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7
Court of Criminal Appeal 28 June 2007

SASTERAWAN v MORRIS

[2007] NSWCCA 185

Also reported as (2007) 69 NSWLR 547
Fraud & dishonestyPublic order & justice offences
CRIMINAL PROCEDURE CRIMINAL PROCEDURE CASE STATED NO POWER TO FIND FACTS FORMULATING QUESTION OF LAW CRIMINAL APPEAL

Citation: Sasterawan v Morris [2007] NSWCCA 185
Court: Court of Criminal Appeal, New South Wales
Date: 28 June 2007
Judge(s): Basten JA; Grove J; Hidden J

Background

The appellant was a licensed taxi driver convicted in the Parramatta Local Court of three offences under s 178BB of the Crimes Act 1900 (NSW), each involving the fraudulent alteration of Cabcharge dockets to claim money. The court attendance notices had been issued not by police, but by an officer of the Ministry of Transport. He was fined $300 per charge.

The appellant appealed to the District Court, where the charges were framed more narrowly than in the Local Court: the District Court proceedings focused on "the publishing of a statement", whereas the Local Court charges had also encompassed "making or publishing" or "concurring in making or publishing" the relevant documents. The District Court dismissed the appeal.

Following that dismissal, the appellant made several procedurally flawed attempts to challenge the outcome, including filing in the wrong court. He eventually obtained a case stated from the District Court judge, though out of time, and sought an extension of time from the Court of Criminal Appeal under s 5B(2) of the Criminal Appeal Act 1912 (NSW).

  • Whether an officer of the Ministry of Transport had authority to commence criminal proceedings in the Local Court by issuing a court attendance notice
  • Whether the District Court had jurisdiction to rehear a prosecution originally instituted by a public officer rather than police
  • Whether the District Court erred by dealing with charges framed differently from those before the Local Court
  • Whether an extension of time should be granted for submission of the case stated, given the appellant's earlier erroneous proceedings in the Court of Appeal

Decision

Authority to prosecute: The Court held that the word "person" in s 14 of the Criminal Procedure Act 1986 (NSW) is not limited to exclude police or public officers. As no restriction exists on who may prosecute offences under s 178BB of the Crimes Act, any person may commence proceedings for such an offence pursuant to s 173 of the Criminal Procedure Act. The Ministry of Transport officer therefore had authority to issue the court attendance notices, and those notices validly commenced proceedings in the Local Court.

District Court jurisdiction: Because the original court attendance notice was validly issued by a public officer under s 173, the District Court's jurisdiction was also validly invoked when the matter came before it on appeal. The Court answered both jurisdiction questions accordingly and found no error in the District Court's acceptance of the proceedings.

Differing charges on appeal: The Court could not examine whether the charges before the District Court truly differed from those before the Local Court, because the manner in which the Local Court had proceeded was a question of fact that Nicholson DCJ had not included in the stated case. A court hearing a stated case has no power to find facts by drawing inferences from transcripts. The Court noted that the District Court's jurisdiction on appeal is limited to the charge as laid in the Local Court, though variations in evidence or particulars remain open. On the facts as stated, the charge in the court attendance notice had been treated by the prosecution as a charge of publishing a statement, and no jurisdictional error was established.

Extension of time: The Court granted the extension of time, noting that the appellant's earlier erroneous filings in the Court of Appeal, while misconceived, were not such as to constitute an abuse of process. Because the questions had not been substantively determined previously, it was appropriate to answer them. No error having been identified in the District Court's judgment, no further relief under s 5B(3) of the Criminal Appeal Act was warranted.

Orders Made

  • Extension of time to submit questions of law to the Court of Criminal Appeal granted (extended to 16 March 2007)
  • Questions in the case stated answered as follows:
  • The court attendance notice validly commenced proceedings in the Local Court, issued by a public officer under s 173 of the Criminal Procedure Act 1986
  • The District Court's jurisdiction was validly invoked by the same court attendance notice
  • The District Court did not lack jurisdiction to hear the charges as the prosecution treated the charge as one of publishing a statement under s 178BB of the Crimes Act 1900

Key Takeaways

  • Under s 173 of the Criminal Procedure Act 1986 (NSW), any person, including a public officer who is not a police officer, may commence criminal proceedings for an offence under s 178BB of the Crimes Act 1900 (NSW), because the concept of "person" in s 14 of that Act carries no restriction excluding such officers.
  • Jurisdiction in the District Court on a criminal appeal is validly invoked where the originating court attendance notice was itself valid, regardless of whether it was issued by police or another public officer.
  • A stated case confers no power on the Court of Criminal Appeal to find facts by reviewing transcripts or drawing factual inferences from prior proceedings: only questions of law as actually stated by the referring judge are available for determination.
  • The District Court's appellate jurisdiction under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is confined to the charge as laid in the Local Court, though variations in evidence or particulars remain available given the rehearing character of such appeals.
  • Erroneous parallel proceedings in the wrong court do not automatically constitute an abuse of process sufficient to defeat an application for extension of time on a stated case, particularly where the substantive questions have not previously been resolved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BB, 338
- Criminal Procedure Act 1986 (NSW), ss 3, 11, 14, 15, 16, 17, 20, 21, 22, 126, 172, 173, 174
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 20
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes and Court Legislation Amendment Act 2006 (NSW), Sch 1 [12]
- Supreme Court Act 1970 (NSW), ss 46, 69
- National Parks and Wildlife Act 1974 (NSW), s 179
- Occupational Health and Safety Act 2000 (NSW), s 106

Cases:
- Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373
- The Queen v Rigby (1956) 100 CLR 146
- Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41
- Johnson v Miller (1937) 59 CLR 467
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
- Robinson v Woolworths Ltd [2005] NSWCCA 426, (2005) 64 NSWLR 612
- Charara v The Queen [2006] NSWCCA 244, (2006) 164 A Crim R 39
- Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76
- Swansson v Regina; Henry v Regina [2007] NSWCCA 67
- R v Janceski (2005) 64 NSWLR 10
- Garrett v Freeman [2006] NSWCCA 278