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Supreme Court 30 September 2004

Keys v West

[2004] NSWSC 883

Fraud & dishonesty
JOB SEARCH ALLOWANCE NEWSTART ALLOWANCE

Citation: Keys v West [2004] NSWSC 883
Court: Supreme Court of New South Wales
Date: 30 September 2004
Judge(s): Shaw J

Background

The defendant had been convicted in the Local Court in March 2000 of an offence under the Social Security Act 1991 (Cth), namely knowingly obtaining Job Search Allowance and Newstart Allowance when her assets exceeded the allowable limit during the period 1995 to 1999. That conviction was recorded following an ex parte hearing (a hearing at which the defendant was not present). A warrant was later issued and the defendant was apprehended in April 2003.

When the matter returned to the Local Court in October 2003, a magistrate purported to discharge the defendant under s 19B(1)(d) of the Crimes Act 1914 (Cth). That provision allows a court to dismiss a charge or discharge an offender without proceeding to conviction, subject to conditions such as entering into a recognizance and good behaviour. The magistrate required the defendant to enter into a $1,000 recognizance, to be of good behaviour for eighteen months, and to pay court costs.

The plaintiff challenged that order in the Supreme Court, arguing it was unavailable as a matter of law. The core problem was that a conviction had already been recorded in 2000. Discharging the defendant without conviction at that point, in the plaintiff's submission, amounted to impermissibly setting aside the existing conviction.

  • Whether a magistrate has power under s 19B(1)(d) of the Crimes Act 1914 (Cth) to discharge an offender without proceeding to conviction after a conviction has already been recorded.
  • What constitutes a "conviction" for the purposes of these provisions.
  • Whether the magistrate's order amounted to an error of law, and if so, what remedy was appropriate.
  • Whether a ministerial referral pathway under the Justices Act 1902 (NSW) provided a more practical route to resolve the defendant's circumstances.

Decision

Shaw J identified the core question as a short but significant one of law: whether the magistrate had power to discharge the defendant without conviction when a conviction was already on foot. The judge surveyed binding and persuasive authority, including the High Court's statement in Cobiac v Liddy (1969) 119 CLR 257 that announcing a conviction in open court creates a conviction even if no sentence follows, and the Court of Criminal Appeal's 2004 guideline judgment on high-range drink driving, which confirmed that a s 10 discharge (the NSW equivalent) is only available before conviction is recorded.

The judgment also cited McLachlan v Pilgrim [1980] 2 NSWLR 422, which established that an inferior court cannot set aside a conviction absent express statutory authority. Shaw J found the plaintiff's argument compelling: the magistrate's order appeared to operate as if no conviction existed, when one plainly did. If the discharge order was not available as a matter of law, the parties accepted this would constitute an error of law.

Rather than immediately deciding the question on the merits, Shaw J identified a potentially simpler remedy. Section 100G of the Justices Act 1902 (NSW) allowed the defendant to apply to the relevant Minister for a referral of the matter back to the Local Court to review the earlier conviction. Shaw J observed that a ministerial referral would avoid the need to resolve the arcane legal questions that had been argued, and that there appeared to be a formidable discretionary argument for applying s 19B in the defendant's circumstances. He stood the proceedings over to allow the defendant to consider whether to pursue that pathway.

On costs, Shaw J made no order, reasoning that the plaintiff's questions raised genuinely difficult issues of law and that it was in the public interest for them to be determined. He acknowledged this was an unusual exercise of discretion.

Orders Made

  • Proceedings stood over to allow the defendant to consider making an application to the Minister under s 100G of the Justices Act 1902 (NSW).
  • Liberty granted to either party to restore the matter to the Supreme Court list.
  • No order as to costs, on the basis that the proceedings raised difficult questions of law that were in the public interest to determine.

Key Takeaways

  • A discharge without proceeding to conviction under s 19B of the Crimes Act 1914 (Cth) is only available before a conviction has been recorded; once a conviction exists, such an order is arguably not open to the sentencing court as a matter of law.
  • Established authority confirms that a conviction is a determination of guilt that is the act of the court, and its recording creates a legal fact that an inferior court cannot simply ignore or reverse without express statutory authority.
  • Where a Local Court magistrate makes an order that was not available at law, the parties in this case accepted that would amount to an error of law, following Saffron & Allen v Director of Public Prosecutions (1989) 16 NSWLR 397.
  • The ministerial referral mechanism under s 100G of the Justices Act 1902 (NSW) provided an alternative avenue through which a prior conviction could be returned to the Local Court for review, potentially offering a more practical resolution than Supreme Court appellate proceedings.
  • Proceedings may be stood over without final determination, and a no-costs order may be made, where the questions raised are genuinely difficult and their resolution serves the public interest.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth) s 19B
- Social Security Act 1991 (Cth) s 1350
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 10
- Crimes Act 1900 (NSW) s 556A (repealed)
- Justices Act 1902 (NSW) (repealed) ss 75A–75F, 80, 100D–100G
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)

Cases:
- Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act (No. 3 of 2002) [2004] NSWCCA 303
- Cobiac v Liddy (1969) 119 CLR 257
- Maxwell v R (1995) 184 CLR 501
- McLachlan v Pilgrim & Anor [1980] 2 NSWLR 422
- Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257
- Saffron & Allen v Director of Public Prosecutions (1989) 16 NSWLR 397
- Davies v Griffiths [1937] 2 All ER 671
- Dixon v McCarthy [1975] 1 NSWLR 617
- Ex Parte Kelly; Re Teece (1966) 85 WN (Pt 1) (NSW) 151
- Kinney v Green (1992) 29 NSWLR 137
- Mulcahy v Clark [1991] Tas R 115
- R v Judge Crowe; Ex parte Rees (1985) 39 SASR 398
- Re Stubbs (1947) 47 SR (NSW) 329