Supreme Court New South Wales

• Medium Neutral Citation: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713
• Hearing dates: 19 June 2012
• Decision date: 29 June 2012
• Jurisdiction: Common Law
• Before: Johnson J

Decision

The appeal is allowed.

The order of Magistrate O'Shane made at the Downing Central Local Court on 20 January 2012 dismissing the charge against the First Defendant of assault under s.61 Crimes Act 1900 is set aside.

The matter is remitted to the Local Court to be heard before a different Magistrate conformably with this judgment.

The First Defendant is to pay the Plaintiff's costs.

The First Defendant is granted a certificate under s.6 Suitors' Fund Act 1951.

• Catchwords: CRIMINAL LAW - assault - summary hearing in Local Court - charge dismissed - prosecution appeal against dismissal - Magistrate did not permit prosecutor to call certain witnesses - whether denial of procedural fairness - whether error of law in Magistrate's approach to dismissal of charge - whether Magistrate failed to give reasons required by law - duties of Magistrate at defended criminal hearing - error of law and denial of procedural fairness established - matter remitted to Local Court for hearing before a different Magistrate
• Legislation Cited: Crimes (Appeal and Review) Act 2001; Crimes Act 1900; Criminal Procedure Act 1986; Evidence Act 1995; Crimes (Sentencing Procedure) Act 1999; Suitors' Fund Act 1951; Local Court Act 2007
• Cases Cited: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549; Mikhael v Conroy (Finlay J, 6 December 1990, BC9002962); Lake Macquarie City Council v Morris [2005] NSWSC 387; 63 NSWLR 263; Colquhoun v Magistrate Guy [2010] NSWSC 235; Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCCA 293; Director of Prosecutions v Elskaf [2012] NSWSC 21; Doney v The Queen [1990] HCA 51; 171 CLR 207; Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82; FB v R [2011] NSWCCA 217; Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78; Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; 181 A Crim R 294; Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418; Donges v Ratcliffe [1975] 1 NSWLR 501; Moloney v Collins [2011] NSWSC 628; Munro v ACP [2012] NSWSC 100; Director of Public Prosecutions v Sukhera [2012] NSWSC 311; Director of Public Prosecutions v Langford [2012] NSWSC 310; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Director of Public Prosecutions v Wunderwald [2004] NSWSC 182; Slade v Gea [2001] NSWSC 38; Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304; Director of Public Prosecutions v CAD [2003] NSWSC 196; May v O'Sullivan [1955] HCA 38; 92 CLR 654; Sun Alliance Insurance Limited v Massoud [1989] VR 8; Director of Public Prosecutions v Chresta [2005] NSWSC 233; 152 A Crim R 379; Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319; Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746; Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653; Fleming v White [1981] 2 NSWLR 719; R v Katarzynski [2002] NSWSC 613; Douglas v R [2005] NSWCCA 419; Crampton v The Queen [2000] HCA 60; 206 CLR 161; Ratten v The Queen [1974] HCA 35; 131 CLR 510; Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362; Director of Public Prosecutions v Lee [2006] NSWSC 270; AK v Western Australia [2008] HCA 8; 232 CLR 438; Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181; Johnson v Johnson [2000] HCA 48; 201 CLR 488; R v Kneebone [1999] NSWCCA 450; 47 NSWLR 450; R v FDP [2008] NSWCCA 317; Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1; R v Esposito (1998) 45 NSWLR 442
• Texts Cited: Hon AM Gleeson AC, "The Role of a Judge in a Representative Democracy" (2008) 9 The Judicial Review 19; Hon AM Gleeson AC, "The Judicial Method: Essentials and Inessentials" (2010) 9 The Judicial Review 377; Hon K Mason AC, "Throwing Stones: Cost/Benefit Analysis of Judges Being Offensive to Each Other" (2008) 82 ALJ 260
• Category: Principal judgment
• Parties: Director of Public Prosecutions (NSW) (Plaintiff); Kasian Wililo (First Defendant); Local Court of NSW (Second Defendant)
• Representation: Counsel: Ms NJ Adams, Crown Advocate; Ms JE Davidson (Plaintiff); Mr CJG Smith (First Defendant); Solicitors: Solicitor for Public Prosecutions (Plaintiff); Matthew Lorkin Solicitor (First Defendant)
• File Number(s): 2012/43493
• Publication restriction: ---

Judgment

1 JOHNSON J: By Summons filed on 9 February 2012, the Plaintiff, the Director of Public Prosecutions (NSW), seeks relief arising from the dismissal at the Downing Centre Local Court on 20 January 2012 of a charge of assault against the First Defendant, Kasian Wililo.

2 The Plaintiff appeals under s.56(1)(c) Crimes (Appeal and Review) Act 2001 alleging error of law on the part of the Magistrate, Magistrate O'Shane. In the alternative, the Plaintiff seeks prerogative relief if there is an impediment to the grant of relief under the statutory appeal.

3 Given the alternative claim for prerogative relief contained in the Summons, the Local Court of New South Wales was joined as the Second Defendant. In accordance with usual practice, the Second Defendant has filed an appearance submitting to the orders of the Court, save as to costs.

4 At the hearing in this Court, Ms NJ Adams, Crown Advocate and Ms JE Davidson appeared for the Plaintiff. Mr CJG Smith of counsel appeared for the First Defendant.

The Local Court Hearing

5 The First Defendant was charged by Court Attendance Notice with an offence under s.61 Crimes Act 1900 that, on 25 August 2011 at Kings Cross, he did assault Christopher Martin.

6 The First Defendant pleaded not guilty to this charge. The hearing of the matter came before Magistrate O'Shane at the Downing Centre Local Court on 20 January 2012. At that hearing, Sergeant Kahn appeared as prosecutor and Ms Edin, solicitor, appeared for the First Defendant.

7 At the commencement of the hearing, the prosecutor indicated that five witnesses would be called in the prosecution case - two ambulance officers and three police officers. In accordance with Local Court practice, the prosecution witness statements had been served on the defence prior to the hearing. In response to an enquiry from the Magistrate, Ms Edin indicated that consent was not given for any of the witness statements to be tendered.

8 The prosecutor called two witnesses, Mr Martin and Constable Clint Hawes, although (as will be seen), the prosecutor sought to call further witnesses as well in the prosecution case. The Magistrate's approach to this issue gives rise to a ground of appeal to this Court.

9 The learned Magistrate did not deliver a judgment which summarised the evidence adduced at the hearing. Indeed, a further ground of appeal is that her Honour erred in law in not providing adequate reasons for her determination to dismiss the proceedings. A consequence of this approach is that there is no part of her Honour's reasons which may be utilised at this point to summarise the evidence adduced at the hearing.

10 What follows (at [11]-[22]) is a summary which, in my view, adequately and accurately describes the course of events at the hearing up to the point where the evidence ended, and her Honour engaged in a dialogue with the prosecutor before dismissing the charge.

11 The complainant, Christopher Martin, gave evidence in chief to the following effect:

(a)He was working as a paramedic at Paddington Ambulance Station on the morning of 25 August 2011, when at approximately 6.00 am, he was called (together with Ambulance Officer Karen Jacobs) to "an assault in Kings Cross, outside the McDonalds on Darlinghurst Road".

(b)There appeared to be two patients on the scene. He assessed one patient, who declined ambulance services. Mr Martin then assessed a second patient, who was between 185 cm and 190 cm tall and had dark skin and dreadlocks. This patient, the First Defendant, said "he had been punched in the head, but couldn't recall how or why. He's then said that his jaw was hurting". Mr Martin began an assessment on this patient, who requested that an ambulance transport him to hospital.

(c)The patient said to Mr Martin "My jaw hurts, my jaw fucking hurts. Are you a professional? Take me to hospital. Are you a professional?". He kept repeating "Are you a professional?" and appeared quite agitated.

(d)Mr Martin continued assessing the patient, asking him whether he had been knocked out or knocked to the ground and palpating his neck area. There did not appear to him to be any injuries, but the patient was complaining of some pain to his jaw. Mr Martin noted that "He was able to talk freely with an open mouth, but he was still complaining of pain to his jaw".

(e)The patient wanted to go to hospital, so Mr Martin put him in the back of the ambulance, "in what we call the airway seat, which is just behind the drive[r]. Put on his seatbelt, I've given him an icepack, and then I've begun looking over him further, so doing another assessment, and also a blood pressure, and some other things, and continued on with my questioning".

(f)The patient produced his driver's licence showing his name to be Kasian Wililo. Mr Martin's partner, Karen Jacobs, started driving the ambulance towards the hospital. Mr Martin continued to treat the First Defendant as the ambulance was driving along. The treatment consisted of "[j]ust further questioning, everything that I'd done by that stage had - it appeared to me as if there wasn't too much more that we could do to him apart from transport him to hospital. From there we've - as we were driving along all he kept saying was 'Are you a professional, are you a fucking professional, do something for me. My head hurts, my jaw hurts, do something for me'". Mr Martin replied "Yes I'm a professional".

(g) As the ambulance proceeded, the First Defendant became more agitated and "more restless, more swearing, more repeating of questioning and everything else, a little bit louder in his talk as well and then he's leaned forward and spat on the floor of the ambulance". The First Defendant spat on the floor directly in front of the airway seat.

(h) Mr Martin then said "Don't fucking do that, this is an ambulance you filthy pig". The First Defendant said "'My jaw hurts, are you a professional' and he "Kept ranting and repeating himself about that and then he said 'I don't care' and he started becoming more and more agitated. I've then instructed Karen to pull over the car. ... I've then instructed him to get out of the car, he wouldn't get out of the ambulance. He then started to get out of the ambulance, realised where we were and what [sic] proceeded to go back into the ambulance and asked us to take him back to where his friend was with the police".

(i) At that time, the ambulance was stopped just south of the roundabout on Ward Avenue at Kings Cross Road. The First Defendant got back into the ambulance, into the seat he had been sitting in. Mr Martin and Ms Jacobs stood on the passenger side, leaving the sliding door open and standing about two to three metres away from the vehicle.

(j) The First Defendant "was getting really really loud and shouting". Mr Martin could not recall what he was saying but "there was some swear words". The First Defendant then "threw the ice pack that I gave him and it struck me in the side of the head".

(k) The First Defendant then picked up a patient health care record book that was in the back of the ambulance. "He's picked that up, he's begun yelling more frantically, he's thrown it outside the car as my partner Karen was on the radio walking again two to three metres away from the car and it struck her in the right ankle and nearly knocked her off her feet. He's then began swinging his arms around in the back of the vehicle, hitting various objects".

(I) After saying something along the lines of "I haven't been in a fight tonight, maybe I should get out and fight you", the First Defendant got out of the ambulance, came towards Mr Martin, who was standing two to three metres from the vehicle and "shaped up in an aggressive manner".

(m) The First Defendant took one or two steps after exiting the ambulance, by which point he was "right in front" of Mr Martin. He "sort of lifted his fists up in front of his face" then "swung his right fist and it struck me on the left hand side of the face ... sort of the temple region ... just to the side of the eye" (a photograph which was later admitted in evidence depicted such an injury).

(n) Mr Martin and the First Defendant began to "scuffle" together. The two men were "wrestling and swinging punches at each other, I was trying to defend myself and I'm not sure how long that went on for". Mr Martin was not sure how many punches he threw but said "it would have been at least half a dozen each ...it was very very frantic". The First Defendant was using both hands and Mr Martin "was trying to defend with my left and trying to fight with my right". In the background, Mr Martin "sort of heard in my peripheral" Ms Jacobs on the radio asking for urgent police assistance.

(o) The two men broke away from the scuffle. Out of the corner of his eye, Mr Martin saw "a reasonably tall gentleman running towards the patient, wearing shorts and thongs and a T-shirt and I said 'Leave it, the police will be here in a minute' and he's like I am an off duty officer, get down on the ground'" (this was Constable Hawes, who gave evidence at the hearing).

(p) The off-duty officer started to hold the First Defendant and he and Mr Martin detained the First Defendant on the ground until police arrived.

(q) Mr Martin sustained "a little bit of bruising and swelling to the left side of my eye" and "a bit of pain and swelling to my right thumb" (a further photograph admitted in evidence depicted the hand injury).

12 In cross-examination by Ms Edin, Mr Martin gave the following additional evidence:

(a)He agreed that the First Defendant appeared to be in pain.

(b)He gave the First Defendant an icepack for the pain and offered him Panadol, but the First Defendant did not accept the Panadol.

(c)He could not recall whether the First Defendant had blood coming out of his mouth, but denied that the First Defendant spat blood on the floor of the ambulance.

(d) He felt "abused" and "didn't feel safe in the back of the ambulance with him" and he felt "threatened for myself and for my safety". The First Defendant was "aggressive and agitated but he didn't threaten me".

(e)He intended to leave the First Defendant on the side of the road. He determined the First Defendant to have a "GCS of 15 which is a full alertness".

(f)He tried to assist the First Defendant out of the ambulance physically.

(g)There was a "struggle" when the First Defendant refused to get out of the ambulance.

(h)He accepted the accuracy of his statement to police on the day of the incident that "He connected with one so I tried to defend myself and punched him back above the left eye".

(i)He denied the suggestions that the First Defendant was "just swinging his arms around actually trying to prevent you from pulling him out of the ambulance" and that his (Mr Martin's) face was injured as he was trying to pull the First Defendant forcefully out of the ambulance.

13 There was no re-examination. Her Honour then questioned Mr Martin as to how well he knew the Kings Cross area and the apparent reason the First Defendant spat on the floor, including the following questions and answers:

"Q. Is the Court to understand that he actually spat on the floor apropos nothing?

A. Yes.

Q. Okay, and it was at that point that you called him a 'filthy pig'?

A. Yes.

Q. Would the Court be correct in inferring, Mr Martin, that you don't like blacks?

A. No.

Q. Are you sure about that?

A. I'm positive."

14 The prosecutor then indicated that he wished to call Karen Jacobs as the next witness. The following exchange occurred:

"Her Honour: What's she going to tell the Court.

Prosecutor: She's the second ambulance officer.

Her Honour: I understand that I'm asking you what is she going to tell the court.

Prosecutor: What she saw.

Her Honour: So is it going to be substantially different than what I've heard already.

Edin: No your Honour.

Prosecutor: No your Honour.

Her Honour: Well there's no point in calling her unless you particularly want to cross-examine her about some specific aspect of her evidence.

Edin: No I don't - not many questions your Honour.

Prosecutor: If I can tender her statement then your Honour.

Her Honour: No point, I'm saying to you if it doesn't take the matter any further there is no point in receiving her evidence."

15 The Prosecutor next called Constable Hawes, who gave evidence in chief as follows:

(a)He had just finished work on 25 August 2011, and was driving along Ward Avenue in his personal vehicle, when he saw an ambulance parked on the side of the road at the intersection with Kings Cross Road, with its hazard lights on.

(b)He slowed down to go around the ambulance and, as he approached from behind, he saw a male ambulance officer being assaulted. Constable Hawes said "As I slowed down and looked I saw the accused throwing, just throwing punches at the ambulance officer, he hit him twice that I saw. And I stopped the car, ran out of the vehicle and as I ran towards I saw the ambulance officer put his hands up to defend his head or to cover his head, and I saw the accused punch him another couple of times".

(c)He saw two punches "connect' with the ambulance officer, and he then got out of his car.

(d)He did not see the ambulance officer throw any punches. He saw the officer trying to protect his head.

(e)He had "probably taken my eyes off them for five seconds" while he stopped the car and emerged from the vehicle.

(f)The First Defendant was still swinging at the ambulance officer when Constable Hawes approached - "I ran from my car and I grabbed the accused by the arm and put him on the ground. Leg sweeped him on the ground. When he got on the ground he started throwing, like thrashing around and whatever, ... wouldn't let me hold him down so me and the ambulance officer grabbed him and I put my weight on him to stop him, put him in a wrist lock to try and stop him from throwing his body around. Continued to do that and so me and the ambulance officer just sat and waited for him. Waited, waiting for police. I told him that I was a off duty police officer, that he was under arrest for assault. I didn't have a mobile phone on me so I couldn't call the police so I asked the female ambulance officer to make sure that she had called the police which she said that she had done".

16 Under cross-examination, Constable Hawes gave the following further evidence:

(a)He had completed a 12-hour shift and was feeling excited to be off work on the morning of 25 August 2011 because it was his first day of annual leave.

(b)He "didn't see the ambulance officer throwing any punches. I only saw the accused".

(c)He did not make any enquiries about whether the First Defendant was injured when he approached, at which time the First Defendant was still throwing punches at the ambulance officer - "a guy's throwing punches, I didn't ask questions ... he was still very aggressive, he was still throwing punches at the ambulance officer. I wasn't going to stand there and figure out what was happening".

17 At the completion of the evidence of Constable Hawes, the prosecutor indicated to her Honour that he wished to call Ms Jacobs to tender some photographs. Ms Edin consented to their tender. Her Honour allowed the tender of two photographs (colour photographs of Mr Martin's face and hand which had previously been marked for identification and shown to Mr Martin).

18 Her Honour again said "I don't want to hear from Ms Jacobs. She's not going to take the matter any further".

19 The prosecutor indicated that he wished to tender another photograph, not marked for identification, showing the spit on the ground inside the ambulance vehicle. The following exchange ensued:

"Her Honour: I don't think there's any contest about the fact that he spat in the ambulance van.

Prosecutor: However there were questions about blood being in the mouth, the spit on the photo doesn't show any blood.

Her Honour: Show me the photos. Just hold them up. Sorry, are they in colour?

Prosecutor: Yes it is, that's the spit.

Her Honour: That looks like black and white to me Sergeant.

Prosecutor: It is a colour photo your Honour, it is a good photo. ...

Her Honour: It looks like black and white to me.

Edin: It doesn't matter whether it was blood or not.

Her Honour: It's not to the point.

Prosecutor: Tender them your Honour.

Her Honour: I'm saying to you it's not to the point Sergeant, because it doesn't actually take the matters anywhere. Do you not understand that?

Prosecutor: I understand that.

Her Honour: I understand that your Honour.

Prosecutor: I understand that your Honour.

Her Honour: Thank you Sergeant. Let's focus on the elements in the offence, that's what you really have to focus on. There is no contest that the present accused spat in the ambulance van. Doesn't matter whether there was blood in it or not. Okay? It's not to the point."

20 The prosecutor then sought to call Senior Constable Jacqueline Largo, the officer in charge, who had attended the scene after police were called. The following discussion ensued:

"PROSECUTOR: I call Senior Constable Largo.

HER HONOUR: Is this the person who arrives on the scene after the present accused was-

PROSECUTOR: Yes your Honour, she's the officer in charge.

HER HONOUR: -then swept to the ground and sat on?

PROSECUTOR: Yes, one of those two officers.

HER HONOUR: And what is she going to tell the Court?

PROSECUTOR: That she attended the scene, arrested the accused and conveyed the accused to the hospital.

HER HONOUR: And what does that tell us about any allegation of assault on Mr Martin?

PROSECUTOR: It doesn't.

HER HONOUR: No it doesn't, that's correct, so there's no point in calling her.

PROSECUTOR: Unless my friend wants to cross-examine her.

HER HONOUR: About what? Do you wish to cross-examine this officer, ma'am?

EDIN: No your Honour. But just in relation to the statement, I mean there are a number of things in there that my client is alleged to have said, which is neither here nor there.

HER HONOUR: No, because it's after the event.

HER HONOUR: And so anything allegedly said by him after the event, unless he makes some grand admission, is not to the point.

EDIN: That's correct, that would be my submission in relation to the tendering of the statement.

HER HONOUR: Thank you, yes. So what else do you have Sergeant?

PROSECUTOR: The two OIC who attended the scene later, it's the same your Honour.

HER HONOUR: Well it doesn't take the matter any further."

21 At this point, the Magistrate moved immediately to a discussion with the prosecutor. Her Honour did not confirm that the prosecutor had closed his case nor did the prosecutor state that he had done so.

22 No submission was made by the solicitor for the First Defendant. Indeed, Ms Edin was not called upon again by the Magistrate and did not participate in the hearing after the submission concerning the tender of the statement of Senior Constable Largo referred to at [20] above.

23 Having regard to the grounds of appeal, and to allow an understanding as to what transpired at the hearing after evidence had been adduced, it is appropriate to set out the complete dialogue between her Honour and the prosecutor culminating in the dismissal of the charge:

HER HONOUR: The point is there's an incident long before - may not be terribly long before, but certainly before Constable Hawes arrived and saw something that he assumed to be something. But anyway, at this stage, given what I've heard from Mr Martin himself, particularly what occurred in the ambulance van, how do you say you can sustain this prosecution against this witness - or this accused?

PROSECUTOR: The Prosecution relies on the evidence given by Mr Martin who said he was assaulted outside the van, that the initial punch was, according to his evidence the initial punch was thrown by the defendant and as a result of that he raised his hand and punched back.

HER HONOUR: Can we go back a step. I think what Mr Martin told us was that the accused was ordered to get out of the van.

PROSECUTOR: Yes your Honour.

HER HONOUR: 'Filthy pig', on account of having spat on the floor of the ambulance van, we've got that.

PROSECUTOR: Not just that, but--

HER HONOUR: No, no, I want you to stay with me Sergeant because we're going through the evidence. We need to get this evidence clear. Mr Martin demands that the present accused get out of the ambulance van, 'filthy pig' after the accused had spat on the floor of the ambulance van. Correct?

PROSECUTOR: Yes.

HER HONOUR: That was his evidence.

PROSECUTOR: Yes.

HER HONOUR: He was cross-examined about that aspect of his evidence. He was asked whether the accused had been in any way aggressive or violent towards him. Mr Martin quite clearly and distinctly denied that that was the situation. Is that clear that was his evidence?

PROSECUTOR: Yes.

HER HONOUR: He was specifically asked about the spitting. He was asked whether the accused had spat at him and he said 'no'. Nevertheless, he demanded that the accused get out of the - 'pig' - out of the ambulance van and at the same time he called his derogatory name. Is that clear?

PROSECUTOR: Yes.

HER HONOUR: The next piece of evidence we have is that the accused refused to do so. He kept saying 'Are you professionals, my jaw is hurting'. Yes, he might have said 'My fucking jaw is hurting' -but I hardly think that that's anything of any moment for anyone, including Mr Martin - and demands to be taken to hospital. Correct?

PROSECUTOR: Mm, mm.

HER HONOUR: That's the evidence, correct?

PROSECUTOR: That is the evidence.

HER HONOUR: Okay. So, then Martin attempts to drag him out of the van and - correct?

PROSECUTOR: He didn't say he attempts to take him out of the vehicle, he merely says he assisted him getting out of the vehicle.

HER HONOUR: I'm sorry, he is attempting to drag him out of the van because as he quite clearly told the Court and I'm relying on Mr Martin's evidence, I'm not there, remember, but don't get some different - don't formulate in your own mind something that he didn't say. What he said was the accused was refusing to get out of the van. And if Martin says he assisted him to get out of the van and the accused doesn't want to get out of the van, Sergeant, let's be fair dinkum. You're a police officer, I'm just a lawyer. Let's be fair dinkum, he was attempting to drag him out of the van. And then a struggle ensued. Correct? That was the evidence, Sergeant, you accept that? That was the evidence, Sergeant.

PROSECUTOR: Yes your Honour.

HER HONOUR: Frankly Sergeant, I don't think you've got a case.

PROSECUTOR: Because--

HER HONOUR: Because, who initiated this physical interaction? Mr Martin did. And on his own evidence no good cause. You will remember that the Bench addressed some questions to him after the Bench had heard his evidence-in-chief and the cross-examination. He demanded of the accused the accused get out of the ambulance van, on his evidence, after the accused, according to him, spat on the floor of the van. There is no dispute about the accused spitting on the floor of the van. It doesn't matter whether there was blood in it or not, the accused spat on the floor of the van, no contest about that. But nothing in that situation, according to Martin himself, which was aggressive towards him or violent towards him in any way. To the contrary, the accused kept saying to him, 'My fucking jaw hurts, take me to hospital.' That was Martin's evidence. So then, after the accused spits on the floor of the van he says, 'Get out of my ambulance, filthy pig' - 'I don't want you in my van' was what he actually said. And then, because the accused doesn't want to get out of the van Martin drags him out. You do not have a case, Sergeant.

The information is dismissed."

Grounds of Appeal

24 The Plaintiff's primary claim for relief is by way of appeal under s.56(1)(c) Crimes (Appeal and Review) Act 2001. That provision confines a prosecutor seeking to challenge an order of acquittal in summary criminal proceedings to a ground that involves a question of law alone. An appeal is not available on a ground of appeal that involves a question of fact or a mixed question of fact and law: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 411-412 [58]-[62].

25 The Plaintiff relies upon the following grounds of appeal:

(a)Ground 1 - Her Honour failed to accord procedural fairness to the prosecution by not permitting the prosecutor to call the witnesses Karen Jacobs and Senior Constable Largo or to tender a photograph (the spit photograph).

(b)Ground 2 - Her Honour failed to inform herself of the substance of evidence before rejecting the tender of a photograph (the spit photograph), by rejecting its tender without properly viewing it.

(c)Ground 3 - Her Honour dismissed the matter before the prosecutor had formally closed the prosecution case.

(d)Ground 4 - Her Honour dismissed the matter in circumstances where there was a failure to properly consider whether there was a prima facie case.

(e)Ground 5 - Her Honour did not provide adequate reasons for her determination to dismiss the proceedings.

26 The alternative claim for prerogative relief relies upon the same grounds in the event that, for some reason, statutory appellate relief was not available to the Plaintiff in the circumstances of the case.

Assault under s.61 Crimes Act 1900

27 Before turning to consider the Plaintiff's claim for relief, it is useful to refer to some basic concepts relevant to a charge of assault.

28 An offence of assault under s.61 Crimes Act 1900 is punishable by imprisonment for two years when tried on indictment or, if tried summarily, imprisonment for 12 months or a fine of 20 penalty units or both.

29 The legal ingredients of the crime of assault (sometimes described as common assault) were considered in McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549, where it was said at 558 [40]-[42]:

"[40] What is an assault? The traditional common law distinction between assault and battery has largely fallen away for the purpose of application of the modern law of assault. The distinction between assault and battery noted that an assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his or her person, and a battery is the actual infliction of unlawful force on another person: R v Knight (1988) 35 A Crim R 314 at 316-317. Where the assault takes the form of a battery, what is required is an intentional touching of the victim without that person's consent and without lawful excuse: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 192 and 200.

[41] A practical distinction is sometimes drawn between a physical assault (or battery assault) and psychic assault (or apprehended unlawful force assault): Fitzgerald v Kennard at 200-201; Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962 at p 8-15); Lake Macquarie City Council v Morris (2005) 63 NSWLR 263 at 273-274 [48]-[49].

[42] It is not an element of the crime of assault that injury be caused to the victim. Any touching of another person, however slight, may amount to a physical assault. It has been said that the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1991]-[1992] 175 CLR 218 at 233 and 265-266; Collins v Wilcock [1984] 1 WLR 1172 at 1177."

