Nash v Local Court of New South Wales

1. [1]

   On 20 March 2024, Magistrate Moody in the Downing Centre Local Court found Mark Stephen Nash (“the plaintiff” or “Mr Nash”) guilty of an offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). He was placed on a conditional release order without conviction for a period of 12 months: s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). The offence arose out of an altercation on 20 July 2023 between Mr Nash and his then flatmate Mr Taylor Herron.

2. [2]

   By amended summons filed on 28 October 2025, Mr Nash seeks judicial review of the decision made by Magistrate Moody on 20 March 2024. He invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), and seeks relief in the nature of certiorari to quash the decision made. The plaintiff describes the decision to be reviewed in his amended summons as “the finding of guilty without conviction”. The plaintiff further seeks a declaration that the decision is invalid and of no legal effect.

3. [3]

   At the hearing before me, Ms S Williams appeared on behalf of the second defendant, the NSW Commissioner of Police (“the Commissioner”). The applicant was self-represented at the hearing. The first defendant, the Local Court of New South Wales, filed a submitting appearance.

4. [4]

   The summons was filed out of time. Accordingly, the plaintiff requires an extension of time for commencement of the proceedings pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW). The Commissioner did not oppose an extension of time being granted.

Background

1. [5]

   The material placed before the Court in this matter comprised: the transcript of proceedings in the Local Court on 20 March 2024; the Court Attendance Notice dated 24 July 2023; the orders of Magistrate Moody; the conditional release order; and the exhibits before the Local Court, including the statement of Constable Carlin Deane dated 9 September 2023 and photographs of the defendant.

2. [6]

   The following background is taken from the above documents.

3. [7]

   At the relevant time, the plaintiff and Mr Taylor Herron resided together as housemates in Redfern. On 20 July 2023, tensions had arisen between the pair, and they had a heated verbal argument. Various insults and expletives were exchanged, followed by a physical altercation. The plaintiff suffered bruising, photos of which were Exhibit 2 in the hearing before the Local Court.

4. [8]

   On 21 July 2023, the day after the altercation, the plaintiff attended the police station to report the incident. Body-worn video (“BWV”) footage recorded him making the following admissions:

5. [9]

   The plaintiff was then placed under arrest for a “domestic violence” related common assault. Section 5(1)(d) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that for the purposes of that Act a person has a domestic relationship with another person if the person “is living with or has lived in the same household as the other person”.

6. [10]

   When police interviewed Mr Herron, they decided that he acted in self-defence and did not charge him.

7. [11]

   On 26 July 2023, the plaintiff appeared for mention in the Local Court and entered a plea of not guilty to the charge of assault.

8. [12]

   On 20 March 2024, the hearing proceeded before Magistrate Moody. The plaintiff maintained his plea of not guilty and was unrepresented at the hearing.

9. [13]

   The first witness called by the prosecution was Constable Carlin Deane. In the process of tendering the statement of Constable Deane, which became Exhibit 1, Magistrate Moody had the following exchange with the plaintiff:

10. [14]

    Following the tender of Exhibit 1, the following exchange occurred:

11. [15]

    The reference by her Honour to the need for the brief to have been served 14 days prior to the hearing is to the requirement in s 183 of the Criminal Procedure Act 1986 (NSW) regarding evidentiary disclosure in summary hearings. It is in these terms:

12. [16]

    Section 187 of the Criminal Procedure Act provides that a brief need not be served if an order is made to that effect. Section 187 is in these terms:

13. [17]

    If a brief is not served 14 days prior to the commencement of the hearing, then either the prosecution seeks an adjournment (see s 187(4) above) or the evidence is inadmissible under s 188(2) of the Criminal Procedure Act unless the defendant consents to its admission. Section 188(2) is in these terms:

14. [18]

    As the extract of the transcript at [14] above shows, Mr Nash left the Magistrate with the impression that he had been served with a copy of the brief 14 days prior to the hearing. Despite this, by the time of the hearing before me it was common ground that the document the plaintiff was referring to was the Police Facts provided to him when he was charged rather than to the statement of Constable Deane which was dated 9 September 2023, nearly two months later.

15. [19]

    Photographs of injuries sustained to the plaintiff were then tendered through the evidence of Constable Deane. When Magistrate Moody inquired whether the plaintiff had seen the photos, he confirmed that he had a copy of them.

16. [20]

    BWV footage of an interview between Constable Deane and the complainant was identified by Constable Deane during the course of his evidence in chief and marked as MFI A. The following exchange then occurred:

17. [21]

    Following the conclusion of Constable Deane’s evidence, her Honour proposed to adjourn the matter to enable the accused to be shown the BWV. Her Honour had the following exchange with the plaintiff concerning legal advice:

18. [22]

    When the matter was recalled, the plaintiff requested more time as he was still going through the “complainant’s transcript” and formulating questions for cross-examination. Further time was granted.

