New South Wales Court of Appeal CITATION: DPP v Arab & Anor [2009] NSWCA 75 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 10 March 2009 JUDGMENT DATE: 9 April 2009 JUDGMENT OF: Beazley JA at 1; Macfarlan JA at 41; Handley AJA at 42 1. Order that the record of the District Court sitting in its criminal jurisdiction at Sydney on 20 August 2008 in the proceedings in the matter of the appeal of Mohammad Hossein Arab 08/21/0171 be removed to this Court and the orders of Hughes DCJ of that date purporting to annul the convictions and sentences imposed in the Local Court and remitting the matters to the Local Court be quashed; 2. Declare that the District Court fell into jurisdictional error in deeming Mr Arab's appeal to the District Court to be an appeal against the Local Court's refusal of an annulment application pursuant to the Crimes (Appeal and Review) Act 2001, s 4; DECISION: 3. Declare that the District Court fell into jurisdictional error in purporting to determine the appeal as an appeal under the Crimes (Appeal and Review) Act 2001, s 11A; 4. Order that the matter be remitted to the District Court to be determined according to law; 5. No order as to costs. CATCHWORDS: CRIMINAL LAW – plea of guilty entered in the Local Court –application under Criminal Procedure Act 1986, s 207 to withdraw guilty plea – application refused and conviction entered by Local Court – appeal against conviction made to the District Court under Crimes (Appeal and Review) Act 2001, s 12 – conviction annulled pursuant to Crimes (Appeal and Review) Act 2001, s 11A – appeal by the Crown to the NSWCA – jurisdictional error made by District Court in purporting to determine the appeal as an appeal under Crimes (Appeal and Review) Act, s 11A - CRIMINAL LAW – District Court deemed appeal to be an appeal against the Local Court's refusal of an annulment application pursuant to Crimes (Appeal and Review) Act 2001, s 4 – conviction annulled – appeal by the Crown to the NSWCA – no entitlement to make an application for annulment under the Crimes (Appeal and Review) Act 2001, s 4 – phrase "not in appearance" in s 4 can only mean "does not appear" – jurisdictional error made by District Court in deeming appeal in to be bought under s 11A LEGISLATION CITED: Crimes (Appeal and Review) Act 2001, ss 4, 11, 11A, 12, 16, 18 and 20 and Pts 2 and 3 Criminal Procedure Act 1986, s 207 CATEGORY: Principal judgment Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 Frodsham v O'Gorman (1979) 1 NSWLR 683 CASES CITED: Griffiths v The Queen [1977] HCA 44; (1976-7) 137 CLR 29 Keys v West [2006] NSWSC 136; (2006) 65 NSWLR 668 Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 S (an Infant) v Recorder of Manchester [1971] AC 481 Director of Public Prosecutions (Applicant) PARTIES: Mohammad Hossein Arab (First Respondent) District Court of New South Wales (Second Respondent) FILE NUMBER(S): CA 40295/08 V Lydiard (Applicant) COUNSEL: C Withers (Amicus) Submitting Appearance (Second Respondent) SOLICITORS: Director of Public Prosecutions (Applicant) Crown Solicitor (Second Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 08/21/0171 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 20 August 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40295/08 BEAZLEY JA MACFARLAN JA HANDLEY AJA 9 April 2009 Director of Public Prosecutions v Mohammad Hossein Arab & Anor Judgment 1 BEAZLEY JA: The Director of Public Prosecutions (the DPP) applied for prerogative relief in this Court, seeking to have orders made by his Honour Hughes DCJ on 20 August 2008 in the matter of the appeal of Mohammad Hossein Arab 08/21/0171 quashed. 2 The first respondent, Mr Arab, and the second respondent, the District Court, each filed submitting appearances. In the case of Mr Arab, the submitting appearance was filed in court by counsel for the DPP. The Court was informed that at a directions hearing before the Registrar, Mr Arab had indicated to the solicitor for the DPP that he would submit to the orders of the Court. An interpreter was present during the discussion between the solicitor for the DPP and Mr Arab. Subsequently, the solicitor for the DPP forwarded to Mr Arab a form of submitting appearance, which Mr Arab signed and returned to her. The DPP filed that appearance in court. 3 In the submitting appearance, Mr Arab submitted to: "… all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs." The DPP informed the Court that it did not propose to seek an order for costs. 4 Mr Chris Withers appeared as amicus and provided valuable assistance to the Court. Background 5 On 14 November 2007, Mr Arab was arrested at a Bunnings Hardware store and was charged with an offence of 'obtain valuable thing by deception' and a further offence of larceny. 6 The 'obtain valuable thing by deception' charge arose out of a purchase by Mr Arab in circumstances where a Bunnings employee contended he saw Mr Arab swap the cardboard packaging cover of a pruning saw with a similar cover from a cheaper saw. The value of the pruning saw was $24.02. Mr Arab left the store, having paid the cheaper price for the saw and was subsequently stopped by store security. He contended that the substitution was inadvertent. 7 Mr Arab was also found to be in possession of a drill bit and a tape measure at the time he left the store. He claimed a builder at his house gave him the two items before he went to Bunnings. Mr Arab was charged with larceny of these two items. 8 Mr Arab comes from Iran. He came to Australia in 2006. It was accepted that his English is poor and that he requires a Farsi interpreter. An interpreter was present at the police station when Mr Arab was arrested and charged on 14 November 2007. 