Ba Minh Tran v Andrew Paul Smith [1999] ACTSC 98 (1 October 1999)

Last Updated: 18 October 1999

BA MINH TRAN v ANDREW PAUL SMITH [1999] ACTSC 98 (1 October 1999)

CATCHWORDS

COURTS AND TRIBUNALS - whether trial of summary offence may be conducted concurrently with committal proceedings for indictable offence - whether proceedings nullity or merely irregular - whether irregularity capable of being waived by failure to object - demands of justice

CRIMINAL LAW - whether trial of summary offence may be conducted concurrently with committal proceedings for indictable offence - whether proceedings nullity or merely irregular - whether irregularity capable of being waived by failure to object - demands of justice

Bail Act 1992

Drugs of Dependence Act 1989

Crimes Act 1914 (Cth)

Crimes Act 1900

Magistrates Court Act

McGrath v Higgins (1976) 13 SASR 365

Glynn v Smith (1983) 70 FLR 427

Neasey & Ors v Strickland [1995] TASSC 131; (1995) 5 Tas R 228

Perry v Nash (1980) 47 FLR 210

Fares v Longmore [1998] ACTSC 133 Higgins J

Kiely v Henderson (1989) 19 NSWLR 139

Barnsley v Hiatt (1987) 9 NSWLR 663

Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 37 of 1999

Judge: Crispin J

Supreme Court of the ACT

Date: 1 October 1999

IN THE SUPREME COURT OF THE )

) No. SCA 37 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BA MINH TRAN

Appellant

AND: ANDREW PAUL SMITH

Respondent

ORDER

Judge: Crispin J

Date: 1 October 1999

Place: Canberra

THE COURT ORDERS THAT:

1. That the appeal be upheld.

2. That the convictions nonetheless be affirmed.

3. That the sentences be set aside.

4. In lieu thereof the appellant be sentenced to 12 months imprisonment in respect to the offence of selling heroin and 3 months imprisonment in respect of the offence of possessing money reasonably suspected of being unlawfully obtained.

5. Both sentences be backdated to 18 May 1999.

6. The former sentence of 12 months imprisonment be suspended forthwith upon the appellant entering into a recognizance himself in the sum of $1,000 to be of good behaviour for a period of 3 years.

1. This is an appeal against a decision of the Magistrate's Court convicting the appellant of one count of selling heroin contrary to s 164(3) of the Drugs of Dependence Act 1989 and one count of having money in his custody reasonably suspected of having been unlawfully obtained contrary to s 527A(1) of the Crimes Act 1900.

2. The first ground of appeal was that the learned Magistrate had erred in embarking upon a hearing in relation to these two charges together. One offence charged was indictable and the Magistrate could only entertain committal proceedings in relation to that charge at least until a decision was made pursuant to s 477 of the Crimes Act 1900 to hear and determine it summarily. The other offence charged was triable summarily. Consequently, there were concurrent but quite different proceedings, those relating to the first charge being of an administrative character and those relating to the second charge being of a judicial character.

3. It has been held that it is impermissible to conduct such proceedings contemporaneously: McGrath v Higgins (1976) 13 SASR 365; Glynn v Smith (1983) 70 FLR 427 and Neasey & Ors v Strickland [1995] TASSC 131; (1995) 5 Tas R 228. I agree with that view.

4. The next question that arises is whether, accepting that the procedure adopted was impermissible, the proceedings should be considered a nullity or merely regarded as attended by an irregularity capable of being waived.

5. In McGrath v Higgins, Bray CJ began his examination of the relevant issues by observing that in the case before him the appellant had been represented by counsel throughout the proceedings and that if any irregularity in their course was capable of waiver it should be held to have been waived. His Honour then continued, at 369-370:

"What, however, is the position where a complaint triable summarily by a court of summary jurisdiction is heard or purported to be heard by that court at the same time as it hears an information for an indictable offence? In the case of an adult defendant I think that this question answers itself. When such a defendant appears before a magistrate on an information for an indictable offence and the magistrate conducts the preliminary examination, he is not conducting a trial at all: he is merely embarking on a preliminary investigation as to whether or not there is any evidence justifying a trial. Though, no doubt, the magistrate in conducting the preliminary examination ought to act judicially, yet it still seems true that his function in deciding whether or not there is enough evidence to justify putting the defendant on his trial `is essentially an executive and not a judicial function': Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145, per Jordan CJ at 146. It is, to my mind, out of the question that a magistrate can properly exercise a function of this kind simultaneously with the exercise of a truly judicial function in trying a complaint for a summary offence.

