Bradley v Senior Constable Chilby

By summons filed on 7 November 2019, Harley Bradley, the defendant in criminal proceedings in the Local Court (the accused), seeks leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) against the dismissal by Clisdell LCM of his application for a temporary stay of proceedings. The defendant in the proceedings in this Court is Senior Constable Deborah Chilby, who was the police prosecutor in the Local Court (the Prosecutor).

The accused’s application for a stay was made by notice of motion filed on 15 April 2019, in which the following relief was claimed:

The proceedings in the Local Court arise out of the following facts.

In a statement made on 8 June 2018, Katie O’Connor (the complainant) said that on 28 April 2018 she and the accused were at the home of a friend and that, at some point in the evening, the accused bit the middle finger of her left hand. She tried to extract it but, before the accused unclenched his teeth, her finger had been cut to the bone. The complainant said that she was subsequently admitted to hospital for conditions which included depression, anxiety and bipolar disorder but discharged herself on 11 May 2018. On 19 May 2018, on the advice of her Department of Community Services caseworker, she reported the incident to police and subsequently made the statement referred to above on 8 June 2018.

On 17 June 2018, the Prosecutor arrested the accused who was transported in the rear cage of a police van to the Lake Illawarra Police Station where he was entered into the Custody Management Record. I infer that when the Prosecutor arrested the accused, she suspected, on reasonable grounds, that the accused had committed the offence of assault occasioning actual bodily harm: s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and New South Wales v Robinson [2019] HCA 46; (2019) 94 ALJR 10 at [109]-[115] (Bell, Gageler, Gordon and Edelman JJ). The reasonable grounds presumably derived from what the complainant had said in her statement.

The Prosecutor, who was assisted by Senior Constable John Finch, conducted an interview with the accused as an Electronically Recorded Interview with a Suspected Person (ERISP). The accused denied the complainant’s account. He admitted that he had bitten the complainant but said that he had done so in self-defence as she had put him in a headlock and refused to release him. According to the accused, the complainant had been under the influence of drugs. As a consequence of the accused’s answers in the ERISP, it must have been plain to the Prosecutor that, if the accused was charged and prosecuted, the issues would be self-defence, the complainant’s propensity to violence and her drug use, credibility and reliability.

At the conclusion of the ERISP, the accused was released pending further investigations.

The Prosecutor said in her statement of 5 November 2018 (which was served as part of the brief of evidence):

The Prosecutor then stated that she had tried to contact the complainant but was unsuccessful. When the Prosecutor finally made contact with the complainant she learned that the complainant had changed her telephone number. The Prosecutor asked the complainant for photographs of the injured finger which were provided on 27 August 2018.

On 3 September 2018 the accused was served with a court attendance notice which charged him with the offence of assault occasioning actual bodily harm.

On 17 October 2018, the accused appeared in the Local Court at Wollongong and entered a plea of not guilty to the charge.

On 29 October 2018, at the accused’s request, the Local Court issued a subpoena to the Commissioner of Police to produce certain documents, including the complainant’s criminal history. This item was subsequently narrowed by agreement and was confined to offences on the criminal history relating to “violence, drug use, and administration of justice offences, and any other entries on the history relevant to the mental health, credibility and reliability of [the complainant].”

On 21 November 2018 the Prosecutor served a brief of evidence which did not include the accused’s ERISP, which was subsequently provided.

On 5 December 2018, the Local Court fixed the matter for hearing on 31 May 2019.

From October 2018, the Prosecutor and the accused’s solicitor, Tim McKenzie, corresponded regarding the subpoena and the Prosecutor’s disclosure obligations in the context of the proceedings.

On 4 April 2019 Mr McKenzie wrote to Senior Sergeant Ryan, the Senior Police Prosecutor at Wollongong Police Station. The letter was copied to the Prosecutor and to Makinson d’Apice, the lawyers who act for the Commissioner for Police on behalf of the Prosecutor in this matter. In this letter, Mr McKenzie summarised the prosecution’s duty of disclosure by reference to authority and also attached an email dated 28 March 2014 from Superintendent Ian Dickson, the then Director, Police Prosecutors, which was addressed to police prosecutors throughout New South Wales and which purported to outline the nature and extent of the duty of disclosure. Of present relevance, the email summarised the relevant principles as follows:

In his letter of 4 April 2019 Mr McKenzie sought disclosure of the material which was subsequently sought in prayer 1 of the notice of motion extracted above. He foreshadowed that, if the material sought was not provided, the accused would make an application for a temporary stay of the proceedings.

