DPP v Benjamin Nagler

1. [1]

   The Director of Public Prosecutions appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against orders made by a Magistrate sitting in the Local Court at Port Macquarie on Friday, 12 May 2017. No issue was taken with the jurisdiction of the Court to entertain the appeal and there is no suggestion that the decisions under review are not amenable to the relief provided by ss 56 and 59. That is, it appears to be accepted by the defendant that each of the grounds raises a question of law alone.

2. [2]

   The orders that are the subject of the appeal are:

   1. (1)

      A decision to exclude the contents of two recorded interviews with witnesses alleged to be the victims of certain "domestic violence" offences.

   2. (2)

      An order refusing to allow the prosecutor to adduce oral evidence from those witnesses.

   3. (3)

      An order refusing an application by the prosecutor to adjourn the proceedings to enable written statements to be taken.

   4. (4)

      An order dismissing two charges of assault occasioning actual bodily harm.

3. [3]

   The grounds of appeal are as follows: –

4. [4]

   The defendant concedes the errors of law asserted in the summons. That concession is made correctly and the orders sought by the Director should be made. These are my reasons for that conclusion.

The facts and course of the proceedings

1. [5]

   The Court Attendance Notices alleged that the defendant assaulted his mother (Jane Nagler) and his mother's boyfriend (Anthony Donovan) on 19 March 2017. Purportedly pursuant to Part 4B of the Criminal Procedure Act 1986 (NSW) (ss 289C to 289K) investigating police conducted recorded interviews with each of the alleged victims. [1] Ms Nagler was interviewed on 22 March 2017 while Mr Donovan was interviewed on 26 April 2017. Adopting the commonly used acronym, I will refer to these recordings as “DVECs”. At the hearing in the Local Court the prosecutor sought to use the DVECs as the evidence in chief of each of the witnesses. The defendant’s solicitor objected.

2. [6]

   In fact, the objection was foreshadowed at the very outset of the hearing. When the defendant’s solicitor attempted to outline the nature of the case he intended to conduct, and the basis of the objections so foreshadowed, the Magistrate refused to hear him indicating that it would "just waste time". The prosecutor objected to the defendant's solicitor providing any opening explanation of the way he proposed to conduct the case or the bases of the objections. This was unfortunate and was the first of a series of process or procedural errors resulting in, to use the vernacular, the summary hearing going well and truly off the rails at an early stage.

3. [7]

   The defendant’s solicitor attempted to cross-examine the informant (police officer) on matters relevant to the objection but, again, the prosecutor objected and the Magistrate refused to allow the questioning. The Magistrate invoked wrongly the provisions of s 41 of the Evidence Act 1995 (NSW), which permit a court to disallow questions of an improper, misleading, offensive or repetitive nature. The section had no application in the circumstances that prevailed. Again, the basis of the approach taken by the Magistrate appeared to be that the cross-examination was a waste of time. However, the Magistrate suggested that the questions could be asked on the voir dire if the prosecutor sought to tender the DVECs. Implicit in this exchange was the proposition that the prosecutor might not rely on the DVECs. The parties knew, and the Magistrate must have known, that the prosecutor did intend to rely on the DVECs and the implication to the contrary was misconceived (if not disingenuous). If the Magistrate genuinely did not know the course the prosecutor proposed (which I doubt), he could simply have asked. The result was that the informant left the witness box without being asked any questions relevant to the admissibility of the DVECs.

4. [8]

   Ms Nagler was then called to give evidence and the prosecutor attempted to rely on her DVEC as her evidence in chief. The defendant’s solicitor raised his objection for the third time. Contrary to what had been indicated earlier, the informant police officer was not called on the voir dire. Neither the prosecutor nor the defendant’s solicitor suggested that she should be. As a result, the defendant was denied the opportunity to test the evidence, investigate whether the provisions in Part 4B of the Criminal Procedure Act had been complied with and, if they were not, establish the nature of, and reason for, the non-compliance. Equally, the informant was not given the opportunity to answer (by denial, explanation or otherwise) what were potentially serious allegations (or implications) of misconduct on her part.

5. [9]

   Further, no questions were asked of Ms Nagler on the voir dire. Mr Donovan was never called at the hearing, on the voir dire or otherwise. No evidence was tendered on the voir dire at all. The Magistrate did not receive a transcript of the DVECs. The Magistrate was not invited to listen to the recordings. Rather, the Magistrate simply heard submissions from the solicitor for the defendant and the prosecutor.

