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Supreme Court 6 July 1999

Toufik Omar v DPP

[1999] NSWSC 676 revised - 23

Also reported as 109 A Crim R 454
Theft & propertyTraffic & drivingPublic order & justice offences

Citation: Toufik Omar v DPP [1999] NSWSC 676 revised - 23/12/99; reported at 109 A Crim R 454
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 July 1999
Judge(s): McInerney AJ

Background

A juvenile plaintiff was arrested in late December 1997 and charged with several offences including illegal use of a motor vehicle, goods in custody, dangerous driving, and driving unlicensed. He signed a bail undertaking to appear at Bidura Children's Court on 20 January 1998 but did not attend on that date, nor on two subsequent adjourned dates in February and March 1998.

On each occasion the court continued bail and directed the registry to notify the plaintiff of the next hearing date. Notices of continuance of bail and adjournment were sent to the plaintiff's home address. When the plaintiff failed to appear on 11 March 1998, the Children's Court Magistrate heard the matter in his absence, found the offences proved beyond reasonable doubt, and convicted him.

The plaintiff later applied under section 100A of the Justices Act 1902 to have the convictions annulled, arguing he had not been notified of the adjourned date. That application was dismissed by a second Magistrate, who concluded she had no power to deal with it. The plaintiff then brought proceedings in the Supreme Court seeking declarations that the convictions were invalid and orders quashing them.

  • Whether the Children's Court Magistrate had jurisdiction under section 76 of the Justices Act 1902 to hear and determine the matters in the plaintiff's absence and proceed to conviction.
  • Whether the convictions were validly recorded under the Children (Criminal Proceedings) Act 1987 given the plaintiff was a juvenile.
  • Whether the second Magistrate's refusal to entertain the section 100A annulment application constituted an error of law capable of correction by the Supreme Court.
  • Whether the Supreme Court's consideration of the matter amounted to an abuse of process, in light of the earlier annulment application having been dismissed.

Decision

McInerney AJ held that the Children's Court Magistrate had acted within jurisdiction in proceeding ex parte on 11 March 1998. The informations had been properly laid, which invested the Magistrate with jurisdiction. Once matters had been adjourned and the plaintiff notified of the hearing dates by the relevant notices, section 76 of the Justices Act authorised the Magistrate to hear and determine the proceedings in the plaintiff's absence. The Court relied on the Court of Criminal Appeal's reasoning in R v Hodder, which confirmed that section 76 confers on the court all powers available as if the parties were present, including the power to convict and sentence.

The plaintiff's submission that section 76(2) required the matter to be determined on the exact date to which it was adjourned, and therefore precluded any further adjournment for an ex parte hearing, was rejected. The Court found the adjournments were directed at notifying the plaintiff so that he could attend. The plaintiff's name was called outside the court on the final date, and the matter then proceeded in his absence as contemplated by the legislative scheme.

McInerney AJ expressed considerable difficulty understanding why the second Magistrate had concluded she lacked power under section 100A to deal with the annulment application. Section 100A expressly permits annulment applications in respect of convictions made under section 76. The Court characterised this as a possible error of law but found nothing prevented the plaintiff from seeking correction of that error in the Supreme Court. The abuse of process argument advanced by the DPP was rejected on this basis.

Ultimately, however, the Court concluded that the original convictions were validly made under section 76 and that no basis existed to quash them. The summons was accordingly dismissed.

Orders Made

  • Summons dismissed.

Key Takeaways

  • Under section 76 of the Justices Act 1902 (as it then stood), a Magistrate who has adjourned a matter has power to hear and determine it in the absence of the defendant, including the power to convict and sentence, provided the defendant had been notified of the adjourned date.
  • The Children (Criminal Proceedings) Act 1987 does not prohibit a Children's Court Magistrate from proceeding ex parte; section 12.2A of that Act expressly permits the court to continue proceedings where a child fails to appear without reasonable excuse, even before the required explanations have been given to the child.
  • Laying an information before a Magistrate is sufficient to invest jurisdiction; it is not necessary for the person charged to be present at that point.
  • Section 100A of the Justices Act 1902 expressly extends to convictions made under section 76, and a Magistrate who concludes otherwise commits an error of law susceptible to correction by the Supreme Court.
  • Dismissal of a section 100A annulment application on an erroneous jurisdictional basis does not preclude the convicted person from seeking relief in the Supreme Court; such an application does not constitute an abuse of process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 154A, 527C
- Traffic Act 1909 (NSW), ss 4(1), 6(1)(a)
- Justices Act 1902 (NSW), ss 75, 75A, 75B, 76, 100A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 12, 14, 27
- Public Service Act (NSW)

Cases:
- R v Hodder (1988) 33 A Crim R 295 (Court of Criminal Appeal)
- Ex parte Walker; Re Goodfellow (1944) 45 SR(NSW) 103
- Young v Kenny & Ors, Supreme Court of NSW, unreported, 4 September 1992 (Abadee J)