Children's Court New South Wales

• Medium Neutral Citation: Police v DG [2012] NSWChC 18
• Hearing dates: 27 September 2012
• Decision date: 02 November 2012
• Jurisdiction: Criminal
• Before: Magistrate Joan Baptie

Decision

Judgement

• Catchwords: CRIMINAL LAW - Withdrawal by Prosecutor of matters dealt with summarily - No requirement to seek leave of the Court - Issuing Certificate of Dismissal - Costs
• Legislation Cited: Criminal Procedure Act 1986; Justices Act 1902; Local Court Act 2007
• Cases Cited: AB v DPP (NSW) and ANOR [2008] NSWCA 91; Broome v Chenoweth 1946 HCA BC4600060; Chief Executive Officer of Customs v Au [2005] NSWCA 119; DG of Fair Trading v O'Shane 1996 BC9703791; DPP (NSW) v AB [2008] NSWSC 115; Evans v DPP NSWSC 1005; Lay v Cleary and Anor (1992) BC9303691; Willis v Magistrates' Court of Victoria 1995 BC 9606097
• Category: Principal judgment
• Parties: DG (the Young Person); Police
• Representation: Ms C Whitton (the Prosecution); Ms G Lewer (the Defence)
• File Number(s): 2012/33328
• Publication restriction: None. Child anonymised.

Judgment

1 The Young Person, DG, was charged with the offence of larceny. It is alleged that on 22 September 2011, he stole property to the value of $500. The matter was listed for hearing before the Children's Court of NSW on 27 September 2012. The Young Person maintained his plea of 'Not Guilty' and the Prosecution sought to withdraw the charge.

2 Objection was taken to the withdrawal of the charge by the Young Person's legal representative. It was submitted that the Court should exercise its "common law discretion to refuse to allow the Prosecution to withdraw the matter". The effect would be that the Prosecution would be required to "offer no evidence" and that the matter would be dismissed by the Court. It was not submitted that the withdrawal of the charge would be an abuse of process, but rather that it would be unfair to the Young Person if he was to be exposed to the possibility of having to face the same allegation at a later time. The Defence submitted that the Supreme Court case of Evans v DPP [2000] NSWSC 1005, provided authority for the Defence submission.

3 The Prosecution indicated that it sought to withdraw the proceedings pursuant to s 208 of the Criminal Procedure Act 1986; and did not seek to "offer no evidence".

4 The case of Evans v DPP related to a criminal matter which had already commenced as a hearing, in the sense that some evidence had been heard before the Local Court. It was also a matter that attracted the procedural provisions of the Justices Act 1902. The Justices Act has now been repealed and largely replaced by the Criminal Procedure Act 1986.

In Evans v DPP, his Honour, Justice James noted at paragraph 45:

"Although the power to give leave to an informant to withdraw an information still exists, where a hearing of the information has commenced, a magistrate may be less likely to exercise the discretionary power in favour of the informant, if the hearing of the information has commenced. If the hearing has commenced and it has become apparent that the evidence of the prosecution is incapable of establishing the offence charged and if the defendant opposes the giving of leave to withdraw the information, then a proper exercise of the magistrate's discretion may require the magistrate to refuse to give leave to the informant to withdraw the information. A defendant may oppose the giving of leave to withdraw the information, because the defendant wishes to obtain the benefit of an order of the magistrate dismissing the information, which would in turn empower the magistrate to make an order for costs in favour of the defendant."

5 In Lay v Cleary and Anor (1992) BC9303691, the charges against Mr Lay were withdrawn by consent. (It would appear that the Prosecutor was not prepared to "offer no evidence" as the complainant was available but unreliable and reluctant to give evidence). After the proceedings were withdrawn, counsel for the accused sought a costs order from the Court. The magistrate refused the application, indicating that the Court had no power under the provisions of the Justices Act 1902, if the matter had been withdrawn, rather than dismissed.

Section 80 of the Justices Act 1902 at that time stated:

"After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or, make an order upon the defendant or dismiss the information or complaint, as the case may require."

Section 81, stated:

".....that a Justice in the case of an order of dismissal may order that the prosecutor pay to the Clerk of the Court to be paid by him to the defendant such costs as to the Justice seem just and reasonable."

