Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333

Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333 · Read the judgment on AustLII

Catchwords: Local Court Practice – Election to deal with matters on indictment – Time limits

In this decision of a single judge of the Supreme Court, it has been held when the prosecution wants to elect for a matter to be dealt with on indictment, the key event when talking about time limits is that the communication of the election, either orally to the Local Court, or by filing a notice.

The plaintiff was charged with a range of offences, one of which was sexual touching. That offence is in Table 2 of the Criminal Procedure Act; in other words, it is an indictable offence which is to be dealt with summarily unless there is an election by the prosecutor. The plaintiff was also serving another sentence of imprisonment. At the second mention of the proceedings, he pleaded guilty and asked to be sentenced that day. The Magistrate commented to the effect that she was concerned there might not be sufficient scope to sentence the plaintiff because of s 58 of the Crimes (Sentencing Procedure) Act, which limits the length of a sentence in the Local Court if a defendant is serving another sentence of imprisonment. The matter was adjourned overnight and it transpired that in fact there had been a decision by the DPP to deal with the matter on indictment – it just hadn’t been seen by the police prosecutor on their file, and hadn’t been communicated to the Court (or the plaintiff). By that stage, the facts and criminal record of the plaintiff had already been tendered.

Section 263 of the Criminal Procedure Act sets the time limit for making an election. Importantly, it provides that the election must be made within the time set by the Local Court. Failing that, it can be made late with the leave of the court in ‘special circumstances’ – but election cannot be made after (amongst other things) the facts have been tendered.

The Magistrate eventually found that the prosecution should be regarded as having already elected in the matter. She found that the decision to elect was the key event; it was not to the point that the decision had not been communicated to the Court.

The plaintiff appealed the decision. The essential basis for the appeal was that the election was not made within the time fixed by the Local Court.

The appeal was heard by Cavanagh J, sitting alone. His Honour considered that the question which arose in this matter is at what point an election is made for the purpose of s 263 (at [59]). Previous authority had held that there is no statement in s 263 that an election is not made until after it is communicated to the Local Court. However, the Criminal Procedure Regulation provides, at cl.117(2), that an election may be made orally to the Local Court, or by filing a written notice with the Court. Cavanagh J considered, given the language of the regulation, that unless the election has been made either orally to the Local Court or by way of filing a written notice, then it has not been made (at [65]).

As it happens, in the circumstances of this case that was not enough for the plaintiff to succeed – he was seeking a discretionary remedy, and in the circumstances Cavanagh J considered there was no utility in remitting the matter to the Local Court (at [92]). That was because the DPP had since filed an ex officio indictment. It followed that whilst the Magistrate had committed a jurisdictional error, the appeal was dismissed on discretionary grounds.

As far as practical outcomes go, it remains to be seen whether this decision will change the administrative means by which elections are made; you might think it’s trivial for the prosecutor to file notices flagging an election, rather than having someone declare them in open court. But this case does illustrate why simply rushing to get a matter finalised before the lack of election is noticed might not always be successful: the DPP’s power to file an ex officio indictment is in part intended to fix just this kind of error. Nevertheless, in borderline cases, this decision establishes that a defendant is on reasonably firm ground when there has not been an oral or written confirmation of election, and the facts have already been tendered in the Local Court.