Grounds 1, 2 and 3 and the decision to exclude the DVECs

1. [10]

   The first objection taken by the defendant was that the DVECs were inadmissible due to a failure to comply with the provisions in s 289D of the Criminal Procedure Act. That section provides:

2. [11]

   In making the objection, the defendant’s solicitor misstated the terms of the provision on more than one occasion. Rather than addressing the question of whether the interview occurred "as soon as practicable after the commission of the offence", the solicitor put to the Magistrate that the temporal requirement was that the interview be conducted "at the time of or shortly after" the relevant incident. At no stage did either the prosecutor or the Magistrate correct this submission. When the Magistrate delivered his short extemporaneous reasons on the issue he referred more than once to the provision requiring that the interview be made "at the time of or shortly after" the incident.

3. [12]

   As it turns out, the Magistrate rejected this part of the defendant's submission. Because the wrong test was applied, the decision was infected with legal error. As this submission was rejected on a fundamentally flawed basis, this is an issue that might be re-ventilated when the matter is remitted to the Local Court. It may require further evidence from the informant as to why it was not practicable to conduct the interviews earlier, a matter of particular significance in Mr Donovan’s case. There may need to be a consideration of the length of time that passed between the alleged offence and the two interviews. As has been seen, the first interview was conducted three days after the incident and the second interview conducted many weeks after the incident. It is unnecessary, and would be inappropriate, to comment further on this issue which will be for consideration of the Magistrate if objection is taken on this basis.

4. [13]

   Having rejected that aspect of the defendant’s objection, the Magistrate heard submissions on the issue upon which, ultimately, he decided to reject the evidence. It is unnecessary to go into any great detail other than to note that the defendant’s solicitor made a number of factual assertions from the bar table that were not substantiated by evidence. In particular, the defendant's solicitor referred to the second DVEC – that is the DVEC with Mr Donovan – and asserted that there was a discrepancy in the timing of the interview. He told the Magistrate that the informant said at the commencement of the interview that the time was 11:30 am and, at the conclusion of the interview, noted that the time was 11:45 am. Accordingly, the recording ought to have lasted for 15 minutes. However, the defendant's solicitor said that the interview only lasted for a period of about 10 minutes. Thus it was submitted that five minutes (or "one third") of the interview was “missing”.

5. [14]

   From this fact the defendant's solicitor submitted that a number of inferences were available. One inference was that there had been some tampering with the recording and that part or parts of the recording were edited or deleted. Another inference said to arise was that the recording was stopped or paused during the interview and there were conversations between the informant and the witness that were not recorded. From this it was submitted that the DVEC with Mr Donovan should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice. There was an alternative submission that the evidence was improperly obtained and that s 138 might also be engaged.

6. [15]

   It will be noted that the submissions and inferences to this point concerned the interview with Mr Donovan and not the interview with Ms Nagler. The Magistrate raised this with the defendant’s solicitor and asked him to “stay with [Ms Nagler’s] interview”. The defendant’s solicitor said he “want[ed] them both in or both out” and “I need to refer to Mr Donovan’s DVEC in order to bring an inference in respect of Jane Nagler’s DVEC.” He then turned to make submissions about Ms Nagler’s DVEC.

7. [16]

   The defendant's solicitor told the Magistrate that the informant recorded the commencement time of Ms Nagler’s DVEC at 12:55pm but “does not give a time at the end.” From this, it was put that “if Mr Donovan’s DVEC has had edits then the inference is that Jane Nagler’s DVEC also had edits.” The Magistrate questioned whether that “would follow” and said there may be “less sinister explanations … rather than it’s been edited out.”

8. [17]

   The prosecutor did not attempt to tender the DVEC or call the informant on the voir dire. Nor did the defendant's solicitor suggest that, if rulings under ss 137 and 138 were to be made, it was necessary for there to be evidence before the Court upon which factual findings could be made to support the ruling sought. The Magistrate did nothing to encourage the conduct of a proper voir dire. His Honour was obviously concerned with the time that the argument was taking. When the defendant’s solicitor referred to a High Court authority and offered to obtain a copy at lunchtime, the Magistrate said “the way we’re going, you’ll be coming back after many lunchtimes.” A short time later his Honour referred to another case in the list that had priority because the accused man was in custody. The Magistrate said he may need to interpose that matter.

