Balach v Office of the Director of Public Prosecutions [2019] NSWSC 377

Balach v Office of the Director of Public Prosecutions [2019] NSWSC 377 · Read the judgment on AustLII

Catchwords: Written plea of guilty – availability of s10 dismissal – requirement to provide reasons for judgment

In a pair of judgments with relevance to practitioners who give advice in minor matters, or who regularly see District Court appeals, a single judge of the Supreme Court has held that where a written plea of guilty is sent in by a defendant, the Local Court is still obliged to consider whether a s10 dismissal is appropriate. And, notwithstanding their heavy workloads, Magistrates are to provide pithy – but not too pithy – reasons for those outcomes.

These two cases were factually unrelated but ran in parallel. Balach was a Pakistani man who was arrested for a Random Breath test and returned a result of 0.052 – just barely above the threshold. He sent in a written plea saying that he had been in Australia for eight years, was returning to his home country, but wanted his circumstances to be taken into account in the event he ever wanted to return to Australia. He was fined $500 and disqualified from driving for 3 months. The Magistrate’s reasons were quite brief, but made no reference to s10.

Hayes was charged with possession of 0.57g of cocaine (his written plea said he bought a gram). His written plea included some references and said a little bit about his personal circumstances. The first Magistrate who considered his matter decided to adjourn it to give the offender the chance to ‘come in person if he wants leniency or otherwise he is going to be convicted’. The Registrar notified him that the matter had been adjourned but not why, nor that his personal attendance was sought specifically for the purpose of considering the leniency he was after. Hence, he didn’t go. When it came back to court a different Magistrate considered the matter, convicted the offender ex parte, fined him $250, and gave no reasons at all.

Each case was heard by Campbell J, each was apparently considered in chambers on the written submissions, and each of them was the result of consent between the parties. That notwithstanding, the comments made by his Honour are of relevance to anybody who gives advice to people considering entering a written plea, or anybody who is advising a client who, having sent in a written plea, wants to appeal the outcome.

If you’re only going to read one of these two (quite short) judgments, Hayes is the more comprehensive. In it, his Honour indicated that, having considered both these proceedings, something of a practice may have developed in the Local Court of not considering s10 in the absence of a defendant, even when the defendant has taken the advantage of sending in a written plea. This, his Honour held, is contrary to the provisions of the Criminal Procedure Act. The Act does not require the offender to attend, and indeed they are taken to have attended (at [15] of Hayes). This was so, even allowing for the advantage of assessing an offender personally before passing sentence (at [14] of Hayes). In those circumstances, a s10 is available even if an offender has lodged a written plea. It is not as though every case will throw up a live question about the application of s10, and indeed in the vast majority of cases there will be no question of its application. But when it does arise, the practice of not considering s10 because the accused [sic: offender] is not present should no longer be followed (at [16] of Hayes).

Both decisions also threw up the perennial question about how substantial must be the reasons provided by a Magistrate: in Hayes there were no reasons at all, and in Balach the reasons were ‘pithy’ but ‘not quite sufficient’.

In the context of the workloads of Magistrates, and the outstanding review of the nature of District Court appeals, it seems likely that Magistrates providing longer reasons for absent offenders is going to take up more list time than it did previously – leaving less time for practitioners to do all the talking.