New South Wales Court of Appeal CITATION: AB v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR [2008] NSWCA 91 HEARING DATE(S): 6 May 2008 JUDGMENT OF: Giles JA at 18; Campbell JA at 19; Handley AJA at 1 EX TEMPORE JUDGMENT DATE: 6 May 2008 1. Leave to appeal granted with effect from 3 March 2008 when the notice of appeal was filed without leave. DECISION: 2. Dispense with further complaince with the Rules. 3. Appeal dismissed. No order as to costs. CATCHWORDS: CRIMINAL PROCEDURE - Summary proceedings - Withdrawal of charge by prosecutor - Resulting dismissal of charge - No right in accused to certificate of dismissal which would bar later proceedings on the same charge Supreme Court Act 1970 LEGISLATION CITED: Criminal Procedure Act 1986 Criminal Legislation Amendment Act 2007 CATEGORY: Principal judgment PM v The Queen [2007] HCA 49; 82 ALJR 57 CASES CITED: Director of Public Prosecutions v PM [2006] NSWCCA 297; 67 NSWLR 46 Gilham v The Queen [2007] NSWCCA 323 PARTIES: AB (Appellant) Director of Public Prosecutions (NSW) (Respondent) FILE NUMBER(S): CA 40031/08 COUNSEL: G K Walsh (Appellant) D C Frearson SC (Respondent) SOLICITORS: Fox O'Brien (Appellant) S C Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 16400/07 LOWER COURT JUDICIAL OFFICER: Adams J LOWER COURT DATE OF DECISION: 13 February 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40031/08 GILES JA CAMPBELL JA HANDLEY AJA 6 May 2008 AB v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR CRIMINAL PROCEDURE – Summary proceedings – Withdrawal of charge by prosecutor – Resulting dismissal of charge – No right in accused to Certificate of Dismissal which would bar later proceedings on the same charge HEADNOTE In 2004 the appellant was charged in the Children's Court with a sexual offence which was triable summarily. He was then charged with the malicious infliction of actual bodily harm which could not be tried in the Children's Court. In 2005 following his committal for trial on the latter charge the prosecutor withdrew the summary charge. Section 208 of the Criminal Procedure Act prior to its amendment in 2007 provided that a charge withdrawn by the prosecutor "is taken to be dismissed". The appellant applied for and was granted a certificate of dismissal which, if valid, would operate under s 206 to bar further proceedings for the relevant offence. Adams J ordered that the Certificate be quashed for lack of jurisdiction. On appeal by the accused HELD: (1) The decision to quash the certificate was correct; (2) An entitlement to an order of dismissal and a certificate of dismissal only arose following a decision of the Court to dismiss the charge; (3) There had been no such decision in this case; (4) A dismissal under s 208 consequent on withdrawal of the charge by the prosecutor did not create any right to an order of dismissal or to a certificate of dismissal under s 205(1). ORDERS 1. Leave to appeal granted with effect from 3 March 2008 when the notice of appeal was filed without leave. 2. Dispense with further compliance with the Rules. 3 Appeal dismissed. No order as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40031/08 GILES JA CAMPBELL JA HANDLEY AJA 6 May 2008 AB v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR Judgment 1 HANDLEY AJA: This is an appeal as of right by an accused person from the judgment of Adams J who ordered that a Certificate of Dismissal signed by the Registrar of the Children's Court be quashed for want of jurisdiction. The appeal as of right is sought to be supported under s 101(1)(a) of the Supreme Court Act but this is expressed to be subject to the Act. Section 101(2), which is the dominant provision, denies appeals as of right in cases within para (r) where the appeal does not involve an amount of $100,000 or more. 2 This is such a case and the appellant did not have an appeal as of right. However the proposed appeal raises a significant question and in my opinion the court should grant leave to appeal and this is not opposed by counsel for the respondent. 3 The proceedings arise out of a charge of sexual intercourse with a female under the age of sixteen without her consent brought against the appellant in the Children's Court in September 2004. This was followed in October that year by a charge of malicious infliction of actual bodily harm on the same victim on the same occasion. The first charge could be tried summarily in the Children's Court but the second could not. The Children's Court heard the committal proceedings on the second charge on 12 April 2005 and the appellant was committed for trial. The magistrate then dealt with the first charge and the transcript records the following: "HIS HONOUR: Yes, what do you want me to do with sequence 1? STEEDMAN: We're withdrawing sequence 1, the … (not transcribable) … HIS HONOUR: Sorry? STEEDMAN: I seek to withdraw sequence 1. WALSH: Yes, no objection to that your Honour. HIS HONOUR: Okay, well I WILL WITHDRAW THAT AND DISCHARGE THE DEFENDANT." 