9. [18]

   At the conclusion of the arguments the Magistrate ruled both DVECs to be inadmissible. He provided the following reasons: [2]

10. [19]

    This decision, and the factual findings upon which it was based, was not open on the evidence before the Local Court. Central to his Honour’s decision was the factual finding that there were “9 minutes” of Mr Donovan’s DVEC “unaccounted for” and that there was an “unexplained … delay in time” and that this “may provide evidence which would indicate that there may have been other matters on there.” There was no evidence before the Court on that issue. In particular, there was no evidence to allow a factual finding that nine minutes of Mr Donovan’s DVEC was missing, let alone that there was a problem of any kind with Ms Nagler’s DVEC. Had the interview been received on the voir dire, appropriate findings could have been made. It may have been obvious from viewing the recording that a gap, or gaps, existed. Had the informant been called on the voir dire (or had the questioning been permitted earlier when she gave evidence) she may have confirmed (or denied) that the DVEC was edited or provided some explanation for any discrepancy in the timing.

11. [20]

    But there was a more fundamental problem with deciding the issue in the absence of receiving any evidence. If this was a ruling under s 137, and both parties assumed that it was, the Magistrate was required to make an assessment of the probative value of the evidence. There was no evidence before the Local Court as to what either witness said in their DVEC. There is nothing in the record of proceedings to suggest that the Magistrate even knew what the allegations were. A small portion of a facts sheet was tendered in the re-examination of the police officer but this did not include the substance of the allegation or what either witness said in the recorded interviews. In those circumstances, it was impossible for the Magistrate to make any informed assessment of the probative value of the evidence. For s 137 to be engaged it was at least necessary for the Magistrate to have some understanding of what the witnesses said in order to assess the extent to which the evidence was capable of affecting a fact in issue (that is, the probative value of the evidence).

12. [21]

    It is unnecessary to go further into the correct approach to the conduct of a voir dire either generally or in the particular circumstances of this case. Given the time pressures on the Local Court, a degree of flexibility and informality may be appropriate. In some cases, it will be appropriate to receive the evidence on the case and the voir dire at the same time. In other cases, the Local Court might accept the agreed position of the parties as to a particular factual matter. It is unnecessary to go into further detail, or to purport to lay down procedures that govern the conduct of a voir dire, because it is patently clear that the process adopted in the Local Court in the present case was fundamentally wrong. It cannot be controversial that the minimum requirement was that the Magistrate be aware of the content of the evidence he was being asked to exclude. It was also necessary that the police officer answer questions about any timing discrepancies that were said to exist in the recordings.

13. [22]

    None of this is to doubt the integrity of what the defendant’s solicitor put to the Magistrate from the bar table. It is simply to note that the Magistrate was in no position to make a ruling under s 137 of the Evidence Act when there was no evidence upon which to make an assessment of the probative value of the evidence or the extent to which the evidence might create unfair prejudice. The same applies, a fortiori, in respect of the alternative submission under s 138.

14. [23]

    Grounds 1, 2 and 3 notified in the summons must be upheld.

The decision refusing to allow oral evidence from the complainants

1. [24]

   Once the DVECs were ruled to be inadmissible, the prosecutor sought to adduce the evidence orally through the two complainants. An objection to that course was upheld on the stated ground that the brief had not been served in accordance with the relevant provisions of the Criminal Procedure Act. The prosecutor sought an adjournment to allow the informant to provide statements. The application was refused. The result was that there was no evidence capable of establishing the offences and the charges were dismissed. The fourth ground of appeal asserts that the Magistrate erred in law in holding that the evidence could only be adduced if he was satisfied that “the reason for the failure to comply with s 188(1) was beyond the control of the prosecutor”.

2. [25]

   After the Magistrate made the ruling excluding the DVECs, Ms Nagler was recalled. The prosecutor asked her “Can you tell the Court what happened between 6 pm and 7 pm on 19 March 2017 at Pappinbarra?” [3] Objection was taken and it was submitted that s 183 of the Criminal Procedure Act had not been complied with.

3. [26]

   Section 183 provides:

4. [27]

   Section 188 provides:

5. [28]

   The defendant’s solicitor placed emphasis on the requirement under s 183(2)(a) for the service of “written statements”. Neither the defendant’s solicitor, nor the Magistrate, turned their minds to the following provision in s 185A(4):

6. [29]

   The prosecutor attempted to raise that provision but did not, or was not permitted to, develop his argument. [4] Again, it seems, expedition took priority over proper process.