The Prosecutor responded by letter dated 11 April 2019:

Notwithstanding what the Prosecutor had said in her letter about item 7, the Custody Management Record in respect of the accused was provided to his legal representative on 3 May 2019.

On 14 May 2019 the Commissioner of Police produced a redacted version of the complainant’s criminal history and the Computerised Operational Policing System (COPS) entry for the present charge. The accused was granted access to this material. The Prosecutor maintained her objection to production of the balance of the documents sought.

The accused’s notice of motion was listed for hearing on 16 May 2019. The hearing was adjourned to 28 May 2019 in order that the Prosecutor could attend to give evidence and be cross-examined.

I note that the only particular items in prayer 1 of the notice of motion which remained in issue at the hearing of the notice of motion on 28 May 2019 were [1.2], [1.3] and [1.6]. The accused accepted that documents falling within item [1.1], [1.5] and [1.7] had been provided and that [1.4] and [1.8] were generally descriptive of what the accused contended the duty of disclosure entailed but did not seek identified documents.

In the Court below, Ms Graham, who appeared on behalf of the accused instructed by Mr McKenzie, read an affidavit by Mr McKenzie which annexed documents including the subpoena to the Commissioner of Police and the documents produced in answer to it; the facts sheet for the charge against the accused; the complainant’s statement dated 8 June 2018; the Prosecutor’s statement dated 5 November 2018; the transcript of the accused’s ERISP; and correspondence between the solicitors which is referred to in more detail in the factual narrative set out above. Mr McKenzie was not cross-examined. Ms Graham relied on detailed written submissions which made extensive reference to authority. These submissions, dated 16 May 2019, were provided in advance of the hearing.

Sergeant Casey appeared for the Prosecutor at the hearing of the motion before the Court below on 28 May 2019. He indicated that he did not intend to adduce any evidence. He informed the court that the position of NSW Police, and therefore the Prosecutor, was that the disclosure obligations had been complied with. He confirmed that both the Prosecutor and Senior Constable Bourbonnais were present outside the court but that he did not propose to call them as witnesses and, accordingly, neither could be cross-examined by Ms Graham.

Sergeant Casey informed the magistrate of what occurred on 16 May 2019 as follows:

Ms Graham confirmed that she did not propose to call either officer on her application and had not subpoenaed either of them because of correspondence between the parties in which the police represented that the officer would be called by the police and would be made available for cross-examination.

Sergeant Casey then said, of present relevance:

I note that, at that stage, the substantive hearing of the charge against the accused remained listed for 31 May 2019.

Ms Graham identified legitimate forensic purposes for the production of the documents set out in prayer 1 of the notice of motion. First, she submitted that the facts sheets for the offences of which the complainant had been convicted were potentially relevant or could open up a line of inquiry for the defence of the accused. Ms Graham said:

Secondly, she submitted that the facts sheets relating to pending proceedings against the complainant were also relevant for the same reason.

Ms Graham submitted that records of the conversations in item [1.6] were required to be disclosed because they could open up a line of inquiry as to why the accused, having been arrested and released from custody, was subsequently charged.

In response, Sergeant Casey submitted:

At the conclusion of the hearing, the magistrate proceeded to give reasons and make orders ex tempore. Because of the nature and extent of the grounds of appeal it is desirable to set out the reasons of the Court below at length:

This Court’s jurisdiction arises from Part 5 of the Act. Section 53 relevantly provides:

Section 55 of the Act provides:

Section 72 of the Act provides:

Section 183 of the Criminal Procedure Act provides for the service of a brief of evidence as follows:

The common law duty of disclosure is reflected in s 15A(1) of the Director of Public Prosecutions Act 1986 (NSW) which provides:

It is also reflected in Division 3 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) which sets out the disclosure requirements for proceedings on indictment.

As is evident from the terms of s 183 of the Criminal Procedure Act, the service of a brief of evidence is no substitute for compliance with the duty of disclosure since it is addressed to a different process. The terms of s 15A(1) of the Director of Public Prosecutions Act do not apply to prosecutions conducted by police prosecutors in the Local Court where the Director of Public Prosecutions is not involved.

