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Local Court 13 December 2024

Police v Kumar

[2024] NSWLC 9

Sexual offences
CRIMINAL LAW CHARGE CERTIFICATION EAGP SCHEME ‘ IN THE INTERESTS OF JUSTICE ’ ‘EXCEPTIONAL CIRCUMSTANCES’ ‘SPECIAL CIRCUMSTANCES’

Citation: Police v Kumar [2024] NSWLC 9
Court: NSW Local Court
Date: 13 December 2024
Judge(s): Deputy Chief Magistrate Tsavdaridis

Background

The defendant faced a single charge of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), a strictly indictable offence. The charge was laid on 13 June 2024, and the matter proceeded through the Early Appropriate Guilty Plea (EAGP) Scheme in the Local Court, with a view to committal to the District Court for trial.

The EAGP Scheme requires, among other steps, that the prosecution file and serve a charge certificate within six months of the first return date of the Court Attendance Notice. Over the six months following the charge being laid, the matter was mentioned on eight separate occasions. On each occasion, the brief of evidence was not compliant, with only partial components having been served periodically.

By 12 December 2024, the six-month statutory deadline was imminent. The prosecution advised that the brief was then compliant and applied to extend the time for filing the charge certificate. The defence opposed the extension and sought the defendant's discharge under s 68 of the Criminal Procedure Act 1986 (NSW).

  • Whether the prosecution had established that it was "in the interests of justice" to extend the time for filing the charge certificate beyond the six-month statutory deadline under s 67(3)(b) of the Criminal Procedure Act 1986 (NSW)
  • Whether, in the alternative, the defendant should be discharged under s 68(2)(a) on the prosecution's failure to file the charge certificate within time
  • What matters a Magistrate may properly consider when applying the "interests of justice" test under ss 67 and 68, and how the Attorney-General's second reading speech regarding "exceptional circumstances" bears on that test

Decision

The Deputy Chief Magistrate noted a tension in the statutory framework. Section 67(3)(b) permits a Magistrate to extend the deadline if it is "in the interests of justice," while s 67(4) directs attention to the complexity of the proceedings, without limiting other relevant considerations. The Attorney-General's second reading speech had described the extension power as available only in "exceptional and complex cases," but the court considered that this extrinsic material could not override the plain statutory language.

Applying the Alcan and Consolidated Media Holdings principles of statutory construction, the court found that the words "in the interests of justice" in s 67(3)(b) should be given their ordinary meaning. The second reading speech was relevant context but did not import a freestanding requirement of "exceptional circumstances" where none appeared in the enacted text. Section 67(4) pointed to complexity as a relevant factor, but expressly did not limit what else could be weighed.

The court identified several factors favouring the extension. These included the gravity of the charge, the fact that forensic evidence had only become available to the ODPP on 12 November 2024, the relatively brief extension sought (five days to 17 December 2024), the absence of any prior extension applications in the matter, the compliance of the brief by the time of the hearing, the defendant's continued bail in the community, and the likelihood that refusing the extension would prompt the DPP to proceed by way of ex-officio indictment. The court found that no significant prejudice to the defendant had been established.

Weighing these matters together, the court was satisfied that the extension was in the interests of justice. It also accepted that the proceedings involved sufficient factual and legal complexity, referencing the nature of the forensic evidence in a sexual assault matter, to support that conclusion. The application to discharge the defendant was refused.

Orders Made

  • Time for the prosecution to file a charge certificate extended to 17 December 2024
  • Matter adjourned for reply and charge certification to 17 December 2024
  • Bail to continue
  • Defendant excused if legally represented

Subsequent notation (after reasons were prepared):
- Charge certificate filed in court
- Matter adjourned for reply and case conference mention to 20 February 2025
- Case conference to be held on 30 January 2025
- Bail to continue
- Defendant excused if legally represented

Key Takeaways

  • Under s 67(3)(b) of the Criminal Procedure Act 1986 (NSW), the test for extending the charge certificate deadline is whether it is "in the interests of justice": the Local Court declined to read that test as requiring "exceptional circumstances," notwithstanding language to that effect in the Attorney-General's second reading speech, because the enacted text contained no such qualification.
  • Statutory construction principles drawn from Alcan and Consolidated Media Holdings were applied: extrinsic material such as a second reading speech may inform but cannot override the plain meaning of the enacted words.
  • Section 67(4) identifies the complexity of the proceedings as a specific consideration but expressly does not limit the range of matters a Magistrate may weigh under the interests of justice test.
  • Relevant factors in the court's balancing exercise included the gravity of the charge, the timing of forensic evidence becoming available, the modesty of the extension sought, the absence of prior extensions, the risk of a miscarriage of justice, and the absence of demonstrated prejudice to the defendant.
  • Where an extension is refused and s 68 is engaged, a Magistrate must still consider the interests of justice in deciding whether to discharge the defendant or adjourn the proceedings: discharge is not the automatic consequence of a failure to file within time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), ss 8(2), 66(2)(a), 67, 68
- Director of Public Prosecutions Act 1986 (NSW), s 7(2)(c)
- Interpretation Act 1987 (NSW), s 34
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Cases:
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
- Elwood v Director of Public Prosecutions [2023] NSWSC 772
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
- Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
- Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601
- Issa v The Queen [2017] NSWCCA 188
- Kelly v Motor Accidents Authority (NSW) [2006] NSWSC 1444; (2006) 46 MVR 553
- Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 368