7. [30]

   The Magistrate ruled that oral evidence from the witnesses was not admissible. Even allowing for the fact that the judgment was delivered ex tempore, the reasoning is a little difficult to fathom. The ruling was as follows: [5]

8. [31]

   The reasoning seems to be based on the proposition that because the DVECs were ruled to be inadmissible at the hearing, there had been no effective service of the brief. It was said that it was “implicit in the service of any material” that “it will be in admissible form.” That is a bold proposition and ignores the purpose of the service of the brief, which is to put the defendant on notice of the case they are required to meet and the evidence upon which that case will be based. It also ignores the practical reality that many statements and other items served in such briefs will have been prepared by police officers not trained in the laws of evidence. The suggestion that it is “incongruous” and “untenable” to assess “the thing which was inadmissible to prove the admissibility of other things” was misconceived. No doubt cases may arise where the material served in the brief of evidence is so deficient that the prosecutor will not be permitted to patch up the errors by calling oral evidence. That is the impact of s 188(1) where there has been a failure to serve the evidence in accordance with s 183. However, the Magistrate was in no position to make that determination because he had not received evidence of what was recorded in the DVECs.

Ground 4 and the refusal to allow an adjournment

1. [32]

   There is no ground of appeal specifically addressed to the ruling refusing to allow the complainants to give oral evidence of the allegations giving rise to the charges. The remarks in the preceding paragraphs ([24]-[31]) provide the context in which the fourth ground of appeal arises. That ground concerns the refusal of the Magistrate to grant an adjournment to allow the prosecutor to serve written statements. As a result of the refusal to permit the witnesses to give oral evidence of the events giving rise to the charges, the prosecutor was unable to adduce evidence capable of supporting the charges. The prosecutor sought an adjournment to allow written statements to be served.

2. [33]

   After hearing from the defendant’s solicitor, who submitted that there would be unfairness and prejudice to the defendant because, amongst other things, the witnesses lived together and there may be collusion between them, the transcript records the following: [6]

3. [34]

   The reference to the “West case” is a reference to the decision of the New South Wales Court of Appeal in DPP v West. [7] That case was decided under an earlier, but in some ways similar, legislative regime. It is not authority for the approach taken in the Local Court in this case. On the contrary. Mason P (with whom Sheller and Giles JJA agreed) set out a number of propositions apposite to the earlier legislation. That legislation included a specific power to adjourn proceedings when there was a failure to comply with the requirement to serve the brief 14 days before the hearing date. Section 66G (now repealed) was in the following terms:

4. [35]

   Mason P made the following observations of this provision at [24]:

5. [36]

   There is no direct equivalent of s 66G in the current legislative scheme. The result may be that it will be more difficult for the prosecution to succeed on an adjournment application when it has failed to comply with the brief service provisions. However, the Local Court retains a broad power to achieve justice in the circumstances of a particular case. There is a general power to adjourn proceedings in s 40 of the Criminal Procedure Act and a power to award costs on an adjournment under s 216. There is also a power to dispense with the requirements of s 188(1) “on such terms and conditions as appear just and reasonable”: s 188(2).

6. [37]

   Nothing in any of those provisions supports the approach taken by the Magistrate in the present case. In particular, the adjournment application ought not to have been determined on the basis that the power to adjourn (or to allow oral evidence) was limited to cases where “the reason for the inadmissibility was beyond the control of the prosecution generally where there has been say a death or where there has been a breakdown in communications”. [8] Ground 4 must be upheld.

7. [38]

   It follows that the appeal must be allowed, the order dismissing the proceedings be set aside and the matter remitted to the Local Court to be dealt with according to law. The only question remaining concerns the question of costs.

Time pressures, expedience and the proper conduct of criminal proceedings

1. [39]

   Before turning the question of costs, I should make some observations about the pressures on Local Court Magistrates and the way it may have impacted on the proceedings in the present case. It is a notorious fact that the courts of New South Wales have enormous workloads and that Judges and Magistrates are called upon to determine a large number of cases in a limited amount of time. The workload and time pressures are, at times, untenable and crushing. To avoid extensive delay in the hearing of cases, courts tend to list more matters than can possibly be heard unless some of the cases are adjourned or become “short matters” (that is, where defended hearings or trials resolve by pleas of guilty on the day of hearing).