It is, of course, true that in a proper case a magistrate can ultimately try an information for a minor indictable offence himself. But, unless the defendant short-circuits the matter by intimating a desire to plead guilty at an earlier stage, he cannot do this until after the prosecution evidence has been completed. Section 112(4) of the Justices Act 1921, as amended directs the court of summary jurisdiction to commit the defendant for trial if he elects at any time up to and including the completion of the case for the prosecution to be tried on indictment, and if he does not so elect the court is directed by s 122(4) to inform him at the completion of the case for the prosecution whether or not it proposes to deal with the case in a summary way. If it decides to do that, then s 125(1) directs that the charge be reduced into writing and the defendant asked whether he pleads guilty or not guilty. Section 125(2) then provides as follows:

`(2) thereafter the justices or special magistrates shall be a court of summary jurisdiction within the meaning of this Act, and (subject as hereinafter appears) the procedure and the powers of the court shall be the same, and the provisions of this Act shall apply, as if the charge were a complaint for a simple offence under this Act.'

I stress the word `thereafter'. Once that stage is reached then all the provisions of the Act as to the trial of summary offences apply to the remainder of the proceedings.

But, once again, in normal circumstances it is out of the question for the trial of a complaint for a summary offence at that stage to be heard concurrently with the completion of the hearing of the charge of the minor indictable offence. The evidence for the prosecution in the latter case would already have been given and the completion of the hearing on that charge should not be interrupted by the interposition of prosecution evidence on the complaint for the summary offence. I am not prepared to say that it is impossible by consent of all parties for that to be done, but it would certainly be a most unusual course.

In short, I would say that in normal circumstances there cannot in the case of an adult defendant be concurrent trials of a complaint for a summary offence and an information for a minor indictable offence before a court of summary jurisdiction. Certainly there can be no such concurrent trial as from the commencement of the hearing of the information."

6. In Glynn v Smith Muirhead J referred to the passage which I have quoted above and then observed at 431:

"His Honour dealt with the question of waiver and held that in the circumstances an irregularity of this nature could not be waived by the conduct of counsel in failing to object to the course adopted by the court. In this case I do not consider any injustice was done by reason only of the course adopted, but the irregularity was of such a basic nature that waiver could not cure the inherent defect. Upon appeal counsel for the respondent did not argue strenuously to the contrary."

7. In Neasy & Ors v Strickland, Zeeman J demurred from the proposition that there could be no waiver of the irregularity involved in the concurrent hearing of committal proceedings for an indictable offence and hearing of a summary offence. His Honour said, at 238-239: -

"I have some difficulty with the proposition that an irregularity in the conduct of a summary hearing such as occurred in the present case and in McGrath v Higgins (1976) 13 SASR 365, namely the combination with it of committal proceedings in relation to an indictable offence is not capable of being waived so as to leave the validity of the summary hearing unaffected. As a matter of principle, an irregularity which has the effect that the magistrate has no jurisdiction to deal with the matter with which he purports to deal is incapable of being waived (R v Children's Court; Ex parte Carroll [1957] VR 161; Alderson v Palliser [1901] 2 KB 833; cf Rahcassi Shipping C SA v Blue Star Line Ltd [1969] 1 QB 173 at 190-191) but a procedural irregularity committed in the course of exercising undoubted jurisdiction may be waived (Peiffer v Mossop; Ex parte Peiffer [1952] QSR 137; Daly v Barlow [1969] Qd R 237; Lubcke v Little [1970] VR 807), although some of the cases suggest that a requirement which must be satisfied before there is jurisdiction may be waived (Moore v Gamgee (1890) 25 QBD 244).

The learned magistrate possessed an undoubted jurisdiction to conduct a summary hearing of the charges under the Police Offences Act. He conducted such a hearing. The irregularity consisted of, at the same time as conducting that hearing, treating the evidence of the witnesses as the taking of depositions in relation to the charges under the Code. Whilst the procedure adopted by the learned magistrate was highly irregular, I do not consider that it went to jurisdiction to conduct the summary hearing. With respect I do not adopt the somewhat tentative views to the contrary expressed in McGrath v Higgins (1976) 13 SASR 365.

