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Court of Criminal Appeal 22 November 1999

REGINA v LUSCOMBE

[1999] NSWCCA 365

Also reported as (1999) 48 NSWLR 282
Public order & justice offences
CRIMINAL LAW JURISDICTION OF DISTRICT COURT STATUTORY INTERPRETATION "MANNER IN WHICH DEALT WITH" CRIMES ACT S19B

Citation: [1999] NSWCCA 365
Court: NSW Court of Criminal Appeal
Date: 22 November 1999
Judge(s): Spigelman CJ, Dunford J, Adams J

Background

In October 1997, a member of the Greenpeace Movement trespassed on the grounds of Kirribilli House, the Prime Minister's Sydney residence, as part of a protest involving solar panels and signage. The respondent pleaded guilty to the trespass charge at North Sydney Local Court. The magistrate found the charge proved but discharged the respondent without recording a conviction, on the condition he enter into a three-month good behaviour recognisance under s19B of the Crimes Act 1914 (Cth).

The Commonwealth Director of Public Prosecutions (the DPP) appealed to the District Court on grounds of leniency, relying on s131AB of the Justices Act 1902 (NSW). At the outset of that hearing, the respondent raised a preliminary objection that the District Court had no jurisdiction to entertain the appeal.

District Court Judge Dodd ruled that jurisdiction existed but stated a case to the Court of Criminal Appeal, asking whether the District Court could hear and determine the DPP's appeal against a s19B(1)(d) discharge without conviction in summary proceedings brought by the DPP.

  • Whether the District Court has jurisdiction to hear an appeal by the DPP against a magistrate's order discharging a defendant without conviction under s19B(1)(d) of the Crimes Act 1914 (Cth).
  • Whether an order under s19B(1)(d) constitutes a "sentence" for the purposes of s131AB of the Justices Act 1902 (NSW), and whether the DPP can appeal on that basis.
  • Whether s19B(3)(b) of the Crimes Act confers on the Crown a right of appeal that extends not only to the conditions of the recognisance but also to the magistrate's finding of inexpediency and the decision not to record a conviction.
  • How ss39 and 68 of the Judiciary Act 1903 (Cth) operate to pick up State appellate procedures for Commonwealth offence proceedings.

Decision

The Court answered the stated question "Yes": the District Court has jurisdiction to hear the DPP's appeal. The Court rejected the respondent's proposed narrow construction, which would have limited any appeal to the conditions of the recognisance and excluded review of the underlying finding of inexpediency or the decision not to enter a conviction.

The Court found that s19B(3)(b) creates, for the Crown, the same rights of appeal that would exist had there been a formal conviction and sentence. A finding that the charge is proved beyond reasonable doubt is a finding of guilt, and that finding cannot be equated with an acquittal merely because the court deferred entering a formal conviction. The decision not to record a conviction, and the finding that punishment was inexpedient, both fall within the natural and ordinary meaning of the "manner in which the offender is dealt with," and are therefore within the scope of the Crown's right of appeal.

As to the jurisdictional mechanism, s19B(3)(b) picks up existing State rights of appeal through s39(2) of the Judiciary Act. The discharge order constitutes a "sentence" within the natural and ordinary meaning of that word, bringing it within the District Court's existing jurisdiction to hear sentence appeals under s131AB of the Justices Act. The prior decision in Cobiac v Liddy (1969) 119 CLR 257 was considered but did not produce a contrary result.

The Court also made two observations on an obiter basis. First, the words "trial or conviction" in s68(1)(d) and (2) of the Judiciary Act are not restricted to trial on indictment. Second, the procedure created by s131AB of the Justices Act constitutes an "appeal" within the meaning of s68(2), though the precise scope of jurisdiction on appeals from s19B orders was left for determination on another occasion.

Orders Made

  • The stated question was answered "Yes."
  • The case was remitted to the District Court to be dealt with according to law.

Key Takeaways

  • A magistrate's order discharging an offender without conviction under s19B(1)(d) of the Crimes Act 1914 (Cth) constitutes a "sentence" within the natural and ordinary meaning of that word, conferring jurisdiction on the District Court to hear a DPP sentence appeal under s131AB of the Justices Act 1902 (NSW).
  • Section 19B(3)(b) of the Crimes Act gives the Crown appeal rights co-extensive with those that would arise on a formal conviction and sentence, including the right to challenge the finding of inexpediency and the decision not to record a conviction.
  • A court's finding that a charge is proved beyond reasonable doubt is a finding of guilt. That finding is not equivalent to an acquittal simply because the formality of entering a conviction was withheld under the s19B regime.
  • Under s39(2) of the Judiciary Act 1903 (Cth), s19B(3)(b) operates by invoking applicable State laws as the mechanism for exercising appeal rights in proceedings for Commonwealth offences.
  • The Court of Criminal Appeal left open the precise scope of the District Court's jurisdiction on hearing such an appeal, noting that the issue of how far the court could go in reconsidering conditions, conviction, and punishment was not fully argued and was better resolved when squarely raised.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 19B, 89
- Judiciary Act 1903 (Cth), ss 39, 68
- Justices Act 1902 (NSW), ss 131AA, 131AB
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes Act 1900 (NSW), s 556A
- Crimes Amendment Act 1982 (Cth)
- Criminal Appeal (Crimes) Amendment Act 1979 (NSW)
- Justices (Appeals) Amendment Act 1988 (NSW)
- Justices Legislation Amendment (Appeals) Act 1998 (NSW)

Key Cases
- Cobiac v Liddy (1969) 119 CLR 257
- Goward v The Commonwealth (1957) 97 CLR 355
- R v Murphy (1985) 158 CLR 596
- Peel v The Queen (1971) 125 CLR 447
- Williams v The King [No 2] (1934) 50 CLR 551
- Rohde v Director of Public Prosecutions (1986) 161 CLR 119
- Bropho v Western Australia (1990) 171 CLR 1
- R v Snow (1915) 20 CLR 315
- Application of Pearson (1999) 46 NSWLR 148
- R v On Clinic Australia Pty Limited (unreported, NSWCCA, 6 November 1996)
- Griffiths v R (1976-1977) 137 CLR 293
- R v Ingraessia (1997) 41 NSWLR 447