Director of Public Prosecutions v Johanes Shirvanian [1999] NSWSC 53 (16 February 1999)

Last Updated: 17 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS v Johanes SHIRVANIAN [1999] NSWSC 53

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 11954/98

HEARING DATE{S): 21/09/98

JUDGDMENT DATE: 16/02/1999

PARTIES:

Plaintiff - Director of Public Prosecutions

First Defendant - Johanes Shirvanian

Second Defendant - Deborah Anne Sweeney

JUDGMENT OF: Hulme J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Deborah Anne Sweeney

COUNSEL:

Plaintiff -R.D. Cogswell SC

Defendant - S J Odgers

SOLICITORS:

Plaintiff - S.E. O'Connor Solicitor for Public Prosecutions

Second Defendant - I.V. Knight, Crown Solicitor

CATCHWORDS:

Criminal Law

Goods in Custody

Oppression

5,000 items

ACTS CITED:

Crimes Act S527C

DECISION:

Save and except for the orders and declaration previously made in these proceedings, the Summons should be dismissed.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO: 13518/97

16 February 1999

HULME J

DIRECTOR OF PUBLIC PROSECUTIONS v Johanes SHIRVANIAN

AND ANOR

JUDGMENT

1 HIS HONOUR: On 20 November 1997 the Second Defendant, a Magistrate, stayed proceeding on an information laid against the First Defendant on the basis that they were oppressive. The Magistrate held that the proceedings were an abuse of process.

2 By Summons filed on 19 December 1997, the Director of Public Prosecutions sought:-

1. An order removing the record of the Local Court (into this Court).

2. An order quashing the finding of the Second Defendant that she had jurisdiction to stay the proceedings.

3. An order quashing the order of the Second Defendant staying the proceedings.

4. A declaration that the Second Defendant erred in finding she had jurisdiction to stay the proceedings.

5. A declaration that the Second Defendant erred in staying the proceedings.

6. An order pursuant to Section 134 of the Justices Act 1902 that the Second Defendant hear and determine the information according to law.

3 On 16 February 1998 Bruce J, pursuant to the Supreme Court Rules, Part 12 Rule 2, removed the proceedings in this Court into the Court of Appeal which considered the Magistrate's power to grant a permanent stay in criminal proceedings of this nature. By majority the Court of Appeal declared that a Magistrate conducting a summary trial of an information has the power to grant a permanent stay in a proper case and remitted the proceedings to the Common Law Division for further hearing. It is with the issues debated on that further hearing that these Reasons are concerned.

4 The offence alleged in the information was one under the Crimes Act 1914 (Cth), s527C, namely that the First Defendant had in premises situate at Belrose "property to wit, (See Annexure), which may be reasonably suspected of being stolen or otherwise unlawfully obtained". The annexure extended to 19 pages wherein under headings describing various parts of the house involved, there were listed various items commonly found in households in this state. Thus on the page headed Bedroom 1 the items listed included:-

· 2 small Jackeroo sleeping bags.

· 3 rugs.

· 1 plastic bag containing various socks.

· 1 Panasonic 4 system colour television.

· 40 ties.

· 1 paint roller.

5 However, such quantities were by no means typical. On the pages entitled "Bedroom 4" there was reference to, inter alia, sixteen 20 pce dinner sets, fourteen saucepans and fourteen salt and pepper sets. On the page entitled "Roof" (which I understand to refer to the cavity above the ceiling and below the roof itself) reference was made to, inter alia:-

· 40 Kyoto brand imperial 57 pce cutlery sets.

· 20 Kyoto brand teapots.

· 27 Kyoto brand 20 pce dinner sets.

· 70 boxes of Lego.

6 In all approximately 5,000 items were listed. The Crown case was that the various items had been found in the First Defendant's premises on the execution of a search warrant. When questioned the Defendant apparently said that all the items came from K-Mart at Chatswood, where he worked and where he obtained staff discounts.

7 According to the evidence from a police officer who was called, at the time of the execution of the search warrant he had invited the First Defendant to make available any receipts he could find and on the basis of these and perhaps some other information the police officer had not seized all of the contents of the house. Thus the annexure to the information contains no reference to items in a kitchen or living room. In cross-examination that police officer accepted that a number of other items to which his attention was directed were not suspicious or unlawfully obtained. However, it was clearly the Crown case that the vast bulk of the items had been obtained dishonestly from K-Mart.

8 In addressing the question whether she should exercise the power to stay proceedings, the Magistrate made express reference to the nature of the charge and the maximum penalty of 6 months imprisonment prescribed, the fact that if the prosecution established to a prima facie level that there was a suspicion attaching to the goods that the Defendant had an onus of establishing a defence provided for by Section 527C, the public interest in the prosecution of people charged with criminal offences and continued:-

"Clearly it must be that to justify a stay on the basis of oppressiveness it must be that the prosecution in the conduct of it is more than inconvenient, or unwieldy, or having logistical difficulties, which can at least be said of this matter.

Having heard what I have heard of the evidence in this case it occurs to me that the prosecution could have presented a refined version of the charge, and may well then have had a strong case to present in respect of some items which are included in the items the subject of this charge.