As there is no express statutory provision which addresses the disclosure obligations of police prosecutors who are prosecuting summary offences in the Local Court, the duty of disclosure imposed on those prosecutors is the common law duty established by the authorities which are addressed below.

The accused seeks leave to appeal on the following grounds:

Ms Curry, who appeared on behalf of the Prosecutor in this Court, accepted that grounds 1 and 3 raised a question of law alone but contended that ground 2 raised a question of mixed fact and law.

The grounds of appeal are related. Ground 1 turns on the extent of the duty of disclosure owed by a prosecutor to an accused person. Ground 2 arises from the reasons given by the magistrate for dismissing the notice of motion. Ground 3 relates to the matters germane to the decision whether certain documents were disclosable.

Before coming to the Prosecutor’s duty of disclosure in the present case, I propose to summarise the relevant principles.

The accusatorial system in criminal proceedings imposes a duty on a prosecutor to disclose material which, first, is or might be relevant to an issue in the case; secondly, raises a new issue, the existence of which is not apparent from the prosecution case; or, thirdly, holds out a real prospect of providing a lead on evidence in the first two categories: R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 (Reardon) at [46]-[54] (Hodgson JA), which was approved in R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321.

The obligation requires the prosecutor to take a “broad view of relevance”. Hodgson JA said in Reardon at [58]:

In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142 (Gould), which followed Reardon, Basten JA (Johnson and Adamson JJ agreeing) said at [65]:

There is scant basis in the authorities to distinguish between the duty of disclosure for summary offences and that applicable to indictable offences. In R v Garofalo [1999] 2 VR 625; [1998] VSCA 145, Ormiston JA (Tadgell and Charles JJA agreeing) at [67] found it necessary to decide only that, in a trial on indictment, there is a duty to disclose prior relevant convictions of a prosecution witness. The extent of disclosure in summary proceedings did not arise. His Honour referred to Wilson v Police [1992] 2 NZLR 533; [1991] NZCA 179 in which the New Zealand Court of Appeal (Cooke P, Casey and Hardie Boys JJ) found that there may be a distinction and considered that prior relevant convictions of prosecution witnesses ought be provided as a matter of course in trials on indictment and, if requested, for summary offences.

The generality of the principles and their application to police prosecutors was correctly recognised in the email dated 28 March 2014 sent by Superintendent Ian Dickson which has been extracted above.

The prosecutor’s duty of disclosure is not enforceable directly. Thus, an accused is not entitled to an order requiring the prosecution to produce particular documents covered by the duty or to an order for stay of the proceedings pending provision of particular documents: Gould at [60]-[62]. As Basten JA explained in Gould at [63]-[64], the basis of a court’s jurisdiction to order a stay is its jurisdiction to prevent an unfair trial: see also R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 at [120] (McColl JA, R S Hulme and Hislop JJ agreeing). Thus the Court has power to grant a stay until the duty is complied with if the substantive hearing, absent production of the documents, would be likely to be unfair (Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh); [1992] HCA 57) or if there is a tangible risk that it would be unfair (Re K [2002] NSWCCA 374 at [9]-[10] (Beazley JA, Sully and Simpson JJ)).

An accused who alleges that disclosure is inadequate is, however, entitled to request that subpoenas be issued to obtain the documents said to fall within the ambit of the duty: Gould at [14], [18] and [19]. As long as the subpoena is not set aside, the subpoena is enforceable.

In R v Mokbel (Ruling No 1) [2005] VSC 410, Gillard J was required to rule on a subpoena issued at the request of an accused in a criminal trial. The subpoena sought documents relating to the credibility of former members of the Drug Squad who had been charged with offences committed while they were police officers. The Crown claimed privilege on the basis of public interest immunity. Gillard J considered the relationship between the principles relating to a fair trial and those relating to access to documents produced on subpoena. His Honour said of an accused’s rights in this context:

Hamill J adopted these principles and applied them in R v Jenkin (No 2) [2018] NSWSC 697 at [21] in the context of a subpoena seeking production of criminal histories of Crown witnesses. I note that the Prosecutor in the present case accepted that she was obliged to disclose the complainant’s criminal history, which was produced by her in answer to the subpoena issued at the accused’s request.

A breach of the duty of disclosure can also lead to the quashing of a conviction entered as a consequence of a trial that was, or might have been, unfair by reason of the breach.

In Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 (Grey), the issue was whether a criminal trial miscarried because the accused, Grey, had not been provided with a copy of a “letter of comfort” which had been given by an investigating police officer to Reynolds, a key prosecution witness who was involved in the events giving rise to the charges. The defence case at trial was that Reynolds, and not Grey, was responsible for rebranding stolen car parts. Thus, Reynolds’ credibility was a significant issue in the trial. Grey’s legal advisers knew that Reynolds had previously been convicted of similar offences for which he had been sentenced to a term of periodic detention. They were not, however, aware that, when Reynolds was sentenced for those offences, the sentencing court took into account assistance he had given to the police in relation to the investigation into such rebranding by others which was contained in the letter of comfort tendered at Reynolds’ sentencing hearing. An available inference was that it was Reynolds’ assistance that led to the charges against Grey. It was accepted that, but for the assistance Reynolds had given to the authorities, a custodial sentence would have been imposed on him.

The police informant in relation to Grey was aware of the letter. However, the prosecutor who conducted the trial against Grey was not. He said that, had he been aware of the letter, he would have disclosed it to Grey’s counsel. Grey was convicted. Grey’s legal representatives later learned that Reynolds had been given the letter of comfort prior to giving evidence at the trial. The letter of comfort recorded as follows:

Grey appealed against his conviction on the basis of the non-disclosure of the letter of comfort. His appeal was dismissed by majority (Grove and Sully JJ, Simpson J dissenting). Grey appealed to the High Court.

In the High Court the Crown conceded that the letter ought to have been disclosed. A plurality of the High Court (Gleeson CJ, Gummow and Callinan JJ) rejected the Crown’s submission that, notwithstanding the prosecutor’s inadvertent failure to disclose the letter of comfort, Grey had not been deprived of the opportunity to discredit Reynolds on the basis of the material available to him at the time. The plurality said, at [18]:

Their Honours also found that, had the letter of comfort been disclosed, the trial judge would have probably been obliged to give a direction to the jury about Reynolds’ potential unreliability in terms of s 165(1)(d) and (2) of the Evidence Act 1995 (NSW). The plurality said, at [23], of the argument that the defence could have discovered Reynolds’ role in the investigation:

The High Court unanimously found that Grey had lost a fair chance of acquittal and that, accordingly, it could not be said that no substantial miscarriage of justice had occurred. His conviction was quashed and a re-trial ordered.

Grey was considered and applied in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 (Mallard). In that case, material, which had not been disclosed prior to, or during, the trial, came to light in response to Mallard’s plea for clemency. It was the Crown case at trial that the deceased had been killed with a wrench. The material disclosed included the only one of Mallard’s interviews to have been recorded. In this interview, Mallard had said that the assailant (who on the Crown case was Mallard) had a wrench. In the undisclosed interviews, Mallard had made incredible assertions as well as confessional statements. The non-disclosed material also included records relating to experiments conducted by police forensic experts to try to reproduce the manner of the deceased’s death. The results of such experiments tended to show that the deceased could not have been killed with a wrench.

Mallard’s appeal against conviction was dismissed by the Court of Criminal Appeal. The High Court allowed Mallard’s appeal. The plurality (Gummow, Hayne, Callinan and Heydon JJ) said at [23]:

As the High Court was not satisfied that no substantial miscarriage of justice had occurred, the conviction was quashed and a new trial ordered.

In the present case the complainant’s credibility and whether she has a propensity for violence, drug-taking and falsehoods are important issues in determining the charge against the accused.

The facts sheets for the offences of which the complainant had been convicted and with which she stood charged could, if they indicated that the complainant had, while under the influence of drugs, a propensity to be aggressive without any provocation, tend to support the accused’s case that he bit her finger in self-defence. Thus, they would appear to fall into the first category in Reardon: namely, that they are potentially relevant to an issue in the substantive proceedings. Further, they might hold a real prospect of providing a lead on evidence that might be relevant, thus falling into the third category in Reardon.

Any record of the conversations between the Prosecutor and Sergeant Huggins would appear to fall within one or more of the three categories in Reardon. The content of the conversation would be likely to provide an indication of why the police, having arrested the accused, taken him into custody and questioned him in an ERISP, then released him without charge. Any record of the conversation between the Prosecutor and the Lake Illawarra prosecutors which occurred on 29 June 2018 (before contact was renewed with the complainant and before the accused was charged) is also likely to be relevant or open up a line of inquiry for the accused.