9 The charges came before a Local Court on 28 November 2007. There was no interpreter present on that occasion. However, Mr Arab was represented in court by a Legal Aid solicitor. The solicitor informed the court that he was instructed to enter a plea of guilty to both charges and to have the matter adjourned to 10 December, to allow Mr Arab time to provide references and the like to the court. 10 On 10 December 2007, Mr Arab appeared in court unrepresented, but with a friend present who could speak English. The matter was further adjourned to 19 December. 11 On 19 December 2007, Mr Arab was represented by a different Legal Aid solicitor. The solicitor informed the court that she had been instructed to enter pleas of not guilty to the charges. The presiding magistrate informed her that pleas of guilty had been entered previously. The matter was stood down in the list to give the solicitor the opportunity to clarify her instructions. During this break, the solicitor ascertained that the first solicitor had provided advice to Mr Arab that pleas of not guilty should be entered, but that Mr Arab had instructed him to enter pleas of guilty nonetheless. That advice had been confirmed in a letter that was available for consideration by the court. It appears that Mr Arab's mother was ill in hospital and he did not want to burden her further, as he was ashamed of being involved with the law. Upon being informed of these matters, the presiding magistrate stated that she would mark the papers "For preparation of a s 207 application". 12 The matter was stood over to 10 January 2008, to permit Mr Arab to prepare the application to withdraw his pleas of guilty. However, the matter was not ready to proceed on that day and it was again stood over. 13 The next relevant date was 30 January 2008. On that occasion Mr Arab appeared and was represented by a solicitor from Legal Aid. An interpreter was present. There was some confusion, both at the instance of the presiding magistrate and the solicitor appearing for Mr Arab, as to the source of the jurisdiction the magistrate was being asked to exercise. The solicitor referred to "[s 40] the equivalent of the old s 4". The magistrate noted that the matter was listed for a s 207 application, "whatever [that] is". 14 Notwithstanding this confusion, the application to withdraw the plea was made, but was refused. The Court then heard submissions in respect of sentence. At the conclusion of hearing the plea, the magistrate convicted Mr Arab on each offence and fined him $200. The magistrate ordered Mr Arab to pay court costs of $70 and also directed the property be returned to the owner. The proceedings in the District Court 15 On 6 February 2008, Mr Arab filed an application for leave to appeal against a conviction entered after a plea of guilty. The grounds specified in support of his application for leave to appeal were: that he had a defence and wished to plead not guilty; that he was prepared to give evidence and had a witness who was prepared to attend court and give evidence in his case; that on 28 November 2007, he did not have the benefit of an interpreter to explain his case, or to understand the advice given by the Legal Aid solicitor; and that he arrived in Australia from Iran in July 2006. In the accompanying notice of appeal, Mr Arab specified as his only ground of appeal that he was "not guilty". 16 The matter came before Hughes DCJ on 20 August 2008. Mr Arab appeared in person. Ms Coyle, appearing for the Crown, explained to his Honour the proceedings as they had unfolded in the Local Court. In particular, she informed his Honour that Mr Arab had made an application under the Criminal Procedure Act 1986, s 207 "for the conviction to be annulled" and that the application had been refused. The statement as to the nature of the application under s 207 was not correct. Section 207 provides for the setting aside of a conviction after the withdrawal of a plea of guilty. Ms Coyle further informed the court that the application for leave to appeal to the District Court was made under the Crimes (Appeal and Review) Act 2001, s 12. 17 Hughes DCJ determined that, as Mr Arab did not understand the proceedings in the Local Court because of his lack of English and the absence of an interpreter, he had effectively not been present when the conviction was entered. In his judgment his Honour stated that "for practical purposes [Mr Arab] might as well have been deaf and dumb". His Honour considered that Mr Arab's application should be treated as an appeal as of right under the Crimes (Appeal and Review) Act, s 11A pursuant to the refusal by a magistrate of an application for an annulment under s 4 of that Act. His Honour annulled the conviction and sentence and returned the matter to the Local Court for determination according to law. Application for prerogative relief 18 The DPP applied for prerogative relief in this Court on the basis that Hughes DCJ had no jurisdiction to hear an appeal pursuant to the Crimes (Appeal and Review) Act, s 11A. Mr Arab had not filed an appeal pursuant to that section and the underlying basis for bringing such an appeal did not exist. It was contended that His Honour had acted in excess of jurisdiction, first in deeming Mr Arab's appeal to the District Court to be an appeal against the Local Court's refusal of an annulment application and secondly, in purporting to determine such an appeal. The legislation The Criminal Procedure Act 19 The Criminal Procedure Act, s 207, which deals, relevantly, with the setting aside of a conviction or order after a plea of guilty has been entered, provides: " 207 Power to set aside conviction or order before sentence (1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person's plea from guilty to not guilty and to have the conviction or order set aside. (2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty." The Crimes (Appeal and Review) Act 20 The Crimes (Appeal and Review) Act, Pt 2 makes provision for the annulment of a conviction by the Local Court. Section 4 provides: " 4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court: (a) by the defendant, or (b) by the prosecutor, but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed." 21 The Crimes (Appeal and Review) Act, Pt 3 provides for appeals from the Local Court to the District Court. 