Director of Public Prosecutions v Streeting

[2013] NSWSC 789

Supreme Court

New South Wales

Medium Neutral Citation:	DPP v Streeting [2013] NSWSC 789
Hearing dates:	14 June 2013
Decision date:	28 June 2013
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Summons dismissed
Catchwords:	ADMINISTRATIVE LAW - appeal from Local Court - application for prerogative relief - prosecution fails to serve notice pursuant to s 177 Evidence Act 1995 - refusal of adjournment by magistrate - whether error of law - whether failure to consider relevant matters - whether exceptional circumstances or serious injustice demonstrated to justify appellate interference.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Firearms Act 1996 Justices Act 1902 Local Court Rules
Cases Cited:	Blazevski v Judges of the District Court of NSW (1992) 29 ALD 197 Director of Public Prosecutions v Gursel Ozakca [2006] NSWSC 1425; (2006) 68 NSWLR 325 Director of Public Prosecutions v West [2000] NSWCA 103; (2000) 48 NSWLR 647 Director of Public Prosecutions (NSW) v Maleselo Fungavaka [2010] NSWSC 917 House v The King (1936) 55 CLR 499 Pearce v Queen (1998) 194 CLR 610
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Plaintiff) Mark Anthony William Streeting (First Defendant) Local Court of NSW (Second Defendant)
Representation:	Counsel: A Mitchelmore & T Phillips (Plaintiff) J Nicholson SC (First Defendant) Submitting appearance (Second Defendant) Solicitors: Solicitor for Public Prosecutions (Plaintiff) Aboriginal Legal Service (First Defendant) Crown Solicitors Office (Second Defendant)
File Number(s):	2012/385024
Decision under appeal	Date of Decision: 2012-08-16 00:00:00 Before: Jackson LCM File Number(s): 2012/385024

Judgment

1. These proceedings arise out of the refusal of a magistrate in the Local Court to adjourn proceedings on the application of the prosecutor. The Plaintiff seeks prerogative relief in respect of the refusal, alternatively, leave to appeal pursuant to s 57(1)(c) of the Crimes (Appeal and Review) Act 2001.

Background

1. The Defendant was charged on 3 May 2012 with three offences. The first charge was possess shortened firearm (not pistol) without authority. The second was possess or use a prohibited weapon without permit. The third was possess ammunition without holding licence/permit/authority. The first two of these offences were serious offences under the Firearms Act 1996. If tried on a summary basis (as was intended) the maximum penalty was two years imprisonment, being the jurisdictional limit of the Local Court for an individual offence.

1. The Defendant was brought before the Local Court at Maitland on 4 May 2012 and bail was refused.

1. The matter came before Maitland Local Court again on 7 May 2012. It was adjourned to 11 May 2012 "to clarify the facts on bail". Bail was again refused.

1. When the matter again came before Maitland Local Court on 11 May 2012 orders were made regarding the brief. The prosecution was aware by that date that an expert certificate was required. The need for such a certificate arose because of the definitions of prohibited firearm in s 4 Firearms Act and Schedule 1 of that Act.

1. On 22 May 2012 the police received a ballistics certificate. It appears that the certificate was served on the Defendant on or about 25 June 2012. The proceedings were before the Maitland Local Court on that day and were adjourned at the request of the Defendant. The matter came before the Court again on 2 July 2012 and on that day it was fixed for hearing on 16 August 2012.

Hearing on 16 August

1. When the matter came before Jackson LCM on 16 August 2012 it transpired that the prosecution had not served a notice under s 177(2)(b) Evidence Act 1995. Section 177 relevantly provides:

(1) Evidence of a person's opinion may be adduced by tendering a certificate (expert certificate) signed by the person that:

(a) states the person's name and address, and

(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and

(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.

(2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party:

(a) a copy of the certificate, and

(b) written notice stating that the party proposes to tender the certificate as evidence of the opinion.

(3) Service must be effected not later than:

(a) 21 days before the hearing, or

(b) if, on application by the party before or after service, the court substitutes a different period - the beginning of that period.

1. A debate took place about why that had not been done. Suggestions were made by the prosecution that such a certificate was only obtained to deal with bail because of the presumption against bail for a number of firearms offences. The prosecution said that the expert witness was not at court to give evidence because he had not been required by the Defendant.

1. The prosecutor then said this:

My submission is that there's no reason why the certificate can't be tendered as is. If my friend is saying he legitimately has issues with the firearm and legitimately needs that witness for cross-examination, fair enough, I'll ask for an adjournment and I'll get that witness here. That's not my understanding. My understanding is that when the certificate was served on the mention date that essentially resolved the fact so that it no longer became an issue that the firearm was, in fact a firearm.

