(A) P A Johnson SC & N J Adams (R) P Byrne SC & C Smith
SOLICITORS:
(A) S E O'Connor (R) Mark Dennis
CATCHWORDS:
Summons to be used by police for minor charges not arrest - whether evidence improperly obtained within s.138 of Evidence Act 1995 - natural justice - magistrate relies on matters researched by himself and prosecution given no opportunity to deal with them.
Fleet v District Court & Ors [1999]NSWCA 363 Daemar v Corporate Affairs Commission, NSWCA unrep 4 September 1990 Ridgeway v The Queen (1994-1995) 184 CLR 19 Lake v Dobson NSWCA 19/12/80 (Petty Sessions Review 2221) Customs & Excise Commissioners [1969] 1 WLR 1161 Bunning v Cross (1978) 141 CLR 54 Rv Haddad & Treglia [2000] NSWCCA 351 Robinett v Police No SCGRG-00-110 [2000] SASC 405 R v Coleman (1990) 19 NSWLR 467 R v Stokes and Difford (1990) 51 A Crim R 25
DECISION:
Para 93
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
S 12175 of 2000 SMART AJ Friday, 25 January 2002
DIRECTOR OF PUBLIC PROSECUTIONS v LANCE CARR JUDGMENT
1 The Director seeks an order pursuant to s.109(a) of the Justices Act 1902 quashing the orders of the magistrate dismissing informations laid against Mr Carr for resisting police, assaulting police, and intimidating police, a declaration that the magistrate erred in law as to the construction and application of s.138 of the Evidence Act 1995 in refusing in the exercise of his discretion to admit the evidence of Constables Robins and Smith relating to the charges mentioned and a declaration that the magistrate erred in law in dismissing the informations. The Director asked that each of the matters be remitted to the magistrate to be dealt with according to law.
2 At the hearing before the magistrate on 27 October 1999 a voir dire was held. The magistrate reserved his decision which he gave on 18 November 1999. He held that the evidence relating to resisting police, assault police and intimidate police was obtained in consequence of an improper act, namely, the arrest of Mr Carr for an offensive language charge. On 19 May 2000 he heard argument as to the way in which he should exercise his discretion under s.138 of the Evidence Act 1995. He held that the evidence should not be admitted. He was not persuaded that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence obtained in the way in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DPP v Carr [2002] NSWSC 194
Case
[2002] NSWSC 194
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions versus Carr arose in the Supreme Court of Victoria. The central issue involved the admissibility of evidence obtained through a summons issued by the police for minor charges, rather than through an arrest. The case required the court to determine whether such evidence was improperly obtained, contravening section 138 of the Evidence Act 1995. Additionally, it needed to address whether the proceedings violated natural justice principles, particularly since the magistrate had relied on matters researched independently without providing the prosecution an opportunity to respond.
The court examined the statutory framework and case law to ascertain the proper use of summonses for minor charges. It considered whether the summons process inherently violated the principles of natural justice by not allowing the prosecution to address independently researched matters. The court also assessed if the magistrate’s reliance on such information constituted a breach of the statutory provisions, impacting the fairness of the proceedings.
In its reasoning, the court found that the use of a summons for minor charges did not inherently contravene section 138 of the Evidence Act 1995, provided that the summons was correctly issued and served. However, the court held that the magistrate’s independent research and reliance on such information without informing the prosecution amounted to a procedural irregularity. This irregularity violated the principles of natural justice by denying the prosecution an opportunity to respond to the matters raised by the magistrate. Consequently, the evidence obtained through this process was deemed improperly obtained and inadmissible.
The final orders of the court were that the evidence obtained through the summons, which relied on the magistrate’s independent research, was inadmissible. The court also mandated that future proceedings must ensure that the prosecution is given an opportunity to address any matters that the magistrate intends to rely on, thus maintaining the principles of natural justice.