22 Section 11 provides an appeal as of right against conviction or sentence where a person has been convicted or sentenced by the Local Court. The section does not apply in respect of conviction if the person was convicted in the person's absence or following a plea of guilty. 23 Section 11A, which permits an appeal as of right in respect of the refusal by a magistrate of an application for annulment under s 4, provides, relevantly: " 11A Appeals as of right against Local Court's refusal of application for annulment of conviction (1) Any defendant whose application under section 4 for annulment of a conviction or sentence has been refused by the Local Court may appeal to the District Court against the refusal." 24 The appeal that Mr Arab filed was an appeal under s 12 of that Act. Section 12(1) provides, relevantly: " 12 Appeals requiring leave (1) Any person who has been convicted by a Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court." 25 Section 16 provides that the District Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. If leave to appeal is granted, then, pursuant to s 18, the appeal is heard by way of re-hearing on the basis of the certified transcript of evidence in the Local Court. The District Court may, by leave, hear fresh evidence, but only if the court is satisfied that it is in the interests of justice that fresh evidence be given. 26 The District Court may determine an appeal against conviction either by setting aside the conviction, or by dismissing the appeal: s 20. 27 Section 16A deals with the determination of applications under s 11A. If the application is allowed, the District Court must remit the matter to the Local Court. The trial judge purported to act under s 11A. What application did Mr Arab make to the Local Court? 28 As mentioned, there was some confusion as to the basis upon which Mr Arab sought to withdraw his plea of guilty and, indeed, what the nature of that application was. However, it seemed that Magistrate Brennan, on 30 January 2008, accepted that the application was made under the Criminal Procedure Act, s 207, without having an understanding of its provisions. In the District Court proceedings, Ms Coyle also misunderstood the provision. Contrary to her statement to his Honour, the section does not deal with an annulment of a conviction. Rather it makes provision for the setting aside of a conviction, after a plea of guilty, but before the summary proceedings are finally disposed of. 29 The confusion caused the Court to raise the question of the meaning of "conviction" in s 207 and to ask whether Mr Arab's application was made under that section, and if not, upon what basis it was made. 30 Strictly, these questions are a side wind, for two reasons. First, the question for the Court is whether the trial judge acted in excess of his jurisdiction in treating the application before him as an appeal under the Crimes (Appeal and Review) Act, s 11A. Secondly, there can be no doubt that the Local Court has power to permit the withdrawal of a plea of guilty. However a brief excursus of the issue is useful so that there is a proper understanding of the processes that were engaged. 31 It is apparent from the considerable body of caselaw dealing with the meaning of "conviction" that the term has no fixed meaning. 32 In Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 Dawson and McHugh JJ observed, at [9]: "The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea." 33 Toohey J, although dissenting in the case, expressed the same opinion, stating, at [15], that: "The meaning of 'conviction' generally depends on determining the sense in which it is used in the statute under consideration. For example, where 'conviction' is used in the statutory context of sentencing guidelines, it clearly refers to the determination of guilt alone. While in the present case an understanding of conviction or convicted is to be considered in the general context of the Act, there is nothing in the Act relevantly to suggest that the common law understanding of these terms has been displaced." (Citations omitted) 34 Toohey J footnoted the decision of Frodsham v O'Gorman (1979) 1 NSWLR 683. It is apparent from the decision of Hope JA in that case (Moffitt P and Mahoney JA agreeing in separate short reasons) that at common law a "conviction" occurs when there is a verdict of guilty after there is the acceptance of a plea. The matter then moves to judgment, that is, the passing of sentence: see Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257. Both Hope JA and Mahoney JA referred to S (an Infant) v Recorder of Manchester [1971] AC 481 as authority for the proposition that, where an accused person has been convicted upon a plea of guilty, the court may, at least until judgment, that is, at least until sentence has been passed, allow the plea of guilty to be withdrawn and may set aside the conviction. 