So, I don't think we're here today to argue about the issue of the firearm being a firearm. I understand that we're here today to argue about the issue of possession, which goes to the informant. The informant's here. My submission is that we get the certificate into evidence because it's not disputed and it has never been disputed since the last mention date when it was ventilated, get that evidence in a certificate and get on with the hearing, so to speak, your Honour.

Having said all that, your Honour, if your Honour thinks there may be some unfairness to the defendant, well then obviously I'm happy to have the matter adjourned, I'll make sure that witness is here and we can ventilate what seems to be a surprise issue of the issue of a firearm. But the whole point of having the certificate on the mention date was so that that wouldn't be in issue when it came to today.

1. The solicitor for the Defendant made submissions about s 177 of the Evidence Act. He pointed out that not only must the certificate be served for it to be admissible but that there must be a written notice served within 21 days of the hearing for the certificate to be admissible. He said that it was a "black and white threshold question".

1. The learned Magistrate looked at s 177 and referred in particular to sub-s (3)(b). He said in that regard:

Theoretically I could say, "serve it at 2:30 and we'll start the hearing at 3 o'clock." I'm not going to do that today. I've already indicated that I am not going to be here much after 3 o'clock. So, it seems to me that either if the prosecutor is wishing to proceed with the matter it's going to be not reached.

1. The prosecutor then suggested that the certificate might be regarded as a witness statement. However, it did not comply with the requirements of the Local Court Rules for statements. The learned Magistrate said:

Well, it does seem that the document is not in proper form as a statement. It may well be a certificate, in fact it's headed up "Expert Certificate pursuant to s 177 of the Evidence Act", but if you want to use it, it seems to me that not only do you have to use the certificate or to serve the certificate but you've got to give notice that you intend to use it.

1. At that point the prosecutor said:

Well, if your Honour is of that opinion, then obviously I am in a position where I do seek an adjournment in order to serve that notice and an [?scil, in] order to have the witness here if required.

1. The solicitor for the Defendant then addressed in relation to the application for an adjournment and opposed such an adjournment.

1. Because of what are said to be the relevant considerations that the Magistrate did not take into account, it is important to set out the prosecutor's submissions on the adjournment together with the exchanges with the Magistrate as follows:

HIS HONOUR: Well, it seems to me, Mr Winter, that - well, you say that a notice was given, written notice was given. Have you got a copy of the notice?

PROSECUTOR: No, no, no, your Honour. I say that the document that was -that's the certificate, I don't -I say there wasn't any notice given, that the informant was under the impression that - well, under the impression it wasn't required. I understand it was because the issue of - the whole purpose is is that he was asked to hurriedly get the certificate before on the mention dates, so that the issue of the firearm could be resolved on the mention date, but he was obviously wrongly under the impression that the issue of the firearm wasn't in issue today. So, therefore, he thought once he got the certificate and it was handed to the court or dealt with on the mention date, that that issue was done. That was his - obviously--

HIS HONOUR: At the end of that day the matters were still pleas of not guilty.

PROSECUTOR: Correct but there was no issue nominated and there certainly wasn't an issue nominated in relation to the certificate and, as your Honour says, I don't know what was said, whether there was issues nominated or it was just left blank but at best it's a misunderstanding, at worst it's an oversight by the informant, he's had an oversight of not--

My other half of my argument is that when your Honour looks at the charges they are, in my submission, extremely serious charges and extremely serious charges for this jurisdiction; they're up towards the higher end of what this jurisdiction can deal with. It's not in the interests of justice, along the lines of DPP v West, to deal with the matter by basically taking no evidence because that is going to happen. If your Honour says that we can't rely on that certificate and forces us on today, I have to concede, as my friend says, I don't have a prima facie case in relation to the firearm.

So, in my submission, it's not in the interest of justice for your Honour to force us on today in relation to that issue because it's not then ventilated before a court. It is then essentially done on what I would call a technicality and--

HIS HONOUR: Well, that may well be so and, of course, if it was in another jurisdiction the court could discharge the defendant instead of dismissing it in the circumstance you're mentioning and that would not preclude further proceedings being brought. But in this jurisdiction, if the matter comes before the court today and you don't have sufficient evidence and the matters are dismissed, that's the end of it and I accept what you say in terms of the type of matter, possession of shortened firearms, possession of a prohibited weapon without a permit and, to a lesser extent, possession of ammunition, those two offences certainly are quite serious offences in the calendar of offences.

But the prosecution is stuck with the legislation, just the same as the defence is. What Mr Le Breton says, to an extent, is true. There sometimes are negotiations between prosecution and defence as to "What are you going to do? What are you going to tender?" which, while it mightn't be saying, "You've got to tender a certificate", it's a case of in a funny way reminding the prosecution that it's got to take a certain course.

PROSECUTOR: Can I say this, your Honour and I'm in the same position as your Honour, I imagine that the whole purpose of getting that certificate for the mention date was so the court could see that and ventilate the issue. It is quite possible that certificate has already been tendered and then handed back once the court has seen it and satisfied itself that it is a firearm.

HIS HONOUR: Well, it's not been tendered before this court.

PROSECUTOR: No.

HIS HONOUR: It's been handed up simply for the purposes of looking at the format of it.

PROSECUTOR: Exactly.

HIS HONOUR: It wasn't a statement, it was a certificate and it has been handed back.

PROSECUTOR: That's what I'm saying, is that those circumstances could have quite possibly led us to where we are today where the prosecution haven't served the written notice because it's either a misunderstanding that they thought it: wasn't required or at the very worst it's an oversight by the officer that "Well, I've got that certificate, I've done my job now, I don't have to do any more. I've given it to the court." So, it's not as though the prosecution have committed any what I might call some grave misjustice or something like that. It's at best a misunderstanding or at worst a simple oversight and for the seriousness of the charges it would be my submission it's not something that your Honour should deal with today when there is a simple cure and that is to under DPP v West adjourn the matter, so that it can be heard by the court.

HIS HONOUR: I certainly raised the issue of DPP v West, that being an example of things that can happen but I'm not saying that it necessarily applies but - and I think in many ways, even having raised it myself, the two matters are quite distinguishable.

PROSECUTOR: Yes.

HIS HONOUR: But it would seem to me that as far as this matter is concerned, the matter has been listed for hearing today. The prosecution, I understand, has not complied with - and it seems it's conceded that it has not complied with service of the notice and therefore that evidence would not be required, or is not available to the court and it can't be tendered by way of the certificate. That means that if the prosecution is not able to tender that evidence today then either the matter can proceed on what's before the court or you can make an application for an adjournment. I can tell from what Mr Le Breton's saying that if there's an application for an adjournment that will be strenuously opposed.

PROSECUTOR: Yes.

HIS HONOUR: So, what's your position?

PROSECUTOR: Well, I am asking your Honour for an adjournment. I mean, I made my submissions in relation to the adjournment and why your Honour-

HIS HONOUR: I'm just making quite sure.

PROSECUTOR: Yes.

HIS HONOUR: Do you want to say anything more?

LE BRETON: No, thank you. (emphasis added)

1. His Honour then delivered a short ex tempore judgment in these terms:

HIS HONOUR: It is an unfortunate situation but the legislation is the legislation and unfortunately we are all expected to know what is in it. It is certainly true that the defendant has been in custody for some time. He was arrested on 3 May, it seems, on the evening of 3 May and came before the court on 4 May and bail was refused and the matter has now been before the court on, this is the sixth occasion and bail has been refused all the way through.

I have not looked at the back of the Form 8 as to the reasons but certainly the offences with which he is charged are serious enough. But there has got to be a limit to the length of time that the matter can go on and on and on.

I adverted earlier to the fact that I am aware that sometimes it takes a long time to get a ballistics certificate. The fact that a ballistics certificate was obtained within three months and probably, on what Mr Le Breton's saying, even a short period of time, that is a fairly interesting situation but I do not think it really changes things.

If the prosecution is seeking to have the proceedings adjourned, it is opposed. Yes, the offences are serious enough but it is the prosecuting officer and the defence does not have to do anything to aid it.

I am not inclined to grant your application for an adjournment, Mr Winter.

1. Thereafter, the prosecutor informed his Honour that he had a discretion under s 138 Evidence Act to accept the certificate. It is not clear how s 138 was at all relevant because that section is concerned with the admissibility of illegally or improperly obtained evidence. There was no suggestion that the certificate was illegally or improperly obtained. In any event, the Magistrate, whilst accepting that he might have such a discretion, said:

This seems to me to be a fairly plain case of either, as you say, perhaps lack of knowledge or the need for the service of the certificate or pure oversight.

1. The prosecutor then said that he conceded that without the certificate in relation to the firearm and the ammunition that he would not be able to prove a prima facie case. The Magistrate then asked if he wanted to tender anything but the prosecutor said that it was pointless to do so in relation to each of the three charges. In those circumstances his Honour found that there was no prima facie case and dismissed each of the charges.

Submissions

1. The Plaintiff's principal submission was that the Magistrate had made an error of law on the face of the record by not taking into account relevant considerations.

