Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Swindell [2018] NSWSC 1468 Hearing dates: 23 February 2018 Date of orders: 02 October 2018 Decision date: 02 October 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) The order issued by his Honour Magistrate Hayes on 23 June 2017 purporting to annul the first defendant's conviction for the offence of drive vehicle recklessly/furiously or at speed/manner dangerous to the public and for the offence of drive with intent to menace contrary to the provisions of s 42(2) and s 43(1) of the Road Transport (Safety and Traffic Management) Act 1999, respectively, is quashed; (2) The order issued by his Honour Magistrate Hayes on 23 June 2017 annulling the first defendant's concurrent disqualification periods of three years and concurrent sentences to enter into good behaviour bond for 18 months, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 in respect of the offences referred to in order [1] above, is quashed; (3) The recording and entry of convictions, and the imposition of sentences and penalties imposed by his Honour Magistrate Hayes on 23 June 2017 on the first defendant at Dubbo Local Court for the offences referred to in order [1] above is quashed; (4) Proceedings for the first defendant's offences, referred to in order [1] above, is remitted to the Local Court to be dealt with according to law; (5) Each party shall bear its or his own costs. Catchwords: APPEAL – appeal from Magistrate – jurisdictional error in annulment of conviction and sentence where defendant appeared before court – attempt by Magistrate to effect just result – orders quashed ADMINISTRATIVE LAW – recording of conviction and imposition of sentence vitiated by misunderstanding by Magistrate that powers of annulment could immediately thereafter be exercised – denial of natural justice – finding and sentence imposed without reasonable opportunity to prepare defendant's case, without evidence and without agreed facts – orders quashed Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 25(2) Crimes (Appeal and Review) Act 2001, ss 4, 8(2) 9(2), 9(3), 9(5), 10A Cases Cited: Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) (Plaintiff/First Cross-Defendant) Kevin Swindell (First Defendant/Cross-Claimant) The Local Court of New South Wales (Second Defendant/Second Cross-Defendant) Representation: Counsel: H Langley - Solicitor (Plaintiff) D Woodbury (Defendants) Solicitors: Office of the Director of Public Prosecutions (Plaintiff/First Cross-Defendant) Greg Coombes (First Defendant/Cross-Claimant) Crown Solicitor's Office (Second Defendant/Second Cross-Defendant) File Number(s): 2017/241206 Decision under review Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 23 June 2017 Before: Magistrate P Hayes File Number(s): 2017/00188310 Judgment 1. HIS HONOUR: The Director of Public Prosecution seeks to quash orders made by the Local Court on 23 June 2017. The Local Court purported to convict and/or sentence the first defendant, Mr Swindell and immediately sought to revoke the conviction and/or sentence. The Director of Public Prosecutions (NSW) ("DPP") maintains that the annulment of the conviction and sentence was ultra vires. 2. Further, the first defendant, by cross-summons filed 9 November 2017, applies to the Court for the quashing of the conviction and/or sentence imposed and purportedly annulled. Facts 1. The first defendant and cross-claimant ("Mr Swindell") was charged with certain traffic offences said to have been committed on 8 December 2007. Mr Swindell's guilt or innocence of those charges is not relevant to the judicial review sought by the DPP or by Mr Swindell. 2. The charges were listed before the Local Court (Magistrate Pogson) on 17 March 2008 and, for that purpose, a Court Attendance Notice ("CAN") was allegedly served on Mr Swindell. 3. Mr Swindell did not attend the listing on 17 March 2008. In his absence, Magistrate Pogson found him guilty of the offences and issued a bench warrant for his arrest pursuant to the terms of s 25(2) of the Crimes (Sentencing Procedure) Act 1999. 4. On 23 June 2017, Mr Swindell appeared before his Honour Magistrate Hayes in Dubbo Local Court following the execution of the bench warrant. It is obvious from the foregoing, that this was some nine years after the issuing of the warrant. 5. Between the date the bench warrant issued and the date of Mr Swindell's address, there had been a number of issues involving Mr Swindell's contact with the police and/or the RMS. Mr Swindell is a truck driver. 6. Finally, when he was stopped for a random breath test at Warren, in the State of New South Wales, he was advised of the outstanding warrant, arrested and held in custody overnight. The Magistrate, on 23 June 2017, was therefore dealing with a person who had spent time in prison in circumstances that suggest that the offences with which he was charged could not have resulted in a custodial sentence, but the bench warrant allowed for it. 7. When appearing before Magistrate Hayes on 23 June 2017, the Local Court formally convicted and sentenced Mr Swindell. On that date, Mr Swindell filed, or had filed, an application under s 4 of the Crimes (Appeal and Review) Act 2001, on the grounds that he was not aware of the 2008 court date. Magistrate Hayes granted the application, thereby annulling the conviction and sentence imposed and relisted the matters for hearing in Grafton Local Court. The learned Magistrate also ordered service of the brief of evidence. 