Citation: Suthers v Director of Public Prosecutions & Anor [2003] NSWSC 570
Court: Supreme Court of New South Wales (Common Law Division)
Date: 26 June 2003
Judge(s): Greg James J
Background
The plaintiff had been convicted in the Local Court of aggravated indecent assault under s 61M(i) of the Crimes Act 1900. He appealed to the Supreme Court under Part 5 of the Justices Act 1902, and in an earlier judgment delivered on 14 August 2002, Greg James J quashed the conviction and sentence. The court found the magistrate had inverted the onus of proof contrary to s 141(1) of the Evidence Act 1995 and had reasoned erroneously about the motivations of witnesses to lie.
This second judgment addressed what further orders should follow from that quashing. The plaintiff sought an acquittal or dismissal of the information. The defendant, the Director of Public Prosecutions, sought remission to the original magistrate for re-hearing.
Legal Issues
- Whether the Supreme Court could, under s 109(a) or s 109(c) of the Justices Act 1902, enter an acquittal or dismiss the information rather than remit the matter
- Whether an analogy could be drawn between s 109 of the Justices Act 1902 and s 8(1) of the Criminal Appeal Act 1912 (which governs retrials after quashed convictions on indictment)
- Whether, if remission was ordered, s 109(d) required remission to the original magistrate
- Whether the original magistrate was "unable to continue" within the meaning of s 114, given the perceived risk of pre-judgment
Decision
On the question of acquittal, Greg James J declined to enter one. The court had not found that there was no evidence or insufficient evidence to support a conviction. The quashing rested solely on legal errors in the magistrate's approach to the evidence, not on a finding that the prosecution case was incapable of succeeding.
The court examined whether the power to make "such other orders as it thinks just" under s 109(c) was wide enough to permit an acquittal in these circumstances. Drawing on the principles underlying s 8(1) of the Criminal Appeal Act 1912 by analogy, the court acknowledged that the two provisions operate in different contexts but share common principles about when a retrial is appropriate. Applying those principles, and noting that the court could not say a further prosecution should not be brought, the court concluded that remission was the correct course.
On the remission question, the court held that s 109(d), read on its face, requires remission to the magistrate who made the original conviction. However, s 114 provides a path to a different magistrate where the original magistrate is "unable to continue." Greg James J found that the original magistrate had already made factual findings which were being set aside, such that a reasonable observer would apprehend a real risk of pre-judgment on retrial. The magistrate was therefore "unable to continue" within the meaning of s 114, and the matter was to be heard by a different magistrate nominated by the Chief Magistrate.
The court expressed considerable reluctance about ordering a re-hearing given the delay since the complaint was laid, the apparent weakness of the prosecution case, and the potential effects of delay on the evidence. The court noted expressly that the Director would need to consider whether to proceed at all, but held that this was entirely the Director's decision to make.
Orders Made
- The matter is remitted to the magistrate who made the original order, with a further order that that magistrate is unable to continue to hear the matter (meaning a different magistrate will be nominated under s 114)
- The defendant is to pay the plaintiff's costs of the Supreme Court proceedings
- The defendant is to pay the costs thrown away by reason of the original Local Court proceedings having been set aside, with those costs to be agreed between the parties
- In the event the matter does not proceed, leave is reserved to the parties to obtain a costs assessment
Key Takeaways
- Section 109(d) of the Justices Act 1902 requires remission to the original magistrate on its face, but s 114 provides that another magistrate is to hear the matter where the original magistrate is "unable to continue."
- A magistrate who has already made factual findings that are subsequently set aside on appeal may be "unable to continue" under s 114, where a fair-minded observer would reasonably apprehend a risk of pre-judgment on retrial.
- The Supreme Court's power under s 109 does not extend to entering an acquittal where the conviction was quashed for legal error in reasoning, rather than for a finding that no sufficient evidence existed to support the conviction.
- Although s 109 of the Justices Act 1902 and s 8(1) of the Criminal Appeal Act 1912 operate differently, the court found they share common underlying principles about when a retrial is appropriate, permitting a degree of analogical reasoning between them.
- Where delay is significant and the prosecution case appears weak, those matters are relevant to the question of whether remission should be ordered, but the ultimate decision whether to proceed with a re-hearing rests with the Director of Public Prosecutions.
Legislation and Cases Referenced
Legislation:
- Justices Act 1902 (NSW), ss 109, 114
- Crimes Act 1900 (NSW), s 61M(i)
- Evidence Act 1995 (NSW), ss 38, 141(1)
- Criminal Appeal Act 1912 (NSW), s 8(1)
- Judiciary Act 1903 (Cth)
Cases:
- Robinson v The Queen (1988-89) 180 CLR 531
- Noble v DPP & Ors (2000) 118 A Crim R 305
- Webb v Hay (1994) 181 CLR 41
- Downes v DPP [2000] NSWSC 1054
- Dyers [2002] HCA 45
- King (1986) 161 CLR 423
- Wilkes (1948) 77 CLR 511
- Parker (1997) 186 CLR 494
- DPP (Nauru) v Fowler (1984) 154 CLR 627
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 75 ALJR 133
- Doggett v The Queen (2001) 75 ALJR 1290
- Regina v WRC [2002] NSWCCA 210