1. The Plaintiff submitted that in giving his reasons for refusing the adjournment his Honour overlooked s 177(3)(b) regarding the substitution of a different period by the Court the service of the notice under sub-s 3(b). The Plaintiff submitted that his Honour ought to have considered whether it was appropriate "to extend the time for service" (as the Plaintiff put it).

1. In relation to the decision to refuse the adjournment the Plaintiff accepted that it was a discretionary decision and that an error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-505 would need to be shown and that ordinarily an appellate court would not intervene. However, the Plaintiff submitted that a refusal to grant an adjournment might operate to work a manifest injustice on one party, and that in the present case there was an identified public interest in the determination of the charges on their merits. Reference was made to the Judgement of Hidden J in Director of Public Prosecutions (NSW) v Maleselo Fungavaka [2010] NSWSC 917 at [38].

1. The Plaintiff further submitted that his Honour focused on the fact that the Defendant was in custody and had been since 4 May 2012 and with the need to comply with the requirements of s 177 (without adverting to the discretion to amend the time for service contained in that section) at the expense of considering the conduct of the prosecution which led to the making of the application and the impact of the refusal on the public interest in hearing and determining the charges on their merits.

1. The conduct of the prosecution referred to seems to relate to the misunderstanding on the prosecution's part about the need for the service of such notice or, perhaps less likely, any oversight on the prosecution's part about the service of such notice.

Consideration

1. In Blazevski v Judges of the District Court of NSW (1992) 29 ALD 197 Kirby P said at 200 (omitting citations):

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.... This rule applies with added force in respect of criminal proceedings. It is important to avoid undermining the orderly and efficient conduct of criminal process... 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... In Petrovic [Petrovic v TaaraFormwork (Canberra) Pty Ltd (1982) 62 FLR 451] Toohey, Kelly and Fitzgerald JJ in the Full Federal Court observed (at 460):

[F]or the appellant to succeed he must show that refusal of the adjournment produced, in the circumstances, such an injustice that there should be a retrial. In assessing what justice requires, it is no doubt appropriate to take into account a variety of circumstances including any disadvantage which will accrue, or has accrued, to the respondent including any forensic advantage which a retrial will provide to the appellant. (emphasis added)

1. In Director of Public Prosecutions v Gursel Ozakca & Anor [2006] NSWSC 1425; (2006) 68 NSWLR 325 the DPP similarly sought prerogative relief and an appeal under s 56(1)(c) that the Crimes (Appeal and Review) Act 2001 as a result of a refusal by a Magistrate to adjourn proceedings at the behest of the prosecutor. Rothman J first considered general principles relating to refusal of adjournments and then turned to consider the situation involving criminal proceedings. His Honour said:

[21] There are very few instances in the superior courts where consideration has been given to an adjournment application made by the prosecutor. While the principles must be the same, the weighing of justice as between the parties takes on other considerations. One of those considerations, going to the injustice to the accused, is one of the concepts which underpin the principles in double jeopardy.

[22] In the instant proceedings, the prosecutor attends the Court below, seeks an adjournment, has the adjournment refused, commences the proceedings and the charges are dismissed against the accused. The plaintiff now seeks for those dismissed proceedings to be re-agitated and there are serious aspects to such a course. There will 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.

Prosecutor's Application: Double Jeopardy

[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.

[24] In dealing with the issue of double jeopardy the High Court (Pearce v Queen (1998) 194 CLR 610 at 614) cited with approval the judgment of the US Supreme Court in the following passage:

If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States (1957) 355 US 184 at 187 - 188:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.

That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. ...

It may be seen as a value which underpins and affects much of the criminal law." (Pearce at [10], per McHugh, Hayne and Callinan JJ)

[25] It cannot be stressed enough that the elements associated with the right of an accused to escape the continuing state of anxiety and insecurity that necessarily accompanies a criminal charge must be paramount in any review by an appellate court of the exercise of discretion to refuse to adjourn. The accused is entitled to expedited justice. It is only in exceptional circumstances that an appellate court will interfere to require such a right to be overtaken by inconvenience associated with the unavailability of a witness. (emphasis added)

1. These decisions were followed by Hidden J in Fungavaka at [34] - [37] when his Honour considered the application of appropriate principles to the facts before his Honour in that case. As in the present case and in Ozakca the proceedings in Fungadaka sought prerogative relief, alternatively an appeal under the Crimes (Appeal and Review) Act.

1. In my opinion, therefore, it is not sufficient for a party in the position of the DPP in the present case simply to identify an error of law, even of a House v The King nature, to attain prerogative relief or to succeed in an appeal under the Crimes (Appeal and Review) Act. Something more in the nature of exceptional circumstances or a serious injustice must be demonstrated.

