Director of Public Prosecutions v West

[2000] NSWCA 103

Reported Decision: [2000] 48 NSWLR 647

New South Wales

Court of Appeal

CITATION:	DIRECTOR OF PUBLIC PROSECUTIONS v WEST [2000] NSWCA 103 revised - 15/05/2000
FILE NUMBER(S):	CA 40009/00
HEARING DATE(S):	4 April 2000
JUDGMENT DATE:	28 April 2000
PARTIES :	DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ANTHONY JUSTIN WEST
JUDGMENT OF:	Mason P at 1; Sheller JA at 41; Giles JA at 42

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 12238/99
LOWER COURT JUDICIAL OFFICER :	Sperling J

COUNSEL:	P A Johnson SC (Appellant) M Buscombe (Respondent)
SOLICITORS:	S E O'Connor (DPP) T A Murphy (Legal Aid Commission)
CATCHWORDS:	Justices Act 1902 Part 4 Division 2 Subdivision 6 (ss66A - 66H) - brief of evidence served out of time - admission of the evidence - duty to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of a prescribed summary offence - extension of the time for hearing the matter - adjournment - prospective duty upon the prosecuting authority to serve a copy of the brief within time - (D).
DECISION:	Magistrate's order quashed. Remitted to Local Court.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40009/00
CLD 12238/99

MASON P
SHELLER JA
GILES JA

Friday 28 April 2000


THE DIRECTOR OF PUBLIC PROSECUTIONS
v ANTHONY WEST

A series of incidents led to the arrest and charging of the defendant, who pleaded guilty to an offensive behaviour charge and not guilty to the remaining three charges. The four matters were adjourned for hearing on 21 May 1999. The Justices Amendment (Briefs of Evidence) Act 1997 had inserted a new Subdivision 6A (ss66A-66H) into Part 4 Division 2 of the Justices Act 1902. Under the Subdivision the prosecuting authority was obliged to serve on the defendant a “brief of evidence” following a not guilty plea to a “prescribed summary offence”. Under s66B(2) the copy of the brief was to be served at least 14 days before the hearing of the evidence.

The Police served their copy of the brief on 10 May 1999, only 11 days before the hearing, thus breaching s66B(2). The hearing was adjourned until 27 July 1999, at which point the Magistrate refused to admit evidence tendered in the brief. Citing a decision by Sully J in Department of Public Prosecutions v Milgate [1999] NSWSC 90 (“Milgate”), the Magistrate held that the adjournment did not cure the earlier procedural breach. The contested charges were dismissed. An appeal was heard by Sperling J who, disagreeing with Milgate, was minded to quash the orders of the Magistrate but ordered the proceedings to be removed into the Court of Appeal.

The Subdivision provides means of dispensing with the consequences of a breach of the 14 day requirement and admitting the brief of evidence. Under s66B(2) the Magistrate might have dispensed with the requirement where “the circumstances of the case otherwise require”. Section 66F(2) allows the court to dispense with the requirements of the Subdivision on terms which appear “just and reasonable”. Under section 66G the Magistrate might also have granted an adjournment and appointed a further hearing date where “just and reasonable” if the copy of the brief was not served in accordance with the Subdivision.

Milgate was a case in which the defendant pleaded not guilty to an information, and took objection when the brief of evidence had been served only 12 days prior to the hearing date. Only one hearing date was fixed and that was the only date on which the prosecutor sought to tender evidence. Sully J suggested in Milgate that a magistrate’s power under s66B to make an order could only be exercised in favour of extending the 14 day period. He also suggested that the power could only be exercised on the occasion of entry of the not guilty plea. Sully J expressed certain views about the relationship between s66F and s66G. He confessed to having some difficulty in seeing how a s66G adjournment could be given an independent operation in a case where the magistrate was to prepared to exercise the dispensing power conferred by s66F(2).

HELD (by Mason P, Sheller JA and Giles JA agreeing):
The proceedings miscarried in the Local Court due to errors of law. So long as an adjourned hearing date was set at least 14 days after the brief had been served, then an adjournment to such date coupled with an order pursuant to s66G extending the time for hearing to such date would have put the case entirely back on the rails so far as the Subdivision was concerned. Section 66G has a stronger and more independent role than accorded to it by Sully J in Milgate.

