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7
Supreme Court 28 April 2006

Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited

[2006] NSWSC 343

Also reported as (2006) 67 NSWLR 402
Fraud & dishonesty
CRIMINAL LAW HAND DEALERS REGULATION 2003 CHARGES DISMISSED IN LOCAL COURT MEANING OF "ENSURE" ERROR OF LAW ESTABLISHED MATTERS REMITTED TO LOCAL COURT

Citation: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343
Court: Supreme Court of New South Wales
Date: 28 April 2006
Judge(s): Johnson J

Background

A licensed pawnbroker and second-hand dealer operating in Wollongong faced 43 charges under the Pawnbrokers and Second-Hand Dealers Act 1996 (NSW) and the Pawnbrokers and Second-Hand Dealers Regulation 2003 (NSW). Of those charges, five related to the licensee's alleged failure to ensure that a tag, label, or attachment bearing a contract number or stock number was affixed to items taken in trade or pawn, as required by clause 18A(1) of the Regulation.

At the Wollongong Local Court, a magistrate heard the matter over five sitting days, found 14 of the 43 charges proved, and dismissed the remaining charges including the five clause 18A charges. The Director of Public Prosecutions (DPP) then appealed the dismissal of those five charges to the Supreme Court.

The appeal was brought under s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001, which permits a prosecutor to appeal only on a ground involving a question of law alone. The licensee contested the appeal, arguing the grounds raised questions of fact or mixed fact and law, and filed a notice of contention seeking affirmation of the magistrate's decision on alternative grounds.

  • Whether the DPP's appeal raised a question of law alone, as required by s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001, or instead raised questions of fact or mixed fact and law.
  • What the nature and scope of the obligation imposed on a licensee by clause 18A(1) of the Pawnbrokers and Second-Hand Dealers Regulation 2003 is, particularly the meaning of "ensure."
  • At what point in time a licensee must affix the required tag, label, or attachment to an item taken in trade or pawn.
  • Whether the magistrate was obliged to give reasons for dismissing the criminal charges, and whether the failure to do so constituted an error of law.

Decision

Johnson J held that the appeal did raise a question of law alone, specifically the proper construction of clause 18A(1) and the meaning of the word "ensure" within that provision. The question of what the regulation required, and when the obligation was to be discharged, was a legal question amenable to Supreme Court review, not merely a factual finding about what the licensee did or did not do.

On the construction of clause 18A, the Court held that the word "ensure" imposes a strict and positive obligation on the licensee. The licensee must take steps to bring about the result that a tag, label, or attachment bearing the relevant number is affixed to each item. The Court concluded that this obligation arises promptly after the tag or label is created at or around the time of the item's purchase, and does not permit indefinite delay in compliance.

The Court also found that the magistrate erred in law by failing to provide adequate reasons for dismissing the five charges. A magistrate in criminal proceedings has an obligation to give reasons, and the absence of adequate reasoning constituted an error of law. That error, combined with the misapprehension of the legal obligation under clause 18A, provided independent grounds for allowing the appeal.

Johnson J declined to make additional declarations sought in the summons, considering that setting aside the dismissals and remitting the matter was sufficient. Costs were awarded to the DPP, reflecting that the DPP had succeeded entirely on the appeal.

Orders Made

  • The appeal was allowed.
  • The order made at Wollongong Local Court on 2 September 2005 dismissing five charges against the licensee under clause 18A(1) of the Pawnbrokers and Second-Hand Dealers Regulation 2003 was set aside.
  • The proceedings were remitted to the Wollongong Local Court to be heard and determined according to law.
  • The licensee was ordered to pay the DPP's costs of the appeal, with a certificate granted under s 6 of the Suitors' Fund Act 1951 if the licensee was eligible.

Key Takeaways

  • Clause 18A(1) of the Pawnbrokers and Second-Hand Dealers Regulation 2003 imposes a strict positive obligation: the licensee must bring about the result that each item taken in trade or pawn has the required identifying tag, label, or attachment affixed to it promptly after the relevant number is created at or around the time of purchase.
  • The meaning of "ensure" in a regulatory provision is a question of statutory construction, and therefore a question of law. A DPP appeal confined to that construction issue meets the "question of law alone" threshold under s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001.
  • A magistrate in criminal proceedings is obliged to give reasons for dismissing charges. Failure to provide adequate reasons constitutes an error of law capable of grounding an appeal.
  • Under s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001, the distinction between a question of law alone and a question of mixed fact and law is critical to the prosecutor's right of appeal. This decision confirms that statutory construction of a regulatory provision falls on the law side of that line.
  • Where a prosecutor succeeds entirely on a law-only appeal, costs will ordinarily follow the event, even where the underlying proceedings arose from a regulatory context and no intentional illegality was found by the original tribunal.

Legislation and Cases Referenced

Legislation:
- Pawnbrokers and Second-Hand Dealers Act 1996 (NSW)
- Pawnbrokers and Second-Hand Dealers Regulation 2003 (NSW), clause 18A
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 56, 59
- Director of Public Prosecutions Act 1986 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Interpretation Act 1987 (NSW)
- Suitors' Fund Act 1951 (NSW)

Key Cases:
- Acuthan v Coates (1986) 6 NSWLR 472
- Colosimo v Director of Public Prosecutions (2005) 155 A Crim R 573
- Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Palgo Holdings Pty Limited v Gowans (2005) 221 CLR 249
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Pettitt v Dunkley (1971) 1 NSWLR 376
- Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113
- Director of Public Prosecutions v Belani [2005] NSWSC 1013
- Sood v R [2006] NSWCCA 114
- R v Thompson (2005) 156 A Crim R 467
- Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378