Director of Public Prosecutions v Rugari and the Local Court of New South Wales

[2016] NSWSC 630

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions v Rugari and the Local Court of New South Wales [2016] NSWSC 630

Hearing dates:

4 May 2016

Date of orders:

04 May 2016

Decision date:

15 May 2016

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005, the time in which to commence the proceedings is extended to 13 November 2015, being the date the summons was filed.

 

(2) The record of the Liverpool Local Court relating to the First Defendant on 23 July 2015 be removed into this Court.

 

(3) An order in the nature of certiorari quashing the decision of the Liverpool Local Court (Prowse LCM) on 23 July 2015 refusing the application by the prosecution to adjourn the proceedings.

 

(4) An order in the nature of certiorari quashing the order made by the Liverpool Local Court on 23 July 2015 permanently staying the criminal proceedings against the First Defendant.

 

(5) The proceedings are to be remitted to the Liverpool Local Court to be heard and determined according to law, by the Court differently constituted.

 (6) No order as to costs.

Catchwords:

JUDICIAL REVIEW – application pursuant to s 69 of the Supreme Court Act 1970 for orders in the nature of certiorari – orders of a Local Court Magistrate refusing to adjourn criminal proceedings and ordering a permanent stay of proceedings - question of whether there had been contempt of court by police who arrested defendant within the precincts of the court – no privilege against arrest - procedural unfairness by the Magistrate – discretionary nature of decision to grant adjournment – discretion to be exercised judicially – exceptional nature of power to grant a permanent stay of proceedings – not justified in circumstances of this case – errors of procedure and law by the Magistrate

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bell v Imre (1980) 8 Petty Sessions Review 3905
Director of Public Prosecutions v Chaouk [2010] NSWSC 1418
Jago v The District Court of NSW (1989) 168 CLR 23
Moevao v Department of Labour (1980) 1 NZLR 464
Re Freston (1883) 11 QBD 545; 52 LJQB 545; 49 LT 290
R v Glennon (1992) 173 CLR 592
Walton v Gardiner (1993) 177 CLR 378

Texts Cited:

“Civil and Criminal Contempts of Court,” (1962) 25 Modern Law Review 179

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Plaintiff)
Tony Rugari (First defendant)
The Local Court of New South Wales (Second defendant)

Representation:

Mr D Kell (Plaintiff)
P Johnston (First defendant)

File Number(s):

2015/00334878

Publication restriction:

None

Judgment

1. On 4 May 2016 I made orders, by consent, as follows:

1. Pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005, the time in which to commence the proceedings is extended to 13 November 2015, being the date the summons was filed.

2. The record of the Liverpool Local Court relating to the First Defendant on 23 July 2015 be removed into this Court.

3. An order in the nature of certiorari quashing the decision of the Liverpool Local Court (Prowse LCM) on 23 July 2015 refusing the application by the prosecution to adjourn the proceedings.

4. An order in the nature of certiorari quashing the order made by the Liverpool Local Court on 23 July 2015 permanently staying the criminal proceedings against the First Defendant.

5. The proceedings are to be remitted to the Liverpool Local Court to be heard and determined according to law, by the Court differently constituted.

6. No order as to costs.

2. These are my reasons for the orders then made.

The Claim by the Director of Public Prosecutions

3. By Amended Summons filed in the Registry of this Court on 29 February 2016 the plaintiff, the Director of Public Prosecutions (“the DPP”), made application for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of orders made on 23 July 2015 by Magistrate R Prowse (“the Magistrate”), sitting in the Local Court of New South Wales, at Liverpool.

4. The orders made by the Magistrate were:

1. To refuse a prosecution application for the adjournment of criminal proceedings listed that day against Tony Rugari, the first defendant; and

2. To permanently stay the criminal proceedings against the first defendant.

5. The DPP relied upon an affidavit of Helen Langley sworn on 13 November 2015, in which the procedural history of the Local Court proceedings and other relevant matters was set out. No issue was taken in relation to the evidence of Ms Langley, and the following history and factual account is drawn from that evidence.

The Background to the Application

6. On 12 December 2014 the first defendant was arrested and charged with an offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The assault with which he was charged was alleged to have occurred on 4 November 2015; the complainant was SC.

7. The defendant is alleged to have assaulted SC in the context of a parental access visit to his two year old son. A statement of facts prepared by police sets out the circumstances of the offence alleged against the first defendant.

8. The first defendant’s son was at that time in the care of the Department of Family and Community Services. The first defendant and the child’s mother were permitted supervised bi-monthly visits. SC was employed to facilitate and supervise these visits. She had not had any previous dealings with the first defendant, the visit on 4 November 2014 being the first in which she was involved.

9. During the course of the access visit, at the offices of the Department in Liverpool, the child’s mother tried to remove the child from the room in which the meeting was occurring. When SC moved to go after her, the first defendant is alleged to have grabbed her by the throat and thrown her to the floor. SC sustained a sore throat, and bruising to the buttocks and legs (facts which, if proved, establish the more serious offence of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act.

10. The first defendant was arrested and charged on 12 December 2014.

11. He appeared before the Local Court at Burwood and, upon his entry of a plea of not guilty, the matter was fixed for hearing, on 1 May 2015. He failed to appear before the Local Court on that date, and was convicted in his absence. A warrant was issued for his apprehension.

12. On 4 May 2015 the warrant was executed upon the first defendant, and he appeared the following day before the Local Court at Burwood in relation to the common assault offence, together with a fresh charge of fail to appear relating to his alleged failure to attend court in answer to bail on 1 May 2015. The proceedings were transferred to the Local Court sitting at Liverpool.

13. On 19 May 2015 the matter came before the Magistrate sitting at the Local Court at Liverpool. The Magistrate annulled the ex parte conviction of the first defendant for common assault and listed that matter and the fail to appear charge for hearing on 23 July 2015.

14. On 23 July 2015 the defendant, who was at liberty (although his bail status is not clear on the evidence) attended the Local Court at Liverpool, waiting in the public area for his matter to be called on. The complainant, SC, also attended the Courthouse in readiness to give her evidence.

15. The first defendant is alleged to have written threatening words, directed at the complainant, “go on 2 winess proteshen” [sic], on a publically displayed court list. He was observed to do so by a police officer unconnected with the original matter, who happened to be in the area. The first defendant’s actions were also filmed by closed circuit cameras in operation in the Courthouse, a recording subsequently viewed and obtained by police.

16. The first defendant was arrested in the foyer of the Courthouse and charged with an offence of doing an act with the intention of influencing a witness contrary to s 323(a) of the Crimes Act (“the public justice offence”). The first defendant was taken to the Liverpool Police Station to be interviewed and charged. The police prosecutor and the first defendant’s legal representative were advised of the situation.

17. After the morning tea adjournment, and with the first defendant still at Liverpool Police Station in relation to the alleged public justice offence, the common assault and fail to appear matters were called on before the Magistrate.

18. The prosecutor appearing for the police made an application for the hearing of the matter to be adjourned, having regard to what had transpired before morning tea. The Magistrate was advised that the first defendant had been arrested in relation to an alleged public justice offence against the complainant, and was in custody in the process of being charged with that offence. The prosecution submitted that, in that the fresh charge related directly to the complainant and the proceedings before the court for hearing, and was relevant to proof of it, it was appropriate to join both matters and have them heard together on a later date. The first defendant’s enforced absence from the court was also noted as a basis for the adjournment.

19. The solicitor instructed for the first defendant advised the Magistrate that her client had no objection to the hearing being adjourned.

20. The Magistrate’s response was to insist that the first defendant be “unarrested” (T2:09 of 23 July 2015). He refused the prosecution’s application for an adjournment and stood the matter in the list for the prosecutor to make arrangements for the first defendant to be “unarrested”. The prosecutor had no power to direct the release of the first defendant, and advised the Magistrate of that.

21. When the matter was again mentioned, the prosecutor advised the Magistrate that the first defendant was still in custody, and was then being interviewed at his own request in relation to the allegation of interference with a witness. The Magistrate suggested that the proceedings against the first defendant would be dismissed because of the Crown’s “immaterial interference with a court hearing” (T4:40), and further stood the matter in the list.

22. When the matter was again mentioned, an application by the prosecution for the Magistrate to recuse himself was quickly dismissed without any submissions being heard (“Well I don’t propose to so you don’t really need to keep going on about that”, at T5:26). The Magistrate subsequently “recanted” from his dismissal of the application (T7:01), after the prosecutor asked for reasons to be given. The Magistrate then heard submissions from the prosecutor.

23. After the prosecutor made submissions in support of the application to the Magistrate to disqualify himself, the application was again dismissed.

24. In giving reasons for the refusal to disqualify himself, the Magistrate referred to the “affront to the Court’s business and the disposition of the Court’s business” (T12:40) that the arrest of the first defendant by police constituted. He went on to say that, in that the hearing could not proceed because of the enforced absence of the first defendant, “the only other option left to the court thereafter is to proceed with the stay” (T13:03).

25. He continued,

“In those circumstances there is a clear power in the Court to stay the proceedings. There is a clear power in the Court to take action to prevent the processes as being abused or thwarted by way an abuse can be perpetrated by the thwarting of the business of the Court being disposed of properly.” (T13:19 – 22, as transcribed)

26. Perhaps conscious of the fact that neither party had made application for a permanent stay of the prosecution against the first defendant, or been given an opportunity to be heard in relation to it, the Magistrate then asked of the prosecutor,

“Do you want me to order a transcript of that so that when you pop off to the Supreme Court it has already been prepared?” (T13:27)

The Proceedings in this Court

27. In the proceedings before this Court the first defendant was represented by Mr Johnston. The second defendant, the Local Court of New South Wales, filed a submitting appearance.

28. On the hearing of the Summons, and by way of grounds, it was contended that the Magistrate:

1. denied procedural fairness to the prosecutor in refusing to adjourn the criminal proceedings against the defendant (in the circumstances described in paragraph (2) below) and in permanently staying the criminal proceedings against the defendant;

2. erred in law in refusing the prosecutor’s application to adjourn the criminal proceedings against the defendant in circumstances where such an application was not opposed by the defendant, was not shown to have arisen through any relevant fault or conduct on the part of the prosecutor, and where no previous conduct by the prosecutor, prior to 23 July 2015, had been the cause of any failure to progress the proceedings;

3. erred in law in permanently staying the criminal proceedings against the defendant; and

4. erred in law in failing to provide adequate reasons in refusing the adjournment sought and/or in permanently staying the criminal charges against the defendant.

29. The first defendant did not seek to argue against the grounds advanced by the plaintiff. The plaintiff filed written submissions in support of the application; the first defendant did not wish to be heard.

30. The plaintiff and the first defendant agreed that this Court should make the orders sought, and the terms of the proposed orders were provided to the Court.

31. An injustice having clearly occurred, the Court made the orders in the terms proposed by the parties. The reasons for making the orders were reserved until today.

Determination

32. As is implicit in the absence of any active contradictor to the orders sought by the DPP, the Magistrate was clearly in error in the orders he made, and in the way he made them. As the Director contends, the prosecution was denied procedural fairness by the Magistrate, who erred in law in a number of respects. An injustice has been occasioned as a consequence of the Magistrate’s error, and this Court must intervene to correct the injustice.

33. From reviewing the transcript of the proceedings before the Magistrate, it is apparent that the miscarriage of justice that occurred was precipitated by the Magistrate’s mistaken understanding of the principals of contempt of court. Everything that followed flowed from that mistake.

34. Having heard only the barest account of the circumstances of the first defendant’s arrest in the foyer of the court house, the Magistrate immediately concluded that the arresting police were in contempt of court “because to arrest somebody in the precincts of the Court is actually a contempt of the Court” (T2:10). Although the police prosecutor argued that the arresting officers had acted properly after observing the first defendant commit a serious offence against a witness in the very proceedings the Magistrate was due to hear, the Magistrate adhered to his quickly expressed opinion.

35. The Magistrate seems to have been referring to criminal contempt, rather than civil contempt, when referring to a purported rule of this nature.

36. There is in fact no such general rule with application to criminal contempt. A privilege from arrest may exist in relation to civil contempt, but it had no application in the circumstances of the arrest of the first defendant. There is no recent jurisprudence on the subject of privilege from arrest, it being somewhat arcane, but it was discussed in 1962 by Harnon:

“The privilege of being immune from arrest also falls within the law of contempt. Members of Parliament, witnesses on their way to or from courts of justice, and solicitors or barristers attending court to discharge their functions, may rely on this privilege. They are protected from any civil, but not criminal, contempt of court proceedings.” (“Civil and Criminal Contempts of Court,” (1962) 25 Mod. L Rev. 179)

37. Such privilege from arrest as exists relates exclusively to civil proceedings, such as proceedings for debt that could, historically, have led to arrest and incarceration in a debtors prison. In Re Freston (1883) 11 QBD 545; 52 LJQB 545; 49 LT 290, Brett M.R commented that,

“I think it very plain that the privilege did exist, provided the process upon which he was arrested was of a civil nature. It is clear that there is no privilege from arrest upon a criminal charge.”