The respondent also relied on Glynn v Smith (1984) 70 FLR 427 in which Mc Grath v Higgins (1976) 13 SASR 365 was referred to with approval. In that case a magistrate had dealt with an indictable offence summarily by taking a plea of not guilty at the outset of the hearing and then proceeding with it. The relevant statute required that the evidence for the prosecution be taken and that at the conclusion thereof the magistrate take a plea and determine whether the defendant be committed for trial or that the matter be dealt with summarily. Clearly the magistrate had conducted a summary hearing at a time when he had no jurisdiction to do so, the time for determining whether the charge should be dealt with summarily not yet having arrived. Muirhead J held that the irregularity was incapable of being waived. Because the irregularity in that case went to jurisdiction it is clearly distinguishable from the present case.

It follows from what I have said that the orders made by the learned magistrate whereby he dismissed the charges under the Police Offences Act are valid orders and gave rise to the jurisdiction to make orders for costs under the Act.

8. In the present case Mr Archer, who appeared for the respondent, submitted that section 477 of the Crimes Act 1900 in its application to the Australian Capital Territory did not require that any decision to deal with an otherwise indictable offence summarily be taken only at the conclusion of the evidence, as was said to be the case in Glynn v Smith.

9. It should be noted that in Perry v Nash (1980) 47 FLR 210, McLelland J took a contrary but equally restrictive view, holding that the power provided by s 12A(1) of the Crimes Act 1914 (Cth) to hear and determine a matter summarily "with the consent of the defendant" required that the consent be given before the taking of evidence commenced. However, in Fares v Longmore [1998] ACTSC 133 (unreported 17 December 1998) Higgins J expressed the view that this case had been wrongly decided. His Honour preferred to follow Kiely v Henderson (1989) 19 NSWLR 139 in which Campbell J interpreted the comparable provision in the Crimes Act (NSW) so as to allow consent to be given even after all of the evidence had been heard. As his Honour observed, a somewhat similar approach was taken by Smart J in Barnsley v Hiatt (1987) 9 NSWLR 663.

10. In my view the power provided by s 477 of the Crimes Act to dispose of a case summarily is not constrained by any restriction as to when the defendant may give his or her consent or the magistrate may form the relevant opinion or make the necessary decision. Of course, the court has wide power to deal with any situation which might arise in which the prosecution is taken by surprise due to the issue arising at an unexpected moment or which otherwise gives rise to a risk of prejudice or injustice. Subject to considerations of that kind, however, it is open to the court to resolve that issue at the commencement of proceedings, at the close of the evidence or at any other time.

11. There is nothing in the language of the section to suggest a more rigid interpretation and in my view the interests of justice plainly require that magistrates should be able to approach this issue according to the needs of each particular case. There may be many circumstances in which it would be appropriate for this issue to be resolved before the evidence commenced or at least at an early stage of the proceedings. For example, in proceedings involving allegations of sexual offences it might be important for the magistrate and counsel to have a very clear understanding of whether the matter was to be dealt with summarily or by way of committal so that defence counsel could formulate an appropriate strategy and the magistrate would be in a position to determine what latitude should be allowed in cross-examination. On the other hand, there would be other cases in which the defendant was not in a position to make an informed decision as to whether to consent to the matter being dealt with summarily until much of the evidence had been led and he was fully appraised of the issues likely to arise.

12. Nonetheless, whilst I accept Mr Archer's submission, I do not think that the decision in Glynn v Smith can be distinguished on that basis. Whilst a decision under section 477 of the Crimes Act may be made at an early stage of the proceedings, a magistrate has no jurisdiction to embark upon a summary hearing of an indictable offence unless and until such a decision has been made. However, in the present case the magistrate did not purport to do so. On the contrary, he conducted committal proceedings in relation to the indictable offence until the decision under section 477 was made. In contrast, as Zeeman J pointed out in Neasy & Ors v Strickland, the decision in Glynn v Smith related to a case in which a magistrate had purported to embark upon a summary hearing which he had no jurisdiction to hear. No such consideration arises in the present case and there is no reason to doubt that the magistrate would have had jurisdiction to embark upon either matter at the time that he did. Accordingly, I am unable to accept that the proceedings should be regarded as a nullity.