4 The Director of Public Prosecutions elected not to proceed on the charge of maliciously inflicting actual bodily harm and filed an ex officio indictment on the original charge. This provoked a challenge to the jurisdiction of the District Court which was ultimately resolved by the High Court in PM v The Queen [2007] HCA 49; 82 ALJR 57. Meanwhile on 30 January 2007 the Registrar of the Children's Court signed a Certificate of Dismissal of the first charge purporting to exercise the power conferred by s 205 of the Criminal Procedure Act. This was the certificate quashed by Adams J. 5 The certificate states that on 12 April 2005 the first charge "was considered by John Ormonde CRAWFORD, one of her Majesty's Magistrates in and for the said State, and was dismissed". 6 The relevant provisions of the Criminal Procedure Act prior to the Criminal Legislation Amendment Act (No 57 of 2007) were ss 202, 205, 206 and 208. Sections 205 and 208 were significantly amended by the 2007 Act. Unfortunately Adams J referred to these sections in their amended form but cl 16 of sch 1 of the 2007 Act expressly provided that the amendments to those sections "apply only to the dismissal of a matter on or after the commencement of the amendments". Sections 205 and 208 in their unamended form provided: "205 (1) A Court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter. (2) A Court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor. 208 If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned." Section 206 deals with the effect of a certificate and provides: "A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person." 7 The transcript for 12 April 2005 makes it absolutely clear that the first charge was withdrawn by the prosecutor without any adjudication by the magistrate. The transcript records the magistrate saying "Okay, well I will withdraw that and discharge the defendant". The magistrate could not withdraw the charge. He could only note that it was withdrawn by the prosecutor. In the context the magistrate could only have said or meant to say that the withdrawal by the prosecutor was noted. He either made a slip of the tongue or the transcript was incorrect, but in either case it does not matter, the prosecutor withdrew the charge, no-one else. 8 Section 208 as in force in 2005 dealt with the withdrawal by the prosecutor and provided in that event that "the matter is taken to be dismissed". Section 205, as then in force, entitled an accused person to a certificate if the court made "an order of dismissal". 9 Section 202(1) and (2) deal with the functions of the court in summary proceedings as follows: "(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter." 10 This indicates the nature of the order of dismissal referred to in s 205(1). In the present case the Children's Court did not make "an order of dismissal" and did not "decide to dismiss the matter". There was no trial, no evidence and no adjudication. 11 A dismissal under s 208 does not flow from any order or decision of the court. It takes effect automatically on the withdrawal of the case by the prosecutor. This was ultimately accepted by Mr Walsh who appeared for the appellant. His submission, relevantly, was that after a dismissal under s 208, the accused could ask the court for an order of dismissal. Section 205(2) required the court to make that order which would create a right to a certificate. 12 This submission does not reflect the true construction and operation of these sections. Section 205(2) refers to an order of dismissal of the kind provided for in s 202(2) and 205(1), that is an order of dismissal consequent upon an adjudication by the court. In my judgment an accused person who has been the beneficiary of a dismissal under s 208 has no right to a certificate under s 205(2). 13 An automatic dismissal following withdrawal by the prosecutor was not an actual or deemed decision which attracts an entitlement to a certificate under s 205. The court was referred to a dictum of Basten JA in Director of Public Prosecutions v PM [2006] NSWCCA 297 67 NSWLR 46, paras [15-16] which appears to support the submissions of the appellant. However the majority judgment was that of Latham J in which Whealy J concurred, and she did not comment on the present point. 14 The court has been informed by Mr Walsh, who appeared with a leader in the Court of Criminal Appeal, that the point was not argued there or in the High Court. 15 Having had the benefit of the reasons of Adams J, and the written and oral submissions in this Court, I have reached a different conclusion and respectfully disagree with this dictum. 16 There is no need to invoke the common law defence of autrefois acquit considered by the Court of Criminal Appeal in Gilham v The Queen [2007] NSWCCA 323 or the statutory antecedents of the provisions now in question because the sections are clear and speak for themselves. 17 The appellant, in my judgment, was not entitled to a certificate and, despite his reference to ss 205 and 208 in their amended form, the decision of Adams J to quash the certificate was correct. I would therefore propose the following orders: 1. Leave to appeal granted with effect from 3 March 2008 when the notice of appeal was filed without leave. 2. Dispense with further compliance with the Rules. 3 Appeal dismissed. No order as to costs. 18 GILES JA: I agree with Justice Handley's reasons and with the orders his Honour proposes. 19 CAMPBELL JA: I agree with both the reasons and the proposed orders of Justice Handley. ********** 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.