38. It would be contrary to common sense as well as to law to suggest that the civil privilege from arrest could protect a person suspected on reasonable grounds of the commission of a criminal offence, from arrest for the offence alleged.

39. In this instance, a police officer observed the first defendant write the threatening words on the court list against the entry for the hearing of his matter, look pointedly at the complainant SC, and then walk out. There was a clear basis for the apprehension of the first defendant, not least of them being the protection of the complainant who, as a witness in the Courthouse to give evidence in a criminal prosecution, was entitled to be protected at court. Nothing done by the arresting officer in those circumstances could have constituted a contempt of court, and there was certainly no protection afforded to the first defendant by reason of his presence in a Courthouse, or the proceedings then before the court involving him.

40. The Magistrate’s assumption to the contrary was erroneous. It was that erroneous assumption that led to the Magistrate’s apparent, although wholly misplaced, irritation with the police and, by extension, his irritation with the police prosecutor appearing for the police in the hearing listed before him.

41. The application by the police prosecutor for an adjournment of the hearing against the first defendant was entirely proper and had considerable merit. Indeed, the consent of the first defendant to the adjournment of the matter probably indicated as much, and was a circumstance that should not have been disregarded by the Magistrate: Director of Public Prosecutions v Chaouk [2010] NSWSC 1418 at [55].

42. The fact that the first defendant was not in attendance at court because of his arrest that morning meant that the matter could not proceed in any event. Whilst some court time was wasted by that fact, it being about 2.40pm when the matter could have been heard by the court, that was simply something that should have been accepted as necessary if regrettable.

43. The loss of an hour or so of court time would likely have been made up in any event by joining the original hearing and any hearing for the public justice offence alleged to have been committed that day. The evidence of the threat said to have been made by the first defendant to SC in the waiting area of the court was prima facie admissible in the hearing of the original common assault allegation, since it was capable of establishing consciousness of guilt. The two proceedings should ordinarily have been heard together.

44. There is no question that the court had the power to adjourn the proceedings, such a power being both inherent to the court in the management of its business, and also available by statute (Criminal Procedure Act 1986 (NSW), s 40). Whilst the power to adjourn is a discretionary one, the discretion here miscarried, and the refusal to grant the application worked a serious injustice, of the type discussed in Bell v Imrie (1980) 8 Petty Sessions Review 3905, and more recently considered by Johnson J in Director of Public Prosecutions v Chaouk.

45. It is apparent that, in refusing the adjournment application, the Magistrate thought that the prosecution would be placed in a difficult position because he had (wrongly) assumed that the prosecution would be unable to proceed:

“Because the matter is set for hearing and it will be going on. If you don’t have any witnesses to call it will be a very short matter.” (T4:33)

46. His intent seems to have been to punish the prosecution for what he regarded as contemptuous interference in the Court’s processes by the police who had arrested the first defendant.

47. Since the prosecution was able to proceed, the greatest injustice wrought by the refusal of the adjournment was to the first defendant, who would have been denied the opportunity to be present at the hearing of the charges against him, and to fully participate in it.

48. The refusal of the adjournment of the hearing was quickly overtaken, however, by the question of a permanent stay that was raised by the Magistrate, after such time as he realised that the prosecution could call evidence in support of the charges.

49. As is, or ought to be, well known, the grant of a permanent stay of criminal proceedings is an extreme remedy that should only be resorted to in the most exceptional of circumstances. In Jago v The District Court of New South Wales and Others (1989) 168 CLR 23, Mason CJ referred with approval to a passage from a decision of the New Zealand Court of Appeal in Moevao v. Department of Labour (1980) 1 NZLR 464, where Richardson J said (at 481),

"The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

50. Commenting on the likely outcome of the too frequent use of the power to stay criminal prosecutions, Brennan J observed, (in Jago v The District Court of NSW at 50),

“If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.”

51. The approach to the power of a court to grant a stay of proceedings set out in Jagov The District Court of NSW has been repeatedly followed in Australia: R v Glennon (1992) 173 CLR 592; Walton v Gardiner (1993) 177 CLR 378 at 392 for example, and the principles are well established.

52. The circumstances in which a stay may be the only available remedy do not include those where a court wishes to punish a party to proceedings, or as a means of expressing the irritation or anger of a judicial officer towards a party by making an order punitive in effect.

53. There is a strong public interest in seeing criminal charges heard and determined by a court. Whilst that should ordinarily take place with all possible expedition, the fact that there is to be some delay does not of itself justify the permanent remedy of a stay.