The Prosecutor’s position in the Local Court, as is evident from the summary of the submissions above, was that if a hearing could be conducted without the material in respect of which disclosure was sought, there was no obligation on the Prosecutor to disclose such material. This submission was adopted by the Court below. This proposition finds no support in the authorities. The magistrate’s finding that the accused could have a “fair” hearing without access to such documents was legally unreasonable (in the sense referred to in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ)) and was based on the erroneous premise engendered by the Prosecutor, which reflected the flawed approach taken by NSW Police to its duty of disclosure in the present case.

The magistrate’s concern for the resources of NSW Police was misplaced. Even on the assumption that questions of resources could be relevant, there was no evidence to suggest that there was any particular difficulty in locating the documents sought by the accused. Neither the Prosecutor, nor Senior Constable Bourbonnais gave evidence, although both were available to be called by Sergeant Casey. In these circumstances, the inference can be drawn that their evidence would not have assisted the Prosecutor in her opposition to the accused’s notice of motion: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

Further, the allegation that the accused’s solicitor had sought the disclosure for the improper purpose of diverting police resources was without foundation. The material sought in [1.2], [1.3] and [1.6] plainly fell within at least one of the three categories in Reardon referred to above and, as such, was required to be disclosed. The descriptions in items [1.4] and [1.8] merely paraphrase the accepted formulations of the prosecutor’s duty of disclosure reflected in the authorities.

I note that the accused did not seek any documents which were not in the possession of NSW Police. Thus, it is not necessary to address the question whether a prosecutor might, in some circumstances, have a duty to make inquiries: cf. Marwan v Director of Public Prosecutions [2019] NSWCCA 161.

As referred to above, Ms Curry accepted that ground 1 raised a question of law alone. For the reasons given above, the documents described in [1.2], [1.3] and [1.6] were required to be disclosed. The basis on which the magistrate found to the contrary was that his Honour misapprehended the nature and extent of the obligation which has been authoritatively established by the cases referred to above. His Honour’s reasons reveal this misapprehension. His Honour’s appreciation of the nature and extent of the duty of disclosure constituted a “discrete starting point for his subsequent analysis”: see R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 at [72] (Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing). On this basis, I accept that ground 1 involves a question of law alone.

In substance, his Honour considered that the facts sheets did not need to be disclosed for the following four reasons, none of which provided any basis for non-disclosure. His Honour’s reasons were: first, because the facts sheets could potentially be incorrect; secondly, because the accused could cross-examine about the complainant’s prior convictions based on her criminal history which had been disclosed; thirdly, it would be oppressive to require a police prosecutor to locate and provide such documents; and, fourthly, the request was invalid because it was made for the improper purpose of frustrating the prosecution of the accused by putting the Prosecutor to additional work. Thus, his Honour’s errors proceed from a legally erroneous starting point.

For the reasons given above, there was no evidence of oppression and no reasonably available inference of improper purpose. It is clear from the dicta in Grey set out above that the prosecution is not absolved from discharging its duty of disclosure by the circumstance that the matter could be explored by the accused in cross-examination. The possibility that a facts sheet could contain incorrect or unreliable information is not to the point, since, whether correct or otherwise, it may lead to an inquiry which might assist the defence. The dicta extracted by Gillard J in R v Mokbel (Ruling No 1) (set out above) explain why such material may be useful in the accused’s defence.

The magistrate’s misapprehension of the content of the duty of disclosure was erroneous in the several respects set out above. For these reasons, ground 1 has been made out.

Ms Curry contended that I had no jurisdiction to consider this ground as it was not a question of law alone.

I do not accept the submission that ground 2 does not involve a question of law alone. It appears to me that, as with ground 1, the magistrate misapprehended the nature and extent as a matter of law of the duty of disclosure. This misapprehension led his Honour into error and caused him to mischaracterise the defence’s evident purpose in seeking the documents described in the notice of motion. Had his Honour correctly appreciated the nature and extent of the duty of disclosure, his Honour would have understood that there was no evidence of any improper purpose. For these reasons, ground 2 has been made out.