6 It would appear that the issue of whether or not a Magistrate had an implied discretion arose as there was "no power expressly conferred by the Justices Act to give leave to an informant to withdraw an information. On the contrary, a Justice when exercising summary jurisdiction is required by s77 and s 80 of the Justices Act where both parties appear and there is no question of any adjournment, to hear and determine the matter and either to convict the defendant or dismiss the information." (Lay v Cleary at page 19.)

7 At pages 23 and 24 of his Honour's judgment in Lay v Cleary refers to the following:

"A power in a Magistrate to give leave to an informant to withdraw proceedings, although not expressly conferred by statute, has been recognised in England. In Regina v Phipps, which I have already referred to, the facts bear a strong resemblance to the facts in the present case. Lord Parker CJ, with whom the other members of the court agreed said: "...it is common knowledge that process is allowed to be withdrawn in many cases where the prosecution do not desire to proceed, and in my judgment where withdrawal in that sense takes place, that is to say where the prosecution is allowed to withdraw process before, in the case of a trial, the trial is started, and in the case of an inquiry, before the inquiry has begun, there is then no provision in the Costs in Criminal Cases Act, 1952, which will enable the accused to recover costs. Having said that, I would like to add that the position is not as bad as it would at first appear, because it is always a matter for the discretion of the court whether it allows the process to be withdrawn. There are a number of factors which would enter into the consideration preceding the exercise of the discretion. There would, in the case of a summary trial, be questions such as: are all the defendant's witnesses here? Is the nature of the offence such that the defendant should be acquitted, which will prevent further proceedings being brought, whereas a discretion to allow process to be withdrawn will not amount to an acquittal? There is also the consideration, arising from what I have said, that the defendant may have incurred costs and desire to recover those costs, or have an opportunity of recovering those costs which he will not have if the summons is withdrawn."

8 After considering a number of authorities, his Honour Justice James stated at paragraph 30 of his judgment:

"I conclude that a Justice has an implied discretionary power to grant leave to an informant to withdraw an information charging an offence punishable summarily, at least where the informant applies for leave to withdraw the information before any hearing has commenced.

I do not consider that it is unjust to a defendant for a Magistrate to have such a power. If an application for leave to withdraw an information is made to a Magistrate, the Magistrate should ask the defendant whether he consents or objects to the informant being given leave to withdraw the information. It is open to the defendant to tell the Magistrate that he objects to leave being given. If the defendant tells the Magistrate that he objects to the informant being given leave to withdraw the information, that will be a very material factor for the Magistrate to take into account in deciding whether to exercise his discretionary power in favour of giving leave to the informant to withdraw the information. If the defendant objects to the informant being given leave to withdraw the information and particularly if the defendant says that he wishes to apply for an order for costs, the Magistrate must take into account that if he grants leave to the informant to withdraw the information, the Magistrate will have no power to make an order for costs in favour of the defendant.

The granting of leave to an informant to withdraw an information will not necessarily be inimical to the interests of the defendant. A defendant who thinks that he is at some risk of being convicted if there is a hearing, may prefer to have the information withdrawn, even though he does not obtain an acquittal and cannot obtain an order for payment of his costs. If the information is withdrawn the risk of his being convicted on that information is eliminated and it may be practically certain that no further information will be laid. If the defendant objects to leave being given to withdraw the information, there may be a risk from the defendant's point of view that the informant will prefer to proceed and endeavour to obtain a conviction, rather than offer no evidence and incur an order for costs."

9 In the present case, this Court has proceeded on the basis that the argument raised by the Defence did not seek to raise future issues in relation autrefois acquit, but simply that it would be unfair if the Young Person's matter was not determined to finality at this time.

Under the Justices Act, the withdrawal of an information did not involve an order of dismissal of the information and a fresh charge for the same offence may have been open to the prosecuting authorities. A number of authorities have addressed these issues. See Broome v Chenoweth 1946, HCA, BC4600060, Willis v Magistrates' Court of Victoria, 1995, BC9606097, DG of Fair Trading v O'Shane 1996, BC9703791, Chief Executive Officer of Customs v Au, [2005] NSWCA 119.

10 It would appear that whilst the Defence argument may be somewhat beguiling, it does not properly state the current applicable statute law.

