AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 17 March 2006

KEYS v. WEST

[2006] NSWSC 136

Also reported as 160 A Crim R 535
Fraud & dishonesty
DEFENDANT CONVICTED AFTER EX PARTE HEARING CONVICTION RECORDED ON BENCH SHEET CONVICTION HAD NOT BEEN ANNULLED MEANING OF THE WORD "CONVICTION" WHETHER OR NOT THE ORDER MADE IN THE EX

Citation: Keys v West [2006] NSWSC 136
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 March 2006
Judge(s): Hall J

Background

The defendant was charged with a Social Security Act offence arising from alleged overpayments totalling nearly $40,000. She was personally served with a summons but did not appear. On 31 March 2000, a magistrate at Bankstown Local Court conducted an ex-parte hearing, found the elements of the offence established, recorded a conviction on the bench sheet, and issued a warrant under s 80AA of the Justices Act 1902 (NSW) for her apprehension for sentencing.

The defendant was not apprehended for over three years. When she eventually appeared before Liverpool Local Court on 9 October 2003, the magistrate (Mr Flack LCM) discharged her under s 19B(1)(d) of the Crimes Act 1914 (Cth), upon her entering into an $1,000 recognisance to be of good behaviour for 18 months. By this time, the two-year window for applying to annul the 2000 conviction had closed.

The Commonwealth Director of Public Prosecutions challenged that discharge order, arguing that the 2000 ex-parte conviction was a "conviction" within the meaning of s 19B and therefore barred the magistrate from making the discharge order at all. The CDPP sought to have the discharge set aside and the defendant sentenced on the basis of the earlier conviction.

  • Whether the ex-parte determination made on 31 March 2000 constituted a "conviction" within the meaning of s 19B(1)(d) of the Crimes Act 1914 (Cth).
  • Whether, if that determination was a "conviction" in the relevant sense, the magistrate at Liverpool Local Court lacked power to discharge the defendant under s 19B.
  • Whether the magistrate erred in law in declining to annul the discharge order.

Decision

Hall J dismissed the plaintiff's summons. The central question was what "conviction" means in s 19B. The section empowers a court, where a person is charged with a federal offence, to discharge the person conditionally without recording a conviction, but this power is available only where there has been no prior conviction for the offence in the proceedings.

His Honour drew a distinction between two different senses of the word "conviction." The first sense is a determination that guilt has been established on the evidence. The second, and more legally significant sense, is a final disposition of the proceedings. A conviction in the latter sense requires that the proceedings have been brought to a conclusion by both a finding of guilt and an exercise of the sentencing function.

The 31 March 2000 ex-parte determination, in His Honour's analysis, was of the first kind only. The magistrate at that hearing plainly did not intend to finally dispose of the proceedings: he recorded guilt and then issued a warrant to bring the defendant before a magistrate specifically for the purpose of sentencing. The sentencing stage had never taken place. The proceedings therefore remained on foot and had not been finally disposed of when the defendant appeared in 2003.

Because the 2000 determination was not a "conviction" in the sense required by s 19B, the Liverpool Local Court retained full power to deal with the matter under that provision. The magistrate's decision to discharge the defendant was open to him at law, and no error was established.

Orders Made

  • The summons was dismissed.
  • The plaintiff was ordered to pay the defendant's costs of the proceedings.

Key Takeaways

  • The Supreme Court drew a clear distinction between two senses of "conviction": a determination that guilt has been established, and a final disposition of proceedings that includes sentencing. Only the latter constitutes a "conviction" for the purposes of s 19B(1)(d) of the Crimes Act 1914 (Cth).
  • An ex-parte conviction recorded for the purpose of issuing a warrant for apprehension under s 80AA of the Justices Act 1902 (NSW) does not, of itself, constitute a final conviction within the meaning of s 19B, because the proceedings remain on foot pending sentencing.
  • Where proceedings have not been finally disposed of, the court retains power under s 19B(1)(d) to discharge a defendant conditionally without recording a conviction, even where a prior guilt determination exists on the record.
  • No error of law was established against the magistrate who declined to annul the discharge order, where his reasoning correctly identified that the 2000 recording was not a final conviction for s 19B purposes.
  • The decision turns on its specific procedural and statutory context, particularly the operation of the ex-parte and warrant provisions of the Justices Act 1902 (NSW), and should not be read more broadly than those circumstances warrant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 19B, 20BQ
- Social Security Act 1991 (Cth), s 1350
- Justices Act 1902 (NSW), ss 75A-75F, 80AA
- Crimes (Local Court Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Magistrates Courts Act 1952

Cases:
- Maxwell v The Queen (1995-96) 184 CLR 501
- Griffiths v The Queen (1977) 137 CLR 293
- Cobiac v Liddy (1969) 119 CLR 257
- DPP v Helou [2003] NSWCA 301
- Regina v Holton [2004] NSWCCA 214
- Regina v Stone [2005] NSWCCA 344
- Della Patrona v DPP (Cth) (No 2) (1993) 38 NSWLR 257
- Kinney v Green (1992) 29 NSWLR 137
- Kopuz v District Court of NSW (1992) 28 NSWLR 232
- Dixon v McCarthy (1975) 1 NSWLR 617
- Frodsham v O'Gorman (1979) 1 NSWLR 683
- Saffron v DPP (1989) 16 NSWLR 397
- DPP v McCoid [1988] VR 982
- Regina v Collins (1994) 76 A Crim R 204
- Re Stubbs (1947) 47 SR(NSW) 329
- S v Recorder of Manchester [1971] AC 481
- Burgess v Boetefeur (1844) 7 Man & G 481