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By Andrew Haesler SC
Deputy Senior Public Defender
August 2005
We have all had them: The client who takes one look at his solicitor (you) and says: 'if you lose, I'll appeal'. The comment is often more colourful:' if that [expletive] Magistrate gaols me, I'll [expletive] appeal'.
We put on our best, firm but caring voice, and say: ' Well, a successful appeal is not automatic, whether we appeal or not will have to be reviewed - after the hearing!' In the back of our minds however (given the notorious propensity of some Magistrates to convict) we are already preparing our submissions to the District Court.
Less common, but no less real, is the reaction from the solicitors themselves to a particularly appalling error from a Magistrate. There, to the question: 'Should we appeal' often comes the solicitor's exasperated, and far from caring comment:' Of course we'll [expletive] [expletive] appeal !'
What do we do then? For the moment let your imagination wander to your march down the steps of the High Court after a successful appeal. Your name, if not in lights, in the Law Reports. The dinner afterwards at the fashionable restaurant with you quoting interminably Gleeson CJ's remarks as to how the learned Magistrate's egregious error requires correction so the ' prisoner can go free'.
Now let's not get too carried away, but at the same time I don't want to dispel the dream. The Legal Aid Commission has either run or funded a long line of successful Supreme Court Appeals. Master the techniques and wrong and unlawful decisions of courts, tribunals and other bodies who act contrary to a person's legal rights can be remedied.
Here is your opportunity to make an impact. Successful appeals can arise from seemingly unpromising beginnings. I learnt a lesson not to dismiss or trivialise the remedy when I helped restore a prisoner's tobacco ration, wrongly taken from him as a disciplinary measure, see Maybury v Osbourne (1983) 13 A Crim R 180.
The prisoners did 'go free' after Smith v Corrective Services Commission (1980) 147 CLR 134. Sometimes we get new law. Reichuaer v Knoblanche (1987) 10 NSWLR 40 and Parker v DPP (1992) 28 NSWLR 282 put a stop to District Court Judges on Appeal arbitrarily increasing sentences. Meller v Low [2000] NSWSC 75 narrowed the scope of s 60(1) of the Crimes Act.
More recently the LAC has had some success in restricting the taking of forensic samples (see Orban v Bayliss [2004] NSWSC 428 and John Stratton's paper to this Conference. But there have also been failures as with L v Lyons & Another; B and S v Lyons & Another (2002) 56 NSWLR 600 Jawansher v Johnson LCM [2004] NSWSC 872).
In Lawrence v Commissioner of Police [2005] NSWSC a comment in chambers by a Magistrate that a young man should be charged lead to the Magistrates disqualification for apparent bias from hearing other charges against the young man.
In Minister for Community Services v Children's Court & Another (Nayda) [2005] NSWSC 154 the power of the Court to put as a condition of a bond that she reside as directed by the Department of Community Services was within power as it imposed no obligations on the Department.
Notes of caution: Sometimes, we get a taste of victory, only to have it followed by an immediate and draconian change to the law. In R v El Azzri a successful appeal against the arbitrary moving of young prisoners from Juvenile Centres to gaol, was followed by an immediate change to section 19 of the Children (Criminal Procedure) Act 1986. It is now much more difficult for juveniles convicted of serious children's indictable offences to spend their time in a juvenile institution after they turn 18.
Remember, the DPP have a right to appeal too!
In this paper I propose to deal with some of the practical problems that can arise with getting an appeal to the Supreme Court either using Sections 65. 69 and 75 of the Supreme Court Act or the Crimes (Local Courts Appeal and Review) Act 2001. This paper is not intended to a learned exposition on the law relating to appeals nor on how to conduct them once you get to court. Annotations to the relevant law are set out in Howie & Johnson Criminal Practice and Procedure in NSW and Ritchie's Uniform Civil Procedure NSW.
So how do we go about correcting error and making law?
There is a well recognised and familiar route of appeal to the District Court in Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001, why would anyone bother to take the extra trouble, time, effort and risk of an adverse cost order, by going to the Supreme Court?
There are three principle reasons for considering a Supreme Court Appeal.
Section 43 of the Crimes (Sentencing Procedure) Act 1999 allows the sentencing court to reopen proceedings to correct sentencing errors, where the law has been misapplied or error made. Examples include; failure to consider the fixing of non-parole periods or giving the benefit of time served or incorrect dates when sentences are accumulated or even imposing more than the maximum penalty. A summary of the necessary procedures and legal principles involved can be found in Erceg v District Court of NSW [2003] NSWCA 379 and Ho v DPP (1995) 37 NSWLR 393.
