Elwood v Director of Public Prosecutions

1. [1]

   The plaintiff seeks leave to appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal relates to the plaintiffs having been committed for trial on three offences on 26 October 2022 by Magistrate Prowse in the Local Court at Cobar. It also concerns two related summary matters dealt with on that day.

2. [2]

   An appeal pursuant to s 53(3)(a) requires grounds that involve a question of law alone, and the Court must in any event grant leave. The plaintiff seeks, in the alternative, an order in the nature of certiorari, in respect of the Magistrate’s decision if the questions raised do not involve a question of law alone.

3. [3]

   The defendant does not dispute that some of the questions, reformulated in an amended summons, involve questions of law alone, and does not dispute that error is shown in respect of some of the determinations of the Magistrate. Notwithstanding the defendant’s concessions the Court needs to be satisfied that a question of law alone is involved and that error is shown.

4. [4]

   For the reasons which follow, I am satisfied that some of the questions raised in the amended summons involves questions of law alone, that the Magistrate has erred, and that leave should be given to bring the appeal. It is not necessary, therefore, to embark upon consideration of the interesting, but more difficult question about whether the new provisions in Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) (“CPA”) are subject to the decision of the Full Court of the Supreme Court in Exp Cousens; Re Blacket (1946) 47 SR (NSW) 145; and see Sankey v Whitlam (1978) 142 CLR 1 at 22 and Wentworth v Rogers [1984] 2 NSWLR 422 at 434.

Background

1. [5]

   On 12 October 2021 the plaintiff was charged with 29 offences. Notwithstanding the charge date, the Office of the Director of Public Prosecutions (DPP) only began receiving the brief of evidence from NSW Police on 1 April 2022.

2. [6]

   Between 13 October 2021 and 19 May 2022 the matter was mentioned six times at Dubbo Local Court. A partial brief was served on the Aboriginal Legal Service who were acting on behalf of the plaintiff on 7 May 2022. Subsequently there was piecemeal service of the remainder of the brief between 7 March 2022 and 20 June 2022. At each mention between 7 April and 30 June 2022, the Court granted applications under s 67(3) of the CPA extending the time for filing a charge certificate, over objection by the defence.

3. [7]

   At a listing on 9 June 2022, the brief was deemed compliant, and the matter was listed for charge certification on 30 June 2022. When the matter was mentioned on that date, the Court again extended the time for filing a charge certificate because the DPP required a minimum of six weeks from the brief becoming compliant to certify the charges.

4. [8]

   On 21 July 2022 the charge certificate was filed by the prosecutor in the Local Court. On that day, the Court adjourned the matter until 15 September 2022 for a case conference mention.

5. [9]

   On 14 September 2022, the first case conference was held by audio visual link. At the conference the parties discussed the brief. At the conclusion of the conference, the solicitor for the DPP indicated that further consideration of the brief would be undertaken and a brief index provided to the ALS. Both parties agreed an adjournment would be required to allow for further negotiations.

6. [10]

   On 15 September 2022 the matter was listed at Dubbo Local Court before Magistrate Prowse. A joint application for an adjournment was made. The Magistrate at first indicated his intention to refuse the application and commit the plaintiff for trial. However, his Honour ultimately adjourned the matters to Parkes on 20 October 2022. His Honour marked himself as part-heard in the matters, and the papers were marked “no further adjournments”.

7. [11]

   Between 15 September 2022 and 17 October 2022, the parties exchanged offers. The plaintiff made an offer on 16 September 2022 which was rejected by the DPP on 12 October 2022. The DPP made a counter-offer on 17 October 2022.

8. [12]

   On 18 October 2022 a second case conference was held by audio visual link. The solicitor for the plaintiff had been unable to discuss the counter-offer with the plaintiff prior to that second case conference. However, the solicitor indicated that, based on earlier discussions with the plaintiff, what was offered was not likely to be accepted by him. Both parties agreed to continue negotiating with a view to finding a resolution.

9. [13]

   The matter was relisted at Broken Hill on 21 October 2022 in lieu of Parkes on 20 October 2022. Subsequently, the Court advised that Magistrate Prowse would not be presiding on 21 October, and the Registrar sought an indication from the parties as to the status of the matter. Both parties responded, indicating that the matter was not ready to commit and that an adjournment would be sought. The Registrar advised that the matters would be relisted at Cobar on 26 October 2022, to be heard by Magistrate Prowse.