When addressing the application for dispensation pursuant to s66F(2), the Magistrate erred in law in applying Milgate and holding that the failure to seek such dispensation at the time of the not guilty plea was relevant or determinative in any respect.

The Magistrate also erred in failing to pay any regard to the undoubted facts that 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 under s66F(2).

Director of Public Prosecutions v Milgate [1999] NSWSC 90 (distinguished and overruled); Ward v Williams (1955) 92 CLR 496 (referred); Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 (referred); The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Ridgeway v The Queen (1995) 184 CLR 19.

Orders:

1. Quash the order of Magistrate Heagney dismissing informations laid against the defendant.

2. Remit the proceedings to the Local Court to be dealt with according to law.

3. Order the defendant to pay the costs of the proceedings in the Supreme Court (including the Court of Appeal) and to have a certificate under the Suitors’ Fund Act 1951 if qualified.

***************

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40009/00
CLD 12238/99

MASON P
SHELLER JA
GILES JA

Friday 28 April 2000


THE DIRECTOR OF PUBLIC PROSECUTIONS
v ANTHONY WEST
JUDGMENT

1 MASON P: Pursuant to s104(2) of the Justices Act 1902 an informant appealed to the Supreme Court against an order made by a magistrate in summary proceedings dismissing informations laid against the defendant. Such appeal is confined to questions of law. The Director of Public Prosecutions has taken over the appeal. 2 The appeal was heard by Sperling J who, for reasons given on 15 December 1999, was minded to quash the order of the magistrate and to remit the proceedings to the Local Court for determination according to law (DPP(NSW) v A West [1999] NSWSC 1195). Since, however his Honour disagreed with the earlier decision of Sully J upon which the magistrate had relied (Director of Public Prosecutions v Milgate [1999] NSWSC 90 (“Milgate”)), Sperling J ordered the proceedings to be removed into the Court of Appeal. We therefore heard the appeal on the materials before Sperling J and with the benefit of the differing views of Sully J and Sperling J about the legislative framework.

Proceedings in the Local Court

3 A series of incidents on 31 March 1999 led to the arrest and charging of the defendant. Four charges were laid, one relating to offensive behaviour in a public place and three relating to assaulting or resisting a police officer in the execution of duty. On 27 April 1999 the defendant pleaded guilty to the offensive behaviour charge and not guilty to the remaining three charges. The four matters were adjourned for hearing on 21 May 1999 at the Burwood Local Court. An estimate of one and a half hours was noted on the court papers. 4 The Justices Amendment (Briefs of Evidence) Act 1997 inserted into Part 4 Division 2 of the Justices Act 1902 a new Subdivision 6A (ss66A-66H). The Subdivision requires the service on a defendant of a “brief of evidence” following a not guilty plea to a “prescribed summary offence”. “Brief of evidence” is defined in s66A to mean:

documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes:
(a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and
(b) any document, or other thing, identified in such a written statement as a proposed exhibit.

5    Sections 66C, 66CA and 66D further define the scope of a “brief of evidence”. 6    So far as presently relevant, the Subdivision provides:

66B. Brief of evidence to be served on defendant unless otherwise ordered
(1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence.
(2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require.
66E Discretion to order that copy of brief of evidence need not be served.
(1) The Justice or Justices may order that all or part of the copy of the brief of evidence need not be served if the Justice or Justices are satisfied:
(a) that there are compelling reasons for not requiring service, or
(b) that it could not reasonably be served on the defendant.
(2) The Justice or Justices may make an order under this section on their own initiative or on the application of any party.
(3) An order may be made subject to such conditions (if any) as the Justice or Justices think fit.
66F Evidence not to be admitted
(1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority.
(2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.
(3) Subsection (2) does not apply to any requirement referred to in subsection (1) that is declared by the regulations to be a requirement that may not be dispensed with under subsection (2).
66G Adjournments
Without limiting the power of a Justice or Justices to adjourn proceedings, the Justice or Justices are 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 this Subdivision, and may extend accordingly the time for hearing the matter.