8. In the meantime, Mr Swindell has also sought leave to appeal to the District Court against the conviction and sentence imposed on 23 June 2017. 9. At the very outset of the proceedings before Magistrate Hayes, his Honour mentioned that he could impose a penalty and an appeal or revocation could be taken forthwith. Nevertheless, it was necessary for Mr Swindell to apply for a release application (previously called a bail application). 10. In the course of the proceedings, a discussion occurred between the representative of Mr Swindell and his Honour as to the application of s 4 of the Crimes (Appeal and Review) Act. 11. It was clear that his Honour took the view that, if the Local Court were to record the conviction and to impose the sentence, the Court would have available to it the provisions of s 4 of the Crimes (Appeal and Review) Act. Legislation 1. The most relevant legislative provision is s 4 of the Crimes (Appeal and Review) Act, which is in the following terms: "[4] Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held. (1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if: (a) in the case of an application for an annulment of a conviction--the defendant was not in appearance before the Local Court when the conviction was made, or (b) in the case of an application for an annulment of a sentence--the defendant was not in appearance before the Local Court when the sentence was imposed. (1B) A defendant may not make an application for annulment of a conviction or sentence under this section if the defendant had lodged a notice in writing under section 182 of the Criminal Procedure Act 1986 in respect of the offence for which the defendant was convicted or the sentence was imposed. (2) An application under this section must be made: (a) within 2 years after the relevant conviction or sentence is made or imposed, or (b) if an application has been made to the Minister under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part. (3) Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter. (4) An application must be in writing, and must be lodged with a registrar of the Local Court. [4A] Annulment of conviction or sentence on motion by Local Court Without limiting section 4, the Local Court may, on its own motion in the interest of justice, decide to annul a conviction or sentence made or imposed by the Court if the defendant was not in appearance in proceedings before the Court when the conviction or sentence was made or imposed." 1. Otherwise the provisions of the Crimes (Appeal and Review) Act that are relevant are those found in s 8(2), s 9(2), s 9(3) and s 9(5) and in s 10A(1) and (2). Those provisions are in the following terms: "[8] Circumstances in which applications to be granted … (2) The Local Court must grant an application for annulment made by the defendant if it is satisfied: (a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or (b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or (c) that, having regard to the circumstances of the case, it is in the interests of justice to do so. [9] Procedure after decision on annulment of conviction or sentence … (2) If its decision is to annul the relevant conviction or sentence, the Local Court: (a) must deal with the original matter afresh (either immediately or at a later date), and (b) unless it does so immediately, must notify each of the interested parties of the date, time and place fixed for dealing with the original matter. (3) The Local Court is to deal with the original matter as if no conviction or sentence had been previously made or imposed. … (5) In this section, original matter, in relation to a conviction or sentence that has been annulled, means the matter the subject of the proceedings from which the conviction or sentence arose. [10A] Part applies to findings of guilt (1) An application for annulment under this Part , or a decision of the Local Court under section 4A, may be made in relation to a finding of guilt made by the Local Court, whether or not the Court proceeds to conviction, and this Part applies in respect of any such application or decision accordingly. (2) For that purpose: (a) a reference in this Part to a conviction includes a reference to a finding of guilt, and (b) a reference in this Part to a sentence includes any order made under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding a person guilty of an offence." Submissions 1. In short, the DPP, submitted that his Honour Magistrate Hayes lacked jurisdiction to allow the s 4 application ("the Annulment Application"). The argument is relatively simple. On 23 June 2017, Magistrate Hayes noted that Mr Swindell had previously been convicted of the offences, albeit ex parte. The transcript of the 2008 proceedings indicates that Mr Swindell was found guilty and convicted. 