And lastly, in respect of this matter, it appears that the prosecution can present a global case, and it seems that the basis on which the prosecution presents their case is in some respects a global case, they relying on the factors of the quantity of good overall, and the large number of some items, or multiple number of some items, which the officer-in-charge says is beyond the number of items which people ordinarily have their home for their own domestic consumption.

But while the prosecution can present a global case, the Defendant has to address individually each item in order to establish the onus which is cast upon him of establishing that he did not have - or could not have reasonably had a suspicion about the goods, which really requires him to establish how he acquired the goods in order to rebut the case presented by the prosecution. And it appears to me that in requiring the Defendant to provide individual explanations in respect of 5,000 items that therein lies the oppression in this matter, and I'm persuaded that it is a matter that is oppressive, and that therefore is an appropriate matter in which to exercise the jurisdiction to say the proceedings in order to prevent an abuse of process."

9 Counsel for both parties accepted that, in the circumstances of this case for the appeal to succeed it had to be shown that the Magistrate had declined to exercise or had acted in excess of her jurisdiction. Reference was made to a number of authorities of which it is only necessary to mention Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 176-8; Acuthan v Coates (1986) 6 NSWLR 472 at 482-3 and Yisrael v District Court of New South Wales (1996) 1987 A Crim R 63.

10 The Crown's primary submission was that the Magistrate had declined to exercise the jurisdiction imposed on her by the Justices Act 1902 (NSW), s80, which provides:-

"After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice of 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."

11 It may be conceded that the Magistrate's decision to stay the proceedings was taken well prior to the conclusion of the evidence. However, it was taken after about a day's evidence from the chief prosecution witness and at a time when the basis of the Crown case was clear and it is a normal incident of applications to stay proceedings that they are dealt with at a relatively early stage. In light of the decision of the Court of Appeal in this matter it seems to me impossible to conclude that, merely because the Magistrate granted the stay application, she neglected to comply with Section 80. As was set by Mason P in the Court of Appeal in these proceedings, "the power to stay proceedings permanently for abuse of process operates, in practice, as an exception to the duty of a court invested with jurisdiction in a particular proceeding to appear and determine that proceeding".

12 It was also submitted on behalf of the Director of Public Prosecutions that the Magistrate had adopted an erroneous test of what represented oppression as that expression is to be understood in the subject area of law and had equated oppression with the problems necessarily inherent in a difficult case arising in the terms of Section 527C which, so far as is relevant, provides:-

(1) Any person who -

(a) has any thing in his custody;

(b) ....

(c) has any thing in or on premises, whether belonging to or occupied by himself or not, or whether that thing is there for his own use or the use of another; or

(d) ...

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a stipendiary magistrate to imprisonment for 6 months, or to a fine of 5 penalty units.

(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

13 Even were this the correct analysis of what the Magistrate had done, it would seem to me to be an error which fell within the exercise of her jurisdiction rather than one which demonstrated a failure to exercise it - see Acuthan v Coates (1986) 6 NSW LR 472 at 482. However it is not, I think, an accurate summary of what the Second Defendant did. A decision whether to stay proceedings "falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations" - Walton v Gardiner [1993] HCA 77; (1992) 177 CLR 378 at 396. The summary I have given and the extracts from the Magistrate's Reasons I have quoted show that this is what the Magistrate did and although she identified a difficulty the First Defendant faced as the circumstance demonstrating oppression it is not correct to say that she simply equated the two.

14 It is correct, as Senior Counsel for the Director of Public Prosecutions contended, that the nature and particulars of the charge brought meant that the Defendant was obliged to address individually each item, or at least each group of items and establish that he had not reasonable grounds for suspecting that the item (or group) was "stolen or otherwise unlawfully obtained." However this by no means demonstrates that the charge as presented was not oppressive. There is nothing in the legislation or the circumstances of the case which compelled the Crown to include 5,000 items as the subject of the charge. That having been done, it is not altogether surprising that a Magistrate found the burden thereby imposed on the Defendant, excessive.

15 It was submitted on behalf of the Crown that that burden merely arose because of the circumstances of the case and, though the matter was put more discreetly, but matched the Defendant's apparent criminality and nothing would have been achieved and more oppression created, had the charge been broken up into many charges each dealing with one or a limited number of items. Furthermore, so the argument ran, in respect of any one charge the Crown would have tendered the totality of evidence, thus making the First Defendant's task as formidable as it was under the charge as formulated.

16 That may be so. But in respect of any one charge, the Defendant would not have had to show the existence of reasonable grounds except in respect of the item or items the subject of that charge. A person who has, or would seem to have, committed a large number of offences, can have no legitimate complaint if each is charged against him but he does have a complaint - and indeed so does the system of administration of justice - if these matters are all lumped together and made the subject of one charge. The inclusion of some 5000 items in the charge preferred clearly provided grounds for the magistrate to conclude as she did. There was no error calling for the intervention of this Court. In so concluding I am not unconscious of the remarks of Mason P in the Court of Appeal querying whether the magistrate had based her decision on (mere) disapproval of the charge as laid but having reflected on what Her Worship said, it does not seem to me that her decision is to be understood on that basis.

17 Save and except for the orders and declaration previously made in these proceedings, the summons should be dismissed.

18 That is the order I make.

LAST UPDATED: 16/02/1999