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District Court 26 August 2024

R v Johnson

[2024] NSWDC 452

Sexual offences
CRIMINAL PROCEDURE JURISDICTION JURISDICTION OF THE LOCAL COURT WARRANTS EX OFFICIO INDICTMENT INTERSTATE PRISONER TRANSFER.

Citation: R v Johnson [2024] NSWDC 452
Court: District Court of New South Wales
Date: 26 August 2024 (judgment published 26 September 2024)
Judge(s): Bennet SC ADCJ

Background

The accused is an interstate prisoner serving sentences imposed by the Victorian County Court in February 2024 for incest offences. His non-parole period does not expire until November 2029. He also faced three charges in New South Wales for comparable offences alleged to have occurred at his NSW property between April and September 2022.

In May 2024, the accused appeared via audiovisual link (AVL) from his Victorian prison to Albury Local Court. He entered guilty pleas to the NSW offences and was committed for sentence to the District Court. No formal notice had been filed to authorise those AVL proceedings, and the arrangements were informal, relying on cooperation from the Victorian prison and the Local Court rather than any statutory framework.

Both the Crown and the accused wanted the NSW proceedings finalised as quickly as possible. To achieve that, they jointly sought orders that would have supported an application to the NSW Attorney General to transfer the accused from Victoria to NSW under the Prisoners (Interstate Transfer) Act 1982 (NSW). The District Court was asked to determine whether the prerequisite steps were legally sound.

  • Whether the guilty pleas entered by the accused via AVL from a Victorian prison, without formal authorisation, were valid under NSW law
  • Whether a detention order under s 22B of the Bail Act 2013 (NSW) could be made following those pleas
  • Whether a warrant for the accused's arrest could be issued (either following the detention application or upon the filing of an ex officio indictment under the Criminal Procedure Act 1986 (NSW))
  • Whether those warrants, if issued, would constitute "arrest warrants" within the meaning of s 5 of the Prisoners (Interstate Transfer) Act 1982 (NSW), thereby founding an application to the Attorney General for interstate transfer

Decision

The court found that the AVL proceedings in which the accused entered his guilty pleas were not conducted according to law. The arrangements were informal and unsupported by any proper notice or statutory authority. Because the plea proceedings were unlawful, the committal for sentence that followed was also invalid, and there was no lawful foundation upon which the Crown's subsequent applications could rest.

Without a valid guilty plea and committal, the Crown's application for a detention order under s 22B of the Bail Act 2013 could not succeed. That provision is enlivened by a conviction arising from a plea of guilty, and the court found the purported pleas did not meet that threshold.

The court also refused the application for an arrest warrant on the same basis. However, the court noted that two potential pathways remained open for generating a valid arrest warrant in the future: the Crown could file an ex officio indictment in the District Court under ss 309 and 310 of the Criminal Procedure Act 1986, or the informant police officer could seek a fresh arrest warrant from the Local Court. Either route, if properly pursued, could produce a warrant qualifying as an "arrest warrant" under s 5 of the Prisoners (Interstate Transfer) Act 1982 and thereby support a future application to the Attorney General.

Because the foundational steps were infected by legal error, the court declined to make any of the orders sought, leaving the parties to consider the available alternative procedures.

Orders Made

  • The Crown's application for a detention order pursuant to s 22B of the Bail Act 2013 was refused.
  • The Crown's application for a warrant for the accused's arrest was refused.

Key Takeaways

  • The District Court held that guilty pleas entered via AVL from an interstate prison, conducted informally without statutory authorisation or proper notice, are not valid under NSW law, and any committal for sentence flowing from those pleas is equally invalid.
  • Under the Prisoners (Interstate Transfer) Act 1982 (NSW), an application to the Attorney General for the transfer of an interstate prisoner requires a valid "arrest warrant" as defined in s 5 of that Act. Where the proceedings underlying the warrant application are themselves unlawful, that statutory gateway is unavailable.
  • A detention order under s 22B of the Bail Act 2013 depends on a valid conviction arising from a guilty plea. An irregular AVL plea that is not conducted according to law cannot trigger that provision.
  • Two alternative pathways were identified by the court as potentially capable of producing a valid arrest warrant: filing an ex officio indictment in the District Court under ss 309 and 310 of the Criminal Procedure Act 1986, or obtaining a fresh warrant from the Local Court through the informant officer.
  • Procedural informality in arranging AVL appearances from interstate custodial facilities carries significant legal risk. The absence of formal notice and proper statutory authority rendered the entire sequence of proceedings from plea to committal a nullity.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), particularly s 22B
- Criminal Procedure Act 1986 (NSW), particularly ss 309 and 310
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Prisoners (Interstate Transfer) Act 1982 (NSW), particularly ss 5, 18 and 19
- Crimes Act 1900 (NSW), s 78A(1)

Cases cited: No cases were cited in the judgment as provided.