2. [40]

   The transcript of the proceedings in the present case demonstrates that the Magistrate was under, or placed himself under, significant time pressure. There was at least one other defended hearing in the list and that other matter involved a defendant who was in custody, bail refused, pending the outcome of his defended hearing. The transcript of the present proceedings is littered with examples of the Magistrate exhibiting impatience with the time the matter was taking, declining to allow the legal representatives time to obtain evidence or authorities, and otherwise attempting to short-cut the process. I have already referred to some of those occasions, including the remark that “the way we’re going, you’ll be coming back after many lunchtimes.” [9] Other examples included:

3. [41]

   It would be unfair, at this distance, to be unduly critical of the conduct of the Magistrate. It is clear that the pressure of work on the day of the hearing, and I expect more generally in the Port Macquarie Local Court, was intense and probably unreasonably so. What is known from the record of the present proceedings is that there was another defended hearing in the list, that the defendant in that other matter was in custody, and that the defendant’s case proceeded beyond the luncheon adjournment. His Honour was also responsible for work safety issues of the court staff. It is not always possible, or appropriate, for courts to sit beyond 4 pm although judicial officers at all levels frequently do so.

4. [42]

   Even allowing for all of those things, these were criminal proceedings where the defendant faced penalties including imprisonment. He was entitled to a proper hearing. The complainants also had a legitimate interest in having their allegations heard. It must also be said that the time saved by the undue haste with which the matter proceeded was illusory. As it has transpired, the case has occupied a further day of court time in the Supreme Court (another busy court in NSW judicial hierarchy) and more judicial time in preparing this judgment. The matter will be remitted to the Local Court where it will have to be listed and then heard again from the beginning. A balance had to be struck and it is impossible to avoid the conclusion that the time pressures affected the proper conduct of these proceedings.

Costs

1. [43]

   The parties seemed to agree that the Defendant should pay the costs of the appeal, subject to receiving a certificate under the Suitors’ Fund Act 1951 (NSW). I have concluded that this is the correct approach. However, before reaching that conclusion, I had some reservations as to whether an order for costs should be made against the defendant.

2. [44]

   The defendant was not responsible for the way in which the proceedings were conducted. He told police at an early stage that he acted in self-defence and instructed a solicitor to appear for him. He did not make the forensic decisions as to the way his case was presented. Further, the prosecutor in the Local Court did little to ensure the matter was conducted in accordance with the law although, in fairness, the proceedings were conducted in such a way that he had little opportunity to keep the case on track. On the other hand, litigants are generally bound by the conduct of their lawyers. Ultimately, on the understanding that the defendant will not be out of pocket, I accept the position of the parties that the costs should follow the cause.

3. [45]

   The Suitors Fund exists to ensure that respondents to appeals such as the present are not left out of pocket as result of errors made in the lower court. I questioned whether a Suitor’s Fund Certificate (which is limited to an amount of $10,000 in cases such as this) would fully cover the costs likely to be sought by the Director. Counsel for the Director indicated the costs were unlikely to exceed $10,000. I was referred to the case of DPP v Richardson [16] , a not dissimilar case in which the same solicitor appeared. I was told that the Director’s costs in that case amounted to around $6,000.

4. [46]

   Neither party suggested that there was any jurisdictional issue concerning the power to award costs in a case such as the present in spite of what Button J once described as a “curious lacuna” in the legislation. [17] In the absence of any argument to the contrary, I will adopt the approach taken by Button J in Cunningham v Cunningham wherein his Honour concluded that there was a power to award costs, if only by resort to s 23 of the Supreme Court Act 1970 (NSW). [18]

5. [47]

   Accordingly, I will make a costs order in favour of the plaintiff and provide the defendant, if otherwise entitled, to a certificate under the Suitors Fund Act.

6. [48]

   For those reasons, I make the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Quash the order of the Local Court dismissing the proceedings against the defendant in relation to two counts of assault occasioning actual bodily harm made at Port Macquarie on 12 May 2017.

   3. (3)

      The matter is remitted to the Local Court to be dealt with according to law.

   4. (4)

      The defendant is to pay the plaintiff’s costs of and incidental to the appeal.

   5. (5)

      If otherwise qualified, the defendant shall have a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to the costs of the appeal.