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Supreme Court 1 July 2013

Hammond v DPP

[2013] NSWSC 888

Public order & justice offences
APPEAL CONVICTION APPEAL ERROR OF LAW MEANING OF "FIRST RETURN DATE" AMENDED SUMMONS DISMISSED

Citation: Hammond v DPP [2013] NSWSC 888
Court: Supreme Court of New South Wales
Date: 1 July 2013
Judge: Latham J

Background

The plaintiff had been taken to Dubbo Local Court on Sunday 26 February 2012 on a charge of breaching an apprehended violence order. A registrar granted him conditional bail and adjourned the proceedings to 29 February 2012 for mention. The bail undertaking expressly required him to appear at Dubbo Local Court on that date at 9:30 am.

The plaintiff did not attend on 29 February 2012. His legal representative from the Aboriginal Legal Service was present and asked the magistrate to adjourn the matter to Wellington, where the plaintiff lived and where he had other proceedings listed for 9 March. The magistrate declined to adjourn and, after brief submissions, proceeded to hear and determine the matter in the plaintiff's absence, convicting him of the AVO breach.

The plaintiff appealed to the Supreme Court by amended summons, arguing that the magistrate had no power under s 196 of the Criminal Procedure Act 1986 to convict him on 29 February because that date was a mention date, not a nominated hearing date.

  • Whether a magistrate has power under s 196 of the Criminal Procedure Act 1986 to convict an absent defendant on what was listed as a mention date, rather than a separately set hearing date.
  • Whether the "first return date" under s 190(3) of the Act permitted the court to proceed to a full hearing and determination in the absence of an accused person on that date.
  • Whether the magistrate's decision to proceed denied the plaintiff procedural fairness, given that he had not received a letter from his solicitors alerting him to the date.

Decision

Latham J dismissed the amended summons, finding no error of law in the magistrate's decision to convict the plaintiff in his absence on 29 February 2012.

Her Honour held that the 29 February date was the "first return date" within the meaning of s 190 of the Act, because the earlier appearance on 26 February was before the registrar rather than before the court in summary proceedings. Section 190(3) expressly empowers the court to proceed to hear and determine a matter on the first return date if the accused person is absent and has not lodged a written not-guilty plea. That power is not negated by the fact that the matter was listed for mention rather than for a full hearing.

Section 196(3) requires only that the accused person have received reasonable notice of the first return date or the hearing date before the court proceeds in absence. The bail undertaking signed by the plaintiff on 26 February expressly recorded his obligation to appear on 29 February at 9:30 am at Dubbo. The plaintiff therefore had ample notice, and the failure of the ALS to send a follow-up letter before that date was irrelevant to the question of reasonable notice.

Her Honour found that the magistrate's exercise of discretion under s 190(3) disclosed no appealable error under the House v The King standard. The magistrate was aware the matter was listed for mention, took relevant considerations into account, including the plaintiff's existing bail obligation to attend that day, and was entitled to proceed as he did.

Orders Made

  • The amended summons was dismissed.

Key Takeaways

  • Under s 190(3) of the Criminal Procedure Act 1986, the court holds a discretion to hear and determine a summary matter in the absence of an accused person on the first return date, provided the conditions for exercising that discretion are satisfied.
  • The Supreme Court confirmed that a "first return date" is the first occasion on which the matter comes before the court in summary proceedings. An appearance before a registrar to obtain bail does not constitute the first return date for this purpose.
  • Where an accused person signs a bail undertaking that specifies a court attendance date and time, that undertaking can itself constitute reasonable notice of the hearing under s 196(3), independent of any subsequent correspondence from their legal representatives.
  • No denial of procedural fairness arises from proceeding to conviction in absence when the legislature has clearly expressed an intention to streamline summary proceedings and the accused had adequate notice of the court date.
  • In dismissing the appeal, the Court emphasised that the listed nature of the date as a "mention" may be a relevant factor in the exercise of discretion, but it does not operate as a legal bar to proceeding to a hearing and determination under s 190(3).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 190, 192–200, 202
- Australian Human Rights Commission Act 1986 (Cth)

Cases
- Coco v R [1994] 179 CLR 427
- DPP v Yeo [2008] NSWSC 953
- House v The King [1936] HCA 40; 55 CLR 499
- Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330
- R v Alexandroaia [1995] NSWCCA (7 July 1995)
- Watts v Bendigo and Adelaide Bank Ltd (No. 3) [2011] FCA 186