7    The defendant's pleas of not guilty to three of the charges triggered the obligation of the prosecuting authority responsible for the conduct of the prosecution, ie the original informant, to serve or cause to be served on the defendant a copy of the brief of evidence relating to those three offences. This had to be done “at least 14 days before the hearing of the evidence for the prosecution” (s66B). 8    The brief of evidence comprised a facts sheet and two statements. The informant, Constable Walsh, had it ready for service by early May 1999. On 4 and 5 May he was on leave. The brief was eventually served by delivery to the Legal Aid Commission on 10 May 1999. This was less than 14 days before the date fixed for hearing of the contested charges, ie 21 May 1999. 9    On 21 May 1999 the matter was listed before Magistrate Madgwick at the Burwood Local Court. The informant was represented by Sergeant Harrison. The defendant was represented by Mr Sandilands, a solicitor with the Legal Aid Commission. (The transcript refers to him throughout as Mr Sandland.) When the matter was first called, Mr Sandilands told the magistrate that the matter was ready to proceed, “subject to this-there'll be an application under s66 (sic).... I don't believe that my client has been served with a brief within time”. The matter was stood down in the list. When it was next called, Mr Sandilands told her Worship that “...unfortunately couldn't be resolved. I'd ask that it go over for another date.” (The transcript does not reveal what it was that could not be resolved, but the general sense is clear.) Later there was the following exchange:

BENCH: Yes but did anything take you by surprise in it I suppose is the question I’d be asking, that you didn’t have adequate time to deal with?
PROSECUTOR: Your worship if the matter’s going to go over then 66.
BENCH: No no no. The theory now is that if it’s not served on the date, by the date, you know in the proper time, an adjournment doesn’t cure it.
PROSECUTOR: Yes that’s that Milgate …
BENCH: Yes something like that yes.
SANDLANDS: So perhaps we can just make that application on the next occasion and it can be resolved then.
OTHER MATTERS
DISCUSSION ON SUITABLE DATE FOR ADJOURNMENT AND ESTIMATE OF LENGTH OF MATTER

10    After further discussion the matter was adjourned to 27 July 1999. 11    Although the prosecutor was (I infer) ready to call the informant’s witnesses, the matter did not proceed on 21 May because the state of the list at Burwood meant that it could not have been heard and determined on that day. The papers were marked “not reached” at 2 pm. This Court was informed by the defendant’s counsel, without objection, that at the time the matter was marked not reached another case was in progress and that it was clear from the state of the list that the matter would not be commenced that day. 12    On 27 July 1999 the presiding magistrate was Mr Heagney. The informant was represented by Sergeant Melvin and the defendant was again represented by Mr Sandilands. At the commencement of the hearing Mr Sandilands informed his Worship that he had an application to make on the basis that the brief was served on 10 May 1999 in relation to a hearing date of 21 May 1999. That fact was conceded by the prosecutor. Mr Sandilands cited Milgate as authority for the proposition that the subsequent adjournment of the proceedings did not rectify the problem. The prosecutor submitted that s66B(2) was not engaged on 21 May 1999 because no evidence was then called; and that since the adjourned hearing date of 27 July 1999 was well in excess of 14 days after service of the brief of evidence, there was compliance with the Subdivision. The learned magistrate rejected the prosecutor's argument. In the course of his reasons he said:

One of the significant features of his Honour’s judgment in Milgate is that the granting of an adjournment from one hearing day to another does not assist the prosecution if it has failed to comply with s66B(2) by the time of the first hearing date. I have some difficulty with that in view of the provisions of s66G but his Honour’s judgment is one by which I am presently bound. It seems to me that whether evidence has actually been given on the day first set aside for hearing - that being in this case 21 May - or not, makes no difference to the legislative scheme as it is outlined by his Honour.
At paragraph 11 of his reasons for judgment, his Honour suggests that it is the entering of a plea of not guilty which triggers a number of considerations. A plea of not guilty having been entered, consideration must be given by the parties and by the bench to whether the provisions of s66E should be dispensed with altogether; whether a period greater than 14 days should be required - and this might sometimes be the case where issues are complex and witnesses numerous. His Honour remarks consistently with the terms of the legislation that a period shorter than 14 days may not be ordered save with the consent of the defendant.
But the substantial point which his Honour makes is that all of these matters must be determined upon the entering by a defendant of a plea of not guilty. And the purpose of that, as his Honour goes on to remark in paragraph 12 is that the defendant who has pleaded not guilty will then know immediately after his plea, his precise entitlement respecting the service upon him of a prosecution brief of evidence. It is that precise entitlement that must be honoured by the Prosecutor if the ultimate hearing of the prosecution is not to run foul of s66F.
It seems to me, looking at the scheme of things through his Honour’s eyes that there is a failure by the Prosecutor to comply with the legislation, in this case, 14 days before 21 May, and that what his Honour calls the bar to the prosecution being able to proceed further with the matter, is not lifted by the matter being adjourned from a date fixed for hearing to a later date. That no evidence was called on 21 May 1999 seems to me to be an irrelevant consideration and it would be my view that there having been a failure by the prosecuting authority to comply with the provisions of s66B(2), I’m required pursuant to s66F to refuse to admit evidence which is now sought to be adduced.

13    The prosecutor then invoked s66F(2) and sought dispensation with the requirements of s66F(1) (ie the requirement that the magistrate “refuse to admit” the evidence in the late-served brief). Constable Walsh gave evidence explaining why he had not served the brief of evidence prior to 7 May and he was cross-examined. There was no dispute as to the facts. 14    Constable Walsh was given a home address of the defendant (at Greystanes) on the day of the arrest, but he was doubtful whether this was true and he never attempted service there. On 3 May he came to the Local Court at Burwood in the mid afternoon, intending to speak to someone at the Legal Aid office to confirm that the Legal Aid Commission was representing the defendant. No one was at the office, nor was there any response to a telephone call there. By then it was thought to be too late to do anything that day. On 4 and 5 May Constable Walsh had rest days. He was on nightshift on 6 and 7 May. The brief was left with a colleague, but the latter was too busy to attend to the matter until 10 May when the brief was served on the defendant c/- The Legal Aid Commission. Constable Walsh did not think to give the brief to a police prosecutor at Burwood who could have served it during business hours at the Legal Aid office. 15    There was no suggestion in the evidence before Magistrate Heagney that the defendant had been prejudiced by the late service of the brief of evidence, either on the original hearing date or on 27 July 1999. 16    The police prosecutor submitted that the late service caused no injustice. However, Magistrate Heagney rejected the application to dispense with the requirements of s66F(1). His reasons were:

There’s an application that I dispense with the requirements of s66F(1) which is the procedure according to his Honour Mr Justice Sully which should be addressed upon the entering of a plea of not guilty, but may also be done at this stage. No application it seems was made at the entering by the defendant of his pleas of not guilty that the requirements of s66F(1) should be dispensed with on the basis that the matter was a simple one involving the statements of two constables and it seems to me that if no application was made then, none can be made now for dispensation on that same ground.
The application is based upon efforts that were made by the informant to serve the brief which was ready for service on 3 May but which were unsuccessful. There is no requirement in the provisions of the Act that the brief be served by the informant personally. The informant seems to have understood that and to have asked another constable to serve the brief for him but through pressure of work apparently that other constable was not able to do it. The informant himself was caught up with days off and working night shifts but none of those considerations are matters extraordinary. Most people these days have busy schedules; most people have days off and some people work shifts which prevent them doing things at times when they would like to do them.
The power of dispensation is one that is reserved for situations that are out of the ordinary, and there is nothing out of the ordinary about this matter at all. There were a number of things that the informant, perhaps with the benefit of hindsight, could have done. He was not even sure it seems to me that the Legal Aid Commission was the appropriate body upon whom the brief was to be served. He said he came to the Court here, not to the Legal Aid offices, to find out if they were in fact on the record. But neither he nor anybody on his behalf examined the court record to determine if that was in fact the case. The brief was not given to a prosecutor who might readily have served it upon Mr Sandland or some other representative of the Legal Aid Commission during court hours.
I feel considerable sympathy with the informant. He is a victim of the strange procedures which the Police Service operates by. It would seem to me that the informant and the system of justice would be far better served if the members of the prosecuting branch were to undertake responsibility for whatever has to be done following a plea of not guilty by a defendant. But constables on the beat are left to come to grips with not only the procedural requirements of the law, exemplified now by subdivision 6A of part of division 2A [sic] of the Justices Act , but also with the substantial law which bears upon the particular case they’re interested in.
If it was, as it should in my view be, the responsibility of the prosecutors to ensure the service of a brief once a plea of not guilty is entered, none of these problems in this case would have occurred. The brief was ready for service on 3 May; the prosecutors could doubtless have served it in time. But the defendant should not be made to put up with the horse and buggy procedures which seem to commend themselves to the Police Service and I decline the application to dispense with the provisions of s66F(1).

17    The following exchange ensued:

PROSECUTOR: Your Worship would you be mindful to grant an adjournment in relation to this matter under s66G of the ….
BENCH: No I would not. The three matters are dismissed for want of evidence which is able to be adduced. All right yes I’ll hear the facts in relation to the pleas of guilty.
The appellant’s case in outline

18    The appellant advanced three broad submissions. 19    First it was submitted that the problem facing the prosecution on 21 May 1999 in light of s66B(2) was automatically cured by the adjournment of the not reached proceedings to 27 July 1999. As it turned out, the later date was the occasion on which the prosecution first sought to tender evidence from the brief of evidence and that date was more than 14 days after the brief had been served. It was submitted that Milgate did not establish that admission of the evidence should have been refused, but that if it did it should be overruled. 20    Secondly, it was submitted that Magistrate Heagney had erred in law in addressing the prosecutor's application for dispensation pursuant to s66F(2). In particular, there had been no consideration of the prejudice suffered by the prosecution or the lack of prejudice suffered by the defendant. 21    Thirdly, the peremptory dismissal of the prosecutor’s application for an adjournment pursuant to s66G showed that the Magistrate had failed to appreciate the proper scope of that section or denied procedural fairness.

The legislative scheme

22    In his second reading speech on the Justices Amendment (Briefs of Evidence) Bill 1997, the Attorney General explained the background of the Bill (Parliamentary Debates, Legislative Council, 16 June 1997 at pp10182ff). He pointed out that it had long been the case that a defendant facing trial on indictment was apprised in advance of the evidence that the prosecution intended to produce. Hitherto, it had been considered sufficient to meet the requirements of fairness for summary trials that the defendant be advised simply of the offence charged and the alleged facts that constituted the offence. The Attorney gave reasons why that approach could no longer be regarded as sufficient. More and more offences were being tried summarily in the Local Court. Necessarily some of these were serious offences. Accordingly, the Legislature had a responsibility to ensure that this trend did not result in injustice. 23    The Attorney also identified a range of wider benefits that would flow from the Bill. Summary proceedings would become more focused on relevant issues and thus be disposed of more quickly. Lengthy and unnecessary cross-examination by defence lawyers would be obviated because they would know the full prosecution case in advance. Shorter, more focused hearings would save time and money for all parties involved. The provision of the brief would assist defendants in providing instructions to their lawyers and thereby result in costs savings. Police officers might be able to spend less time at court waiting to give evidence and more time on the beat. Civilian witnesses would experience less disruption to their lives. The provision of the prosecution brief might also be expected to increase the number of guilty pleas because the defendant and the defendant's lawyer would be better able to assess the strength of the prosecution case at its outset. 24    With this explanation of the purposes of the Bill, it is possible to expound the key provisions in the Subdivision:

(a) Unless there is an order to the contrary in accordance with s66E, s66B imposes a duty on the prosecuting authority that is triggered by a plea of not guilty to a prescribed summary offence. That duty is to serve or cause to be served on the defendant a copy of the “ brief of evidence ” relating to that offence.
(b) The time for performance of the duty is “ at least 14 days before the hearing of the evidence for the prosecution” unless the defendant consents to a shorter period or, in the opinion of the magistrate, the circumstances of the case otherwise require (s66B(2)). I shall return to the meaning of the italicised words later in this judgment.
(c) The literal terms of s66B(2) do not confine the magistrate to shortening the period for compliance, nor to acting purely prospectively. I see nothing in the context of the provision to construe the power so narrowly. The magistrate may vary the time, by lengthening or shortening it, and he or she need not do so before the time expires or commences to expire.
(d) Section 66E gives the magistrate a discretion to order that all or part of the copy of the brief of evidence need not be served if the magistrate is satisfied that there are compelling reasons for not requiring service or that the brief could not reasonably be served on the defendant. Such order may be made subject to conditions. Section 66E does not address the shortening of the s66B(2) time frame.
(e) Section 66E is designed to operate prospectively, ie before the date on which the brief is otherwise required to be served. However, it is not confined to that situation. For example, it may only emerge that the brief cannot reasonably be served on the defendant after attempts are made to do so. There is nothing in the language or context that would deprive the court of the power to make this type of dispensing order after the time for service had elapsed.
(f) Section 66F and s66G 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 s66B, assuming that it has not been relevantly modified. They do so in terms which recognise the antecedent statutory duty. Thus, s66F(1) refers to a prosecuting authority that has not complied with the Subdivision in relation to particular evidence; and s66G contemplates an adjournment being granted if the copy of the brief of evidence is not served in accordance with the Subdivision.
(g) Section 66F(1) imposes a duty upon magistrates (“ are to refuse” ). They must refuse to admit evidence sought to be adduced by the prosecuting authority in respect of a prescribed summary offence if, in relation to that evidence, the Subdivision has not been complied with by the prosecuting authority. The prohibition will apply to the whole of the evidence if the brief of evidence was not served in due time. Equally, it will apply to an item of evidence not contained in a brief otherwise duly served. In either case, unless the requirements of s66F(1) are dispensed with qua that evidence, the magistrate is required to refuse to admit that evidence.
(h) However (and subject to s66F(3)), 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 (s66F(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 (see further par (m), below).
(i) The barrier created by s66F(1) need not remain permanently lowered. For example, it would be lifted if and when dispensation ensued in accordance with s66F(2) or an order were made in accordance with the concluding words of s66G.
(j) Nor does refusal to admit evidence necessarily spell the dismissal of the prosecution. There may be sufficient evidence contained within a complying brief of evidence and/or in a brief of evidence in respect of which dispensation has been granted under s66F(2). Or compliance with the Subdivision may occur following a s66G adjournment and order extending the time for hearing.
(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 s66F(2). But, absent dispensation in relation to non-complying evidence, s66G 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.
(l) The words “may extend accordingly the time for hearing the matter” at the end of s66G are, in my view, a power in the nature of a duty. The word “accordingly” emphasises the linkage between the adjournment and the extension of time. Further evidence of the linkage emerges from the evident purpose of s66G, which is to provide for a particular category of adjournments, namely those triggered by the s66F barrier remaining lowered. This collocation and context require “may” to be treated as “must” ( Ward v Williams (1955) 92 CLR 496 at 505-6, Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-5, The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 311).
(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 s66G. However, the general thrust of s66G 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, 75).
(n) Section 66G deals with a special class of adjournments, as its opening words recognise. Not every adjournment will be triggered by problems arising out of late service of the brief of evidence. Accordingly, not every adjournment will trigger an order extending the time for hearing the matter.
(o) If an order is made pursuant to s66G “extending the time for hearing the matter” the effect will be that the defaulting prosecuting authority goes back to taws. The scheme of the Subdivision will be set in motion again, with reference to the new hearing time that is fixed, with all of the sanctions and safeguards thereby stemming from ss66B, 66E, 66F and 66G. It is true that s66B(2) speaks of “the hearing of the evidence” whereas s66G speaks of “the time for hearing the matter”. Nevertheless, I think that the same idea is conveyed. Naturally, there would be little reason to grant any further indulgence to a prosecuting authority should further default occur.
(p) The defendant has a significant measure of control over the situation through the right conferred by s66F(2). If a defendant requires dispensation from s66F(1) (perhaps on terms) this would prevent the prosecution from seeking to take advantage of its own default.
(q) I have not overlooked that this analysis of s66G 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. It is relevant that the duty to serve the brief only arises after a plea of not guilty.

25    The construction which I have placed upon the legislative scheme differs in some respects from that offered by Sully J in Milgate and by Sperling J in the present case, notwithstanding that each of their Honours took fairly diametrically opposed approaches.

The reasoning in Milgate

26    Milgate was a case in which the defendant pleaded not guilty to an information. A hearing date was fixed for seven weeks later. On that occasion the prosecutor announced that he proposed to call six witnesses although he indicated that one was unavailable that day. He said that he would embark on his case and proceed as far as he could. The first witness was called. At that stage the defendant took an objection based on the fact that the brief of evidence had been served only 12 days prior to the hearing date. The discussion before the magistrate that followed was interpreted by Sully J as an application for an adjournment, not necessarily based entirely upon s66G. The adjournment was refused in circumstances held by Sully J to involve no legal error. The prosecutor did not seek a s66F(2) dispensation. The magistrate thereupon called on the prosecutor to proceed with the prosecution case. The prosecutor apparently took the view that, his adjournment application having been refused, s66F(1) necessarily entailed that he call no evidence out of the prosecution brief of evidence. In these circumstances the magistrate found that there was no prima facie evidence and thereupon dismissed the charge. Sully J dismissed the appeal. 27    It can be seen that no question as to the meaning of s66B(2) arose in Milgate. Only one hearing date was fixed and that was the only date on which the prosecutor sought to tender evidence. In these circumstances some of the discussion of the legislative scheme was obiter. 28    Sully J suggested that a magistrate’s power under s66B to make an order could only be exercised in favour of extending the 14 day period. He also suggested that the power could only be exercised on the occasion of entry of the not guilty plea. It will be apparent that I respectfully disagree on these two points. 29    Sully J expressed certain views about the relationship between s66F and s66G. He confessed to having some difficulty in seeing how s66G could be given an independent operation in a case where the magistrate was not prepared to exercise the dispensing power conferred by s66F(2). His Honour suggested that, if the magistrate was not prepared to exercise the dispensing power conferred by s66F(2), then it was not easy to see what practical purpose would be served by granting an adjournment because, on the adjourned date, “the section 66F(1) bar would still be in place”. My analysis of s66G treats it as having a stronger and independent role. In my view the adjournment power in s66G is designed to be used, in a proper case, as a means of giving the defendant the right to proper notice of the prosecution brief while at the same time enabling and requiring the magistrate to “extend accordingly the time for hearing the matter”. This would effectively nullify the antecedent breach of s66B by sending the matter back to taws. Accordingly, I respectfully disagree with Sully J’s statement (at [18]) that s66G is defective.

The meaning of “14 days before the hearing of the evidence for the prosecution” in s66B(2)

30    My analysis of the legislative scheme passed over the interpretation of these words. Nevertheless, it will already be apparent that the structure of the Subdivision casts light on that question. 31    Before us, the appellant submitted that the words refer to the day on which the prosecution first seeks to call evidence as to guilt. It was submitted that this need not be the date fixed for hearing (usually on the occasion of the defendant’s not guilty plea). It was submitted that an adjournment of the commencement of the prosecution case to a date at least 14 days after the date of service of the brief of evidence would necessarily cure any problems stemming from s66B. Thus, in a case like the present, an unexpectedly overcrowded list on the date fixed for hearing could bring about the situation that there would be no need to invoke s66F(2) or s66G for the simple reason that the “s66F(1) bar” and what was said to be the correlative s66B duty would ipso facto be lifted. This, in essence, was the conclusion of Sperling J at the earlier stage of these proceedings. 32    I cannot accept this construction of the legislation. I shall first endeavour to state the content of the duty to serve the brief 14 days before the hearing of the evidence for the prosecution. In my view s66B has work to do well before the time when the first prosecution witness is called to testify. As soon as the defendant has pleaded not guilty to a prescribed summary offence the parties will know that, as soon as a date to commence the hearing is fixed, the duty will crystallise. It will crystallise because (unless modified) there will be a requirement on the prosecution to serve the brief of evidence at least 14 days before that hearing date. The uncrystallised duty will be relevant to the fixing of an appropriate hearing date and it may indeed trigger a prosecution application to modify the 14 day requirement (pursuant to s66B(2)) if a very early hearing date is set. If however the duty is not removed entirely (pursuant to s66E) or modified (pursuant to s66B(2)) or waived by the defendant (pursuant to s66B(2)) then the prosecuting authority must set about complying with it in the light of knowledge as to the fixed hearing date. Usually the hearing date will be fixed on the occasion when the not guilty plea is entered, but this will not invariably be the case. 33    I now seek to justify this analysis. The prospective nature of the duty is, I think, emphasised by the definition of “brief of evidence” which speaks of statements from persons “the prosecution intends to call” and documents or things identified in a statement as “a proposed exhibit”. The separation of s66B (duty) and ss66F-66G (sanctions) reinforces the point. So too do the references in s66F(1) and s66G which imply an antecedent duty (see par 24 (f) above). I recognise that the language of s66B(2) is slightly inexact in its reference to “the hearing of evidence”, but the alternative construction urged by the appellant robs the duty of practical content, and overlooks these textual indicators. Another difficulty with the opposing approach is that, if s66B(2) has no function independent of s66F, then the duty imposed by s66B varies with respect to each item of evidence actually tendered, rather than being engaged once and for all. It would follow that each adjourned hearing date would offer the prosecuting authority a fresh opportunity to serve (14 days in advance) a fresh and expanding brief of the evidence proposed to be called at the adjourned hearing date. The alternative of treating the date that evidence first happens to be called by the prosecution as the reference point finds little or no support in the text and suffers from the textual difficulties adverted to above. Both of these problems are avoided if “the hearing of the evidence from the prosecution” in s66B(2) is construed as the date fixed for the commencement of that hearing. Then the duty will fall once and for all, subject to the controlled dispensing provisions in the Subdivision. 34    If on the day the hearing is ready to commence (whether or not that was the originally fixed hearing date) there has been an antecedent breach of the duty then, absent dispensation from the defendant (cf s66F(2)), the prosecutor must seek dispensation from the magistrate (s66F(2)) or seek an adjournment pursuant to s66G. Since the discretion to dispense with the requirements of s66F(1) should take into account the prejudice actually facing the defendant at the time the discretion is invoked, then dispensation may follow in cases such as the present where the overcrowded state of the court list on the original hearing date removes the prejudice. But the prosecution will not have the certainty of knowing this in advance, unless the defendant consents; and this will act as a spur to early rectification of default.

Consequences of this analysis

35    In light of these principles it can be seen that the proceedings miscarried in the Local Court due to errors of law. 36    On 21 May 1999 Magistrate Madgwick should have considered whether there was any reason to refuse to make an order pursuant to s66G which would have effectively nullified the prosecuting authority’s antecedent breach. So long as an adjourned hearing date was at least 14 days after the brief had been served, then an adjournment to such date coupled with an order pursuant to s66G extending the time for hearing to such date would have put the case entirely back on the rails so far as the Subdivision was concerned. 37    On 27 May 1999 Magistrate Heagney was faced with the situation where such order had not been made. Accordingly, so far as he was concerned, the prosecuting authority was in breach of the Subdivision and s66B(1) precluded the admission of the evidence sought to be adduced by the prosecutor. The mere lapse of more than 14 days since service had not cured the non-compliance. 38    When his Worship addressed the application for dispensation pursuant to s66F(2) he erred in law in holding that the failure to seek such dispensation at the time of the not guilty plea was relevant or determinative in any respect. Ex hypothesi, non-compliance stemmed from matters occurring thereafter. 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. 39    It is unnecessary to consider whether a separate error occurred in the apparently peremptory dismissal of the belated s66G adjournment application that followed the refusal of the s66F(2) dispensation.

Orders

40    I propose the following:

1. Quash the order of Magistrate Heagney made on 27 July 1999 dismissing informations laid against the defendant for the offence of resisting a police officer in the execution of his duty and for two offences of assaulting a police officer.
2. Remit the proceedings to the Local Court to be dealt with according to law.
3. Order the defendant to pay the costs of the proceedings in the Supreme Court (including the Court of Appeal) and to have a certificate under the Suitors’ Fund Act 1951 if qualified.

41    SHELLER JA: I agree with Mason P. 42    GILES JA: I agree with Mason P.

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