10. [14]

    On the afternoon of 25 October 2022, the DPP sent an amended charge certificate to the solicitor for the plaintiff. It indicated that 24 charges had been withdrawn. The solicitor for the plaintiff was not able to speak to the plaintiff until the following morning, but she then did not have time to discuss the charges in detail or to explain the implications for him. The plaintiff indicated that he wanted to continue to negotiate.

11. [15]

    When the matter was listed before Magistrate Prowse on that morning, Mr Doohan on behalf of the DPP indicated that he sought an adjournment to give the plaintiff’s solicitor time to get instructions on the fresh charge certificate. The plaintiff’s solicitor advised the Court that she was not in a position to enter pleas at that stage. The Magistrate directed her to speak with the plaintiff to get instructions on a plea to the remaining charges on the new charge certificate. The plaintiff’s solicitor spoke with him and he instructed her that he wanted more time to consider his options, and wanted further time to discuss and consider the evidence in relation to the remaining charges.

12. [16]

    The plaintiff’s solicitor prepared an affidavit in support of an adjournment, and Mr Doohan handed up written submissions outlining the DPP’s position in support of the adjournment application. Nevertheless, the Magistrate refused a further adjournment. He asked the plaintiff’s solicitor to enter pleas, but she indicated that she was not in a position to do so. The Magistrate said that in that case the Court would enter pleas of not guilty and the matter would be committed for trial. Submissions were made to the Magistrate concerning his jurisdiction and powers under s 76 of the Criminal Procedure Act.

13. [17]

    The Magistrate then entered pleas of not guilty for three indictable matters where the plaintiff was committed to the District Court for trial, and sent two summary matters to Bourke Local Court to be fixed for hearing.

The proceedings on 26 October 2022

1. [18]

   The relevant parts of the transcript for 26 October 2022 read as follows:

2. [19]

   A chronology was then handed up, and reference made to s 76 of the CPA.

The Magistrate’s reasons

1. [20]

   The Magistrate first made reference to a number of cases in this Court and the Court of Criminal Appeal discussing the EAGP Scheme. His Honour then briefly traced the chronology in the matter from the time the charges were laid. He then said:

2. [21]

   His Honour next referred to the adjournment application and the material put forward by Ms Melhuish, noting that it was supported by the Crown in its submissions. His Honour then said:

3. [22]

   His Honour then considered s 76 of the Criminal Procedure Act and noted s 74(1), which provides for the Magistrate to make an order setting the day on or before which the case conference certificate was to be filed. His Honour then said:

4. [23]

   His Honour dealt next with the plaintiff’s solicitor and said:

The present proceedings

1. [24]

   The summons was filed on 20 February 2023, an extension of time having been given by the Local Court on 6 December 2022, pursuant to Pt 51B r 5(5A) of the Supreme Court Rules 1970 (NSW). However, the DPP’s submissions challenged whether the grounds of appeal in the summons constituted questions of law alone.

2. [25]

   Accordingly, the plaintiff filed an amended summons on 26 June 2023 seeking leave to appeal on the following grounds:

3. [26]

   The DPP accepted that paragraphs 1b, 2a, and 2b raised questions of law alone. In those circumstances, the DPP submitted that it was not necessary to consider grounds 3 to 6 which were the grounds seeking certiorari on the basis of error of law on the face of the record.

Ground 1a – whether the length of time between the first mention and the filing of the charge certificate is relevant to “unreasonable failure”

1. [27]

   The plaintiff submitted that the first question of law that arises was whether the length of time between a matter's first mention and the filing of a charge certificate, including any delay in that period, is relevant in considering whether the legal representative of the accused has unreasonably failed to complete a case conference certificate in accordance with s 76(3) of the CPA.

2. [28]

   The plaintiff submitted that the Magistrate effectively read into the provision a time limit after which any failure to complete a case conference certificate must be unreasonable. The plaintiff submitted that the Magistrate recited the full chronology of the case, stretching back to the first mention, and was critical of the length of time the proceeding had been on foot, including delays in serving a compliant brief of evidence. The assumption underpinning the reasoning was that the full chronology was relevant to the question of whether the plaintiff’s lawyer's failure to complete the case conference certificate was unreasonable.

3. [29]

   The plaintiff submitted that the Magistrate’s answer to the question was incorrect. The question of the reasonableness of the legal representative's conduct can only be informed by their conduct in the period when case conferencing was permissible. Anterior delays cannot render their conduct unreasonable when those delays are not in any way attributable to their conduct.

4. [30]

   The defendant drew attention to what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220, and submitted that the question was a mixed question of fact and law because there might be circumstances where the delay the Magistrate took into account could be relevant.

