Keys v West [2006] NSWSC 136

In this matter Greg Walsh appeared for the defendant in a summons brought by the Commonwealth Director of Public Prosecutions contending that an order made by Mr Flack, Magistrate, on 9 October 2003 at the Liverpool Local Court discharging the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth) be set aside.

The background to the matter was that Mr Flack ordered that the defendant be discharged pursuant to s19B(1)(d) of the Crimes Act 1914 and to be of good behaviour for a period of eighteen months.

It was contended by the Commonwealth Director of Public Prosecutions that the sentence imposed by the learned Magistrate was not available at law because the defendant had been convicted in the Local Court in her absence on 31 March 2000. That conviction had not been annulled due to the fact that the defendant was not aware that the conviction had been recorded until a warrant for her arrest was issued some three years after the recording of the ex-parte conviction on 31 March 2000.

Hall J concluded that the conviction made and recorded by the Bankstown Local Court on 31 March 2000 constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, his Honour found that the determination did not contitute a conviction in the sense of a final disposition of the proceedings. See Maxwell v The Queen (1995-96) 184 CLR 501; Griffiths v The Queen (1977) 137 CLR 293; Kinney v Green (1992) 29 NSWLR 137; Kopuz v District Court of NSW(1992) 28 NSWLR 232; Mulcahy v Clark (1991) Tas. R. 115; Cobiac v Liddy (1969) 119 CLR 257; Della Patrona v DPP (Cth) (No 2) (1993) 38 NSWLR 257; Application by the Attorney General under s37 of the Crime (Sentencing) Procedure Act for a Guideline judgment concerning the offence of High Range prescribed Concentration of alcohol under s.9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (no 3 of 2002) [2004] 51 NSWLR 305.

Accordingly his Honour found that there was no conviction within the meaning of that term and that s19B of the Crimes Act 1914 (Cth). It was therefore open to Mr Flack on 9 October 2003 at the Liverpool Local Court to exercise the power to discharge the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth).