Supreme Court New South Wales

• Medium Neutral Citation: Director of Public Prosecutions (NSW) v Gatu [2014] NSWSC 192
• Hearing dates: 6 March 2014
• Decision date: 07 March 2014
• Jurisdiction: Common Law
• Before: Button J

Decision

(1)Appeal allowed.

(2)Pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001 the order of Magistrate Coombs made on 8 July 2013 at Fairfield Local Court dismissing proceedings against the First Defendant for the alleged offence of 'Drive while licence cancelled' (section 25A(3)(a) Road Transport (Driver Licensing) Act 1998) is set aside.

(3)The matter is remitted to Fairfield Local Court to be dealt with according to law by a magistrate other than his Honour Magistrate Coombs.

• Catchwords: APPEAL - appeal from decision of Local Court Magistrate pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) -criminal-matter determined in chambers before adjourned date for hearing without notice to prosecutor-contravention of fundamental principles
• Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 56(1)(c); Criminal Procedure Act 1986 (NSW), ss 38, 39, 191, 194,195, 201; Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(3)(a)
• Cases Cited: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713, 222 A Crim R 106; Hogan v Hinch [2011] HCA 4; Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; 240 CLR 319; Pollard v RRR Corporation Pty Ltd [2009] NSWSC 110; Russell v Russell [1976] HCA 23; 134 CLR 495; Scott v Scott [1913] AC 417; Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
• Category: Principal judgment
• Parties: Director of Public Prosecutions (NSW) (Plaintiff); Tisimasi Panapa Gatu (First Defendant); The Local Court of New South Wales (Second Defendant)
• Representation: Counsel: J Pickering SC (Plaintiff); Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Plaintiff); M Abboud (First Defendant)
• File Number(s): 2013/302372

Judgment

Nature of proceedings

1 This is an appeal brought by the NSW Director of Public Prosecutions pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) with regard to criminal proceedings in the Local Court that took a remarkable turn. The appeal is founded upon the propositions that many serious errors of law occurred, that those errors must be corrected, and that the matter must be remitted to the Local Court for re-hearing. The summons initiating the appeal seeks, in the alternative, prerogative relief, but in light of the firm view to which I have come with regard to the primary relief sought, that need not be discussed further.

2 The first defendant was the defendant in the Local Court. The second defendant has entered a submitting appearance. For convenience, I shall refer to the first defendant as "the defendant". For the same reason, I shall refer to the plaintiff in this court as "the appellant".

Chronological background

3 The affidavits, their annexures, and an exhibit placed before me by the appellant establish the following.

4 On 28 May 2013, the defendant was allegedly found by police to be driving a motor vehicle whilst his licence was cancelled. He was charged with that offence pursuant to s25A(3)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW), and the matter proceeded by way of a Field Court Attendance Notice.

5 The first return date was 24 June 2013. On that occasion the defendant did not appear. It seems that a warrant was not issued to compel his attendance.

6 The next occasion upon which the matter was before the court was 8 July 2013. The defendant appeared unrepresented. The Police Prosecutor was, of course, in court as well.

7 The transcript of the proceedings shows that a discussion took place between his Honour and the defendant about whether he accepted or denied his culpability. In effect, the defendant asserted that he had not believed that his licence had been cancelled, and that belief was reasonable because it was based upon a letter that he had received from Roads and Maritime Services ("the RMS"). His Honour invited the defendant to take steps to obtain a copy of that letter in order to corroborate his position. The matter was stood over for two weeks in order to permit that to occur. That occurred without demurrer on the part of the Police Prosecutor. The last lines of the transcript are as follows:

His Honour: So do you reckon you can find a copy of it somewhere?

Accused: I have done the last few weeks -

His Honour: Well two weeks? Look Mr Gatu we can't just sit here with you saying, "I don't know." Yes or no, are you going to get some proof that you thought you weren't cancelled?

Accused: If I could get that from the RTA, yeah.

His Honour: Yeah, well I can't order it, you can go and ask for it. Two weeks?

Accused: Yeah. Your Honour, what would the penalty be for -

His Honour: The penalty is 12 months off the road, see you in two weeks.

Accused: Okay, thankyou.