If the dispute is about the facts, witnesses' credibility or involves the misapplication or misinterpretation of well-settled law the District Court provides a simpler and more appropriate venue for appeal. It is cheaper, easier and there is no risk of creating 'bad law' or receiving an adverse costs order.
The principle risks are:
Costs as in all Supreme Court proceedings follow the result. If you lose your client is obliged to pay up. The fact the matter is run by the Commission does not necessarily protect your client from an adverse costs order (Section 47 Legal Aid Commission Act 1979 requires careful reading). In any event the Commission would much rather pay you than pay costs. Sometimes prior arrangement can be made with the DPP or the Crown Solicitors that each party bear its own cost. This is more likely if the mater is of some public importance or if the Commission has come in to the matter in order that a party be represented in order to properly resolve a particular issue of law. You cannot however depend on this happening.
Do not be discouraged by the threat of costs - if you have a good case. If you win the Commission's cost will be paid. I'm told for the last year or so the Commission has come out ahead.
We can take two routes; using either the Supreme Court Act, principally sections 65, 69 or 75 or Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001.
The two routes are not mutually exclusive. See Hargrave v Slater (2000) 113 A Crim R 371 and ASIC v Farley [2001] NSWSC 326. However the Court of Appeal in Meagher v Stephenson (1993) 30 NSWLR 736 struck out as an abuse of process a claim made both as an appeal and for prerogative relief.
It is preferable therefor that appeals to be based either on the Supreme Court Act or Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001. Sometimes however it inevitable that reliance will be placed on both, particularly, if the remedies you seek require both orders and declarations.
Generally however, one or the other is chosen. Given the breadth of the orders available in section 55, the Crimes (Local Courts Appeal and Review) Act 2001 is to be preferred. Be careful however, the leave provisions can be problematic; as is the requirement for the appeal to be lodged within 28 days. In addition, section 55 does not allow for declaratory relief.
There is a rule that the statutory appeal process be followed rather than reliance on relief in the nature of a prerogative writ. That there is an appropriate avenue of appeal is a ground for refusing relief (See Ritchie Uniform Civil Procedure NSW at [s69.45] for collected authorities). However, again, there is a way around any complaint. It is for the court to decide the appropriate form of relief. As Sperling J said in ASIC v Farley (2001) 51 NSWLR 494:
'[Although] an appeal pursuant to s 104 would have been preferable... the day has passed when rights were lost because of the form of proceedings'.
In that case, ASIC were out of time to appeal and they were not precluded from using their s69 Supreme Court Act remedies.
Section 69 of the Supreme Court Act allows the Court to make orders in the nature of the old prerogative writs - prohibition, mandamus and certiorari
Prohibition is an order forbidding an inferior tribunal from continuing in excess of jurisdiction or contrary to law. Orders in the nature of Prohibition can enable relief if the Tribunal below has exceeded it's jurisdiction, wrongly applied or directed itself as to the law or denied a party procedural fairness.
Certiorari is an order directed to an inferior court requiring the record of the proceedings to be brought to the higher court so that error of law or excess or failure of jurisdiction can be corrected. Orders in the nature of Certiorari allow for the record of the Tribunal below to be brought up and corrected to allow relief from excess of jurisdiction, denial of procedural fairness or error on the face of the record. At common law 'error on the face of the record' meant only the orders made but s 69(3) extends the notion of 'record' to the reasons for the decision.
Mandamus: An order requiring an act to be done in performance of a public duty. Orders in the nature of Mandamus can apply where there has been an actual or constructive failure to exercise jurisdiction.
The orders available include to the Supreme Court include quashing the determination of the court or tribunal, reviewing that decision, substituting a fresh decision, returning the decision to the original court or tribunal to be determined according to law.
Other useful powers in the Supreme Court Act include, the power in section 75 to make declarations and the power to order any person to fulfil a duty in section 65.
All such orders are discretionary. Generally a properly exercised discretion cannot be challenged (see House v The Queen (1935) 55 CLR 499 at 507).
In effect, the Supreme Court Act allows the court to exercises a general power to supervise all inferior courts and tribunals.
Although in the nature of prerogative writs, s 69 orders have greater potential as their scope widened by statute and the development of the common law. In particular the recent development of the notion of 'procedural fairness'.
The rules are still set out in Part 54 of the Supreme Court Rules, which continue despite the introduction of the Uniform Civil Procedure Rules. Those new rules now govern the form of documents and other procedural matters.
Part 5 of the Crimes (Local Courts Appeal and Review) Act2001 allows for direct appeal from the decision of the Magistrate to the Supreme Court. (Some older practitioners and Magistrates refer to it as a 'stated case'. This ancient and cumbersome procedure has now long gone).