5. [31]

   In Orr, the joint judgment of Bathurst CJ and Bell P said:

6. [32]

   In Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 the High Court said at [24]:

7. [33]

   Although there seems to me to be a measure of tension between what is said in Orr at [59] and what is said in Vetter at [24], in my opinion, the Director’s submission that this ground does not raise a question of law alone is correct. It cannot be said, for example, that the length of time the proceedings are on foot could never be relevant for the action the Magistrate took. In that way, the question is a mixed question of law and fact. The Magistrate may well have been in error in including in his assessment of “unreasonable failure” the delay prior to the date on which the brief was compliant, and that would simply amount to an error of law, but does not raise a question of law. As was said in Orr at [59], it is simply a question which, depending on the answer, will reveal an error of fact or law, but probably the latter.

Ground 1b – whether Magistrate can decide in advance that matter won’t be adjourned

1. [34]

   The plaintiff submitted that the next question of law which arose was whether the Magistrate could decide in advance of a mention and the receipt of any evidence and submissions, to refuse to adjourn a matter further and commit the accused if the accused does not enter a plea.

2. [35]

   The plaintiff submitted that the Magistrate’s approach to the question was incorrect. A magistrate does not have an unrestricted power to commit. It is conditioned on the satisfaction of the matters in s 76(1) and (3), and its exercise must follow a consideration of the interests of justice under s 76(4). The assessment as to whether a legal representative has acted unreasonably must be made at the time when the magistrate exercises the power under s 76(3), and must be based on evidence. The "interests of justice" calculus under s 76(4) may also change over time.

3. [36]

   The defendant accepted that this ground raised a question of law alone. The defendant also accepted that the Magistrate pre-judged the matter in advance of hearing arguments about why the matter should be adjourned

4. [37]

   It scarcely needs to be said that a judicial officer is not entitled, prior to hearing from the parties, to make a decision that affects the rights of one party or other to the proceedings, absent some clear statutory authority to do so. This is one of the two traditional rules of natural justice, its Latin name being audi alteram partem.

5. [38]

   The evidence points strongly to the Magistrate having erred by prejudging the matter without having heard from the parties why they were seeking an adjournment.

6. [39]

   First, the evidence discloses that when the proceedings were before the Magistrate on 15 September 2022 he had marked the papers “no further adjournments”.

7. [40]

   Secondly, when the Crown Prosecutor had said only that he would be seeking a short adjournment to enable the lawyer for the defendant to obtain instructions on a fresh charge certificate, with the prosecutor saying that he was aware that the Magistrate was keen to commit the matter that day, the Magistrate said:

8. [41]

   Thirdly, having made the determination under s 76(1) of the CPA, the following exchange occurred:

9. [42]

   It should be noted that nowhere thereafter in his reasons does the Magistrate explain how he exonerated the Crown from the above finding that there had been unreasonable failure on the part of both sides.

10. [43]

    Finally, and before Ms Melhuish was able to speak to the defendant, the Magistrate said to the defendant:

11. [44]

    This ground involves a question of law alone. The Magistrate made his decision without hearing from the parties. He had, in any event, prejudged the matter from the prior occasion, and maintained that prejudgment from the outset on 26 October 2022. Although he later received and read an affidavit from the plaintiff’s lawyer and submissions from the prosecutor, he had clearly indicated a number of times before that what his decision was.

12. [45]

    Leave should be granted to the defendant because the decision deprived the defendant of a significant right of a discount for a plea prior to committal arising by reason of s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), with s 25A preventing any modification of the discount.

Ground 1c – whether failure to complete a case conference certificate may be unreasonable when parties still negotiating

1. [46]

   The plaintiff submitted that a further question of law arising is whether the failure of the legal representative of an accused to complete a case conference certificate may be unreasonable under s 76(3) where negotiations between prosecution and defence are active and ongoing, and there is a prospect of resolution without a trial.

2. [47]

   The plaintiff submitted that the Magistrate proceeded on an assumption that the answer to the question was in the affirmative, when the evidence and indications from both parties were that negotiations were active and ongoing. The utility of those negotiations was demonstrated by the filing of the amended charge certificate the day before. The Magistrate did not make any findings rejecting the evidence of the negotiations or dismissing the prospect that the parties might reach an agreement through the case conference process.

