Director of Public Prosecutions (New South Wales) v Maleselo Fungavaka

[2010] NSWSC 917

CITATION:	Director of Public Prosecutions (New South Wales) v Maleselo Fungavaka & Anor [2010] NSWSC 917
HEARING DATE(S):	23 February 2010
JUDGMENT DATE :	26 August 2010
JUDGMENT OF:	Hidden J
DECISION:	Orders of magistrate quashed. Matter remitted to Local Court.
CATCHWORDS:	CRIMINAL LAW - application for prerogative relief - summary proceedings - failure of police to serve brief in time - magistrate's refusal to grant prosecution application for adjournment or dispensation with requirement of service in time - charge dismissed
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 Justices Act 1902
CATEGORY:	Principal judgment
CASES CITED:	Director of Public Prosecutions v West [2000] NSWCA 103, 48 NSWLR 647 Director of Public Prosecutions v Ozakca & Anor [2006] NSWSC 1425, 68 NSWLR 325 House v The King (1936) 55 CLR 499 R v Alexandroaia (1995) 81 A Crim R 286 Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 (Court of Appeal, 10 November 1992) Sullivan v Department of Transport (1978) 20 ALR 323 Nitiva v Director of Public Prosecutions & Ors [1999] NSWCA 332
PARTIES:	Director of Public Prosecutions (New South Wales) (Plaintiff) Maleselo Fungavaka (First Defendant) Magistrate John Andrews (Second Defendant)
FILE NUMBER(S):	SC 2009/14456
COUNSEL:	C A Webster (Plaintiff) A Haesler SC (First Defendant)
SOLICITORS:	S C Kavanagh ( Solicitor for Public Prosecutions) (Plaintiff) S O'Connor (Legal Aid Commission) (First Defendant) I V Knight (Crown Solicitor) Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 26 August 2010

2009/14456 Director of Public Prosecutions (NSW)
v
Maleselo Fungavaka & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff, the New South Wales Director of Public Prosecutions, seeks prerogative and declaratory relief, or appellate intervention under Pt 5, Div 2 of the Crimes (Appeal and Review) Act 2001, in respect of proceedings in the Local Court which led to the dismissal of a charge against the first defendant, Maleselo Fungavaka. The second defendant is the magistrate who conducted those proceedings, and who has entered a submitting appearance.

2 On 14 April 2009, Mr Fungavaka was charged with common assault upon a 14 year old youth, alleged to have occurred that same day. A provisional apprehended personal violence order was also made. The charge, together with the application for the apprehended personal violence order, came before a different magistrate on 7 May 2009. Mr Fungavaka was unrepresented. The matter was listed for defended hearing on 16 June 2009.

3 It is what occurred on 16 June which leads to these proceedings. Before turning to the events of that day, it is necessary to examine some provisions in Ch 4, Pt 2, Div 2 of the Criminal Procedure Act 1986 concerning the service of prosecution briefs in summary proceedings.

4 Section 183(1) requires the prosecutor to serve a copy of the brief of evidence upon the accused person. Subsection (2) sets out what must be included in the brief. By subs (3), a copy of the brief is to be served at least 14 days before the hearing “of the evidence for the prosecution”. (By subs (4), a magistrate may set a later date in certain circumstances, but that was not done in the present case.)

5 Section 187 deals with circumstances, not relevant for present purposes, in which the whole or part of a brief of evidence need not be served. Importantly, however, s 187(4) provides:

“Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence.”

6 Of particular significance in these proceedings is s 188, which provides:

“ 188 Evidence not to be admitted
(1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor.
(2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.”

7 These provisions in an earlier incarnation were considered by the Court of Appeal in Director of Public Prosecutions v West [2000] NSWCA 103, 48 NSWLR 647, to which I shall refer later. The procedure for the service of prosecution briefs is governed by Practice Note 7 of 2007 issued by the Chief Magistrate. That Practice Note provides that, generally, a magistrate (or a registrar) is to fix a timetable for the service of the brief and to adjourn the matter to a day after the brief is to be served when, if the plea of not guilty is maintained, a date for hearing would be fixed. On that adjourned date, if the accused person is legally represented, that representative is to present to the prosecutor and to the court a notice of appearance, together with a “Local Court Listing Advice” in which, among other things, the prosecution witnesses required for cross-examination are specified. This process, as I understand it, is known as the “reply to the brief”.

8 As I have said, the magistrate before whom this matter was first listed set it down for hearing. He ordered that a “mini brief” be served by 1 June 2009, and did not adjourn the matter to an intervening date for reply to the brief. It appears that his Honour was invoking special provisions for domestic violence matters to be found in Practice Note 3 of 2008. The present case, of course, was not of that kind. Presumably, a timetable under Practice Note 7 should have been set. However that may be, s 183(3) required the prosecution to serve the brief no later than 14 days before the hearing.

9 16 June 2009 was a Tuesday. Mr Fungavaka was still unrepresented when the matter was called on before the second defendant. At that stage a police prosecutor appeared for the informant. It was not until the institution of these proceedings that the matter was taken over by the Director of Public Prosecutions under s 9 of the Director of Public Prosecutions Act 1986.

10 Mr Fungavaka told the magistrate that he expected to be represented by a Legal Aid solicitor but that he had not been served with the prosecution brief until the previous Friday, 12 June. The prosecutor confirmed that this was so. A Legal Aid solicitor appeared to assist the Court. She said that Mr Fungavaka had come to see her on 13 May, when the matter was first before the Court. At that time he had a police statement of facts. Legal aid had not been granted in the meantime, because the police brief had not been provided and Mr Fungavaka had not completed a formal application for aid. The solicitor did not realise that the matter had been listed for hearing that day, thinking that it had been listed for mention only, perhaps for reply to the brief. Mr Fungavaka had supplied his copy of the brief to one of her colleagues that morning. She explained that, legal aid not having been granted, she was unable to represent him that day and she withdrew.

11 Asked by his Honour why the brief had not been served until the previous Friday, the prosecutor said that the “brief handling section” had misplaced it. They did not tell the informant officer about that until the Friday, whereupon that officer made a further copy of his own brief and served it. There were the following exchanges between his Honour and the prosecutor:

“HIS HONOUR: So the prosecution are in trouble?
PROSECUTOR: Yes your Honour and certainly if your Honour was minded to grant an adjournment in relation to the matter, I’d be relying on DPP and (sic) West …
…
HIS HONOUR: Yeah, well the 14-day rule there is – I mean, why would – you say it should come within DPP and West?
PROSECUTOR: Well your Honour, it’ll be my submission that for the prosecution to certainly get back on track in relation to the non-compliance of the brief service. Your Honour, the officer did everything within his power to ensure that his protocols were followed and it appears that there is a – that it’s a system that has let the defendant – sorry – the defendant down and the informant officer and certainly your Honour, in the interests of justice, I would be seeking – I have both the victim and the witness in attendance your Honour. I’d certainly – that would be my submission your Honour.”

12 His Honour then said that, in the circumstances, “nobody’s going to be forced on today”. He went on to say, however, that the only issue was why the matter should not proceed that day, noting that “it hasn’t been complied with by the prosecutor …” He added, “DPP and West talk about it must be refused, unless”. There was then the following exchange:

“PROSECUTOR: Certainly your Honour I’d be arguing that it would be just and reasonable to dispense with the requirements your Honour under s 188(2).
HIS HONOUR: Yeah, well I know what the legislation says, but I mean it’s also – I mean, it makes the rule meaningless if it’s not complied with and if the problems come about by the fact that there is no system in place to ensure that briefs are served, then well maybe the system might get better.
PROSECUTOR: Well your Honour, it’s also my submission that the Local Court magistrate, when setting this down, certainly didn’t – certainly didn’t allow for a reply period, which is usually the process your Honour. I can’t stretch the matter any further.”

13 His Honour then explained to Mr Fungavaka that the prosecution had failed to serve the brief upon him at least 14 days before the hearing, noted that the prosecution was seeking an adjournment, and asked whether he opposed it. Mr Fungavaka’s reply was not transcribable but it is apparent that he said that he did. His Honour then gave his decision, saying:

“Well really, on what’s been indicated to me, I see no reason why the adjournment should be granted or rather, it’s not an application for an adjournment, it’s an application to dispense with the requirements and the provisions of s 188 of the Criminal Procedure Act 1986 come into play. The prosecution have not complied with the provisions of serving the brief as required. It’s noted the provisions of s 188 subs (2) that the court obviously may and if the accused were to consent, must, but the accused in the case, he opposes dispensing with the requirements of subs (1). In my view, no adequate reason has been given for the fail (sic) to serve the brief within that statutory period. I refuse the – to admit evidence sought to be adduced by the prosecutor. I note the section has not been complied with. As I’ve indicated, no appropriate reason given, other than the fact that the brief handling provisions – the brief, it seems, was not passed on in relation to the person who would arrange to compile and serve the brief. That was not done until last Friday. In those circumstances, as I indicated, I refuse to admit the evidence sought to be adduced by the prosecutor. So in relation to the charge before the court, sequence 1 is dismissed.”

14 “Sequence 1” was a reference to the assault charge. His Honour then turned to the application for an apprehended personal violence order and, by consent and without admissions, an order was made.

15 Let me turn, then, to the decision to which both the prosecutor and the magistrate referred, DPP v West (supra). That is an important case, in which the scheme for the service of prosecution briefs in its original form, Pt 4, Div 2, Subdivision 6A of the Justices Act 1902, was examined. For present purposes, it is not necessary to consider all that the Court had to say about it.

16 The provisions with which the Court was concerned in that case have been reproduced in the Criminal Procedure Act, although not always in exactly the same terms. Nevertheless, the differences are not material and the provisions are to the same effect. I shall set out the provisions of the Criminal Procedure Act relevant to this case and cross-reference them to those in the Justices Act.

Criminal Procedure Act	Justices Act
s 183(3) – requirement to serve prosecution brief at least 14 days before the hearing	s 66B(2)
s187(4) – power to adjourn	s 66G
s 188 – obligation to reject evidence where Division not complied with, subject to power to dispense with that requirement	s 66F(1), (2)

17 Section 66G of the Justices Act differs from s 187(4) of the Criminal Procedure Act in that the exercise of the power to adjourn the proceedings is mandatory, rather than permissive, if the terms of the subsection are met. It provides that the Justice or Justices “are to grant such adjournments as appear to be just and reasonable” if the copy of the brief has not been served as required. Section 187(4), it will be remembered, provides that in that event the court “may grant one or more adjournments … .” It was not suggested in argument before me that that is a material difference for present purposes. The focus of both provisions is whether in the circumstances an adjournment would be just and reasonable. It might also be noted that by s 66G, if an adjournment is granted, the Justice or Justices “may extend accordingly the time for hearing of the matter”, whereas s 187(4) provides that the court “may extend the time for service of the brief of evidence”. Nothing turns on this difference between the two provisions.

18 Mason P, with whom Sheller and Giles JJA agreed, examined the legislative scheme at [22] ff. At [24], the President expounded the “key provisions in the Subdivision” in a series of propositions, which included the following:

“(f) Section 66F and s 66G deal with what happens when the prosecution wishes to adduce evidence from a non-complying brief. They provide the sanctions and remedies referable to the duty imposed by s 66B, … . They do so in terms which recognise the antecedent statutory duty. Thus, s 66F(1) refers to a prosecuting authority that has not complied with the Subdivision in relation to particular evidence; and s 66G contemplates an adjournment being granted if the copy of the brief of evidence is not served in accordance with the Subdivision.”

His Honour went on at [24] (g) to refer to the duty under s 66F(1) to refuse to admit evidence tendered by the prosecution if, in relation to that evidence, the Subdivision had not been complied with. He continued:

“(h) However … , the magistrate may, and on the application of or with the consent of the defendant must, dispense with the requirements of subs (1) on such terms and conditions as appear just and reasonable (s 66F(2)). The judicial discretion is a broad one, but it is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice does not occur … .”

19 His Honour considered the power to adjourn under s 66G at [24] (k) and (m):

“(k) Section 66G is entirely consistent with this legislative scheme. Indeed, it complements it. Section 66G imposes a duty (‘are to grant’) upon magistrates to grant such adjournments as appear to be just and reasonable if the copy of the brief of evidence is not served in accordance with the Subdivision, with a related discretion in the nature of a duty to ‘extend accordingly the time for hearing the matter’. No case for the exercise of that ‘discretion’ would arise if non-compliance had already been dispensed with in relation to that evidence, in accordance with s 66F(2). But, absent dispensation in relation to non-complying evidence, s 66G discloses a legislative intention that the refusal to admit that evidence will not necessarily be fatal to the prosecution. Rather, the magistrate is required to grant such adjournments as appear to be just and reasonable with a view to getting the prosecution on the rails.
…
(m) It is possible to conceive of situations where it would not be just or reasonable to grant to a non-complying prosecuting authority an adjournment and extension of time pursuant to s 66G. However, the general thrust of s 66G is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance. Section 66G thus fits in with the law as explained by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised: Ridgeway v The Queen (1995) 184 CLR 19 at 32 and 75.”

After further examination of that section, his Honour made the following observation:

“(q) I have not overlooked that this analysis of s 66G will mean that, on occasions, the scheme will fail in one of its intended purposes being the quick, cheap and just disposal of summary proceedings by arming the defendant well in advance of the first fixed hearing date with the brief of evidence. But no system is perfect and the interpretation I have offered does justice, I believe, to the totality of the statutory scheme.”

20 Clearly, DPP v West is an important decision on the approach to these provisions. It was also a case in which the Director of Public Prosecutions sought relief in this Court after a magistrate dismissed certain charges because the prosecution brief of evidence had not been served within time. However, the course of the proceedings in the Local Court in that case was very different from the present case, and the Court of Appeal granted relief primarily because of an identified error of law which is not suggested here. It is unnecessary for present purposes to examine the course of those proceedings or the nature of that error.

21 That said, the Court found another error which might be seen to have a bearing on this case. In refusing to exercise his power under s 66F(2) of the Justices Act to dispense with the requirement of service of the brief in accordance with the Subdivision, the magistrate focused upon failings which he detected in the conduct of the police officer informant and, more importantly, in the procedures of the Police Service governing the service of briefs, without considering the question of prejudice to both the prosecution and the defendant.

22 In the circumstances of the case, the defendant was not prejudiced by late service of the brief. It had been served by delivery to the Legal Aid Commission, he having been granted legal aid, less than 14 days before the matter was first listed for hearing. In the event, the matter was not reached on that hearing day and was adjourned for hearing on a day about two months later. It was on that day that the magistrate dismissed the charges, applying s 66F(1). The prosecution remained in breach of the requirement under s 66B(2) to serve the brief at least 14 days before “the hearing of the evidence for the prosecution”, even though the matter did not proceed on the day originally fixed for hearing: see the judgment of Mason P at [30] – [34]. Nevertheless, by the adjourned hearing date the Legal Aid solicitor representing the defendant had been in possession of the brief for over two months, and there was nothing to suggest that he was not in a position to proceed.

23 It was against this background that the President said of the magistrate’s decision (at [38]):

“He also erred in failing to pay any regard to the undoubted facts that late service of the brief had caused no prejudice to the defendant and that refusal to dispense would cause prejudice to the prosecution. In confining himself to police disciplinary considerations he fettered the proper exercise of his judicial discretion.”

24 In the present case counsel for the Director, Ms Webster, submitted that the only course reasonably open to the magistrate was to adjourn the matter. Counsel for Mr Fungavaka, Mr Haesler SC, argued that the prosecutor abandoned his application for an adjournment, and that it was only the application for dispensation of the service requirement under s 188(2) of the Criminal Procedure Act which was pressed and rejected. In my view, a fair reading of the transcript does not admit of that conclusion.

25 The passages which I have quoted disclose some lack of clarity in the way in which the prosecutor and the magistrate expressed themselves during argument. That, however, is only to be expected when an issue such as this is argued ex tempore and economically, as it must be in a busy Local Court. Nevertheless, it emerges clearly enough that the prosecutor’s primary application was for an adjournment and an extension of the time for service, pursuant to s 187(4). So much is apparent from his reference at the beginning of his submissions to DPP v West. It was when it appeared that his Honour might not grant that application and might refuse to admit the prosecution evidence under s 188(1) that the prosecutor made the application for dispensation under subs (2). This followed his Honour’s reference to the question whether the matter should proceed that day, to the admitted lack of compliance “by the prosecutor”, and to his observation that DPP v West “talk about it must be refused, unless”.

26 It is true that his Honour began his reasons for his decision, quoted at [13] of this judgment, by saying, “I see no reason why the adjournment should be granted or rather, it’s not an application for an adjournment, it’s an application to dispense with the requirements and the provisions of s 188 of the Criminal Procedure Act … .” Nevertheless, immediately before he embarked upon those reasons he had asked Mr Fungavaka whether he objected to an adjournment. In the light of that, and reading the transcript as a whole, it seems to me that he concluded the matter by rejecting the application both for an adjournment and for dispensation under s 188(2).

27 The complainant and a witness were present at court but, obviously, his Honour did not contemplate granting a dispensation from the brief service requirements and allowing the matter to proceed to hearing while Mr Fungavaka was unrepresented. To have done so would have been plainly unjust. It is with this in mind that his Honour’s statement that “nobody’s going to be forced on today” should be understood. Clearly enough, he was contemplating two options: either to adjourn the matter or to call it on for hearing on the basis that the prosecution evidence would be rejected under s 188(1), so that the charge would be dismissed.

28 Ms Webster submitted that, in refusing the adjournment, his Honour had failed to have regard to the important place of the power to adjourn under s 187(4) explained by Mason P in the passages of his judgment in DPP v West at [24] (k), (m) and (q), quoted above. She relied, in particular, upon his Honour’s reference at (m) to the “legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised … .”

29 Ms Webster noted, correctly, that his Honour misapprehended what the prosecutor had told him when, in giving his decision, he said that no appropriate reason had been given for late service of the brief other than “the brief, it seems, was not passed on in relation to the person who would arrange to compile and serve the brief”, noting that that was “not done until last Friday”. In fact, as I have said, a brief had been prepared but had been misplaced by the brief handling section so that, when the informant became aware of the situation on the preceding Friday, he himself prepared and served a copy of it.

30 Ms Webster also referred to his Honour’s observation in the course of argument that “it makes the rule meaningless if it’s not complied with and if the problems come about by the fact that there is no system in place to ensure that briefs are served, then well maybe the system might get better”. She argued that that passage, together with his Honour’s emphasis upon the absence of any “appropriate reason” for late service of the brief when giving his reasons, demonstrate that, like the magistrate in DPP v West, he had focused upon the failure of the police to comply with the statutory requirement to the exclusion of all else. He had failed to have regard to other relevant considerations, in particular, the seriousness of the charge and the issue of prejudice to both the prosecution and Mr Fungavaka.

31 The charge of common assault, dealt with summarily, carried a maximum sentence of 12 months imprisonment. The allegation against Mr Fungavaka was that he, an adult, punched a 14 year old youth. It seems that they lived in the same area and the incident is said to have arisen from some antecedent animosity. A statement of the facts alleged was attached to the application for an apprehended personal violence order, which was also before his Honour. However, it appears that he had not read it at the time of the argument. When the prosecutor applied for an adjournment, he said, “It is a matter of seriousness your Honour, assaults on a child … .” A little later, still in the course of argument, his Honour asked whether it was “a domestic type matter”. The prosecutor said it was not, adding that it was “a neighbour dispute gone wrong … .” There was no further reference to the nature of the charge

32 As to prejudice, Ms Webster noted that his Honour’s decision peremptorily terminated the prosecution. If the matter had been adjourned, she argued, Mr Fungavaka would not have been prejudiced. The case had been listed for hearing promptly, two months after the incident giving rise to the charge. It was likely that he would have had the benefit of legal aid at an adjourned hearing. The Legal Aid solicitor had withdrawn only because she had not had access to the police brief before that day and formal requirements for the grant of aid had not been completed.

33 Apart from DPP v West, Ms Webster referred to cases on appellate review of the refusal of a court to adjourn a matter, conveniently summarised by Rothman J in Director of Public Prosecutions v Ozakca & Anor [2006] NSWSC 1425, 68 NSWLR 325, at [11] ff. An appellate court applies the usual principles governing the review of the exercise of the discretion enunciated in House v The King (1936) 55 CLR 499, at 504 – 5. At [17] – [20], his Honour dealt with the application of those principles to the refusal of an adjournment in a criminal case, citing R v Alexandroaia (1995) 81 A Crim R 286 and Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 (Court of Appeal, 10 November 1992).

34 In Blazevski at 200, Kirby P said (omitting references to authority):

“Appellate courts, both in appeals and in proceedings by way of judicial review, will rarely disturb the decisions of judicial officers or tribunals to grant or refuse adjournments. … In criminal proceedings, judges are entitled to take into account considerations such as the accused’s right to a hearing of charges brought by the State, without undue delay. Such judges are also entitled to take into account proper and efficient case management, case flow and the demands of other litigation.
…
Nevertheless, the foregoing principles do not go so far as to hold that adjournments are effectively unreviewable, that an injustice occasioned by their refusal is irrelevant and that challenges by way of appeal or to the prerogative writs are hollow gestures to be met always by the incanted mantra upholding the primary decision-maker, whatever he or she has done. Each application to this court invokes its jurisdiction which is then to be exercised judicially. If a serious injustice has been occasioned by a refusal of an adjournment, and particularly one which can and should be readily corrected, this court may provide relief and in the appropriate case should do so.”

35 Rothman J also referred (at [13]) to the observation of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343 that a refusal to grant an adjournment “can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case”. This statement was referred to, in the context of a criminal case, by the Court of Appeal in Nitiva v Director of Public Prosecutions & Ors [1999] NSWCA 332 at [64], where it was observed that “a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness”.