A person may appeal a decision of the conviction or sentence of the Local Court if it involves a question of law (s 52) However, if the appeal relates to the question of fact or a question of mixed fact and law appeal can be made but only by leave of the Supreme Court (s 53).
Appeals from orders made in committal proceedings and interlocutory orders can only be made if they involve a question of law. Leave of the Supreme Court is also required (s 53 (3). In DPP v Leonard [2001] NSWSC 797 and Anson v DPP [2002] NSWSC 408 the body of law developed in relation to s 5F Criminal Appeal Act 1912 appeals against interlocutory decisions was held to be applicable. It is crucial to any appeal that the actual 'order' made be identified. 'Rulings' on the sufficiency or admissibility of evidence or procedure are not orders. See R v Powch (1988) 14 NSWLR 136 and R v Edelsten (1989) 18 NSWLR 213.
Part 5 also applies from Magistrates' orders made under the Crimes (Forensic Procedures) Act 2000 (s115A).
Section 55 Crimes (Local Courts Appeal and Review) Act2001 sets out the orders that the Court can make:
(a) It can set aside a conviction or sentence or remit the matter for redetermination or dismissing the appeal
(b) It can set aside any order appealed against and make such orders as it thinks just or dismiss the appeal.
Having determined that the matter should be appealed the next question to be asked is 'What are we appealing?' It is sometimes difficult, after a heated exchange with the Bench, to determine exactly what the Magistrate has determined or decided. It is essential that the order made be identified with precision. An awful lot of time and money can be wasted if you do not. (For an example see Mason & Others v Lyon & Another [2005] NSWSC 804).
There is only one way to clarify what might be later thought to be ambiguous. You have to ask. You may have to say to the bench: ' As I understand it your Honour is saying ...'An affirmative response founds a basis for challenge to that particular ruling. Sometimes such a challenge will be beyond the Magistrate and they will realise that they have not in fact made a decision. Sometimes the act of having to articulate their orders may make them realise they are setting themselves up for a criticism and a it may force a change of heart. Hopefully it will not result in your being gaoled for contempt. Remember good advocacy is the art of persuasion and should be seen as tact in action.
This blunt approach is particularly necessary if the challenge is being made to interlocutory orders or if reliance is to be placed upon significant procedural irregularities that can be characterised as errors of law. Otherwise on review all you are left with are some ambiguous remarks on the transcript.
Of course, if no reasons are given for a particular decision that can be an error of law. See Solemezis v Dudley Holdings P/L (1987) 10 NWLR 247 at 279 applied to the Local Court in Downes v DPP [2000] NSWSC1054.
Before preparing the Summons (required by the rules for both Crimes (Local Courts Appeal and Review) Act 2001 and Supreme Court Act appeals) you must decide exactly what it is you want the Court to order.
The orders sought should be, or at least found the basis for, the final orders of the court. Although during a hearing variations can and often will need to be made there is no point appealing unless you know what you want the court to do.
There is a fairly standard format, which relates back either to the nature of the powers in of s 55 of the Crimes (Local Courts Appeal and Review) Act2001 or the Supreme Court Act.
Crimes (Local Courts Appeal and Review) Act 2001: For a Crimes (Local Courts Appeal and Review) Act2001 appeal the type of orders sought include:
(i) Granting leave to appeal (if required)
(ii) Granting an extension of time to lodge the appeal (if required)
(iii) Setting aside the order and/or decision of the Magistrate that (spell out here the impugned order, decision or decisions)...
(iv) Dismissing the charge against the plaintiff under (add here the provision of the relevant Act.)
(v) Remitting the matter to the Magistrate to be determined according to law
(vi) Costs.
In summary, the Summons has to set out what you want in a form, which requires the Court to give an answer, preferably in your favour.
Leave: If leave is required this should be the first order sought in the summons. The procedures are set out to be followed in relation to the summons and affidavits set out in Part 51B of the Supreme Court Rules. There is no substitute for reading these provisions.
Grounds: The Summons must also set out the Grounds of Appeal particularly where it is contended there is an error of law. The common formulae is :
The learned Magistrate erred in (here spell out the impugned decision or reasons)...
In addition, the Rules provide that you must specify whether the appeal is from the whole or part of the decision of the tribunal below. And don't forget to ask for costs!