30 A series of related events during an incident may give rise to a single offence of assault, even where each act may be capable itself of constituting a separate offence of assault: Mikhael v Conroy (Finlay J, 6 December 1990, BC9002962 at pages 13-14); Lake Macquarie City Council v Morris [2005] NSWSC 387; 63 NSWLR 263 at 273-274 [48]-[49]; Colquhoun v Magistrate Guy [2010] NSWSC 235 at [45].

31 It was accepted before me that the charge of assault here focused upon the alleged blow by the First Defendant to Mr Martin's face, whilst both men were outside the ambulance, with that blow leaving marks depicted in a photograph which was admitted into evidence in the Local Court (the incident referred to at [11](m) above). However, the evidence of events before and after that particular event were relevant to an understanding of what occurred between the First Defendant and Mr Martin, and to allow a proper determination of the charge.

32 There was no reference whatsoever in the Local Court to the concept of self defence, let alone the provisions contained in ss.418, 419 and 422 Crimes Act 1900.

33 It was submitted in writing for the First Defendant that the basis of dismissal of the charge lay in the application of principles of self defence to the circumstances of this case. As will be apparent from the dialogue between the prosecutor and the Bench set out above, which contains what are said to be the reasons of the Magistrate, these provisions and this principle were not referred to at the hearing. At no point did Ms Edin advance such a submission or, indeed, any submission at all as to why the charge ought be dismissed.

34 At the hearing before me, Mr Smith did not press the submission that this Court should conclude that self defence played any part in the dismissal of the charge. Accordingly, there is no need to consider how self defence could possibly arise here, or to address the requirements of ss.418, 419 and 422 Crimes Act 1900 and the principles in decisions such as R v Katarzynski [2002] NSWSC 613, Douglas v R [2005] NSWCCA 419 and Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCCA 293 at [19], as to the ways in which self defence may be raised in a criminal trial.

 

The Conduct of a Criminal Trial by a Judge of Magistrate Sitting Alone

35 Before moving to consider the precise grounds of appeal, it is appropriate to set out some general principles applicable to the conduct of a criminal trial for a summary offence before a Magistrate sitting in the Local Court of New South Wales. These principles emerge from an examination of relevant statutory provisions, together with general principles surrounding the conduct of a criminal trial. The resolution of this appeal will involve an assessment whether the Magistrate complied with these legal principles, and the consequences of any departure from them.

36 As both the prosecutor and the First Defendant appeared on the date fixed for hearing, the duty of the Magistrate was to proceed to hear and determine the matter: s.192(1) Criminal Procedure Act 1986.

37 As the First Defendant had pleaded not guilty to the charge, s.194 Criminal Procedure Act 1986 applied:

"194 Procedure if offence not admitted

(1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person's guilty plea, the court must proceed to hear and determine the matter.

(2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person."

38 Section 195 Criminal Procedure Act 1986 provides for the manner in which evidence is taken:

"195 How evidence is taken

(1) A prosecutor may give evidence and may examine and cross-examine the witnesses giving evidence for the prosecution or the accused person, respectively.

(2) An accused person may make full answer and defence. An accused person may give evidence and may examine and cross-examine the witnesses giving evidence for the accused person or the prosecution, respectively.

(3) If the accused person gives any evidence or examines any witness as to any matter other than as to the witness's general character, the prosecutor may call and examine witnesses in reply."

39 At the conclusion of the evidence, a Magistrate must comply with s.202 Criminal Procedure Act 1986:

"202 Determination by court

(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.

(2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.

(3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing."

40 Of course, the progress of a hearing will depend upon the issues arising for determination during the trial, including the question as to whether, as a matter of law, there is no prima facie case at the close of the prosecution case. This involves application of well-recognised principles: Director of Prosecutions v Elskaf [2012] NSWSC 21 at [47]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the tribunal of fact in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left for decision by the tribunal of fact. A verdict of not guilty may be entered at the conclusion of the prosecution case only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215. The principle remains the same whether application is made for an acquittal at the end of the prosecution case where trial is proceeding before Judge and jury, or where trial is proceeding before a Judge or Magistrate sitting alone.

41 The duty of a trial Judge, whether sitting with a jury or sitting alone, has been repeatedly stated and is well understood. In Crampton v The Queen [2000] HCA 60; 206 CLR 161, Gleeson CJ said at 173 [19]:

"Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice."

42 A criminal trial is not an inquisition. It is for the parties to act as protagonists in the trial with the judge to "take no part in that contest, having his [or her] own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law": Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517 (Barwick CJ).

43 These principles have been stated repeatedly in decisions such as Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362 at 369 [28].

44 In Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82, the Court said at 95-96 [58]:

"Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R (2006) 162 A Crim R 88 at [138]-[140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty."

45 If the defence objects to the prosecution calling a particular witness or witnesses or adducing certain evidence from a witness or objects to the tender of physical evidence, then the Judge or Magistrate should ascertain the basis of the objection for the purpose of ruling whether the evidence ought be allowed. If necessary and appropriate for the purpose of ruling on the objection, evidence may be given on the voir dire even if proceedings are without a jury: s.189 Evidence Act 1995; Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 at [107]-[112].

46 The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20] (Gleeson CJ and Hayne J).

47 There is no obligation on a trial judge to reject evidence under s.137 Evidence Act 1995 to which no objection has been taken: R v FDP [2008] NSWCCA 317 at 651-653 [23]-[30]. This reflects the role of the judge in adversarial proceedings. A statutory exception to this general principle is s.41 Evidence Act 1995 which requires a judge to reject an improper question whether or not objection has been taken: R v FDP at 652 [28]-[30] (concerning s.275A Criminal Procedure Act 1986 which is now to be found in s.41 Evidence Act 1995).

48 A prosecutor at a criminal trial (including a police prosecutor) is under a duty to lead the whole of the evidence to which the accused is required to make answer: Dhanhoa v The Queen at 9 [20]. The duty of the prosecutor with respect to the calling of witnesses is well known: R v Kneebone [1999] NSWCCA 450; 47 NSWLR 450 at 457-462 [39]-[56].

49 There has been increased recognition of the appropriateness of case-management powers being vested in trial Judges to reduce delays in proceedings and to promote efficient and fair criminal trials. Sections 134-149F Criminal Procedure Act 1986 contain provisions intended to reduce delays in proceedings on indictment before the Supreme and District Courts. Sections 247A-247Y Criminal Procedure Act 1986 contain case-management provisions applicable to proceedings before the Supreme Court or the Land and Environment Court in their summary jurisdictions, which are intended to reduce delays in summary proceedings before those Courts.

50 There is no equivalent statutory regime in the Criminal Procedure Act 1986 applicable to summary hearings in the Local Court. However, for some years, there have been procedures for service of prosecution witness statements to the defence in advance of the hearing, with the intention of assisting the efficient, speedy and fair determination of a summary hearing: Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 at 654-655 [22]-[23]. Provision is now made by way of a Practice Note issued by the Chief Magistrate for case management of criminal proceedings in the Local Court: ss.26(2)(a) and 27 Local Court Act 2007; Local Court Practice Note Crim 1 (issued 24 April 2012), in particular at clauses 5.2, 5.7. Although this Practice Note was issued after the hearing relevant to this case, it reflects the practice (and its rationale) which has been in place for some time.

51 The role of the Judge in a contemporary criminal trial does not require that the Judge sit "as inscrutable as the Sphinx" until the time comes for judgment to be given: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493 [13]. The rules governing the conduct of a criminal trial are "not frozen in time" with regard to be had to the demands of contemporary criminal litigation: cf Johnson v Johnson at 493 [13].

52 However, the necessity for the trial Judge to ensure that a fair trial takes place remains as a bedrock rule, with the Court's obligation to ensure procedural fairness extending to the prosecutor as well as the defence: Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; 181 A Crim R 294 at 318 [80]; Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418 at [48]-[52].

53 The Court of Criminal Appeal has acknowledged that, in appropriate circumstances, a Judge sitting in a trial without a jury, will be entitled, within reasonable limits, to explore issues of fact with both prosecution and defence witnesses and that this may reflect the contemporary desire for efficient and effective use of court time, whilst at the same time ensuring that a fair trial takes place: FB v R [2011] NSWCCA 217 at [84]-[110]; R v Esposito (1998) 45 NSWLR 442 at 468-473, 477-478.

54 Where a Magistrate determines to dismiss a charge, whether on the ground of no prima facie case or because, on all the evidence, the Magistrate is not satisfied beyond reasonable doubt of the guilt of the accused person, then there is an obligation for the Magistrate to give reasons for that decision. Likewise, if the Magistrate determines to find the accused person guilty of the offence.

55 The provision of reasons for a decision is, amongst other things, an expression of the open justice principle. The centrality, to the judicial function, of a public explanation of reasons for final decisions has long been recognised: Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 at 213-215 [54]-[58].

56 There is no provision applicable to Magistrates such as s.133 Criminal Procedure Act 1986, which applies to trial by Judge alone on indictment. Nevertheless, it is part of the Magistrate's duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. In Moloney v Collins [2011] NSWSC 628, the Court said at [63]-[65] (in the context of a civil hearing in the Local Court):

"63Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration.

64The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].

65Appropriate allowance should be made for the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 407-408 [15]-[18]."