11 Chapter 4 of the Criminal Procedure Act 1986 deals with 'Summary Procedure'.

Section 170 applies "to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily." The charge against the Young Person falls within this definition of an indictable offence being dealt with summarily. Proceedings are now commenced "by the issue and filing of a court attendance notice".

12 Part 2, Division 3 deals with Trial Procedure in the Local Court.

Section 192(1) states that:

"If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter".

Subsection 3 provides for an adjournment of the proceedings, if appropriate.

13 Section 202(1) states:

"The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act."

14 Section 205 states:

(1) "A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter.

(2) "A court must make an order of dismissal and give the accused person a certificate certifying that a mater has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor."

(3) "This section does not apply to a matter that is taken to be dismissed because of s 208."

15 Section 206 states:

"A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person."

16 Section 208 states:

(1) "If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned."

(2) "The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person."

17 It appears that there was no equivalent provision to s 208 in the repealed Justices Act.

The legislative intent of s 208 appears to have been to provide a statutory basis for the withdrawal of matters by the prosecution, rather than an implied discretion to allow the withdrawal of a matter, as had been the case implied under the Justices Act and interpreted by case law.

The purposive use of the words "taken to be dismissed" and "taken to be discharged" suggests that this section does not require the court to exercise any discretion to effectively dismiss the matter. The withdrawal of the matter deems that to have occurred on the withdrawal by the prosecutor.

18 In DPP (NSW) v AB [2008] NSWSC 115, his Honour Justice Adams stated:

"It is clear that s208 specifies a mandatory course in the event of the withdrawal of a matter by a prosecutor. The deemed dismissal of the charge and discharge of the accused person in relation to the alleged offence occurs by virtue of the section. Further action by the Magistrate or the court is unnecessary and can add nothing to the effect of the withdrawal." Para 11.

19 The Second Reading Speech relating to ss 205, 206 and 208 on 7 November 2007, contains the following statement by the Hon. Penny Sharpe:

"I deal firstly with the issue of double jeopardy raised by Ms Lee Rhiannon. The amendments merely clarify that the withdrawal of the matter by the prosecution does not prevent later proceedings in respect of the same matter against the same person. The double jeopardy principle has never been intended to apply to such matters; it being predicated upon there being an acquittal, generally following a hearing on the merits of the case...The concern arising from these sections is that matters can be withdrawn for technical reasons unrelated to the prosecution forming the view that the prosecution is doomed to fail. This amendment does not affect the other safeguards in the law such as applications for stays due to unfairness; statutes of limitations for bringing summary offences, generally six months,; and arguments relating to abuse of process, all of which continue to ensure that this particular provision is not unfairly misused."

20 The other issue that caused considerable consternation under the Justices Act, related to the issue of costs. As referred to above, if the matter was withdrawn but not dismissed, a costs remedy was not available to the accused.

21 Sections 212 and 213 of the Criminal Procedure Act remove any concern that costs are not available if the prosecution withdraws a charge pursuant to s 208.

Section 212 states:

212(1) A court may award costs in criminal proceedings only in accordance with this Act.

Section 213 states:

213 (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

213 (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

213 (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:

(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b) the matter is withdrawn or the proceedings are for any reason invalid.

Professional costs are defined in s 211 as meaning "costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses in respect of proceedings before a court."

22 The Criminal Procedure Act does not specifically allude to the situation where the prosecution concedes that they cannot proceed as their case is "doomed" and they therefore seek to "offer no evidence." In Broome v Chenoweth, (1946) HCA, BC4600060, Justice Dixon referred to a matter where the prosecution had unsuccessfully sought to have the matter withdrawn and where no evidence was offered and the papers marked "Dismissal for want of prosecution". His Honour continued, noting:

"What is material is that defects existed in the information which made the prosecutor unwilling to proceed and that the ground of the dismissal was his failure further to prosecute it. The expression in the minute "want of prosecution" was used to mean the failure of the informant to support the information though appearing before the court, not his failure to appear. It is not an expression with any distinct meaning or consequences in proceedings before justices. It is not a term of art or a recognised form of judgment, like a judgment of nonsuit, of non pros, or a judgment after a nolle prosequi before verdict, well understood at common law to amount to a termination of proceedings without an adjudication and creating no bar to a subsequent suit. There is, therefore, nothing in the terms in which the minute is framed to prevent the order of the magistrate operating as such a discharge of the defendant from the earlier information as to bar any subsequent proceedings for the same offence."

