Citation: JD v DPP [1999] NSWSC 878
Court: Supreme Court of New South Wales, Common Law Division
Date: 2 September 1999
Judge(s): Hidden J
Background
The plaintiff was charged with serious sexual offences against his young daughter. Committal proceedings were listed for hearing in the Local Court in July 1998, and because of the nature of the charges and the complainant's identity, the Supreme Court had already ordered the plaintiff's name not be published.
When the matter came before the magistrate, the solicitor for the Director of Public Prosecutions (DPP) sought leave to withdraw the informations. The magistrate asked senior counsel for the plaintiff whether he objected. Counsel's reply was ambiguous, but the magistrate understood it as consent to the withdrawal. The magistrate noted the matters as "withdrawn and dismissed."
Later that day, on replaying the tape recording of the exchange, the magistrate concluded that senior counsel had in fact only consented to the defendant being "discharged," not to the informations being withdrawn. The magistrate rescinded the earlier order, the DPP then offered no evidence, and the plaintiff was formally discharged. When the plaintiff applied for costs, the magistrate declined, relying on the restrictions in s 41A(2A) of the Justices Act 1902. The plaintiff sought declaratory and other relief in the Supreme Court.
Legal Issues
- Whether the magistrate was functus officio (that is, legally spent and without further power to act) after making the initial order that the informations be withdrawn and dismissed, such that no subsequent order, including an order for costs, was available.
- Whether the original order was a nullity, such that the magistrate retained power to rescind it and make a later discharge order.
- Whether the proceedings were committal proceedings for the purposes of the costs jurisdiction under s 41A of the Justices Act 1902.
- Whether the magistrate had power to award costs following the discharge of the defendant.
Decision
The DPP argued that once the magistrate had recorded the withdrawal and dismissal of the informations, he was functus officio: his authority over the matter had ended. On this view, the subsequent order discharging the plaintiff was made without power, and no costs order could follow from it. The DPP maintained this position even conceding that the original order had been made under a misapprehension about the plaintiff's consent.
Hidden J examined the authorities on when a magistrate becomes functus officio, noting that proceedings can remain open to revision where they are a nullity, such as where a defendant has been denied natural justice. His Honour observed that the magistrate had made the original order under a clear misapprehension that the plaintiff consented to the withdrawal course. Had the magistrate understood there was no consent, he would have invited submissions from the plaintiff's counsel before deciding whether to permit withdrawal, and likely would have refused it.
His Honour was not prepared to hold that the magistrate was functus officio when he recorded the withdrawal and dismissal. The misapprehension meant the plaintiff was, in a real sense, denied the opportunity to be heard on that question, albeit through no fault of the magistrate. The later order discharging the plaintiff was therefore not to be treated as made without power. The proceedings in the Supreme Court were to be determined on their merits.
On the question of costs jurisdiction, Hidden J confirmed that the proceedings were committal proceedings (not a summary hearing), bringing them within s 41A of the Justices Act. The power to award costs under that provision arises where a magistrate makes an order discharging a defendant. That the DPP offered no evidence only after the magistrate announced his intention to rescind the earlier order did not undermine this conclusion. The judgment, however, reserved the question of whether the magistrate's exercise of discretion in refusing costs was correct, directing that the parties should have the opportunity to develop their written submissions in oral argument.
Orders Made
• The proceedings in this Court must be determined on their merits, with the parties to have the opportunity to develop oral argument.
Key Takeaways
- A magistrate who makes an order under a misapprehension that a party has consented to a particular procedural course may not be functus officio, particularly where that misapprehension effectively denied the other party the opportunity to be heard.
- The functus officio doctrine does not operate inflexibly: where proceedings may be characterised as a nullity, including arguably where natural justice was not afforded, a magistrate may retain power to act notwithstanding an earlier order.
- Whether proceedings are committal proceedings, rather than summary proceedings, is material to the costs jurisdiction under s 41A of the Justices Act 1902. The distinction turns on whether the charge reached committal by election of a party, rather than by the court's discretion.
- Under s 41A(1)(a) of the Justices Act 1902, the power to award costs in favour of a defendant arises upon an order discharging that defendant as to the information then under inquiry.
- Ambiguous exchanges on the transcript, particularly where counsel's words could support more than one procedural outcome, can create significant difficulties about what course was consented to and whether any resulting order stands.
Legislation and Cases Referenced
Legislation:
- Justices Act 1902 (NSW), including ss 41, 41A, 41A(2A)
- Crimes Act 1900 (NSW), ss 495, 497
- Criminal Procedure Act 1986 (NSW), Part 9A, s 33C(1)
Cases:
- R v Essex Justices; Ex parte Final [1962] 3 All ER 924
- Ex parte Kelly; Re Teece (1966) 85 WN(NSW) 151
- Thomas v Bell (1989) 42 A Crim R 318
- Reg v Phipps; Ex parte Alton [1964] 2 QB 420
- Dargin v Simpson (Studdert J, SC of NSW, unreported, 24 September 1990; affirmed Court of Appeal, unreported, 7 February 1992)
- Lay v Cleary (James J, SC of NSW, unreported, 23 February 1993)