19. [23]

    When the hearing resumed, the complainant, Mr Herron, gave evidence in closed court. The operation of s 289VA of the Criminal Procedure Act prevented Mr Nash from cross-examining Mr Herron himself. Instead, a court appointed questioner (“CAQ”) questioned him on behalf of Mr Nash based on questions Mr Nash had written down for him. Section 289VA(6) of the Criminal Procedure Act provides that the Magistrate did not have the discretion to decline to appoint a CAQ under s 289VA(2), despite anything to the contrary in s 306ZL or another Act or law.

20. [24]

    In his evidence-in-chief, Mr Nash gave the following evidence:

21. [25]

    In her Honour’s ex tempore judgment, she referred to issues concerning the BWV:

22. [26]

    Her Honour found the offence proven as follows:

23. [27]

    On sentence, her Honour observed the following on her decision not to convict the plaintiff:

24. [28]

    As stated above, her Honour imposed a conditional release order without a conviction for a period of 12 months. This order has since expired.

The grounds of review

1. [29]

   In his amended summons, the plaintiff relied on two grounds alleging error on the face of the record and “apparent bias and procedural unfairness” respectively. These grounds were particularised as follows in the amended summons:

2. [30]

   These grounds were addressed in the plaintiff’s written submissions dated 2 February 2026. In response, the Commissioner opposed an extension of time being granted and submitted that the summons should be dismissed.

3. [31]

   In the plaintiff’s reply submissions filed on 17 February 2026, he raised a new argument concerning non-disclosure of the prosecution brief prior to the hearing. He relied upon the above passages of the transcript in support of his contention that he had not viewed the BWV footage prior to the hearing and that the matter proceeded notwithstanding that fact. He sought leave to rely on his affidavit affirmed on 19 February 2026 in which he explained that he had proceeded below on the misunderstanding that the Court Attendance Notice and NSW Police Facts Sheet constituted the prosecution brief. He deposed that prior to the hearing on 20 March 2024 he was not served with a copy of Constable Deane’s statement dated 9 September 2023 nor provided with the BWV footage or transcript.

4. [32]

   The Commissioner provided supplementary submissions on 25 February 2026 in which he conceded that he was not in a position to challenge the plaintiff’s evidence that he was not served with the brief of evidence prior to hearing. It was also accepted that the plaintiff’s ability to prepare and present his defence, consider his forensic options and seek advice may have been compromised by non-service of the brief of evidence. In these circumstances, it was conceded that the Court may be satisfied that procedural unfairness is established.

Consideration

1. [33]

   A failure to afford procedural fairness to a party constitutes both jurisdictional error and error of law within jurisdiction: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [5], [17]-[42], [170].

2. [34]

   The rules of procedural fairness ordinarily require a party to be given the opportunity to be heard on any adverse material which includes being put on notice of the content of such material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [32]. Section 183 of the Criminal Procedure Act is a statutory provision which reflects an aspect of the rule of procedural fairness in the context of summary criminal prosecutions.

3. [35]

   Having regard to the transcript of the proceedings and Mr Nash’s affidavit, I am satisfied that Mr Nash was denied procedural fairness at his hearing in that he was not provided with a copy of the brief 14 days prior to the hearing of his charge. As Adamson J (as her Honour then was) observed in Director of Public Prosecutions v Lazzam [2016] NSWSC 145 at [33]:

4. [36]

   The Commissioner’s concession that the plaintiff’s hearing was infected by procedural unfairness should be accepted. I accept the plaintiff’s submission that the failure to disclose the brief of evidence prior to hearing deprived him of a meaningful opportunity to prepare and respond to the prosecution’s case. It also had the capacity to influence how he prepared his cross-examination, what witnesses he called and his own election to give evidence.

5. [37]

   The transcript extracted above demonstrates that neither the prosecutor nor the Magistrate was aware of the failure to provide Mr Nash with a copy of the brief of evidence. It is most unfortunate that in the context of a busy Local Court list day the hearing proceeded on an incorrect assumption.

6. [38]

   Had Mr Nash been represented in the Local Court an objection could have been made under s 188 of the Criminal Procedure Act and the question of whether the evidence should have been excluded or an adjournment granted could have been considered: Director of Public Prosecutions v West [2000] NSWCA 103; Director of Public Prosecutions (NSW) v Chaouk and Anor [2010] NSWSC 1418; Director of Public Prosecutions (New South Wales) v Maleselo Fungavaka & Anor [2010] NSWSC 917; Director of Public Prosecutions v Lazzam [2016] NSWSC 145; and DPP v Benjamin Nagler [2018] NSWSC 416.

7. [39]

   Mr Nash has established jurisdictional error. The grant of relief for jurisdictional error is discretionary: Colquhoun v District Court of New South Wales [2014] NSWCA 460 at [8] (Leeming JA, Beazley P and Barrett JA agreeing); Dyason v Butterworth [2015] NSWCA 52 at [76] (McColl JA, Barrett and Gleeson JJA agreeing). Nothing was put before the Court to suggest that the Court would not exercise its discretion to quash the order made by the Magistrate and I am satisfied such an order should be made.