Supreme Court Act: If the Appeal is pursuant to the Supreme Court Act the type of orders sought include:
(i) The record of the Tribunal below be brought up (certiorari)
(ii) Quashing the order and/or decision of the Tribunal below that... (here spell out that order or decision)(prohibition)
(iii) That the Tribunal below... (do a certain thing such as restore a right) (mandamus)
(iv) Declarations that the Magistrate erred in... (here spell out the impugned action or decision) or
(v) Declarations as to what the law is... (here spell out the impugned action or decision)
(vi) Costs.
Again, the Grounds should be specified as for a Part 5 Summons. And don't forget to ask for costs!
The next question to be determined is whether the proceedings involve questions of law, questions of fact or mix questions of fact and law or whether the judgement is interlocutory? If appeal is pursued by way of Part 5 this will determine whether leave will be required. It is not always an easy question.
Justice Peter Johnson, in his annotations to the relevant sections in Howie & Johnson, sets out the law on applied to determine these issues. He refers specifically to the factors set out in Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126. A useful summary of what an interlocutory judgement is can be found in Peyton v Nobb [2000] NSWSC 43.
Having worked out what you want, you now have to get the evidence to support it. An affidavit annexing the Transcript and the reasons for any decision must be filed. Remember, to annex any documents such as witness statements or other material tendered at the hearing.
If the transcript does not record what was said or if the recording is incomplete the Affidavit must supplement the transcript by setting out as clearly as possible what was said. If you have them, annex your original notes.
Part 5 appeals must nominate as parties any 'informant and any person directly affected by the relief sought'(Part 51 B Supreme Court Rules, rule 10). This would include the tribunal below unless that tribunal is a court. The rules are clear a court is not to be joined as a defendant. (r. 10(3))
Actions pursuant to the Supreme Court Act must similarly nominate any person directly affected by the decision. The general rule is that rather than a specific person the parties are to be identified by their office (see Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724 & 725). Unlike Part 54 rule 10, the Rules do not specify that a Court is not to be nominated. It would thus appear that for Supreme Court Act matters the court or tribunal below should be nominated as a party.
Children: A child or minor as a 'disabled person' is technically incompetent to bring civil Supreme Court proceedings (s 63 Supreme Court Act). However as the child has been charged in their own name and a Part 5 appeal is a criminal proceeding, it is not generally necessary to have a matter conducted by a Tutor. (See Haines v Leves (1987) 8 NSWLR 442.
Supreme Court Act appeals however are in the nature of civil proceedings and s 63 technically would apply. It is rare indeed for our opposition generally either the Crown Solicitors or the DPP to take any point in relation in the appointment of a Tutor (see Re: A (A Child) (2000)115 A Crim R 1). If objection is taken at all it is made only in order to secure some security, if there is to be an orders for costs (see South v Sydney Area Health Service [2003] NSWSC 479.)
In criminal proceedings the Respondent in most cases will either be the Commissioner of Police or the Director of Public Prosecutions or the Magistrate or Local Court.
A Part 5 appeal must be lodged within 28 days. The Court can however extended the time for the appeal and this order should be sought in the summons. Applications for an extension of time can be made to the Local Court but this application must be made within the original 28 days (see Part 54 rule 6(2)(b)).
Andrew Haesler SC
Deputy Senior Public Defender
August 2005
1. Egregious Error by Magistrate.
2. File Summons (within 28 days or time allowed following application) or
3. Apply to Magistrate for Extension of Time (within 28 days)
4. Check return date on Summons: Make sure you'll be ready on that date.
5. Serve Summons.
6. Respondents: File Notice of Appearance
7. File Grounds. If not already in Summons
8. File Affidavit annexing transcript and/or decision (within three clear days of first return date)
9. Serve Affidavit annexing transcript
10. File and serve Affidavits containing additional evidence
11. Prepare Outline of Argument
12. Return date: If your ready and it's a short matter (1 -2 hours) be prepared to proceed that day or that week. The list Judge may hear it or allocate you to an available Judge.
13. Return date: If you or your opponent are not ready or it's a long matter have timetable for filing and serving evidence worked out.
14. Callover: Date for hearing will be fixed.
15. Hearing:
16. Judgement: Sometimes the Court will make the orders sought sometimes if they cannot be expressed with precision the Court will ask for Short Minutes to be brought in (see for example Mellor v Low at [18]).
Hand up or file Short Minutes, which state either orders made or the orders, which reflect conclusions in the judgement.
Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 made the following comments, reminding an appellate Court that it should be mindful of the context in which the Local Court is operating. His Honour said this: (at 478)
"... It is also to fall into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion reposed in him by the section."
See also Tez v Langley & Anor (2004) 142 A Crim R 122 at 128 and JIW v DPP (NSW) [2005] NSWSC 760.
20 Sep 2024