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Court of Criminal Appeal 21 May 2001

R v DOYLE

[2001] NSWCCA 252

Also reported as (2001) 123 A Crim R 151
Fraud & dishonestyTheft & property

Citation: R v Doyle [2001] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 21 May 2001
Judge(s): Spigelman CJ; Hulme J; Howie J

Background

The appellant had pleaded guilty in 1985 to four counts of imposing upon the Commonwealth Department of Social Security by making false representations, using other people's identities to fraudulently claim sickness benefits. A fifth charge of having goods in custody reasonably suspected of being stolen was also before the Court. The original convictions were recorded by a magistrate in February 1985, and on appeal to the District Court the convictions were confirmed, though certain sentencing orders were varied.

In 1996 the appellant sought to appeal the District Court convictions but that application was dismissed as incompetent. He later applied under section 474D of the Crimes Act 1900 (NSW) to have his convictions reviewed. Hulme J, who had been the primary judge in the Supreme Court, referred the convictions and sentences to the Court of Criminal Appeal, forming the view that a doubt or question existed as to the appellant's guilt.

The matter came before the Court of Criminal Appeal as a result of that referral, with the appellant seeking leave to withdraw all of his guilty pleas.

  • Whether Part 13A of the Crimes Act 1900 (NSW), which governs petitions and references for wrongful convictions, applies to summary convictions or only to convictions following trial on indictment.
  • Whether the Court of Criminal Appeal had jurisdiction to deal with the referred matter as an appeal under the Criminal Appeal Act 1912 (NSW).
  • Whether the convictions and sentences should be quashed.

Decision

The Crown argued that sections 474D and 474E of the Crimes Act apply only to convictions arising from indictment proceedings, not to summary convictions before a magistrate or District Court judge sitting on appeal. The Court rejected this argument, following the earlier analysis of Wood CJ at CL in Application of Pearson (1999) 46 NSWLR 148. The answer lay in section 3 of, and the Second Schedule to, the Crimes Act, which direct that the listed provisions apply to all offences in whatever court tried.

Section 474L of the Crimes Act provides that a matter referred under the relevant provisions is to be dealt with as if the convicted person had appealed under the Criminal Appeal Act 1912, and that Act applies "accordingly." The Court held that this language was sufficient to bring the matter within the Court's jurisdiction, even though the Criminal Appeal Act ordinarily operates in relation to indictment proceedings.

Spigelman CJ expressed the view that, even if the Court could not order a new trial in such circumstances, that would not justify narrowly construing the beneficial provisions in Part 13A. Any incapacity to order a retrial could instead be taken into account when exercising the discretion whether to refer or deal with a matter under those provisions. All three judges agreed the Court had jurisdiction and that the appeal should be allowed.

Orders Made

  • The appeal is allowed.
  • The convictions and sentences imposed by the magistrate on 7 February 1985 and by Sudano DCJ on 14 October 1985 are quashed.
  • An earlier order prohibiting or limiting publication of the proceedings is vacated.
  • Subject to further order of the Court, no publication of the evidence or submissions in the proceedings is permitted, except to the extent expressly referred to in the formal reasons.

Key Takeaways

  • Part 13A of the Crimes Act 1900 (NSW), including the petition and referral provisions in sections 474A to 474P, applies to all offences regardless of whether they were tried summarily or on indictment, by operation of section 3 and the Second Schedule to that Act.
  • A referral under section 474E triggers the Court of Criminal Appeal's jurisdiction to deal with the matter as if it were an appeal under the Criminal Appeal Act 1912, with the word "accordingly" in section 474L providing sufficient flexibility to adapt that Act's indictment-specific terminology.
  • The Application of Pearson (1999) 46 NSWLR 148, in which Wood CJ at CL examined and rejected the Crown's narrower construction, was affirmed and followed by the full Court.
  • Where an inability to order a new trial might result from the intersection of Part 13A and the Criminal Appeal Act, that consideration is relevant to the exercise of the discretion whether to deal with the application, rather than a basis for restricting the scope of the beneficial provisions.
  • Convictions arising from guilty pleas entered many years earlier remain amenable to review under Part 13A where a doubt or question as to guilt is identified at the referral stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), Part 13A (ss 474A to 474P), including ss 474C, 474D, 474E, 474L
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7, 8, 12

Cases:
- Application of Pearson (1999) 46 NSWLR 148