2. On 23 June 2017, Mr Swindell was before the Court, personally, and was legally represented. As a consequence, the preconditions for the Annulment Application had not been satisfied and the Local Court on 23 June 2017 did not have jurisdiction to quash the conviction and sentence imposed by it on 23 June 2017, as it was not a default or ex parte hearing. 3. The finding of guilt by Magistrate Pogson in 2008 was outside the limitation period imposed by s 4 of the Crimes (Appeal and Review) Act and the application could not be made validly. Further, the Court had no jurisdiction to grant the application. 4. Mr Swindell concedes that Magistrate Hayes could not have annulled the conviction and sentence imposed on 23 June 2017, because the preconditions for the operation of s 4 of the Crimes (Appeal and Review) Act, were not and could not be, satisfied. Further, Mr Swindell accepts that the provisions of s 10A of the Crimes (Appeal and Review) Act precluded him from making the Annulment Application to Magistrate Hayes and precluded Magistrate Hayes from granting it in relation to the finding of guilt and/or conviction pronounced by Magistrate Pogson in 2008. The provisions of s 10A of the Crimes (Appeal and Review) Act are recited above. 5. The submissions of Mr Swindell, or on his behalf, referred to the transcript of the proceedings before Magistrate Hayes, and argue that the conviction and sentence imposed by Magistrate Hayes was recorded or imposed on the misapprehension that he possessed the jurisdiction to annul them both immediately. Mr Swindell submits that, had Magistrate Hayes been cognisant of the true legal position, he would not have considered this approach and may have considered alternatives both to the recording of the conviction and the sentence that was imposed. 6. Mr Swindell points out that he was sentenced, despite there being no admission of guilt; no proved or agreed facts; and despite the fact that Mr Swindell had no opportunity to provide submissions/material on his behalf. Mr Swindell submits that the entire sentence proceedings miscarried because of the error in relation to s 4 of the Crimes (Appeal and Review) Act and its applicability. 7. Further, Mr Swindell submits the orders sought by the DPP are "unfair", as they will result in Mr Swindell being convicted, sentenced and punished as a consequence of a misapprehension or error of law. In the circumstances of the conviction, Mr Swindell's rights are confined to an appeal to the District Court against conviction and/or severity of sentence, but the Crimes (Appeal and Review) Act does not permit an appeal against the conviction, because of the circumstances in which it was reached and/or recorded. 8. In those circumstances, the Crimes (Appeal and Review) Act would operate as an absurdity, or give effect to an absurdity, according to Mr Swindell's submissions, because the appeal against sentence would occur in circumstances where Mr Swindell denied the offence; there had been no plea of guilty entered; and no evidence adduced to prove guilt. 9. Further, the sentence would have been imposed in circumstances where there were no facts agreed or proved before the Magistrate. The only recourse, in those circumstances, on the submission of Mr Swindell, is that he would have to apply for a conviction review by the Minister, which is a purely administrative act and is inherently uncertain. As a consequence, the Court should make the orders sought in the cross-summons. 10. In reply, the DPP submits that the only jurisdictional error made by the learned Magistrate was the purported annulment and the learned Magistrate was entitled to rely on the finding of guilt. On 23 June 2017, the learned Magistrate had the jurisdiction to proceed to sentence and there was no denial of procedural fairness. In the submission of the DPP, the only capacity for the Local Court to hear the matter afresh, as requested by the cross summons, was by referral from the Minister pursuant to s 5 of the Crimes (Appeal and Review) Act. 11. Further, in relation to the submission of Mr Swindell that the Crimes (Appeal and Review) Act now contains a power for the Local Court to annul convictions, of its own motion, in the interests of justice, that provision (s 4A of the Crimes (Appeal and Review) Act) was intended to alleviate the need for Mr Swindell to make his or her own application for an annulment, in cases of administrative error. 12. Mr Swindell's Annulment Application in the Local Court was incompetent, having been filed in the wrong Court and out of time. 13. The DPP made it clear that the Director would not oppose the District Court granting leave to appeal in relation to Mr Swindell's sentence. Consideration 1. The proposition that s 4 of the Crimes (Appeal and Review) Act was not available to the learned Magistrate is uncontested. The concession by Mr Swindell is both appropriate and commendable. 2. As can be seen from the foregoing recitation of s 4 of the Crimes (Appeal and Review) Act, if the learned Magistrate was seeking to annul a conviction or sentence imposed by the Magistrate on 23 June 2017, the statutory preconditions prescribed by s 4(1A) of the Crimes (Appeal and Review) Act could not be satisfied and the subsection could not be utilised for that purpose. 