54. Where a court is contemplating staying a prosecution, the parties must be given a full opportunity to be heard on the merits or otherwise of the remedy. That proposition should be axiomatic. To do otherwise is to deny the parties natural justice.

55. Further, the court must consider the factual basis for the stay, the nature of the injustice or abuse of the court’s processes that the stay is intended to prevent, the availability of other means to address the purported injustice or abuse, and what is required in the public interest. The public interest includes the determination of criminal charges by the courts and the conviction of those found guilty of crime, to guarantee peace and order in society; as well as the maintenance of public confidence in the criminal justice system.

56. The latter is not served by a judicial officer acting in a peremptory and injudicious manner, intending to punish a party which had irritated him, as I am satisfied occurred here. Such an approach to the exceptional power of granting a permanent stay of a criminal prosecution bespeaks clear and fundamental error.

57. In a rather curious remark, with emphasis added to the transcript presumably by the Magistrate when revising it prior to its release to the parties, the Magistrate (referring to the supposed contempt of the police officers who had arrested the first defendant at the Courthouse) said,

“The Court’s business is not to be just treated lightly, even though this is only the Local Court. It nevertheless is still a court dealing with matters of varying severity and seriousness.” (T12:29 – 31)

58. It is not clear what the Magistrate intended by the use of the limiting adverb “only”, or why it was given the added emphasis of underlining in the original transcript. If it was intended to diminish the Local Court of New South Wales, the proposition should be rejected. If it was intended to indicate that others view the Local Court as unimportant, that proposition too should be rejected.

59. The vast majority of citizens of this State who come into contact with the criminal justice system, whether as a defendant, complainant, or witness, will do so in the Local Court. The Local Court hears criminal matters from the relatively trivial, such as traffic offences, to the extraordinarily serious, such as allegations of murder, either to finality or as committal proceedings, together with a wide range of other types of matters of considerable significance.

60. The importance of that jurisdiction, both to the administration of justice in this State and apropos its capacity to have an impact on the lives of the individuals who receive their experience of justice within its walls, cannot be overstated. Nor should it be traduced by those who have a part to play in the discharge of its functions. The Local Court has an expansive and vital role in the delivery of criminal justice in this State, and it must be treated with unreserved respect, by those who appear before it, and by those who preside over it.

61. In this case, that did not occur because of the conduct of the Magistrate.

62. The Magistrate formed a view about the actions of the police officers who had arrested the first defendant based upon an understanding of the law that was entirely wrong and, without giving proper, or even any, consideration to the submissions of the parties to proceedings. On the basis of that erroneous view, he refused a legitimate and apparently proper application for an adjournment, again without having regard to the submissions of the parties (and, particularly, the consent of the first defendant to the adjournment), and without considering the merits of the application. In so doing, he not only fell into error, he undermined the proper administration of justice and diminished the Court over which he presided.

63. The prosecution was unfairly denied the opportunity to have two related allegations of criminal conduct against the first defendant, both of them serious, heard jointly and in a proper manner. The prosecution, and more broadly the community, was denied the opportunity to have the original criminal charges of common assault and fail to appear determined on their merits by a court properly discharging its functions.

64. The strong public interest in seeing these allegations determined was overlooked or ignored by the Magistrate.

65. I have concluded that the Magistrate denied procedural fairness to the prosecution in refusing the adjournment sought, and in staying the prosecution permanently. I am satisfied that in making the orders he did he fell into error.

66. Although the plaintiff also complains that the Magistrate’s reasons were inadequate, it is not necessary to formally consider that complaint, because of the conclusions I have already reached.

67. I am satisfied that the orders made by the Magistrate occasioned a serious injustice and that the Director has established an entitlement to the relief sought, being orders in the nature of certiorari quashing the orders of the Magistrate.

orders

1. Pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005, the time in which to commence the proceedings is extended to 13 November 2015, being the date the summons was filed.

2. The record of the Liverpool Local Court relating to the First Defendant on 23 July 2015 be removed into this Court.

3. An order in the nature of certiorari quashing the decision of the Liverpool Local Court (Prowse LCM) on 23 July 2015 refusing the application by the prosecution to adjourn the proceedings.

4. An order in the nature of certiorari quashing the order made by the Liverpool Local Court on 23 July 2015 permanently staying the criminal proceedings against the First Defendant.

5. The proceedings are to be remitted to the Liverpool Local Court to be heard and determined according to law, by the Court differently constituted.

6. No order as to costs.

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Decision last updated: 16 May 2016