R v Walsh [2004] NSWCCA 290 (17 August 2004)

CITATION: R v WALSH [2004] NSWCCA 290

FILE NUMBER(S):

60186/04

HEARING DATE(S): 17 August 2004

JUDGMENT DATE: 17/08/2004

PARTIES:

Regina

Peter William Walsh

JUDGMENT OF: Wood CJ at CL Hulme J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/12/0212

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:

Crown: BR McClintock SC

Applicant: SV Kerrigan

SOLICITORS:

Crown: S Kavanagh

Applicant: Robert Dunn & Co

CATCHWORDS:

LEGISLATION CITED:

DECISION:

The Court refuse an extension of time for filing the stated case and refuse to answer the questions of law submitted as they were submitted out of time

JUDGMENT:

- 1 -

IN THE COURT OF

CRIMINAL APPEAL

60186/04

WOOD CJ AT CL

HULME J

BELL J

Tuesday 17 August 2004

R v Peter William WALSH

Judgment

1 WOOD CJ AT CL: I agree with Hulme J.

2 HULME J: On or about 11 August 2003 there was filed in this Court a Notice of Intention to Apply for Leave to Appeal wherein the abovenamed Peter Walsh, to whom I shall hereafter refer as “the Appellant” indicated an intention to appeal against his conviction on a charge of larceny as a bailee. The conviction occurred on 23 July 2003. On 15 April 2004 there was filed in the Court a document entitled “Request for Submission of Stated Case to Court of Criminal Appeal” which took the following form:-

“Pursuant to Section 5B of the Criminal Appeal Act 1912 subsection (2), the appellant hereby requests that the following questions of law be submitted to the Court of Criminal Appeal for determination:”

1. Is an appeal to the District Court under section 11 of the Crimes (Local Courts Appeal and Review) Act 2001, by reason of section 18 of that Act, an appeal by way of rehearing or by way of hearing de novo?

2. If such an appeal is by way of hearing de novo, did I err in failing to require the Appellant and Mrs Hermida to give evidence – Berendse v Comptroller-General of Customs (1996) 93 A Crim R 210?

3. Did I err in failing to direct the Appellant and Mrs Hermida to attend and give evidence in the appeal pursuant to section 19(1)(b) of the Crimes (Local Courts Appeal and Review) Act 2001?

4. If such an appeal is by way of rehearing, did I err in failing to read the reasons for decision of the learned Local Court Magistrate?

5. Did I err in deciding independently of the reason given in the learned Local Court Magistrate and without reading those reasons, that the evidence of Mr and Mrs Hermida was credible (judgment page 8 “the strength of the evidence given by Mrs Hermida and her husband”) and to be preferred that of the Appellant?

3 The Appellant also seeks the extension of time for notice of the appeal having regard to the fact that a Notice of Intention to Appeal has been filed on 8 August 2003.”

4 The document was signed by the Solicitor for the Appellant and apparently, on 3 April 2004 by Judge Christie. Also signed by his Honour and filed at the same time was a document filed at the same time entitled “Appellant’s Summary of Argument”.

5 Other material placed by the Appellant’s legal advisors before this Court show that on or about 20 September 2002 he was charged with larceny as a bailee, he pleaded not guilty, the matter was heard at the Manly Local Court on 3 February 2003, the Appellant was convicted and on 6 March 2003 sentenced to perform 150 hours community service. Before the Magistrate, evidence had been given by a Detective Senior Constable Gates, a Mrs Hermida who was the owner of a diamond ring which, or the stone in which, was the subject of the charge, her husband and Mr Walsh. There was also admitted as an exhibit a 1984 valuation certificate relating to the ring of which Mrs Hermida said she had been deprived.

6 On or about 6 March 2003 the Appellant lodged a Notice of Appeal against his conviction in the District Court. On 4 July 2003 there was lodged on his behalf in that court a Notice of Motion seeking “that the further evidence of Robyn Minehan, as contained in her Affidavit sworn 2 July 2003 and filed herein be accepted in the hearing of this appeal”. An order to that effect was made some few days thereafter. Ms Minehan is a jewellery valuer and designer and seems to have been the author of the valuation certificate in 1984.

7 Before Judge Christie the evidence consisted of the transcript of proceedings in the Local Court, the oral evidence of Ms Minehan, and the certificate of valuation she had given in December 1984. The parties disclaimed any need for his Honour to refer to other exhibits tendered in the Local Court.

8 During the hearing Judge Christie indicated that he had stopped reading the transcript of proceedings in the Local Court at the end of the evidence and had not read the Magistrate’s remarks. Counsel then appearing for the Appellant is recorded as responding “No, I would have expected that your Honour”. His Honour went on to say that the Magistrate must have found Mrs Hermida to be a truthful and accurate witness and he proposed to proceed on that assumption. The transcript records no demur.