3. If, on the other hand, the annulment was intended to apply to the finding of guilt and/or conviction by Magistrate Pogson in 2008, then the provisions of s 4(2)(a) render the application out of time. Again, the concession is both appropriate and commendable. 4. It is unnecessary, and therefore inappropriate, for the Court to discuss whether s 4A of the Crimes (Appeal and Review) Act would have been available to the learned Magistrate, if the proceedings before him occurred after 25 September 2017. In the circumstances of this case, on 23 June 2017, the Magistrate did not have available the provisions of s 4A of the Crimes (Appeal and Review) Act. 5. I turn then to the issues associated with the cross summons. It is clear that Mr Swindell and the learned Magistrate proceeded on the basis that s 4 of the Crimes (Appeal and Review) Act was available immediately after the recording of a conviction and the imposition of a sentence. As such, the learned Magistrate proceeded under a misapprehension of the law and legal error is manifest. 6. The legal error that infected the annulment, also infected the recording of the conviction and the imposition of the sentence. The recording of the conviction and the imposition of the sentence were done as part of a procedure whereby they would be imposed and then annulled. That procedure misconceived the powers of the Local Court at the time and the Local Court, with respect to the learned Magistrate, embarked upon a process whereby there was no proper trial or proceeding that had taken place: see, by analogy, Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29. 7. The whole process of the entry of the conviction, the imposition of the sentence and the annulment of each involved a fundamental defect in the procedure before the Local Court. 8. If that were not so, then Mr Swindell has been denied natural justice in that he has not had a reasonable opportunity to prepare and to present his case before the learned Magistrate, at least in relation to sentence. In the absence of facts that are proved or agreed, the learned Magistrate has, for the purpose of achieving justice, proceeded to enter a conviction and sentence in circumstances where there is no evidence of the facts necessary for the purpose of establishing the sentence to be imposed and whether or not the discretion not to record a conviction should be exercised. 9. In those circumstances, there is an error of law in the recording of the conviction and the imposition of the sentence. 10. There is now only one extant order that remains to be dealt with by the Court. That is the order transferring the proceedings to Grafton. That order was made, in a jurisdictional sense, ancillary to the order annulling the conviction and sentence. On its face, it cannot stand. 11. Nevertheless, the Court is not determining that a transfer of the proceedings to Grafton is appropriate or inappropriate. That jurisdiction now exists because of the effective annulment of all of the orders made by the learned Magistrate. Whether the proceeding, once remitted to the Local Court, is heard in Dubbo or in Grafton, is a matter wholly for the Local Court. 12. I have not dealt with the efficaciousness of the finding of guilt or the conviction of Mr Swindell by Magistrate Pogson in 2008. If, as alleged, the CAN was not served and Mr Swindell was unaware of the proceeding, heard in his absence, further remedies may be available. The success or otherwise of such remedies may depend on facts not currently before the Court. Those remedies have not been sought and it is inappropriate to deal further with that issue. 13. For the foregoing reasons, the Court makes the following orders: 1. The order issued by his Honour Magistrate Hayes on 23 June 2017 purporting to annul the first defendant's conviction for the offence of drive vehicle recklessly/furiously or at speed/manner dangerous to the public and for the offence of drive with intent to menace contrary to the provisions of s 42(2) and s 43(1) of the Road Transport (Safety and Traffic Management) Act 1999, respectively, is quashed; 2. The order issued by his Honour Magistrate Hayes on 23 June 2017 annulling the first defendant's concurrent disqualification periods of three years and concurrent sentences to enter into good behaviour bond for 18 months, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 in respect of the offences referred to in order [1] above, is quashed; 3. The recording and entry of convictions, and the imposition of sentences and penalties imposed by his Honour Magistrate Hayes on 23 June 2017 on the first defendant at Dubbo Local Court for the offences referred to in order [1] above is quashed; 4. Proceedings for the first defendant's offences, referred to in order [1] above, is remitted to the Local Court to be dealt with according to law; 5. Each party shall bear its or his own costs. ********** 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. Decision last updated: 02 October 2018