Time limits on the ODPP electing to prosecute table offences on indictment

By Christopher Parkin

How did it get so late so soon? It’s night before it’s afternoon. December is here before it’s June. My goodness how the time has flewn. How did it get so late so soon?’

Dr Seuss

Elections to proceed on indictment, rather than summarily, happen in the Local Court every day. But it is little known and rarely appreciated that if the Director of Public Prosecutions (NSW) (“DPP”) wishes to elect, that election must take place within a limited time.

An election by the DPP is usually an undesirable outcome for the defendant for two reasons.

First, an election means that the defendant loses the benefit of the 2 year sentencing cap imposed on the Local Court: Criminal Procedure Act 1986 (NSW) s 267.

Second, an election means there is suddenly a committal process and a jury involved. This can dramatically ratchet up the time and cost of defending the charges.

 

 The time limit

The Criminal Procedure Act 1986, s 263 provides that elections to proceed on indictment must occur within the time prescribed by the Local Court.

That time is on, or before, the first return date after brief service orders are made: see Local Court Practice Notes Crim 1 and Comm 1.

Getting around the time limit

If the DPP seeks to elect after that date, the election will only be allowed if leave is granted by the Local Court. In order to obtain leave, the DPP must be able to show that there are ‘special circumstances’.

If the Magistrate does not formally grant leave and/or fails to determine that they are satisfied that there are ‘special circumstances’, any committal proceedings which ensue will arguably be incompetent.

The DPP has acknowledged, in Supreme Court proceedings, that without making such a finding, the Local Court will commit jurisdictional error: see Hall v Director of Public Prosecutions.

So what is a ‘special circumstance’?

In Hall v R, Johnson J noted the absence of any useful jurisprudence on ‘special circumstances’ in this context and made a number of observations:

  • The focus is not on the appropriateness of the election but on the ‘reason why the decision [to elect] is not made within the time allowed of the local court’ (at [49], [55]-[56]).
  • There must be something which sets those circumstances apart from the usual or ordinary case (at [55]).
  • The length of time between the time expiring and the date of the purported election will be significant (at [56]).
  • The overall administration of justice, being justice as it affects the community as well as the individual, is also important (at [57]).

It is essential that the Local Court take into account an explanation for the failure by the DPP to elect within time: Osman v Director of Public Prosecutions (No 2) at [10]. However, ‘the reasonableness of the explanation for the relevant delay need not be determinative, nor is it … a single, or signal, factor to be taken into account. It must be taken into account but the weight to be given it is a matter for the Local Court’: Osman (No 2) at [38].

Appealing or reviewing a Local Court decision about ‘special circumstances’

Initially, it was accepted that an appeal under the Crimes (Appeal and Review) Act 2001 (NSW) was available (Hall v Director of Public Prosecutions), but that avenue now appears to be closed (see Osman v Director of Public Prosecutions).

The NSW Court of Criminal Appeal (“NSWCCA”) has also refused to entertain an appeal from such a decision under the Criminal Appeal Act 1912 (NSW): Hall v R.[7]

It now seems that the only way to appeal or review a decision to grant leave is to seek judicial review of the Local Court’s decision under Supreme Court Act 1970 (NSW) s 69. This means identifying either a jurisdictional error, or an error of law on the face of the record (including the reasons for finding that special circumstances exist: s 69(4)).

Dealing with an out-of-time election.

If you are faced with an election made out of time: object. The Local Court cannot give leave without actually determining that there are special circumstances. The onus is on the DPP to seek leave.

If the DPP seeks leave, there should be an explanation for the delay given. You are entitled to insist upon evidence being given explaining this (although a misunderstanding by the judge as to whether an explanation given from the bar table is objected to will not give rise to a jurisdictional error: Osman (No 2) at [43]).

Finally, remember that the DPP can lay an ex-officio indictment and avoid the Local Court process entirely: Iqbal v R at [15]-[24].

The significance of an election to your client cannot be understated. It could mean the difference of a maximum sentence of 2 years or 14 years. Some may criticise an objection along these lines as nitpicking or overly technical. Whether or not a serious objection can be taken will be very much determined by the unique facts of any given case.

The fact remains that the time limits have been imposed by Parliament and the Court for a reason and your client is entitled to insist upon compliance.  But if special circumstances are found to exist, your avenues of review are limited.

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