23 An analogous situation to the above under the Criminal Procedure Act would be one where the prosecution proceeds pursuant to s 202, rather than s 208. If the prosecution proceeded under s 202, conceding that it could not succeed at any time, the Court could grant a certificate pursuant to ss 205 and 206.

The construction of s 205 would appear to require the court to provide a certificate if the court "decides to dismiss the matter." This could encapsulate a matter where the prosecution conceded that their case must fail; and the matter is dismissed prior to hearing.

The certificate must be granted if requested by either the accused person or by the prosecutor. Such a certificate would make it clear that no further proceedings could be brought by the prosecution. (See s 206).

24 A different interpretation to paragraphs 22 and 23 above, may be interpreted from the case AB v DPP (NSW) and ANOR [2008] NSWCA 91; where his Honour Justice Handley stated at paragraph 10 and 11, (referring to s 202 (1) and (2)):

"This indicates the nature of the order of dismissal referred to in s 205 (1). In the present case the Children's Court did not make "an order of dismissal" and did not "decided to dismiss the matter. There was no trial, no evidence and no adjudication.

A dismissal under s 208 does not flow from any order or decision of the court. It takes effect automatically on the withdrawal of the case by the prosecutor."

25 In Chief Executive Officer of Customs v Au [2005] NSWCA 119, the Court of Appeal considered a matter which was originally before the Local Court and dismissed by consent under the Justices Act. The matter was appealed to the Supreme Court before his Honour Justice Shaw who determined that there had been a 'hearing' as he considered that "although...there had been no hearing on the merits because the procedural course taken was by consent. He considered that as the parties had appeared with their legal representatives and put to the Magistrate what they desired to do and say, that was sufficient to constitute a hearing and the fact that no witnesses were called was legally irrelevant."

26 The need for a hearing relates specifically to the issue of issue estoppel or autrefois acquit. For a plea of autrefois acquit to succeed there must have been an acquittal on the merits. The accused person must have been "put in jeopardy on the prior (earlier) charge". This may require further clarification by a superior court or by legislative amendment.

27 The question whether the matter is dealt with pursuant to s 202 in terms of "offering no evidence" and s 208, where the matter is withdrawn, may rely on the prosecutor's discretion. Both provisions empower the court to award costs against the prosecutor, as referred to above.

Clearly, the Second Reading Speech made it clear that other safeguards available to the court "such as applications for stays due to unfairness" are not affected by the amendments to the Act.

28 The defence submission in this case relied on the implied jurisdiction arising from the Local Courts Act and referred to in cases such as Lay v Cleary. With the provisions referred to above, particularly s 208, the Local Court and the Children's Court have been provided with an express jurisdiction arising from the statute known as the Criminal Procedure Act.

The court retains an implied jurisdiction which "will arise upon the principle that a grant of express power carries with it everything necessary for its exercise. Recognition of the existence of implied powers is called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but are confined to so much as can be derived by implication from statutory provisions conferring particular jurisdiction." See Director-General of Fair Trading v O'Shane, 1996, NSWSC, BC9703791.

29 In DPP (NSW) v AB [2008]NSWSC 115, Justice Adams commented at paragraphs 15 and 16:

"the effect of s 208 is to render any decision by the Magistrate supererogatory and, indeed, was outside the Court's jurisdiction. To my mind, the better interpretation of what the Magistrate did was simply to note the papers with the effect of s 208 so it would be clear, if anyone needed to consider the papers, that the matter had been dismissed.......it is obviously desirable that, where magistrates do note a dismissal and discharge pursuant to a withdrawal, the papers specifically refer to s 208 of the Criminal Procedure Act 1986 so that any officer of the court who finds it necessary to consult the papers will understand immediately what the actual position was."

30 The Prosecution are entitled to withdraw the larceny charge against the Young Person.

That charge is taken to be dismissed and the young person is taken to be discharged in relation to that charge.

31 An application for costs was made and not opposed by the prosecution. Costs in the sum of $825 are awarded, pursuant to s 213.

Decision last updated: 09 November 2012