57 Judges of this Court have emphasised repeatedly the obligation upon a Magistrate to give reasons for a decision in criminal proceedings in discharge of the Magistrate's judicial duties, whilst keeping in mind the practical reality of delivery of ex tempore reasons in a busy court: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited at 407-408 [15]-[19]; Munro v ACP [2012] NSWSC 100 at [21]-[23]; Director of Public Prosecutions v Sukhera [2012] NSWSC 311 at [16]-[17] and Director of Public Prosecutions v Langford [2012] NSWSC 310 at [33].

 

58 In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited, I observed at 408 [18]-[19]:

"18One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court.

19It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986."

59 It is helpful to mention the rationale underlying the judicial function and the duty to give reasons.

60 In a paper entitled "The Role of a Judge in a Representative Democracy" (2008) 9 The Judicial Review 19, the Hon AM Gleeson AC identified constraints upon judicial authority by reference to precedent, the adversarial process and the duty to give reasons. With respect to precedent, his Honour said at 26:

"A court that does not respect precedent undermines its own authority, for it will produce nothing by which its successors will regard themselves as bound. Judicial disregard for precedent is self-destructive."

61 His Honour touched upon the significance of giving reasons at 31:

"The best evidence of what judges consider their role to be is the way in which they seek to justify their decisions. Reasons for judicial decisions are directed at an audience which includes other judges, the legal profession, the parties to litigation, and the public. The kinds of argument advanced in support of such reasons reflect the judicial perception of the judicial function, and the judicial understanding of the public perception of that function."

62 The Hon AM Gleeson AC returned to the function of reasons in a later paper, entitled "The Judicial Method: Essentials and Inessentials" (2010) 9 The Judicial Review 377 at 384:

"The third essential is giving reasons for a decision. Reasons serve a number of purposes. They promote good decision-making by requiring a decision-maker to explain and justify an outcome. They inform a losing party of the reason for failure. They allow an appellate court to identify possible error and correct possible injustice. They inform the public of the way judicial power is exercised. The adequacy of a statement of reasons for a decision is judged by reference to these purposes."

63 The former Chief Justice touched upon another important principle at 387:

"It is a corollary of the rule of law that, in the administration of civil or criminal justice, the outcome of a case should depend as little as reasonably possible upon the random factor of the identity of the judicial decision maker."

64 Apart from the traditional reasons underpinning the requirement for reasons to be given for judicial decisions, Meagher JA identified in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 a further benefit from the requirement:

"The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability."

65 In a similar vein, it has been observed that, as a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions: AK v Western Australia [2008] HCA 8; 232 CLR 438 at 470 [89]; Wainohu v State of New South Wales at 214-215 [56].

66 It is now appropriate to turn to the grounds of appeal to measure what happened in this case against these principles.

Ground 1 - Failure to Accord Procedural Fairness to the Prosecution by Not Permitting the Prosecutor to Call Witnesses or to Tender a Photograph

Submissions of the Parties

67 Ms Adams submitted that her Honour had failed to comply with the obligation to accord procedural fairness by not allowing the prosecutor to call Ms Jacobs and Senior Constable Jacqueline Largo to give evidence and to allow the tender of the photograph depicting spit on the floor of the ambulance.

68 Reliance was placed upon a number of decisions, including Director of Public Prosecutions (NSW) v Elskaf, Director of Public Prosecutions v Wunderwald [2004] NSWSC 182 and Slade v Gea [2001] NSWSC 38 in support of the submission that the Magistrate erred in this respect.

69 With respect to the evidence of Ms Jacobs, Ms Adams submitted that there was a strong basis to suggest that her testimony was likely to be relevant as it concerned her observations and actions in a period in and around the ambulance when the alleged assault occurred.

70 Ms Adams submitted that Senior Constable Largo's statement contained more than just statements made by the First Defendant and that the Magistrate ought not to have effectively prevented the prosecutor from calling her as a witness.

71 It was submitted for the Plaintiff that the Magistrate had denied the prosecution the opportunity to present its case, exceeding the proper functions of a presiding judicial officer in defended criminal proceedings, when she summarily declined to permit the prosecutor to call Ms Jacobs and by peremptorily closing off the calling of Senior Constable Largo.

72 With respect to the tender of the photograph, Ms Adams submitted that the prosecutor sought to tender it and that it appeared to be capable of bearing upon an issue in the proceedings, namely whether the First Defendant's spitting was gratuitous or, in some way, associated with some medical problem.

73 Mr Smith accepted that the Magistrate was under a duty to act fairly and to accord procedural fairness to both parties to the proceedings. With respect to the evidence of Ms Jacobs, Mr Smith submitted that the Magistrate did not fail to allow the prosecutor to call her or, alternatively, even if the Magistrate did prevent the prosecutor from calling Ms Jacobs as a witness, the failure did not constitute a denial of procedural fairness.

74 It was submitted for the First Defendant that the prosecutor had agreed that the evidence of Ms Jacobs was not substantially different from the evidence of Mr Martin, so that it was open to the Magistrate to conclude that it would not advance the prosecution case. Mr Smith sought to distinguish Director of Public Prosecutions v Elskaf and Slade v Gea. He submitted that the present case was one where there was an implied concession that the evidence of Ms Jacobs would not advance the case of the party seeking to call it.

75 With respect to the evidence of Senior Constable Largo, it was submitted that the nature of her evidence was made sufficiently clear so that the Magistrate was in a position to properly rule upon its admissibility: Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 at 314-315. It was submitted that the prosecutor had effectively conceded that the evidence of Senior Constable Largo would not advance the prosecution case.

76 With respect to the tender of the photograph, Mr Smith submitted that no denial of procedural fairness had occurred in the circumstances of this case as it was clear that defence counsel before the Magistrate had stated that no reliance was to be placed upon the spit having blood in it in the determination of the case.

77 In these various ways, the First Defendant submitted that no denial of procedural fairness had occurred in this case.

Decision

78 The starting point involves recognition of the function of a Judge presiding in criminal proceedings, as referred to earlier in this judgment. This function has been emphasised and re-emphasised in decisions of this Court in proceedings on appeal from the Magistrate in this case: Director of Public Prosecutions v Wunderwald; Director of Public Prosecutions v Yeo; Director of Public Prosecutions v Elskaf. The relevant principles are clear and their application ought give rise to no difficulty.

79 There was no identification by defence counsel at the outset of the hearing or at any other time in the hearing (apart from what could be inferred from cross-examination of the two witnesses called) as to what the issues were said to be in the proceedings. This is not intended as a criticism of the lawyer appearing for the First Defendant in the Local Court. However, it assists an understanding of what actually occurred in the Local Court, where the Magistrate sought to effectively control the hearing with a rush to judgment, without any submission being made on behalf of the defence concerning the issues in the case, the appropriate course which the Court should take and with the Court exercising its judicial functions in accordance with law in that context.

80 It must be said that the prosecutor's intention to call Ms Jacobs, who was clearly capable of giving relevant evidence in the proceedings, and Senior Constable Largo, the officer in charge of the case who was able to give evidence of what the First Defendant said, was entirely understandable. These were witnesses of a class commonly called to give evidence in defended criminal proceedings. This was certainly not a case of undue repetition from witnesses on issues not in dispute (such as surveillance witnesses). It is noteworthy that the First Defendant's lawyer in the Local Court indicated an objection to the tender of the statements of the various witnesses and a desire to cross-examine the witnesses if called.

81 In my view, Ms Jacobs was able to give relevant evidence in the proceedings. The prosecutor did not withdraw the tender of her evidence. With respect, it was not for the Magistrate to take over the control of the prosecution by demanding from the prosecutor a justification as to why Ms Jacobs ought be allowed to be called in the prosecution case. At the commencement of the Local Court hearing, Ms Edin objected to the tender of the witness statement of Ms Jacobs. However, there was no defence submission that Ms Jacobs would give no relevant evidence.

82 Even if it be the case that Ms Jacobs had not witnessed directly the precise stage of the incident at which the first blow was struck, it is clear that she had been involved in the initial attendance upon the First Defendant and his placement in the ambulance, together with subsequent events which involved (without challenge in cross-examination) the First Defendant throwing the patient health care record and hitting Ms Jacobs on the leg, with Ms Jacobs thereafter calling the police for assistance. All of this, without more, demonstrates the ability of Ms Jacobs to give evidence relevant to the proceedings. She was, in reality, a type of eyewitness present in the ambulance when events occurred between the First Defendant and Mr Martin. In my view, the prosecutor was bound to call Ms Jacobs to give evidence and her Honour was bound to allow the prosecutor to do so.

83 However, there is a further and particular vice which arises from the basis upon which the Magistrate ultimately (and apparently) came to determine the matter. If, as appears to be the case, her Honour rejected Mr Martin as a witness of truth in areas that, in the mind of the Magistrate, were relevant to the determination of the case, then Ms Jacobs was capable of giving evidence on a range of issues which may have served to corroborate the account given by Mr Martin.