ADJOURNED [Emphasis added]

8 The matter did not return to the courtroom that day. That proposition is established by Exhibit A, and the documentary response to it, in the proceedings before me.

9 The Police Prosecutor returned to her office at some later stage. At about 3.45 PM, a colleague of hers received a telephone message from the Local Court Registry. That message was to the effect that, after his Honour had adjourned for the day, the defendant had returned to the courthouse armed with his driving record from the RMS. According to the message, that document had been provided to the Registry, his Honour had determined the matter in chambers, and the charge of driving whilst cancelled had been "dismissed". All of that had occurred without the knowledge of the Police Prosecutor.

10 An examination of the handwritten notations on the bench sheets of the matter with regard to 8 July 2013 reveals what appear to be the words:

"22/7/13.

letter from RMS"

However, somebody has crossed out those words.

11 On JusticeLink, the electronic record of court proceedings and orders in New South Wales, the following orders are recorded:

A plea of not guilty is entered.

and then:

The matter before the Court is dismissed. The court found the charge was not appropriate.

Submissions

12 The appellant has submitted that a number of inferences are squarely open.

13 First, a criminal prosecution was determined not in open court but, rather, in the chambers of the judicial officer who was the tribunal of law and fact.

14 Secondly, the prosecutor was given no notice that that was to occur, and was not heard either with regard to the procedure adopted or the substantive question.

15 Thirdly, no explanation of what had happened, or why it had happened, was provided by the judicial officer above and beyond what was recorded on JusticeLink.

16 Fourthly, that procedure was adopted contrary to an explicit, unrevisited, and extant court order that the matter had been adjourned for two weeks.

17 Turning to asserted errors of law, the appellant submitted that the procedure adopted was contrary to a large number of provisions of the Criminal Procedure Act 1986 (NSW) that require (subject to certain exceptions that have no application here) that prosecutions of summary offences be determined by way of a summary hearing. He referred to: s 38 (hearing procedures to be as for Supreme Court with regard to examination and cross-examination of witnesses, and addressing the court); s 39 (evidence of each witness must be recorded); s 191 (proceedings to be open to public); s 194 (procedure if offence not admitted); s195 (how evidence is taken) and s 202 (determination of the court).

18 He also submitted that the procedure adopted was contrary to fundamental principle in at least four ways, the details of which I shall discuss in a moment.

19 The defendant was represented in this Court. His solicitor did not dispute that the orders sought by the appellant should be made. He also accepted that the matter was listed for mention on 8 July 2013. And he did not seek to justify what seemingly occurred in this case.

Determination

20 I consider that it is appropriate to draw the inferences about events contended for by the appellant. I have considered whether, on all of the evidence placed before me, there is some alternative explanation, but I am unable to bring one to mind.

21 I also accept the submissions of the appellant about matters of law. The procedure adopted was indeed contrary to a number of central and long-established attributes of our criminal justice system.

22 First, it is a fundamental principle that legal disputes joined between parties must be the subject of adjudication in a courtroom, and not in chambers. And, subject to limited exceptions, none of which applies in this case, it must be a courtroom that is open to the public. It could be said that those principles apply with particular force in criminal matters.

23 Over one hundred years ago in Scott v Scott [1913] AC 417 it was said that trial in public provides "the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect".

24 The High Court of Australia has emphasised on numerous occasions the requirement that courts sit in public: see, for example, Russell v Russell [1976] HCA 23; 134 CLR 495 at 520; Hogan v Hinch [2011] HCA 4 at [20]. In the latter case, French CJ said:

An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. [Footnotes omitted]

25 It was an error of law for his Honour to determine the fate of a criminal prosecution in chambers as opposed to open court.

26 Secondly, it is a fundamental principle that an opponent in litigation must be given the right to be heard. Again, there are limited exceptions that permit ex parte proceedings in civil and even criminal matters, none of which apply here. To give but one example of recent authority in support of that fundamental principle, in International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; 240 CLR 319 at 379-80 Heydon J spoke of the centrality of hearings to the judicial process in Australia. His Honour noted a number of bases for that procedural requirement. First, in an adversarial system it is essential that each party have an opportunity to give evidence and make submissions. Secondly, hearing both sides of an issue or story "tends to quell controversies and discontents", and helps to prevent the judicial officer from "reaching unsound conclusions". Thirdly, "hearing both sides ... respects human dignity and individuality". Fourthly, his Honour went on to explain that affording each party an opportunity to be heard in proceedings helps ensure that they respect and abide by the final decision made.