13. However, Zeeman J was concerned with the issue of waiver only in the context of an issue as to the validity of orders made by a magistrate dismissing the proceedings before him. It was not necessary for his Honour to consider whether waiver would have provided a complete answer to any complaint of irregularity in the conduct of those proceedings. In my view, the fact that the proceedings were not a nullity does not justify the conclusion that any convictions, sentences or other orders made as a consequence of such concurrent hearings must be upheld if, by failing to object, counsel for the appellant could be taken to have waived the irregularity. In Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649 Kirby P dealt with the situation that arises when a court had been reconstituted during the course of proceedings and observed that such a course would normally be an irregularity warranting a new trial. His dealt with the question of waiver in the following passage:

" . . .But in certain circumstances such an order will not be made. The guiding principle is the demands of justice in the particular case. Relevant to the application of that principle is a consideration of the extent of any possible prejudice done by the procedure that was followed and the risk of injustice arising from it as well as the expense and delay that would be occasioned by an order for a trial de nuovo in the circumstances that have occurred.

It is also relevant in this last connection to consider the conduct of the parties and those who represented them (if any) at the trial for if they have induced, acquiesced in or waived the irregularity they will not normally thereafter be heard to complain about it . . ."

It may be seen from this exposition that whilst a party who had waived an irregularity would not normally be heard to complain about it, the waiver did not provide an absolute answer to the irregularity. The demands of justice remained the guiding principle though any waiver would be a relevant and perhaps in many cases decisive factor in that consideration.

14. Of course, his Honour was not concerned with the concurrent hearing of proceedings of an administrative character and proceedings of a judicial character. The irregularity inherent in such a course is of a most profound kind. The very nature of the task being undertaken by the magistrate is quite different. In relation to one set of proceedings he or she does not even function as a judicial officer. Whilst I would suggest, with respect, that Bray CJ may have somewhat overstated the position in saying that it is "out of the question" that a magistrate can properly exercise the two functions simultaneously, I accept that it will normally be quite impracticable for a magistrate to attempt do so. Consequently, where such concurrent proceedings have been conducted the demands of justice will normally require that the proceedings be heard again. Furthermore, in my view considerations of acquiescence or waiver will normally be of little weight when the irregularity is of such a nature that the magistrate may have been incapable of properly exercising his or her functions. In those circumstances it cannot be said that there has been a fair hearing of either matter.

15. I accept that there may be exceptional cases in which the demands of justice might not require a rehearing of both matters. For example, the facts relied upon by the prosecution to establish the summary offence might not be in dispute and the committing magistrate might merely be asked to assume his or her normal judicial role for the purpose of ruling on an argument of law.

16. However, this is not such a case. On the contrary, the circumstances of this case offer an example of the potential for injustice that can be caused by the concurrent conduct of proceedings. Whilst it would have been open for the appellant to have given evidence in his own behalf in answer to the charge of selling heroin, he could equally have declined to give such evidence either during the committal proceedings or subsequently after consenting to the proceedings being dealt with summarily. In that event, it would have remained open to him to submit that the evidence of identification was simply inadequate and to rely upon oft repeated judicial warnings as to the danger of convicting upon evidence of that kind. On the other hand the offence under s 527A of the Crimes Act required only proof that the money found in his possession was "reasonably suspected of having been stolen or otherwise unlawfully obtained". Once that reasonable suspicion was established by the evidence he was liable to conviction unless he established the statutory defence by satisfying the court that he had no reasonable grounds for suspecting that the money was stolen or otherwise unlawfully obtained. The concurrent conduct of the proceedings, in effect, forced him to choose between abandoning his right to silence in relation to the indictable offence or abandoning reliance upon the statutory defence in relation to the summary offence. It was obviously quite inappropriate that he should have been placed in that position and, notwithstanding the absence of any objection in the court below, had it not been for the approach urged upon me by counsel for both parties I would have taken the view that the demands of justice plainly required that both matters be reheard.

17. Despite an intimation to that effect, counsel submitted that if I were to find that the first ground of appeal had been established I should not remit the matters for rehearing but make a fresh determination of whether the guilt of the accused had been proven to the requisite standard in relation to each offence. It was acknowledged that mere advertence to the transcript would not allow me to resolve any issues of credibility and notwithstanding any view that the Magistrate's decisions were vitiated by the irregular conduct of the proceedings I was invited to adopt his findings on that issue. Having regard to the importance of this issue I adjourned the proceedings for a short time so that Mr Everson, who appeared for the accused, could take firm instructions on the matter, but when the hearing resumed he confirmed that his client consented to the matter being resolved in that manner. Mr Archer supported that course and I ultimately agreed to proceed on that basis.