84 I do not accept the submissions on behalf of the First Defendant that, in some way, the prosecutor had acquiesced in the view that Ms Jacobs could not give relevant evidence in the proceedings. The prosecutor should not have been placed in the position he was by the Magistrate. In circumstances where there was no objection from the defence to Ms Jacobs giving evidence (as to which the Magistrate would be called upon to rule), compliance with ss.194 and 195 Criminal Procedure Act 1986, and general principles concerning the conduct of a criminal trial, required the Magistrate to allow the prosecutor to call Ms Jacobs to give evidence in the prosecution case. The Plaintiff has established that it was a denial of procedural fairness (and an error of law) to prevent this happening.

85 The position with respect to Senior Constable Largo is a little different. She was not an eyewitness to the incident and came to the scene only after the intervention of Constables Hawes. However, as the officer in charge of the case, Senior Constable Largo had spoken to the First Defendant and was in a position to give evidence of observations at the scene, together with the process of arrest and charging of the First Defendant. On the face of it, all of this evidence would appear to be relevant. If it was not controversial, the statement of Senior Constable Largo could be tendered, although defence counsel in the Local Court objected to this course. I do not accept that a fair reading of what occurred in the Local Court involved an acceptance by the prosecutor that Senior Constable Largo could give no relevant evidence at the hearing.

86 Once again, I accept the submission of the Plaintiff that the Magistrate has denied procedural fairness to the prosecutor in the Local Court (and erred in law) by preventing the calling of this evidence, although its significance to the prosecution case may be somewhat less to that of Ms Jacobs.

87 The tender of the photograph depicting the inside of the ambulance attracted some discussion with the Magistrate concerning the nature of the photograph, and whether it was colour or black and white. It is clear that the photograph is a colour photograph, as a close examination of the photograph would have readily demonstrated.

88 The photograph was capable of bearing on a fact in issue in the proceedings: s.55 Evidence Act 1995. The fact that defence counsel in the Local Court did not wish to advance an argument by reference to the absence of blood in the spit on the floor of the ambulance was not a reason for rejecting out of hand the tender of the photograph. There had been cross-examination of Mr Martin on this issue. The photograph represented a form of contemporaneous evidence on an issue about which the prosecutor wished to advance a submission to the Magistrate.

89 Although this aspect is of lesser importance to the Magistrate's prevention of the calling of Ms Jacobs, it is, in the circumstances of the case, not insignificant. I am persuaded as well that the approach of the Magistrate as to the use of the photograph discloses denial of procedural fairness.

90 In reaching these conclusions concerning the first ground of appeal, I have kept in mind the desirability of appropriate case management of a hearing by the presiding Magistrate. However, what happened here did not involve appropriate case management. The actions of the Magistrate deprived the prosecution of a fair trial of the charge against the First Defendant.

 

Ground 2 - Failure to Inform Herself of the Substance of the Evidence Before Rejecting the Tender of the Spit Photograph

Submissions of the Parties

91 Ms Adams submitted that when a court is required to rule on an objection to the admissibility of evidence, it must first inform itself of the nature of the evidence: Director of Public Prosecutions v CAD [2003] NSWSC 196 at [42].

92 It was submitted for the Plaintiff that the Magistrate's rejection of the tender of the photograph, without adequately informing herself about it, disclosed error.

93 Mr Smith submitted that it was sufficient that the Magistrate invited the prosecutor to hold up the photograph, with the concession by defence counsel below that it did not matter whether or not there was blood in the spit or not. In these circumstances, it was submitted that error had not been established in the approach taken by the Magistrate to this aspect.

Decision

94 This ground is associated with the third aspect of the first ground of appeal concerning the Magistrate's approach to the tender of the photograph depicting spit on the floor of the ambulance.

95 I have already expressed my view that the circumstances surrounding the tender of this photograph, and its rejection, constitutes a form of denial of procedural fairness. This is sufficient to give rise to an error of law for the purpose of s.56(1)(c) Crimes (Appeal and Review) Act 2001.

96 It is not necessary to rule separately on the second ground of appeal in these circumstances.

Ground 3 - Dismissing the Matter Before the Prosecutor had Formally Closed the Prosecution Case

Submissions of the Parties

97 Ms Adams relied upon the statement of Sully J in Director of Public Prosecutions v Wunderwald at [23]-[24] that a Magistrate is obliged to establish clearly whether the prosecutor had in fact closed his case and that this step is no mere formality.

98 It was submitted that the failure of the Magistrate to take this step was erroneous, with what followed involving a rushed process where the Magistrate did not state the decision that was being made other than the fact that the charge was being dismissed. Ms Adams submitted that this was a breach of the requirement of procedural fairness in the same way as has occurred in Director of Public Prosecutions v Wunderwald.

99 Mr Smith submitted that it was clear enough that the prosecutor had closed his case as there was no further witness to be called. In this way, it was clear that the submissions that were being made were occurring in the context of the prosecution case being closed.

100 Accordingly, it was submitted that the ground of appeal had not been made out.

Decision

101 Sully J observed in Director of Public Prosecutions v Wunderwald that the closure of the prosecution case is no formality. I agree with that statement.

102 The statement that the prosecution has closed its case provides the temporal context for a submission (if any) that there is no prima facie case. The failure of the Magistrate in this case to draw that line in the procedural sand was followed here by an immediate debate, without any defence application, between the Magistrate and the prosecutor concerning the charge. There was no identification of the elements of the offence, nor any articulation of the legal principles which may bear upon the determination of the proceedings, let alone any coherent findings of fact. Instead, there was a brief exchange followed by the dismissal of the charge.

103 In my view, what happened in this case fortifies a conclusion that error of law has been demonstrated in the ways contended in the fourth and fifth grounds.

104 It is not necessary to say more concerning this separate ground of appeal.

Ground 4 - Dismissing the Matter in Circumstances Where the Magistrate Failed to Properly Consider Whether There Was a Prima Facie Case

Submissions of the Parties

105 Ms Adams submitted that the Magistrate failed to apply the appropriate test on the question whether a prima facie had been established. Counsel submitted that it is difficult to identify the reasoning process by which her Honour concluded that there was apparently no prima facie case and that the charge ought be dismissed. Ms Adams submitted that, as best as it can be discerned from the transcript, the basis for her Honour's dismissal of the charge appears to be as follows:

(a)Mr Martin "was attempting to drag [the First Defendant] out of the van. And then a struggle ensued";

(b)Mr Martin "initiated this physical interaction ... on his own evidence [for] no good cause";

(c)there was "nothing in that situation, according to Mr Martin himself, which was aggressive towards him or violent towards him in any way";

(d)"and then, because the accused doesn't want to get out of the van Martin drags him out".

106 Ms Adams submitted that these remarks indicated that her Honour failed to apply the correct test for determining whether a prima facie case had been made out. Even if Mr Martin "dragged" the First Defendant out of the ambulance (which was not conceded), it was not clear why this would mean that there was no evidence which, if accepted, could amount to proof that the First Defendant assaulted Mr Martin.

107 It was submitted that there was nothing in the transcript to indicate any legal justification for the First Defendant punching Mr Martin once he was outside the ambulance. If her Honour took the view that the First Defendant was acting in self defence, it was submitted that not only was this contrary to the evidence before the Local Court, but her Honour erred in dismissing the charge on that basis.

108 Ms Adams submitted that, instead of taking all of the prosecution evidence at its highest and strongest when considering whether the First Defendant could lawfully be convicted of assault, her Honour failed to consider, or reject, the prosecution evidence that the First Defendant initiated the contact with Mr Martin outside the ambulance, which formed the basis for the charge. It was submitted that this evidence consisted of Mr Martin's testimony that the First Defendant started swinging punches at him and the evidence of Constable Hawes that the First Defendant was throwing punches at Mr Martin, but that he did not see Mr Martin reciprocate.

109 Ms Adams submitted that it appears that her Honour either failed to consider, or rejected, all of the other prosecution evidence concerning the First Defendant's aggression, including:

(a)Mr Martin's repeated statements in evidence-in-chief and cross-examination that the First Defendant was behaving "aggressively" inside and outside the ambulance, that he did not feel safe in the back of the ambulance with the First Defendant and that he felt "abused" and "threatened";

(b)Mr Martin's evidence that the First Defendant threw an icepack which hit him on the head, and a patient health care record book which hit Ms Jacobs on the leg;

(c)Mr Martin's evidence that the First Defendant said something along the lines of "I haven't been in a fight tonight, maybe I should get out and fight you"; and

(d)Constable Hawes' evidence-in-chief, and in cross-examination, that the First Defendant was "aggressive" and throwing punches at Mr Martin.

110 The Plaintiff submitted that her Honour's comment during the exchange with the prosecutor - "Let's be fair dinkum" about Mr Martin's evidence - strongly suggested that she did not accept parts of his evidence. Ms Adams submitted that the Magistrate misstated Mr Martin's evidence when she said that he "quite clearly and distinctly denied" that the First Defendant "had been in anyway aggressive or violent towards him". In cross-examination, Mr Martin conceded that the First Defendant did not threaten or spit at him, but that there was no reasonable basis for her Honour to conclude that Mr Martin "clearly and distinctly denied" that the First Defendant had been aggressive towards him.

