New South Wales Supreme Court CITATION : Commonwealth Director of Public Prosecutions v Seymour [2009] NSWSC 555 HEARING DATE(S) : 16 June 2009 JUDGMENT DATE : 19 June 2009 JUDGMENT OF : Simpson J DECISION : (i) Appeal allowed; (ii) Quash the orders of the Magistrate under s 20BQ of the Crimes Act 1914 (Cth) in so far as they relate to the offences which were subject to a recognizance entered into on 22 March 2004 under s 20(1)(a) of the Crimes Act 1914 (Cth); (iii) Pursuant to the provisions of s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) set aside the order and order, pursuant to s 20A(5)(b)(iii) of the Crimes Act 1914 (Cth), that no action be taken on the breach of recognizance; (iv) No order as to costs save that the defendant is to have a certificate under s 6 of the Suitors' Fund Act 1951. CATCHWORDS : PROCEDURE – judgments and orders – federal offences – pleas of guilty – defendant committed – defendant released on recognizance under s 20(1)(a) Crimes Act 1914 (Cth) – further offences – information alleging breach of recognizance – defendant suffering mental illness – recognizance order revoked under s 20A(5)(b)(ii) Crimes Act – magistrate purported to set aside conviction – charges dismissed – s 20BQ Crimes Act – no jurisdiction in magistrate to set aside convictions – orders made by magistrate quashed in relation to offences subject to recognizance – no action to be taken on breach of recognizance - APPEAL – practice and procedure – powers of court – construction and applicability of s 20BQ does not arise for determination – correctness of Morrison v Behrooz does not arise for determination – inappropriate exercise of judicial function to review legislation and correctness of decision of court of commensurate jurisdiction that does not arise for determination LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1914 (Cth) CATEGORY : Principal judgment DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 CASES CITED : Mackie v Hunt (1989) 19 NSWLR 130 Morrison v Behrooz [2005] SASC 142 Perry v Forbes (Supreme Court of New South Wales, Smart J, 21 May 1993, unreported) PARTIES : Commonwealth Director of Public Prosecutions (Plaintiff) Joyce Patricia Seymour (Defendant) COUNSEL : I Bourke (Plaintiff) A Hamill SC (Defendant) SOLICITORS : Commonwealth Director of Public Prosecutions (Plaintiff) MacLean & Curtis (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 36513/07/173; 36521/07/173; 36530/07/173; 36548/07/173; 31392/08/173 LOWER COURT JUDICIAL OFFICER : Magistrate Prowse LOWER COURT DATE OF DECISION : 4 December 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 19 June 2009 16783/2008 Commonwealth Director of Public Prosecutions v Joyce Patricia Seymour JUDGMENT 1 HER HONOUR: By Summons filed on 24 December 2008 the Plaintiff, the Director of Public Prosecutions (Cth) ("the DPP") appeals, pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") against an order made by a magistrate of the Local Court on 4 December 2008. 2 After reading the written submissions made on behalf of the parties, and after discussion with counsel, I made orders, in effect by agreement. However, counsel for the DPP (not unreasonably) sought a brief statement of reasons for the views I had expressed that resulted in the agreed orders. These are those reasons. 3 It is convenient to commence by setting out the salient statutory provisions. They are contained in the Crimes Act 1914 (Cth) and the Appeal and Review Act. Crimes Act " 20 Conditional release of offenders after conviction (1) Where a person is convicted of a federal offence or federal offences , the court before which he or she is convicted may, if it thinks fit: (a) by order , release the person, without passing sentence on him or her, upon his or her giving security , with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order ; … 20A Failure to comply with condition of discharge or release (1) Where a person has been … released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order , the magistrate may: (a) issue a summons directing the person to appear … before the court by which the order was made; or (b) … … (5) Where, in accordance with this section, a person who has been … released in pursuance of an order made under subsection 20(1), appears … before the court by which the order was made, the court … if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order , may: … (b) in the case of a person who has been released in pursuance of an order made under paragraph 20(1)(a): (i) … (ii) revoke the order and, subject to subsection (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made and he or she was before the court for sentence in respect of the offence or offences ; or (iii) take no action; … 20BQ Person suffering from mental illness or intellectual disability (1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence , it appears to the court: (a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and (b) that, on an outline of the facts alleged in the proceedings , or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law; the court may, by order : (c) dismiss the charge and discharge the person: …" Appeal and Review Act "56 Appeals as of right (1) The Prosecutor may appeal to the Supreme Court against: (a) … (b) … (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings, (d) … (e) … but only on a ground that involves a question of law alone. (2) … 59 Determination of appeals (1) … … (2) The Supreme Court may determine an appeal against an order referred to in section 56(1) … (c) … ; (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal." The facts 4 In 2004 the defendant was charged in the Tamworth Local Court with six offences that may be compendiously referred to as social security offences. Each was a federal offence. She entered a plea of guilty to each and was duly convicted. Pursuant to s 20(1)(a) of the Crimes Act 1914 she was by order, released on a recognizance which included a condition that she be of good behaviour for 18 months. She entered the recognizance. 