3. [48]

   The plaintiff submitted that the Magistrate’s approach runs counter to the purpose of committal proceedings in the EAGP scheme, which is to avoid listing trials where the possibilities of guilty pleas have not been explored and exhausted. Reliance was placed on what was said in Landrey v Director of Public Prosecution (NSW) [2022] NSWCA 211 at [31].

4. [49]

   The defendant repeated her submissions in respect of ground 1a.

5. [50]

   For the reasons I gave with respect to ground 1a, this ground involves a mixed question of fact and law. It cannot be said that there could never be an unreasonable failure on the part of the defendant’s legal representative because the parties were still negotiating. This is a mixed question of fact and law.

Ground 2 – what must be taken into account when the “interests of justice” are being considered under s 76 of the CPA

1. [51]

   The three sub-grounds here all concern matters which it is asserted should have been taken into account when considering the “interests of justice”. It is convenient to deal with them together.

2. [52]

   In relation to the “interests of justice”, the plaintiff submitted that the question of law arising was whether the "interests of justice" require a magistrate, who is otherwise satisfied under s 76(1) that a case conference certificate has not been filed by the date set, to consider the available pathways under s 76. The options are a discharge of the accused person, an adjournment of the committal proceedings, or a decision to commit the person for trial or sentence.

3. [53]

   The plaintiff submitted that, although the Magistrate initially indicated he was satisfied of unreasonable failure on the part of both the parties, the transcript indicates that he did not seriously consider whether any failure might be properly attributable to the prosecutor rather than the accused. More significantly, the plaintiff submitted, the Magistrate did not consider whether the interests of justice favoured an adjournment over committal.

4. [54]

   The plaintiff submitted that the next question of law was whether in considering the "interests of justice", a magistrate must consider the impact of the exercise of the power to commit an accused, including depriving the accused of the benefit of the discount on sentence available for an early plea of guilty under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The plaintiff submitted that a consideration of the "interests of justice" required the Magistrate to have regard to the impact of his decision on the accused, including the discount of which he would be deprived in the event of a plea of guilty. That would be a forensic disadvantage to the plaintiff.

5. [55]

   The plaintiff submitted that the Magistrate's reasons reveal that he did not consider the purpose of committal proceedings identified in Landrey at [31] when considering the interests of justice. This is because the purpose of committal proceedings as identified in Landrey goes towards the efficiency of the criminal justice system as a whole, as well as fairness to an accused.

6. [56]

   The defendant accepted that grounds 2a and 2b involved questions of law, and that the Magistrate had erred in his approach to the consideration of the interests of justice. In relation to ground 2c, the defendant submitted that, as drafted, the ground does not involve a question of law alone because it does not properly express what is said in Landrey. The plaintiff accepted the defendant’s criticism of the ground and sought leave to amend the ground to include the words “so far as possible” after the word “including”.

7. [57]

   The defendant also accepted that it would be open to the Court to find that the “interests of justice” required the Magistrate to have regard to the impact of his decision on the accused as one relevant factor, including in relation to the sentencing discount only available before committal. The defendant submitted that it would be open to the Court to find that the interests of justice required the Magistrate to consider the purposes of committal proceedings so that cases were not listed for trial until the possibility of guilty pleas had been explored and as far as possible exhausted.

8. [58]

   In R v PL [2012] NSWCCA 31, Bathurst CJ said:

9. [59]

   In my opinion both grounds 2a and 2b involves questions of law alone. They deal, effectively, with statutory construction, and what the mandatory considerations are for the exercise of a statutory power. Ground 2c similarly raises a question of law alone for the same reason but, as the defendant correctly asserts, the ground does not accurately state the principle required to be considered. I would grant leave to the plaintiff to amend ground 2c as sought.

10. [60]

    One of the difficulties about the Magistrate’s reasoning is that his whole focus was on delay. The focus of s 76 is not delay, per se, but on a failure either to participate in a case conference or to complete a case conference certificate. No doubt, delay will frequently be the cause of the failure but that is not necessarily so. There may be a failure from wilfulness, or even from incompetence or neglect on the part of a legal representative despite there not being what may be described as delay. On the other hand, there may be delay (as here) or even long delay which does not demonstrate unreasonable failure to participate in a case conference or complete the certificate.

11. [61]

    A further difficulty with the Magistrate’s reasons is that, having said that he considered both parties were at fault that the matter had not proceeded further, he does not explain why he took the pathway in s 76(3)(a) rather than one of the other available pathways. There is no explanation why, if both parties were at fault, his final conclusion was only that the applicant’s legal representative was guilty of unreasonable failure. Nor was there any finding about how the applicant’s legal representative was to complete the case conference certificate when it had not been completed by the prosecutor.