35 These and other cases were reviewed in Keys v West [2006] NSWSC 136; (2006) 65 NSWLR 668 by Hall J. 36 The DPP submitted that the recording of Mr Arab's plea of guilty on 28 November 2007 and the standing of the matter over for sentence amounted to a "bare conviction" on that date that was sufficient to activate s 207. That is probably correct (see Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 301, 302, 311, 318 and 336) but it is not necessary for the disposition of this appeal to reach a firm view on the point. Section 207 allows an accused person "after conviction" but "before the summary proceedings are finally disposed of" to withdraw a plea of guilty. The final disposition of summary proceedings, where there has been a finding of guilt after a hearing or a plea of guilty, must mean after sentence has been imposed and recorded. There is no other "final disposition". Should there be any doubt about that, Mr Arab would, in any event, have had a common law right to withdraw the plea: see Frodsham v O'Gorman; S (an Infant) v Recorder of Manchester. 37 One matter that can be said with certainty in this case is that Mr Arab did not make an application for an annulment of his conviction under the Crimes (Appeal and Review) Act, s 4. Nor was he entitled to make such an application. Section 4 may only be invoked by a defendant where the defendant "was not in appearance" before the court when the conviction or sentence was made or imposed. The phrase "not in appearance" bears a certain linguistic novelty. It can only mean, to use the language of other statutes, "does not appear". 38 Mr Arab appeared in court on 28 November. He was there in person and he had a solicitor appearing for him. There was no interpreter present on that occasion. Nonetheless, it is apparent there was sufficient communication between Mr Arab and the Legal Aid solicitor for the solicitor to be able to give advice to plead not guilty to the charges. Had the matter been forced on for hearing that day, a question of natural justice may have arisen. That, however, is a different question. 39 As Mr Arab did not make any application under the Crimes (Appeal and Review) Act, s 4 to the Local Court for the annulment of his conviction he could not appeal under s 11A, nor did he purport to so appeal. There was no jurisdictional basis upon which his Honour could deem the application for the withdrawal of the plea of guilty to be an application for the annulment of a conviction. Nor could he treat an application for leave to appeal against conviction after a plea of guilty made under s 12 as an appeal against the refusal of an application for annulment. 40 Accordingly, I propose the following orders and declarations: 1. Order that the record of the District Court sitting in its criminal jurisdiction at Sydney on 20 August 2008 in the proceedings in the matter of the appeal of Mohammad Hossein Arab 08/21/0171 be removed to this Court and the orders of Hughes DCJ of that date purporting to annul the convictions and sentences imposed in the Local Court and remitting the matters to the Local Court be quashed; 2. Declare that the District Court fell into jurisdictional error in deeming Mr Arab's appeal to the District Court to be an appeal against the Local Court's refusal of an annulment application pursuant to the Crimes (Appeal and Review) Act 2001, s 4; 3. Declare that the District Court fell into jurisdictional error in purporting to determine the appeal as an appeal under the Crimes (Appeal and Review) Act 2001, s 11A; 4. Order that the matter be remitted to the District Court to be determined according to law; 5. No order as to costs. 41 MACFARLAN JA: I agree with Beazley JA. 42 HANDLEY AJA: In this matter I have had the benefit of reading the reasons for judgment of Beazley JA in draft. With one minor and presently irrelevant qualification I agree with her Honour's reasons and the orders that she has proposed. 43 My qualification relates to the characterisation of what occurred in the Local Court at Hornsby on 28 November 2007. The only order evidenced by the transcript is that the matters were adjourned to the 10th of December. However the master cover sheet records the pleas of guilty, the adjourned date and contains the notation "F/S" indicating that the cases had been adjourned for sentence. 44 In Frodsham v O'Gorman [1979] 1 NSWLR 683 CA, 685, 688 Hope JA, delivering the principal judgment of the Court, held that the defendant had not been convicted on 1 July 1976 when the Magistrate accepted her pleas of guilty and committed her for sentence to the District Court pursuant to s 51A of the Justices Act. The conviction occurred on 8 October 1976 when the sentencing judge accepted the pleas and the defendant was called up for sentence. 45 It does not matter whether the respondent was convicted on 28 November 2007 following his pleas of guilty or on 30 January 2008 when his application to withdraw his pleas of guilty was refused and the Magistrate announced, as recorded in the transcript for that day, that the respondent was expressly convicted for each offence, fined and ordered to pay court costs. 46 The Local Court had jurisdiction to entertain his application to withdraw his pleas of guilty either at common law or pursuant to s 207 of the Criminal Procedure Act. 47 The orders proposed by Beazley JA should be made. ********** 20/04/2009 - Correction to legislation cited - Paragraph(s) 26 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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