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Supreme Court 28 February 2003

Shephard v Director of Public Prosecutions (NSW)

[2003] NSWSC 83

Also reported as 57 NSWLR 455
Theft & property
CRIMINAL LAW PT 2 DIV 3 SUBSS (18) (27)

Citation: Shephard v Director of Public Prosecutions (NSW) [2003] NSWSC 83
Court: Supreme Court of New South Wales, Common Law Division
Date: 28 February 2003
Judge(s): James J

Background

The appellant was charged with breaking, entering and stealing, together with a back-up charge of goods in custody. When the matter came before the Newtown Local Court on 4 June 2002, the appellant did not appear. The magistrate, who had been told the appellant claimed illness but declined to accept that explanation, proceeded to convict the appellant in his absence under the ex parte provisions of the Justices Act 1902.

The conviction was entered summarily, without the appellant having been informed of his right to elect trial on indictment under Pt 2 Div 3 of the Criminal Procedure Act. The appellant was later arrested and brought before the court. His subsequent application under s 100D of the Justices Act to have the conviction annulled was refused by the same magistrate on 29 August 2002.

The appellant then appealed to the Supreme Court, seeking to quash both the conviction and the order refusing annulment. The Director of Public Prosecutions was substituted as the proper respondent, and the Court granted an extension of time to file the appeal, with the DPP not opposing that extension.

  • Whether breaking, entering and stealing, as an indictable offence, could be dealt with summarily by the Local Court without complying with the election procedure in Pt 2 Div 3 of the Criminal Procedure Act
  • Whether a defendant's failure to appear at a Local Court hearing caused the defendant to forfeit the protections of the election regime under Pt 2 Div 3
  • Whether the magistrate had jurisdiction to convict the appellant in his absence where those statutory requirements had not been satisfied

Decision

James J held that breaking, entering and stealing is an indictable offence that falls within the scheme set out in Pt 2 Div 3 of the Criminal Procedure Act. Under that scheme, the Local Court may only deal with such an offence summarily if the prescribed election procedures have first been carried out. Because those procedures were never followed, the magistrate acted without jurisdiction when convicting the appellant in his absence.

The central question was whether the appellant's failure to appear relieved the Local Court of its obligations under Pt 2 Div 3, particularly the duty under s 25(1) to inform the accused of the right to elect trial on indictment. His Honour rejected the DPP's submission that the opening words of s 25(1) operated to extinguish those obligations when a defendant did not appear. The word "when" in s 25(1), properly read, indicated the timing of the court's obligations rather than a condition that could simply be lost by non-appearance.

James J accepted the principle that clear statutory words are required before a person charged with an indictable offence can be deprived of the protections afforded by the election regime. No such clear words existed in Pt 2 Div 3. On the court's interpretation, where a defendant fails to appear, the proper course is to issue a warrant for arrest and, once the defendant is brought before the court, to then carry out the election procedure before proceeding summarily.

Because the election provisions had never been complied with, the conviction was made without jurisdiction and had to be quashed. The order refusing annulment fell with it.

Orders Made

  • Appeal allowed
  • Conviction of the appellant entered on 4 June 2002 quashed
  • Order of 29 August 2002 refusing annulment of the conviction quashed
  • Proceedings remitted to the Newtown Local Court to be dealt with according to law

Key Takeaways

  • Under Pt 2 Div 3 of the Criminal Procedure Act, a Local Court has no jurisdiction to deal with a listed indictable offence summarily unless the prescribed election procedure has first been completed.
  • A defendant's failure to appear at a Local Court hearing does not, in the absence of clear statutory language, cause the defendant to forfeit the right to be informed of the election right under s 25(1).
  • The word "when" in s 25(1) was construed as directing the timing of the court's obligations, not as creating a condition that could be extinguished by non-attendance.
  • Where an accused person fails to appear and a warrant is issued, the proper statutory course is to bring the person before the court and then comply with the election provisions before proceeding summarily.
  • A conviction entered without jurisdiction is a nullity and must be quashed, along with any subsequent order that depended on the validity of that conviction.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), Pt 2 Div 3 (ss 18 to 27), Schedule 1 Tables 1 and 2
- Justices Act 1902 (NSW), ss 75A to 75F, s 100D, s 100K, s 109(a), Pt 5

Cases
- R v Fisher [2002] NSWCCA 188
- Cowan v The Police (1994) 75 A Crim R 24
- Tassell v Hayes (1987) 163 CLR 34