111 Ms Adams submitted that her Honour had committed the error identified by Howie J in Director of Public Prosecutions v Lee [2006] NSWSC 270 at [32], and by Garling J in Director of Public Prosecutions v Elskaf at [52], by confusing two entirely separate questions. The first question is a question of law - whether there was evidence which, if accepted, could amount to proof of the offence. The second question is one of fact, arising only if there is a prima facie case, whether her Honour judged the evidence given to be reliable and acceptable, such that she could be satisfied beyond reasonable doubt that the offence could be made out. The Plaintiff submitted that a failure to address these separate questions in a precise and legally correct way was itself sufficient to warrant the grant of relief: Director of Public Prosecutions v Wunderwald at [30].

112 The Plaintiff submitted that her Honour's "Let's be fair dinkum" and "no good cause" comments suggested that she erroneously mixed her assessment of the weight, credibility or reliability of Mr Martin's evidence with her determination of the prima facie case issue, with the phrases used dealing with the reliability of the evidence and its acceptability not being the equivalent of the applicable legal test: Director of Public Prosecutions v Elskaf at [53].

113 Ms Adams submitted that this is not a case where the evidence of Mr Martin could be reasonably regarded as being inherently incredible such that it could be excluded on the question of law as to a prima facie case. If that was the view which her Honour took, the Plaintiff submitted that there was no reasonable or proper basis for it on the evidence before the Local Court.

114 The Plaintiff submitted that it was the evidence of Mr Martin in cross-examination that, as the First Defendant "started to get out of the ambulance", he "had him by the arm ... underneath the arm", that this was "like I do with most people out of the ambulance", that it was as if the First Defendant was himself "trying to get out" of the ambulance, that Mr Martin "gently pulled him towards me" and that, when the First Defendant got back into the ambulance, Mr Martin let him go. Mr Martin at no stage agreed with the repeated suggestion put by Ms Edin that he tried to pull or haul the First Defendant out of the ambulance, although he agreed that there was a struggle after the First Defendant refused to get out of the ambulance. It was never put to Mr Martin that he had dragged the First Defendant.

115 The Plaintiff submitted that there is nothing inherently incredible about the evidence of Mr Martin, nor was it manifestly self-contradictory. Rather, it was submitted that this was consistent with Mr Martin's other evidence in cross-examination that he did not want the First Defendant in the ambulance because he felt unsafe, and that he asked Ms Jacobs to request police attendance.

116 Ms Adams submitted that it is important to bear in mind that the assault charge related to punching Mr Martin in the face which, on Mr Martin's evidence, unshaken during cross-examination and supported by Constable Hawes, took place outside the ambulance. Even if, contrary to the Plaintiff's submission, her Honour could have properly excluded Mr Martin's evidence about assisting the First Defendant to exit the ambulance from her prima facie case determination on the basis that it was inherently incredible, there remained evidence before her Honour capable of making out each element of assault, not only on the basis of Mr Martin's evidence, but also the evidence of Constable Hawes.

117 Mr Smith submitted that the better interpretation of what her Honour did was that she dismissed the charge on the basis that the prosecution had not proved the assault beyond reasonable doubt, applying the principles in May v O'Sullivan [1955] HCA 38; 92 CLR 654 at 657-658.

118 Mr Smith accepted that, if the Magistrate found no prima facie case, there would be error of law as there was a prima facie case of assault. However, he submitted that the Magistrate did not dismiss the charge on this basis. Although the Magistrate did not expressly follow the steps as set out by Garling J in Director of Public Prosecutions v Elskaf at [47], the nature of the charge and the evidence adduced in support of it was uncomplicated. It was submitted that the Magistrate's reasons for dismissing the charge were apparent from her exchange with the prosecutor, with those reasons relating to non-acceptance of the evidence of Mr Martin.

119 Mr Smith submitted that, whilst accepting that her Honour failed to expressly address the determination of whether the evidence established a prima facie case, the evidence adduced in the prosecution case was such as to cause her Honour to entertain a reasonable doubt and dismiss the charge.

Decision

120 Once again, it is necessary to keep in mind that her Honour was presiding at a criminal trial. The principles to be applied with respect to the determination of a prima facie case, and if such a case was established, the decision whether the charge had been proved beyond reasonable doubt involved two separate and legally different steps. So much is well known and has been emphasised on more than one occasion in appeals to this Court from decisions of her Honour, including Director of Public Prosecutions v Wunderwald, Director of Public Prosecutions v Lee and Director of Public Prosecutions v Elskaf.

121 I am satisfied that error of law has been demonstrated in this case in accordance with this ground of appeal.

122 Her Honour's rushed decision-making process meant that no assistance was sought from defence counsel appearing in the Local Court, nor did her Honour state what stage of the trial had been reached. As Sully J observed in Director of Public Prosecutions v Wunderwald, these steps are no idle formality. They form an important part of the judicial process at a criminal trial without a jury, where the judicial officer (as the judge of the law), first determines whether a prima facie case exists and then (as judge of the facts), determines by reference to all the evidence, having heard counsel for the prosecutor and the defence, whether the guilt of the accused person has been established beyond reasonable doubt.

123 If a prima facie case is established, the accused person has an opportunity to give evidence or to call witnesses, or to submit that the Court should not be satisfied beyond reasonable doubt of the guilt of the accused person. To rush from one stage to the next, without informing the accused person of the stage that has been reached in the trial, runs the risk of doing an injustice to the defence.

124 The confused and confusing process which occurred at this hearing, in my view, bespeaks error of law on the part of the Magistrate. In circumstances where her Honour did not indicate that a prima facie case existed and that the Court was moving on to the second step in May v O'Sullivan, I will construe what occurred in the Local Court as involving a decision by her Honour to dismiss the charge upon the basis that there was no prima facie case.

125 It is apparent that her Honour failed to apply the correct legal test as to prima facie case. Error of law has been demonstrated in accordance with this ground of appeal

Ground 5 - Failure to Provide Adequate Reasons for Dismissal

Submissions of the Parties

126 Ms Adams submitted that, making all due allowance for the ex tempore nature of her Honour's remarks, there had been a failure to adequately explain the findings made and the reasons for arriving at those findings. There was no explanation of the legal principles being applied or the findings of fact to which those legal principles were to be applied.

127 Mr Smith emphasised the ex tempore nature of the Magistrate's decision and the flexibility expressed in decisions of various courts when an appeal court examines ex tempore reasons for judgment.

128 Whist acknowledging that the Magistrate did not separately state her reasons for dismissing the charge, Mr Smith submitted that her Honour's essential reasoning process can be identified from the exchange between her Honour and the prosecutor. Counsel sought to distinguish what had been said in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited at 408, concerning the unsatisfactory nature of reasons for judgment being found in an analysis of exchanges between the Bench and counsel during submissions. It was submitted that that case, which involved multiple charges, was to be distinguished from this case which involved a single and straightforward charge.

129 Mr Smith submitted that the Magistrate's reasons may be found in the exchanges with the prosecutor indicating the following findings were made:

(a)Mr Martin denied that the First Defendant was aggressive or violent towards him;

(b)the First Defendant was in pain and demanded to be taken to a hospital;

(c)the First Defendant spat on the floor of the ambulance, but not at Mr Martin;

(d)Mr Martin called the First Defendant a "filthy pig" and demanded that he get out of the ambulance;

(e)in view of Mr Martin's evidence that the First Defendant refused to get out of the ambulance, her Honour's rejection of the evidence that he "assisted" the First Defendant out of the ambulance was reasonable, with her Honour finding instead that Mr Martin dragged the First Defendant out, thereby initiating the physical altercation.

130 Mr Smith submitted that each of the five findings referred to in the preceding paragraph were articulated by her Honour during the exchange with the prosecutor and that, in view of the fact that the charge in this case was common assault, and given the relatively simple nature of the issues raised, her Honour's analysis of Mr Martin's evidence, and her concerns about it, disclosed the essential reasoning upon which her decision was made.

131 Finally, Mr Smith submitted that, in some instances, the simplicity of the context of the case or the state of the evidence may be such that a mere statement of a judicial officer's conclusion will sufficiently indicate the basis of the decision: Sun Alliance Insurance Limited v Massoud [1989] VR 8 at 19.

Decision

132 In approaching this ground of appeal, I have made full allowance for the demands on a busy Local Court, and the nature and limitations of an ex tempore decision delivered immediately after a hearing. However, the law requires a minimum standard in this respect and that standard was not achieved in this case.

133 The difficulties referred to in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited, where reasons are sought to be found in an exchange between counsel and the Bench, are well illustrated in this case. The observations made in that judgment did not depend upon the number of charges or the complexity of the issues.

134 The exchange between the Magistrate and the prosecutor in this case:

(a)failed to indicate whether the Magistrate was considering the question of a prima facie case, or the separate and later question of whether, as a question of fact, the charge had been proved;

(b)failed to make any (or any coherent) findings of fact at all;

(c)failed to set out any legal principles including the elements of the offence charged, or to apply those principles to the facts of this case.

135 As the First Defendant does not contend that her Honour should be taken to have dismissed the charge by reference to self defence, I do not add this deficiency to the list. However, if self defence did play any part in the Magistrate's thinking, the position is worse given the absence of any reference to it in submissions or the Magistrate's reasons.

136 To my mind, this is a clear and vivid example of error of law where a judicial officer has failed to give reasons as required by law. The reasons given are so defective that this Court is not in a position to divine the legal and factual basis upon which the Magistrate dismissed this charge.