36 Alexandroaia, Blazevski and Nitiva were cases concerned with the refusal of a defence application for an adjournment. In Ozakca at [21] ff, Rothman J noted that there were “very few instances” in which the superior courts have had to review the refusal of an adjournment application by the prosecution. His Honour accepted that the guiding principles were the same, but added that “the weighing of justice as between the parties takes on other considerations”. Where the refusal of the adjournment has led to the dismissal of a charge because of lack of evidence, one of those considerations is double jeopardy. As his Honour put it at [22], a prosecutor seeking relief in this Court against such an outcome is seeking “for those dismissed proceedings to be reagitated … .”

37 In cases of that kind, his Honour observed (also at [22]) that there would be “numerous occasions when, even where there is an error of law in the refusal of an adjournment, an appellate court will exercise its discretion and refuse a remedy”. His Honour continued at [23]:

“In circumstances where it is the prosecutor that is seeking an adjournment of proceedings that are otherwise listed for hearing the matter will be, a fortiori , within the discretion of the Magistrate. It will take exceptional circumstances before an appellate court, exercising rights of appeal or prerogative relief, will interfere with such an exercise.”

38 No doubt, this is a matter properly to be weighed in the discretionary balance. Weighed against it, however, must be the public interest in the determination of criminal charges by a hearing on their merits. In the event, Rothman J found that to be the decisive factor in Ozakca and the Director of Public Prosecutions was granted relief against the wrongful refusal of a prosecution application for an adjournment.

39 So it must be in the present case. Mr Haesler emphasised the discretionary nature of his Honour’s decision, submitting that it was open to him. In particular, he argued that it was open to his Honour to conclude that no satisfactory reason had been given for the failure of the police to serve the brief in time, and he noted the mandatory terms of s 188(1) of the Criminal Procedure Act, providing that a court “must” refuse to admit prosecution evidence where the requirements of the Division had not been met.

40 Mr Haesler noted that both the prosecutor and his Honour referred to DPP v West. He argued that his Honour, a very experienced magistrate, could not have been unmindful of the principles expounded in that case and that, given the brevity with which issues of this kind must be dispatched in a Local Court, he was not required to spell them out. As to the seriousness of the charge of assault, Mr Haesler noted that the prosecutor did no more than make the observations which I have recounted in [31] of these reasons. He had the opportunity to elaborate on them, but did not do so. Mr Haesler also pointed out that late service of the brief was a reason, albeit not the only reason, why legal aid was not available to Mr Fungavaka when the matter came before his Honour.

41 These are all matters properly to be considered, both on the question whether his Honour fell into error and, if so, whether this Court should intervene. Nevertheless, I am persuaded that his Honour was in error for the reasons identified by Ms Webster. It is apparent from the brief reasons he gave that his Honour based his decision solely upon the failure of the police to serve the brief in time, and did not weigh the competing policy considerations bearing upon the exercise of his discretion.

42 No doubt, the statutory provisions for service of a police brief are important to efficient case management in the Local Court: as Mason P put it in DPP v West at [24] (q), directed to “the quick, cheap and just disposal of summary proceedings … .” That must always be a central consideration in cases such as this. Nevertheless, the power conferred by s 187(4) to adjourn proceedings because the brief has not been served in time has its place. I am satisfied that that was the only course reasonably available to his Honour in the present case.

43 Late service of the brief was the result of a failure of the system within the Police Service, and the informant acted promptly to remedy the situation when he became aware of it. The charge against Mr Fungavaka may not have been particularly serious, but it was by no means trivial. He would not have suffered any significant prejudice if the matter had been adjourned. That course would not have occasioned any significant delay and, as Ms Webster observed, Mr Fungavaka would probably have been represented by a Legal Aid solicitor when the matter came to hearing. The interests of justice would clearly have been served by this approach.

44 I have given careful consideration to whether I should, nevertheless, exercise my discretion not to intervene. I can see no proper basis for taking that course. Accordingly, the Director is entitled to relief. Ms Webster’s submissions were directed primarily to prerogative relief, which I think is appropriate. I shall make orders in terms of pars 1 and 4 of the summons initiating the proceedings. Paragraph 5 sought an order for costs, but Ms Webster informed me at the hearing that that application was not pressed.

45 I make the following orders:

(1) The orders of the second defendant refusing the application of the prosecution for an adjournment of the proceedings against the first defendant and dismissing the charge of common assault are quashed.
(2) The matter is remitted to the Local Court to be dealt with according to law.


I make no order as to costs.

**********