12. [62]

    There is the further problem that the period of time from the laying of the charges in October 2021 until 21 July 2022 (when the charge certificate was filed) was taken into account by the Magistrate against the applicant when, on no view in this case, could there have been any failure in that time by the applicant’s legal representative.

13. [63]

    In my opinion, the Magistrate was bound to consider the different pathways provided for in s 76. He was also required to have regard to the purpose of committal proceedings as set out in Landrey at [31]. Finally, the Magistrate was required to have regard to the effect of committal, if that was the pathway he chose, on the defendant by reason of s 25D of the Sentencing Act, following what had been said by Yehia J in Coles v Director of Public Prosecutions [2022] NSWSC 960 at [27]-[29] and Button J in Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 at [13]-[19] and [24].

14. [64]

    The Magistrate, seemingly, had no regard for the different pathways available under s 76. Having considered that both parties were at fault that the matter had not proceeded more expeditiously, no reasons are given, as noted earlier, for taking the course he did.

15. [65]

    In relation to the s 25D matter, his Honour expressly ignored considering the matter by saying:

16. [66]

    However, I cannot be satisfied that the Magistrate did not give consideration to the purpose of committal proceedings. During the course of the argument, his Honour set out the passage from Landrey, and did so again during the course of giving his reasons. In Landrey, Basten AJA said (Ward P and Simpson AJA agreeing) at [31]:

17. [67]

    During argument, his Honour said that he was bound by the decision, that he would follow it, and, although he considered the decision was irrelevant to the proceedings before him (he did not say why), he said he would apply what was said at [31].

18. [68]

    Although the plaintiff submitted that the Magistrate focused only on the case management aspects of Basten AJA’s remarks as being the critical ones, I cannot conclude that his Honour did not take into account all that was said in that passage in Landrey. I accept that he did not focus particularly on the “dual intention” referred to by Basten AJA but, having quoted the passage, he did form a view that there had been sufficient time for discussion, saying:

19. [69]

    Although one might have thought that a fresh charge certificate being served the day prior to the Court appearance, with what was said in the affidavit of Ms Melhuish and what appeared in the prosecutor’s written submissions, together with the Magistrate’s own assessment that “the time has been spent well because…the great bulk of the matters …have been withdrawn”, would have resulted in the adjournment pathway in s 76 being followed (especially where the Magistrate had considered both parties at fault), the limits on an appeal under s 53(3)(a) preclude a finding by this Court of error on the part of the Magistrate in that regard.

20. [70]

    I would uphold grounds 2a and 2b, but not 2c. For the reasons given in relation to ground 1, leave should be granted.

Grounds 3 to 6

1. [71]

   Since grounds 1b, 2a and 2b have been upheld, it is not necessary to consider these grounds.

Conclusion

1. [72]

   It may be observed from the portions of the transcript reproduced earlier, that the Magistrate made a number of highly inappropriate remarks which had the tendency to disparage judges of this Court. He also expressed his own personal views about the EAPG system which Parliament enacted.

2. [73]

   It is not the place of a magistrate to say, “I intellectually fundamentally disagree with [a judge of the Court of Appeal] in the matter that was delivered yesterday”. The doctrine of stare decisis requires that judicial officers in lower courts accept the decision of higher courts. Further, to say of judges of this Court that he does not think that they have “ever been met with reality on the ground in relation to these sort of matters”, particularly when their decisions had been cited to him, is to bring this Court and the system of justice into disrepute.

3. [74]

   These remarks are not made from any personal sensitivity for the judges of this Court, or for those who enacted the amendments to the CPA in regard to committal proceedings. The community, and those who come before the criminal justice system, must have confidence in the courts and in the way criminal justice operates.

4. [75]

   For that reason, the proceedings will be remitted to the Local Court to be dealt with by a different Magistrate.

5. [76]

   I make the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Uphold grounds 1b, and 2a and 2b of the Amended Summons.

   3. (3)

      Set aside the decision of Magistrate Prowse of 26 October 2022 committing the plaintiff for trial in relation to sequences 13, 16 and 25.

   4. (4)

      Set aside the decision of Magistrate Prowse of 26 October 2022 in relation to sequences 19 and 20.

   5. (5)

      Remit the proceedings to the Local Court at Dubbo to be dealt with by a magistrate other than his Honour Magistrate Prowse.

   6. (6)

      No order for costs of the proceedings to the intent that each party should pay their own.