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Supreme Court 10 May 2002

Anson v DPP

[2002] NSWSC 408

Also reported as 129 A Crim R 328
Fraud & dishonesty
CRIMINAL LAW PASSING VALUELESS CHEQUES INTERLOCUTORY ORDER PROCEDURE LEAVE TO APPEAL

Citation: Anson v DPP [2002] NSWSC 408; (2002) 129 A Crim R 328
Court: NSW Supreme Court, Common Law Division
Date: 10 May 2002
Judge(s): O'Keefe J

Background

The plaintiff faced 87 charges of passing valueless cheques under s 178B of the Crimes Act 1900, along with other offences, relating to conduct between October 1998 and August 1999. He had entered pleas of guilty to a number of those charges on the understanding that matters would be dealt with summarily. The prosecution later elected to have the charges dealt with on indictment, prompting the plaintiff to withdraw his guilty pleas.

The plaintiff's defence turned on timing. All charges under s 178B had been laid more than six months after the alleged offences. If the offences were purely summary in nature, s 56 of the Justices Act 1902 would have barred their prosecution entirely. The prosecution countered that the offences were indictable, meaning the six-month limitation did not apply.

On 14 July 2000, the Magistrate ruled that s 178B offences were indictable in character and that s 56 therefore had no application. The plaintiff sought leave to appeal to the Supreme Court and asked the court to declare the offences wholly summary.

  • Whether the Magistrate's ruling was an "interlocutory order" within the meaning of s 104(4) of the Justices Act 1902, making it susceptible to appeal with leave.
  • Whether leave to appeal should be granted.
  • Whether an offence under s 178B of the Crimes Act 1900 is an indictable offence or a wholly summary offence, having regard to the amendments to the Criminal Procedure Act 1986 that took effect on 1 January 2000.

Decision

On the procedural question (interlocutory order and leave to appeal): O'Keefe J found that the Magistrate's determination was an interlocutory order within the meaning of s 104(4) of the Justices Act 1902. The Crown did not oppose the granting of leave once that threshold question was resolved in the plaintiff's favour. Accordingly, leave to appeal was granted.

On the substantive question (nature of the offence): The court examined the relationship between s 8 and s 18 of the Criminal Procedure Act 1986, together with Part 2 of Table 2 to Schedule 1 of that Act. Section 8 provides that offences carrying a penalty of less than two years imprisonment must be dealt with summarily. However, s 18 and the relevant table specifically address offences against property, including s 178B offences, and permit the prosecuting authority to elect to have such offences dealt with on indictment.

O'Keefe J held that s 8 should be read as subject to the more specific provisions in s 18 and the schedule. Read together, the two provisions are not inconsistent: the specific regime for property offences operates as an exception to the general rule in s 8. The result is that the prosecuting authority retains an election as to whether to proceed on indictment or summarily for s 178B charges.

Because the prosecution had elected to proceed on indictment, the Magistrate's conclusion that the charges were indictable was correct in outcome. The court declined to make the declarations sought by the plaintiff and dismissed the balance of the summons. The court also expressly left open the question of whether an initial failure to elect could operate as a negative election, precluding a later positive election, as that argument had not been put before the court.

Orders Made

  • Leave granted to the plaintiff to appeal in respect of the Magistrate's order of 14 July 2000.
  • Summons otherwise dismissed.
  • No order as to costs.

Key Takeaways

  • Offences under s 178B of the Crimes Act 1900 are governed by s 18 and Part 2 of Table 2 to Schedule 1 of the Criminal Procedure Act 1986, not by the general summary-only rule in s 8 of the same Act.
  • Where an apparent conflict exists between a general provision and a specific provision within the same statute, the specific provision operates as an exception to the general rule, allowing both to be reconciled.
  • The prosecuting authority retains an election to proceed on indictment for s 178B charges, meaning the six-month limitation in s 56 of the Justices Act 1902 does not automatically apply.
  • Granting leave to appeal a Magistrate's interlocutory order under s 104(4) of the Justices Act 1902 requires the ruling to be characterised as an "interlocutory order" arising in summary proceedings, a question that remains fact-specific and without a bright-line test.
  • The Supreme Court expressly declined to address whether an initial failure to elect (a so-called "negative election") could prevent a later positive election to proceed on indictment, leaving that question open for future determination.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 178B
- Justices Act 1902 (NSW) ss 56, 104(4)
- Criminal Procedure Act 1986 (NSW) ss 8, 18, Sch 1, Table 2, Part 2
- Criminal Appeal Act 1912 (NSW) s 5F

Cases:
- Regina v Lethlean (1995) 83 A Crim R 197
- Licul v Corney (1976) 50 ALJR 439
- Salter Rex & Co v Gosh (1971) 2 QB 597
- Regina v Powch (1988) 14 NSWLR 136
- Regina v Edelsten (1989) 18 NSWLR 213
- Regina v Steffan (1993) 30 NSWLR 633
- Regina v Bozatsis (1997) A Crim R 296
- Rajski v Wood (1989) 18 NSWLR 512
- Regina v Rogerson (1990) 45 A Crim R 253
- Barton v Walker (1979) 2 NSWLR 740
- Regina v Waterhouse (1992) 62 A Crim R 59
- Attorney General for NSW v Stuart (1994) 34 NSWLR 667
- Regina v Cheng (1999) 48 NSWLR 616
- Port of Melbourne Authority v Anshun Pty Ltd [No 1] (1980) 147 CLR 35
- Regina v Saunders (1994) 72 A Crim R 347