Connor v Petelo

[2005] NSWSC 1025

CITATION:	CONNOR v PETELO [2005] NSWSC 1025
HEARING DATE(S):	22 August 2005
JUDGMENT DATE :	22 August 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Appeal allowed.; Decision of the Local Court set aside.; Matter remitted to the Local Court.; No order as to costs.

CATCHWORDS:	Local Court prosecution - status of police prosecutor - whether leave to appear for informant should be granted - relevant considerations - effect of s36 Criminal Procedure Act 1986
LEGISLATION CITED:	Criminal Procedure Act 1986 Rail Safety Regulation 2003
CASES CITED:	Grassby v The Queen (1989) 168 CLR 1
PARTIES:	Anthony CONNOR (Plaintiff) Peter PETELO (Defendant)
FILE NUMBER(S):	SC 12514/05
COUNSEL:	Ms B Baker (Solicitor) - Plaintiff No appearance for defendant
SOLICITORS:	I V Knight - Plaintiff

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Pierce LCM

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

MONDAY 22 AUGUST 2005

12514/05 - CONNOR v PETELO

JUDGMENT

1 HIS HONOUR: The defendant was charged with an offence under the Rail Safety Regulation 2003 concerning smoking on a train. The Prosecutor was a Mr Connor. A Police Prosecutor sought to appear on his behalf. On the hearing of the prosecution, the learned Magistrate, acknowledging that he needed leave to do so since the Prosecutor was not a police officer, and accordingly the matter was not governed by s36 of the Criminal Procedure Act 1986, considered that he did not have leave to grant such an application.

2 There is a long history of litigation dealing with this matter, and I do not intend, nor does this case require, to give an account of it. It is sufficient, I think, to say that representation before a court by someone qualified to undertake that responsibility will almost invariably assist the court more than would be the case if the party, himself or herself, appears without assistance.

3 The learned Magistrate was apparently of the view that the Prosecutor should have arranged for a solicitor or barrister to appear for him, pointing out that using a Police Prosecutor appeared to be a mere cost-saving device. Even if this were so, providing this could be properly done, it is not an unreasonable cost-saving device. The Police Prosecutor habitually appears in local courts; he or she will usually have a great deal of useful experience; and is, at all events, at the court to prosecute other matters.

4 The assumption that, otherwise, the informant would have been represented by a solicitor or a barrister is without foundation. The consequence of the order may just as easily have been to require the informant personally to prosecute. It is difficult to see how the administration of justice would be assisted by such a course.

5 Representation by qualified persons (and for the present case I think a Police Prosecutor would be qualified) is, as I have mentioned, of considerable experience to courts at every level, no less in the Local Court. The long line of authority that permits leave to be given to Police Prosecutors in a wide range of cases to appear for informants is powerful evidence supporting this conclusion. It may be that in expressing the rule, the courts, before the decision in Grassby v The Queen (1989) 168 CLR 1 mistakenly ascribed the jurisdiction to grant leave to the Local Courts’ "inherent" jurisdiction, but I do not regard this as fundamental.

6 It cannot be doubted that the governance of representation is a vital procedural power of any tribunal and I think it is plain that the Local Court has an implied power to grant leave to persons not otherwise having the right of appearance (such as an unadmitted Police Prosecutor). But also may do so for a defendant, as by permitting a McKenzie friend to assist.

7 It seems to me that so longstanding a practice should not be taken to have been abolished by the side wind, as it were, of s36 of the Criminal Procedure Act. In terms, that provision grants a right. Whether a Police Prosecutor can appear for an informant who is not a police officer is not the subject of the provision and the section leaves untouched the implied power of the Court to grant leave. Section 36 is concerned with rights of appearance. It is not concerned with the Court power to grant leave in relation to representation by persons who do not have such a right.

8 I have already mentioned the experience which with which a Police Prosecutor can assist the Court in relation to prosecutions. It is worth mentioning also that Prosecutors are subject to Commissioner's instructions about the performance of their duties, and I do not doubt that they understand fully the ethical obligations placed upon them in relation to the performance of their duties. This is another consideration which should be borne in mind when considering whether to grant leave to a Police Prosecutor to appear for an informant, who may simply be a charging officer unlikely to have the objectivity of a Police Prosecutor or an understanding of the proper role such a Prosecutor should play in conducting the case, quite apart from the useful knowledge of the relevant procedures which a Prosecutor is likely to have.

9 It would therefore, on the face of it, appear to be a rare case in which leave for a Prosecutor to appear for an informant should be refused. This is not to say, of course, that there will not be such cases.

10 For present purposes, I think it is sufficient to mention that the question is not whether it is necessary that the Police Prosecutor should have appeared, but whether it was desirable in the interests of the administration of justice that leave should have been granted.

11 For these reasons, the appeal is allowed, the decision of the Local Court is set aside. The matter is remitted for hearing to the Local Court in accordance with my reasons.

12 I make no order as to costs.

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