1. I am not satisfied that the Magistrate ignored any relevant considerations when his Honour weighed up the matters for the purpose of considering the adjournment application. Although no reference was made to s 177(3)(b) it was not necessary for him to do so. The need for the adjournment application was occasioned by the failure of the prosecutor to serve the notice under sub-s (2)(b). It was necessary to obtain a new hearing date so that sub-s (3) could be complied with. The suggestion by the Plaintiff seems to be that as part of the grant of an adjournment a direction might have been made under sub-s (3)(b) altering the 21 day requirement. However, that would only arise if the adjourned date was a period less than 21 days after the application was heard and determined.

1. Put another way, as matters had developed the case could not be heard on that day. The expert was not present. In the absence of the notice served under sub-s (2)(b) the certificate was not admissible. The Magistrate's perhaps light-hearted suggestion about service by 2.30 and hearing at 3.00, if employed, would have been demonstrably unfair to the Defendant who would not have been able to cross-examine the expert. The failure to serve the notice meant that resolution of the issue devolved upon whether or not an adjournment was granted. If it was, and the adjourned date was more than 21 days hence no issue arose concerning s 177(3)(b).

1. I do not consider that Director of Public Prosecutions v West [2000] NSWCA 103; (2000) 48 NSWLR 647 mandates otherwise. West concerned very different legislation dealing with service of briefs of evidence. The terms of s 177 have no counterpart to the duty in s 66B Justice Act 1902 which was held by Mason P (with the agreement of Sheller & Giles JJA) to impose a duty when there was a plea of not guilty - see at [30] to [34]. By contrast, s 177 simply prescribes what must be done by way of service if a party wishes to rely on an expert's certificate. The inclusion of an express power to adjourn in s 66G Justices Act where the brief had not been served in accordance with s 66B helped inform the proper construction of that section - see at [29].

1. Furthermore, as the Defendant correctly points out, no application was made before the Magistrate by the prosecutor for a change in the time under s 177(3)(b). The sub-section requires an application to be made and no such application ever was made.

1. Although the Magistrate made no specific reference to the conduct of the prosecution there was no need for his Honour to do so. It seems perfectly clear that the prosecutor's submission was self evidently correct that the failure to serve the notice was either due to a misunderstanding or to the matter being overlooked. There was no evidence tending to show that one of those explanations was more likely than the other. Accordingly, the Magistrate had no good reason to place weight on the conduct of the prosecution when in fact it could not be certain what the conduct was that led to the need for the adjournment.

1. In any event, what led to the need for the adjournment was a very subsidiary consideration when compared with the two significant competing matters, namely, the seriousness of the charges on the one hand, and the fact that the Defendant had been in custody for more than three months and would likely remain there until the adjourned hearing date at an unspecified time in the future but at least 21 more days so that s 177(3)(b) could be complied with. Although the Magistrate did not expressly mention it, implicit in any consideration of further delay whilst the Defendant remained in custody was the double jeopardy principle referred to in Pearce v Queen (1998) 194 CLR 610 at 614 (quoted above in Ozakca at [24]).

1. If I am wrong that the Magistrate's failure to refer to the prosecution's conduct was a failing to take account of a relevant consideration and, therefore, an error of law, it is necessary to consider whether the error is of such significance that appellate interference is warranted in all of the circumstances.

1. In my opinion, it was not. First, the two significant considerations were (as I have said) the seriousness of the charge and the Defendant's remaining in custody - both were considered by the Magistrate. Secondly it is difficult to see what the exceptional circumstances are to justify appellate intervention in the light of the considerations mentioned by Rothman J in Ozakca. The prosecutor was not able to explain how it had come about that the notice was not given. The two possible explanations (oversight or misunderstanding) were both unsatisfactory and there was no evidence of either, merely suggestions by the prosecutor. There was no evidence at the hearing before the Magistrate or before me to suggest that even a short adjournment was possible given the state of the court lists at Maitland.

1. In considering exceptional circumstances, the delay by the Plaintiff in filing the Summons for some four months after the impugned decision was made carries some weight because of the reasonable expectation of the Defendant that the proceedings were at an end when they were dismissed. The Plaintiff wants the proceedings re-instated when (now) more than ten months have passed since the charges were dismissed.

1. Notwithstanding the seriousness of the charges there was no serious injustice to the Plaintiff by not adjourning the proceedings.

Conclusion

1. Neither party sought costs whatever the outcome. Accordingly, the following order should be made:

(1)   Dismiss the Summons.

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Decision last updated: 28 June 2013