27 I respectfully consider that there was no justification for accepting the implicit submission of the defendant that there was evidence that should lead to the charge being dismissed in the absence of submissions from the prosecutor. Indeed, the prosecutor did not have an opportunity to examine the seemingly crucial document, let alone make submissions about it.

28 It was an error of law to dismiss the charge against the defendant without having heard a word to the contrary from the prosecutor.

29 Thirdly, it was a breach of fundamental principle for the learned Magistrate, constituting as his Honour did the tribunal of law and fact, not to provide any reasons explaining why the charge had been dismissed. It is well established that judicial officers have a duty to give adequate reasons for their decisions, in part as a result of the need to facilitate appellate review: Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 381; Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 257-8, 269; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441; in the context of magistrates hearing criminal matters summarily, see Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713, 222 A Crim R 106.

30 Whilst it is well established that one must take into account the nature of the proceedings and the circumstances of pressure and necessary haste brought about by the volume of matters with which a judicial officer is confronted, nevertheless there remains an obligation to provide adequate reasons: see, for example, Pollard v RRR Corporation Pty Ltd [2009] NSWSC 110 at [56]. It is impossible to construe the Delphic reference to the charge as not being "appropriate" in the material uploaded onto JusticeLink as fulfilling that obligation.

31 It was an error of law for his Honour to provide no reasons for the dismissal of the charge.

32 Fourthly, the Court having ordered the matter to proceed 14 days later, it is difficult to understand how the matter could be finalised on a date earlier than the one specified in that extant order, even leaving aside the deeper errors of principle that I have identified.

33 It was an error of law to determine the matter prior to the date that had been fixed for hearing by way of an order still in force.

34 Fifthly, quite apart from those matters of principle, the matter was determined contrary to the many provisions of the Criminal Procedure Act that mandate that allegations of summary offences (and indictable offences being dealt with summarily) are to be determined at a summary hearing. The submission founded upon the provisions to which the appellant referred is soundly based. And whilst the phrase "summary hearing" is not explicitly defined in the Criminal Procedure Act (above and beyond the sections that I have listed that set out some of its necessary attributes), it is inconceivable that an ex parte determination on the papers in chambers could fall within the meaning of that phrase.

35 It was an error of law for his Honour not to conduct a summary hearing in accordance with the explicit provisions of the Criminal Procedure Act.

36 For all of those reasons, I consider that it is inevitable that the orders sought by the appellant must be made.

37 Perhaps these grave errors occurred as a result of a desire to do quick justice with regard to an allegation that fell at the less serious end of the spectrum of offences and that the judicial officer believed was ill founded. No doubt the speedy determination of criminal matters is a worthy aim. But I respectfully consider that that laudable goal in no way justifies what occurred here. In any event, the wrongful procedure adopted has delayed the resolution of the matter by many months. That is because of the various steps that needed to be taken to permit the prosecution of this appeal.

38 In the circumstances that I have outlined, I respectfully consider that it is appropriate to make an order on remitter to the Local Court that the matter be listed before a different magistrate.

39 Finally, I note that the appellant has abandoned any application to have the defendant pay the costs of the appeal.

Orders

40 Accordingly, I make the following orders:

(1) Appeal allowed.

(2) Pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001 the order of Magistrate Coombs made on 8 July 2013 at Fairfield Local Court dismissing proceedings against the First Defendant for the alleged offence of 'Drive while licence cancelled' (section 25A(3)(a) Road Transport (Driver Licensing) Act 1998) is set aside.

(3) The matter is remitted to Fairfield Local Court to be dealt with according to law by a magistrate other than his Honour Magistrate Coombs.

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Amendments

10 March 2014 - 22/3/13 replaced with 22/7/13.
Amended paragraphs: 10

10 March 2014 - Typographical error.
Amended paragraphs: 19, 21

Decision last updated: 11 March 2014