18. The offences were said to arise from an incident which occurred on Friday, 13 November 1998. Mr Humphries who was a heroin user made a phone call from Queanbeyan to another man with a view to obtaining heroin from him. Following that phone call he drove to the Campbell shops where he made another phone call to the man from a mobile phone. He then met the man gave him $60 for a quantity of the drug consisting, he thought of one $50 and one $10 note, and took it back to his car. He subsequently injected himself with the drug. He gave evidence that he knew that what he had been given was heroin and explained that having been a heroin addict for about ten years he recognised the feeling he had following the injection. However, Mr Humphries was unable to identify man from whom he obtained the drug and could only describe him as an Asian male. Furthermore, he conceded in cross-examination that he bought heroin off a lot of different people including a few Asian men.

19. Shortly before this incident Detective Constable Smith and Detective Constable Innes had been driving down Blamey Crescent when they saw the defendant walking towards the Campbell shops. Detective Constable Smith said that he saw Mr Humphries get out of a yellow vehicle and walk towards the appellant. He then left the area and went to another portion of the Campbell shops where he observed another man named Michael Caine and his girlfriend. He subsequently went back towards the service station near where he had seen the defendant and Mr Humphries and found that Detective Constable Innes had moved the police vehicle from where he had parked it into the Shell service station. He then saw Mr Caine meet the defendant at that service station. Mr Caine give the defendant a sum of money which appeared to consist of a bundle with a $50 note on the outside and observed the defendant place it in his right pocket. He said "it appeared the defendant removed something from his left pocket and handed it to Mr Caine". The two police officers then approached the defendant and Mr Caine. Detective constable Smith arrested the defendant whilst Detective Constable Innes attempted to catch Mr Caine who had turned and fled at their approach.

20. When the defendant was searched the sum of $220 was found in his right pocket and that consisted of four $50 and one $20 notes wrapped in a bundle. In addition, a $50 note and a $10 note were found in one section of the appellant's wallet and a $50 and two $20 notes were found in another section.

21. The telephone records relating to the mobile phone found in the possession of the appellant did not contain any record of the two telephone calls allegedly made by Mr Humphries but there was no evidence from Mr Humphries that they were made to a mobile telephone number.

22. It was also conceded that Mr Humphries' fingerprints were not found on any of the notes found in the appellant's possession.

23. Detective Constable Innes confirmed that he had travelled to the Campbell shops in a police vehicle with Detective Constable Smith. He said he was able to see the appellant who was about thirty metres away from the position in which he had parked the police vehicle. He saw Mr Humphries get out of another car and jog over towards the appellant. He said there appeared to be a conversation between them and then Mr Humphries handed the appellant something which was blue in colour. The defendant then walked back in the direction of Anzac Parade up Blamey Crescent whilst Mr Humphries waited on the far side of the road and a short time later the appellant returned and handed him something. Mr Humphries walked back to his car and Detective Constable Innes got out of the police vehicle so that he could maintain a clear view of him. He watched Mr Humphries inject what he assumed to be a mixture of heroin and water into his arm.

24. Shortly thereafter he saw another vehicle in which Mr Caine and his girlfriend were passengers. He observed Mr Caine get out of the vehicle and walk down towards Blamey Crescent where he met with the appellant. Detective Innes then drove the unmarked police vehicle into one of the console bays in the Shell service station. Detective Smith came back shortly thereafter and he told him of his observations. He said he saw Mr Caine give the appellant what he believed was at least one $50 bill and saw the appellant give Mr Caine something which was still in his right hand when he and Detective Constable Smith approached him. When they identified themselves as police officers Mr Caine ran and Detective Constable Innes was unable to catch him. He returned and was present when the appellant was searched.

25. The learned Magistrate accepted the evidence of Mr Humphries and the two police officers and emphatically rejected the evidence of the appellant, finding expressly that he had lied throughout his evidence.

26. Mr Everson submitted that I should not be satisfied beyond reasonable doubt that the appellant was the person who entered into the transaction with Mr Humphries. He pointed out that the appellant had not been under continuous observation by either police officer and that Mr Humphries had not been able to directly identify him. Furthermore, there was no supporting evidence such as fingerprints on the notes in the appellant's wallet to link him with Mr Humphries. On the contrary, the absence of any record of the telephone calls being made by Mr Humphries to the mobile phone in the appellant's possession was more than sufficient to give rise to a reasonable doubt.

