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Supreme Court 8 September 2022

Abbas Hijazi v Director of Public Prosecutions

[2022] NSWSC 1218

Drugs
APPEALS PROCEDURE LEAVE TO APPEAL REQUIRED LOCAL COURT COMMITTAL PROCEEDINGS ERROR CONCEDED BY CROWN REMITTAL NOT MERELY FORMAL

Citation: Abbas Hijazi v Director of Public Prosecutions [2022] NSWSC 1218
Court: Supreme Court of New South Wales
Date: 8 September 2022
Judge: Button J

Background

The defendant faced a serious drug charge being processed through the Local Court under the committal procedure in the Criminal Procedure Act 1986 (NSW). The matter progressed through the required steps of a charge certificate and a case conference, but no case conference certificate was ever filed.

When the matter came before Magistrate Williams in March 2022, his Honour expressed dissatisfaction with the delay and adjourned for one week, signalling that committal would proceed if the certificate was not filed. When the matter returned before Magistrate Moody, the defendant's solicitor sought an adjournment on the basis that the defendant had been unwell and could not obtain an AVL booking from gaol. Magistrate Moody refused the adjournment and committed the defendant to trial.

The defendant then brought proceedings in the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW), challenging the committal on the ground that neither magistrate had first ascertained whether he wished to plead guilty, as required by s 95(4) of the Criminal Procedure Act.

  • Whether Magistrate Moody erred in law by committing the defendant to trial without first ascertaining whether he pleaded guilty to the offences, as required by s 95(4) of the Criminal Procedure Act 1986 (NSW)
  • Whether the matter should be remitted to the Local Court for committal according to law, rather than simply set aside
  • Whether a separate ground relating to the procedural requirements of s 76 (committal in the absence of a case conference certificate) also warranted determination

Decision

The Crown conceded that Magistrate Moody had failed to comply with s 95(4) of the Criminal Procedure Act, which requires a magistrate to ascertain whether the accused pleads guilty before proceeding to committal. Button J accepted that concession, in line with Yehia J's recent analysis in Coles v Director of Public Prosecutions [2022] NSWSC 960.

Button J emphasised that this requirement is not mere formalism. The Early Appropriate Guilty Plea (EAGP) scheme, introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), sets strict and inflexible cut-off points for guilty plea discounts. Once a defendant is committed to trial without being asked for a plea, the opportunity to obtain the sentencing discount available for a Local Court guilty plea is permanently lost.

His Honour also noted that compliance with s 95(4) does not demand a rigid or ritualistic approach. What is required is a genuine process of ascertainment. The Court of Criminal Appeal's decision in Stuart v R [2022] NSWCCA 182 was cited as reinforcing the importance of magistrates taking care to establish precisely what an accused is and is not pleading guilty to.

On the second contested ground, concerning whether Magistrate Williams's satisfaction under s 76 could effectively be "delegated" to Magistrate Moody, Button J declined to make a formal determination, as both parties consented to that ground being left unresolved. His Honour observed, without deciding, that there is at least a serious argument that the second magistrate would have needed to form her own satisfaction of the s 76 preconditions independently, rather than acting on the first magistrate's earlier conclusion.

Orders Made

  • Leave granted to the plaintiff, with an extension of time, to appeal against Magistrate Moody's committal order of 10 March 2022
  • The committal order of the Central Local Court dated 10 March 2022 was set aside
  • The matter was remitted to the Downing Centre Local Court for committal according to law, with a mention date of 15 September 2022
  • No order as to costs; each party to bear their own costs

Key Takeaways

  • Under s 95(4) of the Criminal Procedure Act 1986 (NSW), a magistrate must ascertain whether an accused person pleads guilty before proceeding to committal. Failure to do so is an error of law that can ground a statutory appeal.
  • The requirement is not purely procedural in character. Because the EAGP scheme applies mandatory and inflexible cut-off points for plea discounts, a committal without first asking for a plea can permanently deprive a defendant of a sentencing benefit that cannot later be recovered.
  • In setting aside the committal, Button J confirmed that remittal to the Local Court was appropriate rather than merely formal, because ongoing negotiations raised the real possibility of a guilty plea being entered with access to the Local Court discount.
  • A question left open on the facts is whether one magistrate's satisfaction of the preconditions under s 76 (committal without a case conference certificate) can be relied upon by a different magistrate who subsequently makes the committal order. Button J observed this raises a serious argument, but expressly declined to decide it.
  • This decision follows and reinforces the approach taken by Yehia J in Coles v Director of Public Prosecutions [2022] NSWSC 960, confirming a consistent line of Supreme Court authority on the s 95(4) obligation.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 67, 70, 74, 76, 95(4)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 53(3), 54(1), 55
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Supreme Court Rules 1970 (NSW), Pt 51B r 5(5)

Cases
- Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960
- Stuart v R [2022] NSWCCA 182