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Court of Criminal Appeal 10 April 2001

Ina Vukic v Denise Edgerton and Rade Cikes

[2001] NSWCCA 2

Public order & justice offences
STATED CASE NO POWER TO STATE CASE APPREHENDED VIOLENCE ORDER NO POWER TO EXTEND AFTER EXPIRY INAPPROPRIATE FORM POWERS ON APPEAL

Citation: Vukic v Edgerton and Cikes [2001] NSWCCA 2
Court: Court of Criminal Appeal, New South Wales
Date: 10 April 2001
Judge(s): Mason P, Dowd J, Austin J (Mason P and Austin J agreeing with Dowd J)

Background

The appellant had consented, without admissions, to two Apprehended Violence Orders (AVOs) being made against her in the Local Court in October 1994. Those orders were expressed to run for eighteen months, expiring on 25 April 1996. Before that expiry, in March 1996, the respondents applied to extend the orders under s 562F of the Crimes Act 1900, and the appellant simultaneously applied to revoke them.

The matter was transferred between courts and adjourned several times, and the hearing did not take place until after the original orders had already expired. On 22 October 1996, a magistrate at the Downing Centre Local Court made fresh ten-year orders in favour of the respondents, treating the extension application as still viable despite the expiry of the original AVOs.

The appellant appealed to the District Court, where Davidson DCJ confirmed the magistrate's orders after a hearing on the merits. The District Court judge then stated a case to the Court of Criminal Appeal on a question of law concerning the Local Court's power to extend an AVO that had already expired by the time the hearing occurred.

  • Whether a magistrate has power under s 562F of the Crimes Act 1900 to extend an AVO after that order has expired by effluxion of time, provided the application for extension was made before expiry.
  • Whether the stated case as framed was an appropriate vehicle for the Court of Criminal Appeal to answer the question posed.
  • Whether the District Court correctly identified the scope of its own appellate jurisdiction and powers under s 125 of the Justices Act 1902.
  • What orders the Court of Criminal Appeal could properly make in lieu of answering the stated case.

Decision

The Court of Criminal Appeal declined to answer the stated case as framed. The question as posed was not in an appropriate form for the Court to resolve, and the Court instead exercised its broader powers to address the underlying errors in both the Local Court and District Court decisions.

The Court found that neither the magistrate nor Davidson DCJ had power to extend the AVOs after they had expired. Once the original orders lapsed on 25 April 1996, there was nothing left to extend. The analogy drawn by Davidson DCJ with civil limitation statutes was rejected: the legislative scheme for AVOs under Part 15A of the Crimes Act did not support such an approach.

The Court also found that Davidson DCJ had erred in his analysis of s 562G of the Crimes Act, which confers original jurisdiction on the District Court only where a Local Court complaint has been dismissed. That provision did not apply here and did not affect the District Court's separate appellate jurisdiction under the Justices Act.

Despite quashing all previous orders, the Court exercised its appellate powers to make a fresh AVO in favour of the respondents on the terms Davidson DCJ had settled, running from the date of the Court of Criminal Appeal's orders until October 2006. This outcome reflected that the underlying factual basis for the orders (harassment established on the evidence) remained sound, even though the procedural path taken by the lower courts had been legally defective.

Orders Made

  1. The Court declined to answer the stated case question as asked.
  2. The order extending the AVO made by Davidson DCJ in the District Court was quashed.
  3. The order extending the AVO made by McDougall LCM in the Local Court was quashed.
  4. The application for variation of the original AVO (dated 19 March 1996) was dismissed.
  5. A fresh AVO, on the terms and conditions settled by Davidson DCJ, was made to operate from the date of the Court of Criminal Appeal's orders until 21 October 2006.
  6. The costs order made by Davidson DCJ was quashed.
  7. The appellant was ordered to pay ninety percent of the respondents' costs of the District Court appeal.
  8. The costs order made by McDougall LCM was quashed.
  9. The respondents were ordered to pay the appellant's costs of the Court of Criminal Appeal appeal.
  10. The respondents were granted a certificate under s 6 of the Suitors Fund Act 1951 as to the costs of the Court of Criminal Appeal appeal.

Key Takeaways

  • Under the AVO scheme in Part 15A of the Crimes Act 1900 as it stood at the relevant time, a magistrate had no power to extend an AVO that had already expired, even where the application for extension was lodged before expiry.
  • The analogy with civil limitation statutes did not assist: the District Court's reasoning that courts have an implied power to extend expired orders by reference to limitation principles was rejected by the Court of Criminal Appeal.
  • Section 562G of the Crimes Act confers original jurisdiction on the District Court only in the specific circumstance where a Local Court complaint has been dismissed; it does not govern the District Court's appellate jurisdiction and does not limit the powers available on appeal under the Justices Act.
  • Notwithstanding the procedural errors below, the Court of Criminal Appeal made a fresh AVO directly rather than remitting the matter, reflecting the court's broad appellate powers and the established evidentiary findings of harassment.
  • A stated case must be framed in an appropriate form for the Court of Criminal Appeal to answer; where it is not, the Court may decline to answer the question while still resolving the substantive dispute through its appellate jurisdiction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), Part 15A (ss 562B, 562F, 562G)
- Justices Act 1902 (NSW), s 125
- Justices Legislation Amendment (Appeals) Act 1998 (NSW)
- Courts Legislation Amendment Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5B(2)
- Suitors Fund Act 1951 (NSW), s 6
- Bail Act 1978 (NSW)
- Limitation Act 1969 (NSW)

Cases:
- Brooke v Clarke & Ors 1 B & Ald 396
- Clarke v Bailey (1993) 30 NSWLR 556
- Craig v South Australia (1994-1995) 184 CLR 163
- Esso Research & Engineering Company v Commissioner for Patents (1959) 102 CLR 347
- R v Clifford [1980] 1 NSWLR 314
- R v Fraser [1977] 2 NSWLR 867
- R v Hodder (1986) 33 A Crim R 235