5 In March 2008 the defendant was again charged in the Local Court in Tamworth, with 4 counts of offences against the Criminal Code 1995 (Cth), again offences which may be called social security offences and were federal offences. She again entered a plea of guilty to each charge. 6 These offences had been committed while the defendant was subject to the conditions, including the good behaviour condition, of the recognizance she entered in 2004. Accordingly, an information under s 20A(1) of the Crimes Act was laid, alleging breach, without reasonable cause or excuse, of the recognizance. 7 The defendant appeared before the Local Court in Tamworth on 12 August 2008. She admitted the breach. A good deal of subjective material was placed before the Magistrate. This satisfied the Magistrate that the defendant was suffering from a mental illness. He therefore dealt with the 4 charges, and the breach of recognizance, under s 20BQ of the Crimes Act. There is no challenge to the order so far as it concerns the 4 charges. The Magistrate further purported, in effect, to review the convictions on the 2004 charges, to set aside those convictions, and, pursuant to s 20BQ, dismiss those charges. It is that order that is the focus of the DPP's appeal. 8 Put simply, the DPP argued that s 20A does not extend to allowing a magistrate to set aside a duly entered conviction. 9 Although Mr Hamill SC, appearing for the defendant, sought to construct an argument, based upon a "purposive" approach to s 20A, that the section was wide enough to permit that course, he also acknowledged the force of the DPP's argument to the contrary. That argument, in my opinion, is correct. 10 Section 20A proceeds upon the basis that the guilt of the person has been established, and the person either discharged without conviction under s 19B or (as in this case) released on a recognizance under s 20(1)(a). In the latter case, it is implicit that a conviction has been entered. That conviction may only be disturbed by a proper appeal process. No such process has here taken place. The conviction cannot be set aside by another magistrate in later proceedings. 11 The DPP very fairly conceded that, in the circumstances, it would be appropriate that the discretion conferred by s 20A(5)(b)(iii) be exercised in favour of the defendant – that is, that no action be taken on the breach of recognizance. Accordingly, with the eventual concurrence of both counsel, I made orders that would achieve that result. 12 That is sufficient to dispose of the appeal. 13 However, Mr Hamill urged me to go further. He referred me to a decision of the Supreme Court of South Australia (Morrison v Behrooz [2005] SASC 142), in which Gray J expressed the view that s 20BQ does not contemplate the recording of a conviction, and does not apply where a defendant enters a plea of guilty. On that view, the scope of s 20BQ is limited to circumstances where no plea has been entered. According to his Honour, the section authorises "a diversionary process in the case of mental illness". 14 Mr Hamill urged me to review that decision and express a contrary view. In doing so, he referred me to a series of decisions under comparable NSW legislation, in which various judges have taken a view different to that expressed (in relation to different legislation) by Gray J. I will simply note the decisions to which I was referred. They are: Mackie v Hunt (1989) 19 NSWLR 130; DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93; Perry v Forbes (Supreme Court of New South Wales, Smart J, 21 May 1993, unreported). 15 As I made plain during the course of Mr Hamill's entreaties, I am firmly of the view that it would be quite wrong to take the course he proposes. Given the view I have reached on the principal issue, the applicability of s 20BQ does not arise for determination in this case. It would be a quite inappropriate exercise of the judicial function to embark upon an analysis, that could only be theoretical, of legislation that does not call for decision or application. That is the more so when what underlies the request is an invitation to one Judge to express the view that a considered judgment of a court of commensurate jurisdiction is wrong. I declined to accept the invitation, and declined to embark upon the analysis suggested. 16 I do, however, note that responsible senior counsel has raised for consideration a question of the construction of s 20BQ and the correctness of the decision in Morrison, that may arise for determination in another case. 17 Orders having already been made, it is unnecessary to say more. 18 The orders made were: (i) Appeal allowed; (ii) Quash the orders of the Magistrate under s 20BQ of the Crimes Act 1914 (Cth) in so far as they relate to the offences which were subject to a recognizance entered into on 22 March 2004 under s 20(1)(a) of the Crimes Act 1914 (Cth); (iii) Pursuant to the provisions of s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) set aside the order and order, pursuant to s 20A(5)(b)(iii) of the Crimes Act 1914 (Cth), that no action be taken on the breach of recognizance; (iv) No order as to costs save that the defendant is to have a certificate under s 6 of the Suitors' Fund Act 1951. ********** 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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