9 Nor was there any objection to any of the evidence which was tendered, no attempt to adduce further evidence and nor was there any suggestion that the proceedings should have been conducted in any manner different from that which was followed. The hearing before Judge Christie occurred on 22 and 23 July 2003. His Honour delivered his decision on 25 July 2003 dismissing the appeal. The appeal against sentence was then withdrawn and the penalty imposed by the Magistrate confirmed.

10 Section 5B of the Criminal Appeal Act provides:-

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

11 The first question which arises is whether there has been any valid submission of a question to this Court. The Crown submitted that there had not been, relying on the form of the documents filed on 11 August 2003 and 15 April 2004 and, so long as the second of these is concerned, on the passage of time since Judge Christie’s decision on 25 July 2003. The Crown submitted that the proper interpretation of all of this was that the Appellant was attempting to exercise a right of appeal which was not available.

12 Certainly the procedure which the Appellant followed is not an appropriate way of exercising rights under s5B. However if the documents, and in particular the “Request for Submission of Stated Case to Court of Criminal Appeal” can properly be regarded as a submission by Judge Christie of a “question of law arising on any appeal to the District Court in its criminal and special jurisdiction” the fact that the documents do not follow the usual form would make me disinclined to reject the appeal on that ground. Furthermore, the fact that the documents signed by Judge Christie are well outside the 28 day limit in s5B(2) does not preclude them amounting to a submission by his Honour. This Court has power to extend time. I see no basis for concluding that that extension may only be done before the 28 days have expired or that documents filed outside that period and prior to an extension being granted should be regarded as a nullity. Although the point was not referred to, I observe that in Attorney-General v Curran [2004] NSWCCA 234, the Court in refusing an extension of time when the application was made after the expiration of 28 days did not suggest that it lacked power to do so.

13 However, it is a pre-condition to the Appellant’s success that time is extended. In aid of its prayer in that regard the solicitor for the Appellant has sworn an affidavit detailing the steps taken to further the application with which the Court is dealing. I do not need to detail these. In effect they amount to a confession that the solicitor did not know the procedure to be followed and a deal of time was occupied in obtaining counsel’s advice. He does say that he caused inquiry to be made of the Court Registry seeking advice as to how to file an appeal from the District Court to this Court and was given advice along the lines of the procedure which he followed.

14 That procedure is, of course, correct for appeals. It is not correct for matters which come to the Court pursuant to s5B which, however inspired, are not appeals in the strict sense but the submission by a District Court judge of questions to the Court. The distinction has existed for many decades. In these circumstances, I do not find in the explanation provided, much if anything which argues for the extension of time being granted.

15 However it is appropriate before pursuing that aspect to give some attention to the substance of the application. The matters which can be submitted to this Court under s5B are only “question(s) of law arising on any appeal to the District Court”. No doubt the fact that the submission can be made after the District Court proceedings have otherwise concluded means that matters which appear only in the course of the judge’s decision can be said to arise on such an appeal. However, the requirement is still that the questions arise on, or as part of the District Court proceedings. There is much to be said for the view that the questions posed did not.

16 There was, as I have indicated, either concurrence or no objection to the course Judge Christie followed or foreshadowed. Furthermore, although there was made on behalf of the Appellant the successful application for the giving of evidence by Ms Minehan, there was no such application for the giving of evidence by Mrs Hermida or the Appellant.

17 This is not entirely surprising in light of the terms of ss18 and 19 of the Crimes (Local Courts Appeal and Review) Act which, so far as is presently relevant, provide:-

18(1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19.

(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

19(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:

(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or

(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.

(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party’s intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct.

18 But whether surprising or not, the fact remains that the Appellant’s case before Judge Christie was conducted as it was. Furthermore, it was so conducted against the background of Judge Christie’s remarks concerning the topic of credibility. The conduct of the Appellant’s case leads me to think that the questions now sought to be canvassed did not arise on, or as part of the District Court proceedings. Certainly, the question of whether or not they did is sufficiently doubtful as itself to argue strongly against allowing the great extension of time necessary for the Appellant to succeed. And even if the Appellant passed this hurdle, in light of the terms of ss18 and 19, he still faces a major hurdle in establishing that the course Judge Christie followed was not the appropriate one.

19 The Appellant has had one appeal. Subject to the power of the Court to extend time, the mandatory terms in which s5B is cast indicate the importance the legislature attributes to the finality of District Court proceedings of the nature with which the Appellant was involved. In these circumstances, I would propose that the Court refuse an extension of the time for filing the stated case, and refuse to answer the questions of law submitted because they were submitted out of time.

20 BELL J: I agree.

21 WOOD CJ at CL: We will not make any formal orders in relation to the community service. The orders of the Court will be as proposed by Hulme J.

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LAST UPDATED: 24/08/2004