8. [40]

   Some time was spent at the hearing of this matter as to whether an order should be made that the matter be remitted to the Local Court for a re-hearing. It was the Commissioner’s position that it should whereas Mr Nash submitted that, in the exercise of my discretion, I would order the decision to be quashed without remittal to the Local Court.

9. [41]

   The decision as to whether to make an order remitting a matter for re-hearing usually arises in the context of a dispute as to whether an order of acquittal should be made instead. Such a dispute usually arises in the context of statutory appeals. The factors relevant to this decision in the context of s 8(1) of the Criminal Appeal Act 1912 (NSW) was considered in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142. Beech-Jones J (as his Honour then was) observed the following at [93]:

10. [42]

    I agreed with Beech-Jones J and observed the following at [100]:

11. [43]

    Similarly, in the context of appeals under the Crimes (Appeal and Review) Act 2001 (NSW), this Court has a statutory power under s 55(1)(a) to set aside a conviction or sentence and further statutory powers under s 55(1)(b) and (2)(c) to set aside a conviction or sentence and remit the matter to the Local Court: see Darlington v Director of Public Prosecutions (NSW) [2023] NSWSC 1139 at [2] (Dhanji J); Employers Mutual Ltd v Heise (No 2) [2022] NSWSC 663 at [9] (Adamson J); Tua v Commissioner of Police (NSW) [2021] NSWSC 1159 at [27] (Lonergan J).

12. [44]

    Despite the fact that the parties joined issue on the question of whether I would remit the matter for re-hearing or not, I am not ultimately satisfied that such an order has any practical effect given the nature of the supervisory jurisdiction I am exercising. An order in the nature of certiorari quashes the order of the Local Court on the basis that it was infected with jurisdictional error. The quashing of the order means that a re-hearing could proceed as there has been no determination of the charge. That then leaves it as a matter for the discretion of the prosecutor as to whether to proceed again. It was not suggested that I would or could enter an acquittal in relation to the charge.

13. [45]

    The submissions made by Mr Nash as to why I would decline to make an order remitting the matter for a re-hearing are relevant to whether the police would seek a re-hearing of his charge rather than any order that I would make.

14. [46]

    Mr Nash submitted that it would be oppressive and prejudicial to seek a retrial for a “structural defect” caused by the Commissioner’s own admitted failures. I accept that it was the fault of the prosecution that Mr Nash was not provided with a copy of the brief, but it was a result of a misunderstanding in a busy Local Court hearing. Mr Nash, as a self-represented defendant, did not understand the difference between the Police Facts and a police brief and thus was unable to convey to the Magistrate that he had not been served with a copy of the police brief.

15. [47]

    Mr Nash also pointed to the exchange between Magistrate Moody and Constable Deane at [20] above in which he indicated that the BWV footage had been provided in the brief of evidence. It was suggested that this was some evidence of improper conduct on the part of police. Although I am not satisfied that police acted improperly, it is unfortunate that time was not taken during the hearing to gain confirmation that Mr Nash had not been served with a copy of the brief once it became apparent that he did not have the transcript of the BWV.

16. [48]

    Another relevant consideration is the fact that the Magistrate did not enter a conviction against Mr Nash. Given the operation of the “ceiling” principle, the same or lesser sentence would be imposed in the event that Mr Nash was convicted again: R v White [2023] NSWSC 611 at [75] per Beech-Jones CJ at CL.

17. [49]

    It will ultimately be a matter of prosecutorial discretion as to whether police decide to prosecute Mr Nash again. Relevant discretionary factors include the fact that police inadvertently misled the Court by giving the impression that the brief had been served, that in the event that Mr Nash was convicted again he would not receive a conviction, that his conditional release order has already expired without further offending and that it is now nearly three years since the date of the alleged assault. These are all matters for the Commissioner.

Costs

1. [50]

   The plaintiff has been successful. The usual order would be that costs follow the event “unless it appears to the court that some other order should be made as to the whole or any part of the costs”: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.

2. [51]

   While the Commissioner did not formally object to me taking this usual course, Ms Williams did raise the point that certain expenses could have been avoided had the plaintiff raised this issue of non-disclosure earlier. Despite this, it was quite properly accepted that there were some earlier references to missing material in the plaintiff’s original summons and affidavit in support filed on 9 October 2025.

3. [52]

   The reason for the delay in bringing proceedings for judicial review in this Court was never adequately explained by Mr Nash. In his affidavit, Mr Nash deposed that he had been unemployed, under financial strain and lacked legal expertise. Despite this, I am not satisfied that I would depart from the usual order as to costs in this matter.

Orders

1. [53]

   Accordingly, I make the following orders:

   1. (1)

      Extend time for bringing these proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).

   2. (2)

      Quash the order of the Magistrate on 20 March 2024 finding the offence of assault proved and placing Mr Nash on a Conditional Release Order without conviction.

   3. (3)

      The second defendant is to pay the plaintiff’s costs of the proceedings to the extent to which the latter may be entitled at law as a self-represented litigant.