27. I am acutely conscious of the dangers of convicting upon identification evidence especially when the witnesses in question have not previously been acquainted with the person concerned. However, I see no reason to doubt the identification evidence in this case. The evidence of the two police officers concerning the identity of the person they saw meet Mr Humphries was admitted without objection and while some questions were directed to that issue in cross-examination nothing emerged to cast any real doubt on its reliability. The gap in their observations was limited to a few minutes and the appellant was then taken into custody. It is one thing to rely upon an identification made days or weeks after the events in question and another to rely upon evidence of witnesses identifying a person they had seen only three or four minutes before they saw him again. It was not suggested in cross-examination that their view was impeded in any way or that their opportunity for observing the person who dealt with Mr Humphries was otherwise limited. Nor was it suggested that there may have been other Asian men in the vicinity with whom the appellant might have been confused or that there was some other reason for doubting the apparent reliability of the identification..

28. In all the circumstances including, of course, the Magistrate's findings as to credibility I am satisfied beyond reasonable doubt that the appellant did supply heroin to Mr Humphries.

29. In view of the evidence concerning the transaction with Mr Humphries and the further evidence concerning the transaction with Mr Caine there was in my view an ample basis for a reasonable suspicion that the money in the appellant's possession had been unlawfully obtained and since his evidence was emphatically rejected by the Magistrate it is clear that the statutory defence cannot be established.

30. Accordingly it is appropriate that he be convicted of both offences.

31. The appellant has no previous convictions and the amount of heroin sold to Mr Humphries was apparently quite small. In these circumstances Mr Archer conceded that the informant would not demur from the proposition that it would be appropriate for a sentence to be imposed which was backdated to the date of his original convictions and was suspended forthwith. He has already been in custody for about five months and in the circumstances I am prepared to accept that such a sentence would be appropriate. The summary offence carries a maximum penalty of six months imprisonment and it is appropriate that a concurrent sentence be imposed.

32. In the circumstances the appellant will be sentenced to twelve months imprisonment in relation to the offence of selling heroin and three months imprisonment in relation to the offence of having money in his possession reasonably suspected of being stolen. Both offences will be served concurrently and both will be backdated to 18 May 1999. The lengthier sentence be suspended immediately upon the appellant entering a recognisance to be of good behaviour for a period of three years.

33. Before leaving the matter I should mention an important issue quite properly raised by Mr Archer. Section 209 of the Magistrates Court Act provides as follows:

(1) An appeal shall be instituted by the appellant filing a notice of appeal in the office of the registrar of the Supreme Court within the period of 21 days after the conviction was entered, the order or decision was made or the sentence or penalty imposed, as the case requires, or within such further time as the Supreme Court allows.

(2) As soon as practicable after the appeal has been instituted the appellant shall -

(a) lodge a copy of the notice of appeal in the office of the Magistrates Court for inclusion in the records of that court; and

(b) serve a copy of the notice of appeal on the informant."

34. Despite the requirements of subsection (2) no copy of the Notice of Appeal was apparently lodged in the office of the Magistrates Court and as a consequence the court did not become aware that conviction and sentence had been stayed pursuant to s 216(1) or that the appellant might therefore be granted bail in accordance with the provisions of the Bail Act 1992. Consequently in this, and I am told other similar cases, the appellant has continued to serve the sentence imposed upon him.

35. In my view an appeal is validly instituted once the Notice of Appeal is filed in the office of the Registrar of the Supreme Court as required by subs (1) of s 209 and a failure to lodge a copy of the Notice of Appeal in the office of the Magistrates Court as required by subs (2) of that section does not invalidate the appeal. However it is quite wrong for an appellant to be left languishing in prison at a time when his or her sentence has been stayed and he or she is prima facie entitled to be released on bail. Such a person might suffer grave injustice especially if the appeal were to be successful and the conviction quashed. In those circumstances an innocent man or woman might have been compelled to remain in prison for perhaps several months simply because of a procedural oversight on the part of his legal representatives.

36. In the present case the reasons for this apparent oversight were not explored and the remarks which I have made should not be construed as involving any criticism of the appellant's solicitors. Furthermore, no injustice has been suffered by this appellant. However, member of the profession will need to be vigilant to ensure that copies of notices of appeal are duly lodged with the Magistrates Court if injustice is to be avoided in other cases.

I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 1 October 1999

Counsel for the appellant: C Everson

Solicitor for the appellant: Saunders and Company

Counsel for the respondent: ACT Director of Public Prosecutions

Date of hearing: 30 September 1999

Date of judgment: 1 October 1999