137 With the greatest of respect, what happened in this case appears to exemplify the "unconsidered or impulsive decision" referred to by Meagher JA in Beale v Government Insurance Office (NSW), the avoidance of which forms part of the rationale for the obligation of a judicial officer to give reasons for a decision at the conclusion of a trial.

138 I am satisfied that this ground of appeal has been made out.

The Appropriate Relief

Submissions of the Parties

139 Ms Adams submitted that the Plaintiff was entitled to succeed on the statutory appeal and that it was not necessary to rely upon the alternative claim for prerogative relief, although if that point had been reached, it was submitted that such relief would have been appropriate.

140 It was submitted for the Plaintiff that there was no discretion to decline to remit the matter to the Local Court if error of law was established: Director of Public Prosecutions v Wunderwald. In any event, if there was a discretion, the Plaintiff submitted that there was no basis for this Court to decline to remit the matter to the Local Court.

141 The Plaintiff sought an order setting aside the order of dismissal and an order remitting the matter to the Local Court to be dealt with by a different Magistrate. It was submitted that such an order had been made in a number of decisions of this Court, including decisions on appeal from her Honour, and that it was appropriate in the circumstances of this case.

142 Mr Smith submitted that, in the event that error was established, the Court should exercise discretion pursuant to s.59(2) Crimes (Appeal and Review) Act 2001 and decline to remit the matter to the Local Court for hearing: Director of Public Prosecutions v Chresta [2005] NSWSC 233; 152 A Crim R 379. It was submitted that her Honour had the advantage of hearing and seeing the prosecution witnesses and had formed an adverse view with respect to the evidence of Mr Martin. The evidence of Constable Hawes did not touch upon the commencement of the physical altercation and thus, it was submitted, did not assist the prosecution.

143 It was submitted, as well, that any likely penalty that may be imposed, if the offence was found proved, was not such as to warrant the remittal of the matter for rehearing.

144 It was submitted for the First Defendant that the Court should decline to grant the relief sought in these circumstances.

Decision

145 I am satisfied that the Plaintiff has established error of law in a number of respects on the part of the Magistrate in this case. The appropriate course in these circumstances is to remit the matter to the Local Court to enable that Court, as the trial court, to hear and determine the matter according to law. Such an approach is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters: Lake Macquarie City Council v Morris at 277 [65]; Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319 at 333 [68].

146 It is not necessary to resolve the question whether there is discretion to decline to remit the matter to the Local Court, as no basis has been demonstrated for the exercise of any available discretion.

147 In any event, I do not accept the submission of the First Defendant that reliance can be placed upon the apparent views of the Magistrate in this case in determining not to remit the matter to the Local Court. In my view, the process demonstrated at this criminal trial is so tainted by denial of procedural fairness and error of law that whatever view was formed by the Magistrate should be placed entirely to one side.

148 To the extent that it may be relevant, I observe that the assault charged in this case, if proved, is not a minor one. If the offence is found proved, an available aggravating factor on sentence would be that the victim, as a paramedic engaged in duties as an ambulance officer, was a health worker or other public official exercising public or community functions, and the offence arose because of the victim's occupation: s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999.

149 In the circumstances of this case, I am entirely satisfied that the appropriate order to be made is that the matter should be remitted to the Local Court to be heard by a Magistrate other than Magistrate O'Shane. Such an order has been made in the past in a number of decisions on appeal from her Honour: Director of Public Prosecutions v Lee; Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746; Director of Public Prosecutions v Yeo; Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 at [62].

150 In light of what has happened in this case, I regret to say that there could be no confidence that a hearing on the merits, conducted according to law, would occur if the matter was remitted to Magistrate O'Shane.

A Recurring Pattern of Error and the Importance of Compliance with the Doctrine of Precedent

151 Before concluding this judgment, I am bound to make a number of observations concerning this appeal.

152 Judges exercising an appellate jurisdiction should choose their words carefully in giving judgment on appeal, keeping in mind that all judicial officers are human and can fall into error. This point was emphasised by the Hon Keith Mason AC (the former President of the Court of Appeal) in a paper entitled "Throwing Stones: Cost/Benefit Analysis of Judges Being Offensive to Each Other" (2008) 82 ALJ 260. However, the following observation was made at 262:

"I see nothing wrong with an appellate court noting that a significant error has occurred repeatedly in successive decisions by an identified judge who has ignored previous appellate reversals."

153 His Honour returned to this aspect at 264:

"Scenarios that call for a strong, but not necessarily offensive, response include repeated infractions of established principles of judicial method, disregard of binding authority, and mistakes involving well-known legal principles. Even here, caution is strongly advised. Errors may be the product of the way the case below was conducted. Slips and omissions in the language of reasons of busy judges do not always betoken substantive errors."

154 The fact that there have been a significant number of successful appeals from decisions of the Magistrate presiding in this case is not, of itself, such as to warrant specific comment. Where, however, the errors found in cases are repeated over and over again, it is appropriate to note the pattern.

155 In Director of Public Prosecutions v Elskaf, Garling J said at [69]-[72]:

"[69] The first is that it is difficult to understand how the Magistrate has fallen into errors of the kind which I have found, since this judgment is not the first occasion upon which the proper procedure has been described, and the correct procedure pointed out to the Magistrate by this court.

[70] Her Honour has had the correct process drawn to her attention in a number of decisions of this court, on appeal from her determinations in summary proceedings. These include:

(a) DPP v Wunderwald [2004] NSWSC 182 (Sully J);

(b) DPP v Lee [2006] NSWSC 270 (Howie J);

(c) DPP (Cth) v Neamati [2007] NSWSC 746 (Howie J);

(d) Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 (Davies J).

[71] If I may say, with respect, the judgment of Sully J in Wunderwald sets out in a model of clarity, the Magistrate's obligations when considering whether a prima facie case had been established. His Honour's judgment was not followed in this case, but rather seems to have been entirely ignored.

[72] In light of this history of decisions by this court, and the failures identified in this case, I can have no confidence that Magistrate O'Shane would, if the matter was returned to her to complete, undertake the further hearing of it in accordance with the law."

156 To the decisions referred to by Garling J should be added the judgment in Director of Public Prosecutions v Yeo.

157 It is a fundamental principle of the law that, where the Supreme Court decides a point of law on an appeal from a Magistrate, that decision is binding on all inferior courts in the State, with judges of a court inferior in the hierarchy not being at liberty to regard themselves as not bound by the decision of the higher court. After stating this principle in Fleming v White [1981] 2 NSWLR 719 at 725-726, Street CJ (Hope JA and Nagle CJ at CL agreeing) said at 726B-C:

"To countenance any departure from this disciplined order would involve not only the erosion of the integrated nature of a hierarchical court structure but also the introduction of a wholly inadmissible element of uncertainty in the administration of the law. Submission to higher authority is the proper portion of all judges and judicial officers from the magistrate up to a judge of an ultimate appellate court when sitting alone."

158 I have mentioned earlier in this judgment the rationale for the doctrine of precedent and the need for compliance with it in support of the rule of law and the administration of justice.

159 The recurring errors into which the Magistrate has fallen demonstrate repeated breaches of the requirement of a judicial officer to preside at a criminal trial conducted according to law, with a fair opportunity to the parties to present their cases.

160 Although the errors of the Magistrate identified in the various decisions to which I have referred have arisen in different factual contexts, there is a pattern of fundamental error in the discharge of judicial duties.

161 The doctrine of precedent operates to remind judicial officers of the legally correct processes to be followed, with an expectation that a judicial officer whose decision has been overturned, will not repeat the error which has given rise to appellate intervention. Regrettably, that doctrine does not appear to have achieved its purpose in the case of decisions of the Magistrate to which reference has been made.

Costs

162 The Plaintiff seeks an order for costs against the First Defendant, but submits as well that it would be appropriate to grant him a certificate under the Suitors' Fund Act 1951, with the Plaintiff not seeking to enforce any costs order beyond the level of any amount covered by such a certificate.

163 In the event that this point was reached in the proceedings, Mr Smith sought the grant of a certificate under the Suitors' Fund Act 1951.

164 As I have mentioned, the Second Defendant has filed an appearance submitting to all orders save as to costs. No costs order is sought against the Second Defendant.

Orders

165 I am well satisfied that the Plaintiff has demonstrated an entitlement to relief by way of the statutory appeal under ss.56 and 59 Crimes (Appeal and Review) Act 2001. It is not necessary to address the alternative claim for prerogative relief in these circumstances, although had there been an impediment to the grant of statutory appellate relief, I would have granted the Plaintiff prerogative relief in this case.

166 I make the following orders:

(a)the appeal is allowed;

(b)I set aside the order of Magistrate O'Shane made at the Downing Central Local Court on 20 January 2012 dismissing the charge against the First Defendant of assault under s.61 Crimes Act 1900;

(c)the matter is remitted to the Local Court to be heard before a different Magistrate conformably with this judgment;

(d)the First Defendant is to pay the Plaintiff's costs;

(e)the First Defendant is granted a certificate under s.6 Suitors' Fund Act 1951.

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Amendments

19 July 2012 - Incorrect spelling of citation.
Amended paragraphs: Coversheet and [41]

Decision last updated: 19 July 2012