Although Ms Curry accepted that this ground raised a question of law alone, I consider there is a difficulty with this ground having regard to this Court’s narrow jurisdiction. There was no evidence of any burden, in terms of time and costs, which the disclosure sought by the accused would place on the Prosecutor. For this reason alone, it was erroneous for the magistrate to take it into account. As it was a finding in respect of which there was no evidence, the finding was erroneous. I consider, for the reasons given above, that the matters germane to this ground are subsumed in ground 1 since his Honour’s errors reflect an incorrect legal appreciation of the nature and extent of the duty. I am not persuaded that ground 3 falls within this Court’s jurisdiction under s 53(3)(b) of the Act.

Section 53(3)(b) imposes two hurdles on the accused in the present case: first, the ground must involve a “question of law alone”; and, secondly, leave of this Court is required. The first hurdle has been addressed above. I turn now to whether leave ought be granted.

It is evident from the review of the authorities set out above that the question raised by the summons is one of considerable importance to the interests of justice in the present case and also to the administration of justice in New South Wales generally. The disclosure sought is particularly pertinent to the reliability of prosecution witnesses, which is a matter of general relevance. For the reasons given above, I consider that the document emailed to police prosecutors throughout New South Wales accurately summarises the authorities. However, the conduct of the Prosecutor in the present case falls far short of the duty required of her. It is also of significance that Ms Curry, who appeared for the Prosecutor in this Court, was not instructed to make appropriate concessions but defended the magistrate’s approach notwithstanding his Honour’s evident non-compliance with the law. The Prosecutor’s cavalier approach to her duty of disclosure fell far short of what the law requires.

Ms Curry endeavoured to gain support from Sergeant Casey’s conduct in asking Officer Bourbonnais, who was in court for another matter on 16 May 2019, to look at the material and see whether there was anything to disclose. It is not sufficient for a police officer who has no familiarity with the case to be asked to work out whether material is disclosable. The performance of the duty requires attention to be given to the issues in the case and to all the material within the possession of the NSW Police. It can only be performed by someone who has knowledge of, and familiarity with, the case and who has access to databases, documents and other records held by NSW Police.

Were the accused to be required to defend himself against the pending charge without access to the material he seeks, he would not receive a fair hearing in accordance with the law. In particular it would not be fair for his representative to be deprived of material which would be likely to assist in identifying the conduct that amounted to the previous assaults, offences of dishonesty and drug offences of which the complainant had been convicted or charged. To deprive the accused of that material would put him at the mercy of the complainant who might choose to lie about such matters in cross-examination or simply not recall the details. Each of the two thresholds referred to above – that the substantive hearing of the charge is likely to be unfair or that there is a tangible risk that the hearing will be unfair – has been comfortably satisfied in the present case.

In these circumstances, I am satisfied that a grant of leave is warranted.

Ms Avenell accepted, on the basis of Gould, that neither the Court below, nor this Court, could make an order in terms of prayer 1 of the notice of motion. She submitted that I could make an order in terms of prayer 2. Ms Curry submitted that, if I were persuaded that the appeal ought be allowed, I ought make no additional order other than that the matter be remitted to the Local Court for determination in accordance with law. Ms Curry accepted that the matter ought not be remitted to Clisdell LCM. Ultimately, Ms Curry accepted that I could make a substantive order before remitting the matter to the Local Court.

The form of the order is affected by the nature of the duty. As Leeming JA (R A Hulme and Adamson JJ agreeing) said in Marwan v Director of Public Prosecutions at [29]:

I consider that the accused has made out his claim for relief and that this result follows from the reasons set out above. Section 55(3)(a) of the Act confers power on this Court to determine an appeal against, relevantly, an interlocutory order, by setting aside the order and making such order as it thinks just. It is necessary to stay the proceedings until the Prosecutor has complied with her duty of disclosure.

Ultimately, the performance of the duty of disclosure is a matter for the Prosecutor, subject to this Court’s supervision in granting or continuing a stay until the duty has been complied with in order to ensure that the hearing of the charge against the accused is fair.

Both parties agreed that costs ought follow the event and that I have jurisdiction to make such an order for costs in an appeal under Part 5 of the Act: see Cunningham v Cunningham (No 2) [2012] NSWSC 954 at [12]-[18] (Button J) and Bimson, Roads and Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827 at [34] (Beech-Jones J).

For the reasons given above, I make the following orders: