Elwood v Director of Public Prosecutions

[2023] NSWSC 772

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Elwood v Director of Public Prosecutions [2023] NSWSC 772

Hearing dates:

7 July 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Grant leave to appeal.

(2) Uphold grounds 1b, and 2a and 2b of the Amended Summons.

(3) Set aside the decision of Magistrate Prowse of 26 October 2022 committing the plaintiff for trial in relation to sequences 13, 16 and 25.

(4) Set aside the decision of Magistrate Prowse of 26 October 2022 in relation to sequences 19 and 20.

(5) Remit the proceedings to the Local Court at Dubbo to be dealt with by a magistrate other than his Honour Magistrate Prowse.

(6) No order for costs of the proceedings to the intent that each party should pay their own.

Catchwords:

CRIME – appeal and review – appeal from Local Court to Supreme Court – by offender after being committed for trial on three indictable matters and two summary matters – first case conference held almost a year after charges were laid – magistrate refused further adjournments and entered pleas of not guilty by the Court – where negotiations between prosecution and defence were active and ongoing – where offender indicated he wanted to continue to negotiate – magistrate erred by prejudging without hearing why the parties were seeking an adjournment – magistrate failed to consider different pathways available under s 76 of the Criminal Procedure Act– decision deprived offender of significant right of discount for a plea – grounds of appeal involving questions of law alone upheld – decision of the Magistrate set aside – proceedings to be remitted before a different magistrate

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) s 53

Criminal Procedure Act 1986 (NSW) ss 67, 74, 76

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25A, 25D

Supreme Court Rules 1970 (NSW) pt 51B r 5

Cases Cited:

Coles v Director of Public Prosecutions [2022] NSWSC 960

Exp Cousens; Re Blacket (1946) 47 SR (NSW) 145

Hijazi v Director of Public Prosecutions [2022] NSWSC 1218

Landrey v Director of Public Prosecutions [2022] NSWCA 211; (2022) 406 ALR 613

Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

R v PL [2012] NSWCCA 31

Sankey v Whitlam (1978) 142 CLR 1

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12

Wentworth v Rogers [1984] 2 NSWLR 422

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Tray Elwood (Plaintiff)
Director of Public Prosecutions (Defendant)

Representation:

Counsel:
N Broadbent & H Ryan (Plaintiff)
J Roy (Defendant)

Solicitors:
Aboriginal Legal Service (Plaintiff)
Office of the Director of Public Prosecutions (Defendant)

File Number(s):

2023/61299

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

26 October 2022

Before:

Magistrate Prowse

File Number(s):

2023/61299

Judgment

1. The plaintiff seeks leave to appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal relates to the plaintiffs having been committed for trial on three offences on 26 October 2022 by Magistrate Prowse in the Local Court at Cobar. It also concerns two related summary matters dealt with on that day.

2. An appeal pursuant to s 53(3)(a) requires grounds that involve a question of law alone, and the Court must in any event grant leave. The plaintiff seeks, in the alternative, an order in the nature of certiorari, in respect of the Magistrate’s decision if the questions raised do not involve a question of law alone.

3. The defendant does not dispute that some of the questions, reformulated in an amended summons, involve questions of law alone, and does not dispute that error is shown in respect of some of the determinations of the Magistrate. Notwithstanding the defendant’s concessions the Court needs to be satisfied that a question of law alone is involved and that error is shown.

4. For the reasons which follow, I am satisfied that some of the questions raised in the amended summons involves questions of law alone, that the Magistrate has erred, and that leave should be given to bring the appeal. It is not necessary, therefore, to embark upon consideration of the interesting, but more difficult question about whether the new provisions in Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) (“CPA”) are subject to the decision of the Full Court of the Supreme Court in Exp Cousens; Re Blacket (1946) 47 SR (NSW) 145; and see Sankey v Whitlam (1978) 142 CLR 1 at 22 and Wentworth v Rogers [1984] 2 NSWLR 422 at 434.

Background

5. On 12 October 2021 the plaintiff was charged with 29 offences. Notwithstanding the charge date, the Office of the Director of Public Prosecutions (DPP) only began receiving the brief of evidence from NSW Police on 1 April 2022.

6. Between 13 October 2021 and 19 May 2022 the matter was mentioned six times at Dubbo Local Court. A partial brief was served on the Aboriginal Legal Service who were acting on behalf of the plaintiff on 7 May 2022. Subsequently there was piecemeal service of the remainder of the brief between 7 March 2022 and 20 June 2022. At each mention between 7 April and 30 June 2022, the Court granted applications under s 67(3) of the CPA extending the time for filing a charge certificate, over objection by the defence.

7. At a listing on 9 June 2022, the brief was deemed compliant, and the matter was listed for charge certification on 30 June 2022. When the matter was mentioned on that date, the Court again extended the time for filing a charge certificate because the DPP required a minimum of six weeks from the brief becoming compliant to certify the charges.

8. On 21 July 2022 the charge certificate was filed by the prosecutor in the Local Court. On that day, the Court adjourned the matter until 15 September 2022 for a case conference mention.

9. On 14 September 2022, the first case conference was held by audio visual link. At the conference the parties discussed the brief. At the conclusion of the conference, the solicitor for the DPP indicated that further consideration of the brief would be undertaken and a brief index provided to the ALS. Both parties agreed an adjournment would be required to allow for further negotiations.

10. On 15 September 2022 the matter was listed at Dubbo Local Court before Magistrate Prowse. A joint application for an adjournment was made. The Magistrate at first indicated his intention to refuse the application and commit the plaintiff for trial. However, his Honour ultimately adjourned the matters to Parkes on 20 October 2022. His Honour marked himself as part-heard in the matters, and the papers were marked “no further adjournments”.

11. Between 15 September 2022 and 17 October 2022, the parties exchanged offers. The plaintiff made an offer on 16 September 2022 which was rejected by the DPP on 12 October 2022. The DPP made a counter-offer on 17 October 2022.

12. On 18 October 2022 a second case conference was held by audio visual link. The solicitor for the plaintiff had been unable to discuss the counter-offer with the plaintiff prior to that second case conference. However, the solicitor indicated that, based on earlier discussions with the plaintiff, what was offered was not likely to be accepted by him. Both parties agreed to continue negotiating with a view to finding a resolution.

13. The matter was relisted at Broken Hill on 21 October 2022 in lieu of Parkes on 20 October 2022. Subsequently, the Court advised that Magistrate Prowse would not be presiding on 21 October, and the Registrar sought an indication from the parties as to the status of the matter. Both parties responded, indicating that the matter was not ready to commit and that an adjournment would be sought. The Registrar advised that the matters would be relisted at Cobar on 26 October 2022, to be heard by Magistrate Prowse.

14. On the afternoon of 25 October 2022, the DPP sent an amended charge certificate to the solicitor for the plaintiff. It indicated that 24 charges had been withdrawn. The solicitor for the plaintiff was not able to speak to the plaintiff until the following morning, but she then did not have time to discuss the charges in detail or to explain the implications for him. The plaintiff indicated that he wanted to continue to negotiate.

15. When the matter was listed before Magistrate Prowse on that morning, Mr Doohan on behalf of the DPP indicated that he sought an adjournment to give the plaintiff’s solicitor time to get instructions on the fresh charge certificate. The plaintiff’s solicitor advised the Court that she was not in a position to enter pleas at that stage. The Magistrate directed her to speak with the plaintiff to get instructions on a plea to the remaining charges on the new charge certificate. The plaintiff’s solicitor spoke with him and he instructed her that he wanted more time to consider his options, and wanted further time to discuss and consider the evidence in relation to the remaining charges.

16. The plaintiff’s solicitor prepared an affidavit in support of an adjournment, and Mr Doohan handed up written submissions outlining the DPP’s position in support of the adjournment application. Nevertheless, the Magistrate refused a further adjournment. He asked the plaintiff’s solicitor to enter pleas, but she indicated that she was not in a position to do so. The Magistrate said that in that case the Court would enter pleas of not guilty and the matter would be committed for trial. Submissions were made to the Magistrate concerning his jurisdiction and powers under s 76 of the Criminal Procedure Act.

17. The Magistrate then entered pleas of not guilty for three indictable matters where the plaintiff was committed to the District Court for trial, and sent two summary matters to Bourke Local Court to be fixed for hearing.

The proceedings on 26 October 2022

18. The relevant parts of the transcript for 26 October 2022 read as follows:

DOOHAN: Yes your Honour I have an amended charge certificate to file. It was filed electronically last night. I could hand your Honour a copy. It follows two case conferences that have been held relatively recently which there’s been a number of offers put but - one by the crown and one by the defence but that negotiation process has been of assistance and the Crown has distilled its charge certificate from the original charge certificate. I will be seeking a short time of probably to the next Cobar list day for my friend to get instructions on the fresh charge certificate, which is in effect I suppose a type of further offer by the Crown.

HIS HONOUR: Well Mr Crown as I indicated reasonably clearly on 15 September there wasn’t going to be any further adjournments from today. So let’s just see which ones the crown is actually proceeding on.

DOOHAN: I was aware that your Honour was keen to commit the matter today.

HIS HONOUR: No no I’m not keen. It’s just that it’s going to happen. So the only effective ones then are 13, 16, 20 and 25 but the only effective ones for committal ar 13 – sorry 19 – what’s 19. Righto so let’s go to 13. What plea is being entered at sequence 13?

MELHUISH: Your Honour I’m not instructed to enter a plea at this stage.

HIS HONOUR: In that case the Court will be entering a plea of not guilty and the matter will be committed for trial.

MELHUISH: Your Honour I don’t think the Court has jurisdiction to commit matters for trial in the absence of a case conference certificate.

HIS HONOUR: Haven’t we had a case conference yet?

DOOHAN: No no there’s been no case conference certificate filed your Honour.

HIS HONOUR: Why was that?

DOOHAN: Negotiations are ongoing.

19. A chronology was then handed up, and reference made to s 76 of the CPA.

DOOHAN; It appears that the solicitor who prepared the chronology has just started from when the DPP received the brief your Honour.

HIS HONOUR: No no the DPP are involved right from the kick-off because 18 October at the very least and I don’t know what happened on 13 October and why the bench sheet for 13 October isn't available but it is only a period of five days so there might be all sorts of good reasons. The DPP became involved then, at least vicariously because at that stage there was strictly indictabte matters charged ergo VEAPG [sic] delay scheme was invoked and brief orders were made and then further brief orders were made and further brief orders were made and we know the DPP were involved because your first aspect on the chronology is indicating that the brief is not compliant. So the DPP were involved, they were just shadowing the proceedings at that point.

DOOHAN: Well yes if your Honour puts it that way that that’s - I’m not -I won’t haggle with your Honour.

HIS HONOUR: Good.

DOOHAN: We’re under instructions not to appear formally…

HIS HONOUR: Yes, yeah.

DOOHAN: …until there’s a compliant brief, so I think…

HIS HONOUR: I understand the policy reasons behind that because that means you get a couple of extra delays in, so the matter doesn’t proceed expeditiously towards the District Court because the whole purpose of the scheme is to reduce the delays in the District Court as opposed to all the other altruistic virtue signalling guff they go on with.

DOOHAN: Your Honour I won’t make any comment about that, I’ve got…

HIS HONOUR: You don’t have to it's just a…

DOOHAN: I’ve got personal views, but their [sic] irrelevant your Honour.

HIS HONOUR: No, no, I’m not asking you for your personal views, that’s my analysis of the policy underlining the marketing name Early Appropriate Pleas of Guilty. The word early is produced devoid of meaning, taken out the back and pillaged, yet nevertheless it is part of the marketing guff that they go on with. But nevertheless we managed to get to the DPP formally saying, “Hello we're here" because they say even though they’re not in the matter, unless somebody called Moore is, from the DPP, on the 1 April there was a non-compliant brief et cetera, et cetera. Then on the 7 April a s 67 extension was applied for which was in of itself embarrassing to all and sundry.

That it managed to get to that point and the brief still wasn’t compliant. Then it went to the 19 May for brief service then from the 19 May went then 9 June brief service. 9 June it went to the 30 June, and another s 67 certificate granted. 30 June it went to 21 July for charge certification. By that stage another - and on that occasion I should say, another s 67 extension was granted. Then on the 21 July it went to the 15 September 22 for what is misleadingly known as case conference mention. Now as soon as you use the words case conference mention, the last word means that you've got plenty of time to do nothing, little, prevaricate, or lots of things, one of those two things between those two goal posts, but don’t worry we’re not going to commit the matter on the next occasion you can fill the time - fill the void by taking as long as you actually need. Or taking as long as you can stretch the matter out, one of those two.

So on 15 September when it went over for case conference mention the only rational inference that can be drawn from the words case conference is that a case conference must have been within contemplation and agreed and nominated and the like. So what does your timetable say? 14 September 22, case conference held. There we go, so it did happen. 15 September after being told whatever it was that I was told on at Dubbo on that day, the matter was adjourned to 20 October 20(as said) which was another five or six weeks. Depending on calculations but I can count them if necessary. They’re supposed to be at Parkes because of I was going to Parkes at that point in time and then it was going to Broken Hill but I was ill last week. Mandatorily ill I should say. And consequently it’s gone over for another - whatever today is, what is today, 26th. It’s gone over for another six days, so another week. And here we are.

Now on your chronology it says case conference held 14 September, 18 October further case conference held. 25 October updated charge certificate filed, so your opening gambit Ms Melhuish is unsustainable. Case conferences have been held.

MELHUISH; Yes but there’s no case conference certificate filed.

HIS HONOUR: Well in that case I’ll stand the matter down and we’ll stay here until 12 o’clock tonight if necessary so the certificate can be filed. But I’m not countenancing further delay in the matter. Where’s the certificate Mr Crown? Assuming that a certificate’s necessary.

DOOHAN: Your Honour well defence will need some time today…

HIS HONOUR: Failure to complete case conference obligations says s 76.

DOOHAN: That’s right your Honour. That’s what it’s referring to and if your Honour is to commit today in the absence of a case conference your Honour must make a finding under I – that…

HIS HONOUR: 76(2) or…

DOOHAN: 76(3).

HIS HONOUR: See…

DOOHAN: That's right.

HIS HONOUR; The first section though, this section applies where a magistrate is satisfied the case conference certificate has not been filed on the date set by the magistrate. Well I’m satisfied of that because…

DOOHAN: Yeah I’m not cavilling with that your Honour.

HIS HONOUR: Good.

DOOHAN: That's impossible to cavil with that.

HIS HONOUR: So where’s the certificate?

DOOHAN: The last conference, the certificate in requires my friend have instructions as to what is to happen to each of the charges on the new amended charge certificate because the matter cannot be committed for trial or sentence under s 95 unless pleas are indicated.

HIS HONOUR: Well that’s why I indicated that if the defendant or the accused you should say is not entering pleas, I’ll enter them on behalf of him by the Court and make it quite clear that they were Court entered. Whether that preserves any discount or not, I must say. I'm not concerned. Legally that is. Not legally concerned so this matter is a…

DOOHAN: Well if your Honour…

HIS HONOUR: …absolute embarrassment in that it is already over a year old.

By at least one week or two weeks. It is a palpable suppurating embarrassment, so I don’t care which way we do it. I don’t mind standing the matter down and Ms Melhuish can speak with Mr Elwood. I’ll go off the bench if she wants to speak with him whilst he's there. I’ve got nothing else to do today, the next champions league match doesn’t start until 6am tomorrow morning. And actually that's not quite true, there's one on tonight at midnight but I won’t be watching it live, and it's happening today.

DOOHAN: If your Honour pleases.

HIS HONOUR: These things aren’t rocket science in anyway whatsoever. Now before we do that, sequence 19 which is said to be a police pursuit is to be dealt with summarily. What does that actually mean? It’s being returned to the police?

DOOHAN: That's my understanding your Honour yes.

HIS HONOUR: Right so is he in a position to enter a plea to the police pursuit allegation.

MELHUISH: Not at this stage your Honour.

HIS HONOUR; Right and 20 is said to be something. Where’s 20 got to. And 20 is a matter of drive while an allegation of drive whilst disqualified, is he in a position to enter a plea to that?

MELHUISH: Not at this stage your Honour.

HIS HONOUR: Good. Well at some stage today either Mr Elwood will be entering pleas to them or the Court will be. In relation to sequences 13, 16 and 25 which the Crown wishes to take to the other place as I understand it. You can have whatever time you need now, or today to take those instructions. But in the absence of them, I must say this level of satisfaction I have to achieve under s 76 has been achieved already and pleas of not guilty will be being entered by the Court in the absence of pleas being entered by Mr Elwood.

MELHUISH: Sorry if I could just clarify is your Honour satisfied that the unreasonable failure is on behalf of the Crown or of the legal representative?

HIS HONOUR: Both.   

MELHUISH: So that is your Honour planning to discharge?

HIS HONOUR: I don’t know yet I haven't got that far. But the level of satisfaction has been reached merely by the chronology.

MELHUISH: Yes your Honour.

HIS HONOUR: Full chronology, not the amended chronology handed up by the Crown. So would you like to speak to Mr Elwood here?

MELHUISH: No.

HIS HONOUR: All right well Mr Elwood Ms Melhuish is going to come and ring you, but you can be absolutely confident that at the end of the day the matters’ will progressed. So go and ask the whoever you have to ask to be put near a telephone because Ms Melhuish is about to come and ring you all right?

…

AUDIO VISUAL LINK COMMENCED AT 2.01PM

HIS HONOUR: Yes Mr Crown? Yes Ms Melhuish?

MELHUISH: Yes your Honour in furtherance of the application for an adjournment in these matters I seek to read onto the record an affidavit under my own hand if I can tender that.

AFFIDAVIT OF MS MELHUISH TENDERED

HIS HONOUR: Sure. Any objection?

DOOHAN: No I've seen the affidavit and read it your Honour, there’s no objection.

HIS HONOUR: Well I’ve read that.

DOOHAN: Your Honour I’ll try and be a little bit helpful, I’ve reduced some short submissions to writing. If I could hand them up, they're only a page and a half. I've given a copy to my friend.

MELHUISH: There's no objection, I’ve seen those.

HIS HONOUR: All those cases you rattled off I thought I brought in but they must still be out on the - can you see the three cases sit on the desk in chambers please? I thought I brought them back in. Anyway moving along.

DOOHAN; Your Honour I referred to the old case of President Kirby when Kirby J of the High Court was President of the Court of Appeal. I've got the remarks that I refer to in handwriting if you want me to read them out but.

HIS HONOUR: No not really.

DOOHAN: It was just the…

HIS HONOUR: See I don’t think Kirby J or Yehia J or Basten J has ever been met with reality on the ground in relation to these sorts of matters.

DOOHAN: Yes your Honour.

HIS HONOUR: I fully accept what their Honours have said, I must say I intellectually fundamentally disagree with Basten J in the matter that was delivered yesterday or the day before. And I’m sure his Honour will probably lose not a wink of sleep over that and I accept that his Honour as his Honour usually has and probably will continue until they not let him come through the door any longer, deliver well thought out intellectually based judgments of high quality.

It seems to me as a lay - not a lay observer, but somebody being involved in the situation for a long period of time at this lower level that the whole of the EAGP scheme was as contended for by the appellant but unsuccessfully. But I’m bound by what Mr Basten J, Basten JA has now said and consequently I am, but I don’t think it makes a bit of difference to this sort of situation. Yes that's them, thanks very much.

So the one that I was just referring to is Landrey. And I accept as I say what Mr Basten J in that reflects the view of the Court of Appeal and bound by it as I am I will follow it, but it is as far as I can see irrelevant to these proceedings. Except to apply what is said at the case note. I suppose I can find the actual - there we go 31, just read 31 out. Paragraph 31, and I suspect it's Mr Basten J because he delivered the judgment on behalf of the Court. "It is readily apparent from this synopsis of chapter 3 part 2 that the purpose of a committal proceeding is to ensure’’.

…

HIS HONOUR: Righto. So back to the quote.

“That the purpose of a committal proceeding is to ensure proper case administration (as said) of the criminal process, with the dual intention that cases are not listed for trial unless the possibilities of guilty pleas have been explored and so far as possible exhausted. Again to the extent possible, challenges to the evidence of prosecution witnesses have been explored, so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire.”

So it goes on. So the critical words there are proper case management. But so I've read that, and I’ve read what Yehia J has said and I’m aware of that, in fact I think In the past I may have fallen into error in not engaging in that process, but with Yehia's admonishment ringing in one’s ears one doesn’t propose to ever do so again. And I think Mr Button J is on the same wavelength as Yehia J.

But that doesn't come to grips with the gravamen of this particular matter. That seems to been on a - the gravamen of this particular matter is that it is one year and eight days old and it’s clear in the circumstances that the progress spoken of by both Ms Melhuish in her affidavit and by the Crown in the Crown certificate is apparent because the charge case certificate that's now been filed withdraws all but sequences 13, 16 and 25 which is certified for the District Court and leaves also sequences 19 and 20 for summary disposal.

With the greatest of respect to all the parties and to Mr Elwood the underlying legal principles in relation to each and everyone of those offences is crushingly simple. Unless Mr Elwood is raising a defence of that would attract the provisions that he would be declared not fit to plead and therefore can’t understand what's going on, there is nothing complex in these matters. The only complexity arises from the involvement usually of lawyers or the only complexity arises involves the person being spoken to refusing to grasp reality, and the only complexity thereafter is seeking to perpetuate that which is relatively simple.

…

But at this stage the Crown is certifying those three matters. Seeking to have them committed for trial or committed for sentence, one or the other to the other place being the District Court. The police pursuit aspect in relation to one of the summary matters and driving whilst disqualified in relation to one of the other ...(not transcribable)... matter. Again, there's no complexity in relation to either of those two things. There is no reason advanced by either of the two parties for the matter to be continually and fruitlessly delayed.

I DO NOT PROPOSE TO GRANT THE ADJOURNMENT SOUGHT BY EITHER PARTY.

DOOHAN: Court pleases.

HIS HONOUR: So what pleas are being entered to the two summary matters 19 and 20?

MELHUISH: Not in a position to enter pleas at this stage your Honour.

HIS HONOUR: Well in that case pleas of not guilty are entered by the Court. Now a brief is in a position - how many Crown witnesses are there?

…

So Mr Elwood in relation to sequences 19 and 20 the Court has entered a plea of not guilty on your behalf, that’s clearly been marked, I better write down the date - today. Consequently the matter being returned to the Police Prosecutor for a prosecution, and being told that it's a Bourke matter,

THE MATTER IS ADJOURNED TO 8 NOVEMBER 2022 AT BOURKE TO FIX A HEARING DATE AND BAIL NOT BEING APPLIED FOR IS REFUSED.

What pleas if any are being issued, entered I should say in relation to sequences 13 and 16 and 25?

MELHUISH: I'm not in a position to enter pleas today your Honour.

HIS HONOUR: Does anyone want to say anything further in relation to the 76 matter?

DOOHAN: To the s 76?

HIS HONOUR: Aspects, yes, apart from what you've already put in.

DOOHAN: No your Honour not as to 76 apart from whether your Honour wishes to give any more detailed reasons apart from what you’ve already said that's…

HIS HONOUR: I will. I will.

…

HIS HONOUR: But this is your opportunity to put in submissions in relation to it.

DOOHAN: Thank you your Honour.

HIS HONOUR: In addition to what you put in, you don’t wish to, do you wish to say anything further in addition to what you’ve put in Ms Melhuish?

MELHUISH: No your Honour.

The Magistrate’s reasons

20. The Magistrate first made reference to a number of cases in this Court and the Court of Criminal Appeal discussing the EAGP Scheme. His Honour then briefly traced the chronology in the matter from the time the charges were laid. He then said:

It is fair to say that back to the chronology that because the Scheme was invoked the usual processes were then followed. And I say usual because unfortunately some of them are usual in that according to the Practice Note depending on which version of it a six, seven or eight week adjournment from the date of first appearance is allowed for the preparation of a brief. So it cannot have occurred on 13 October 21 one suspects, so on 18 October 21 the Court in accordance with the Practice Note at Dubbo - the Court at Dubbo and in accordance with the Practice Note adjourned the matter until 9 December 21. I have not counted but I will now and it was precisely seven weeks and two days so the six week adjournment spoken of in the Practice Note was complied with.

On 9 December 21 Mr Elwood has been represented on each and every one of these occasions I hasten to add and he appears to have been in custody since at least 12 October 21 when he was arrested, which is a pertinent point. So on 9 December 21 it was announced obviously that the brief was not served, that was not written down, but it was adjourned until 20 January 22 for brief service, which means that another six weeks passed although two of those weeks were probably not usually useful ..(non-transcribable).. available because of the end of year break, and unsurprisingly again the brief was not ready. On 20 January the matter was adjourned to 3 March 22 for brief service another six weeks.

3 March 22 the matter was adjourned to 7 April 22 for brief service, now that is not six weeks on this occasion, it is only five weeks. Come 7 April though, the six month period spoken of in the Criminal Procedure Act had expired. There is the first warning bell that bell I should say that the comments made by Acting Justice of Appeal Basten [in Landrey v Director of Public Prosecutions (NSW) [2022] NSWC 211; (2022) 406 ALR 613] in para 31, in part “The purpose of the committal proceedings to ensure proper case management of the criminal process” had already fallen away.

The Crown I do not know who Moore is, I do not know whether Moore is a police prosecutor or Moore is a public prosecutor - DPP prosecutor, but Prosecutor Moore was placed in the embarrassing position having to ask for an extension under s 67 of the Act because the police or the Crown or both had not been able to explain why the brief had not been complied with the order of the Court and the brief be served be complied with or if they did explain it, it is not noted on the papers.

So the matter went over to 19 May 22, which is another six week period. On 19 May 22 the brief still was not served or served satisfactorily. Another s 67 extension was granted and it went to 9 June 22, with Mr Elwood remaining in custody I hasten to add.

9 June 22 there were still problems, it went over in relation to the brief being served, went over to 30 June 22, with another s 67 extension. Clearly between 30 and 9 June is a period of three weeks.

30 June 22 it went to 21 July 22, which is another three weeks with another s 67 extension being granted on each occasion.

And finally on 21 July 22 nine months after the event, nine months plus after the event a charge certificate was presented. And then the matter went over to 15/9/22 for case conference mention. I have already indicated the use of the word ‘mention’ usually is an indication to the parties that time will expand to meet the work as opposed to work being contracted to meet the time.

On 15/9/22 the matter still was not ready as it was announced by the parties on that occasion and the matter was adjourned until 20 October 22 firstly at Parkes which is where I expected I was to be, and that was my first involvement in the matter. It turned out I was not rostered at Parkes because of other reasons.

I was then rostered at Broken Hill, but again due to illness, mandatorily imposed restrictions consequent upon that illness, which I do not agree with I hasten to add, I was not available last week for the matter to be finalised or dealt with and consequently through the very useful intervention of various registrars it was discovered that this place Cobar where I am today, has AVL and consequently the matter could proceed today.

So consequently when the matter was adjourned from 15/9/22 instead of going to 20 October 22 it went to 26 October 22 which is another six week period tomorrow, so all but another six weeks.

And clearly the time has been spent well because I have already read out the sequences, but the great bulk of the matters the Crown was involved in have been withdrawn there are three strictly indictable matters remaining and two summary disposals. For reasons that Ms Melhuish has not explained and nor is she required to as such, Mr Elwood was unable he says to enter a plea of guilty to two relatively simple concepts in relation to an allegation of police pursuit and driving whilst disqualified.

Consequently given the extensive, unexplained, unsustainable and reprehensible delay in the matter the Court entered pleas of not guilty on behalf of Mr Elwood and they have now been adjourned to 8/11/22 to fix a hearing date because they arise from Bourke. That leaves sequences 13 and 16 and 25, the rest of them being withdrawn by the Crown.

A further adjournment is sought so that further discussions can be had in relation to the three remaining sequences as to whether there is further movement from the Crown or further movement from the defence or further movement from both.

21. His Honour next referred to the adjournment application and the material put forward by Ms Melhuish, noting that it was supported by the Crown in its submissions. His Honour then said:

The Crown remarkably says there is no real prejudice to any party or the administration of justice if a short adjournment say four weeks was granted so that Mr Elwood could give his instructions to his lawyers. Well with the greatest respect to both parties that position is completely and utterly unsustainable.

The interests of justice do not just relate to Mr Elwood or his lawyer, nor do they just relate to the Crown, they also relate to in relation to sequence 13 the complainant in the matter Hanif Abdullah and the allegations he arises in relation to what he says was an offence committed.

The interests of justice also pertain to in relation to sequence 16 Warren Evans and Rosalind Evans being the people of the property allegedly broken and entered into by Mr Elwood.

And the interests of justice also relate to in relation to sequence 25, where Stacey Palin interests [sic] she being the person allegedly robbed and from whom in certain circumstances amounting to an allegation of robbery whilst armed with a dangerous weapon, her interests have to be also taken into account together with the interests of the whole community.

The whole community's interests are also important to the Court, not just the interests of the DPP who purport to represent them, nor the interests of Mr Elwood who has had now 12 months to work out whether he - and take advice and thereafter work out what plea if any he was to enter. He has had the opportunity of participating in two case conferences and I am told that he needs further time to consider his position. He has had plenty of time to consider his position and he has had that time since he was arrested in relation to these allegations, most of which have disappeared I hasten to add being withdrawn by the Crown but he has been in custody now since 12 October 21.

The interests of justice are not narrowly confined they are widespread and they address other factors other than those raised by Mr Elwood through Ms Melhuish and raised by the Crown purportedly on behalf of the community.

22. His Honour then considered s 76 of the Criminal Procedure Act and noted s 74(1), which provides for the Magistrate to make an order setting the day on or before which the case conference certificate was to be filed. His Honour then said:

As already indicated by unambiguous inference that day was 20 October 22. Without the Court specifying that the Court does not in the Local Court usually specify these in seriata (as said) some things are inferred and everybody understands what the next date means especially when the Court says it is in for committal and especially when the Court says there will not be any further adjournments for the reasons that is given.

23. His Honour dealt next with the plaintiff’s solicitor and said:

Ms Melhuish says in her affidavit of today’s date 26/10/22, she became the solicitor of the carriage of the matter on 10 June 22, that was the day after the third s 67 extension was granted. And now some four-and-a-half months later or thereabouts Ms Melhuish says the matters are complex. They probably are they involve 29 sequences alleging serious offending in several different towns, over several days, I accept that.

Clearly though Ms Melhuish demonstrating her substantial capacity for excellence has managed to convince the Crown in the case conferences that have been held to withdraw of the 29 matters all but five. So clearly Ms Melhuish is across the brief, across the complex legal factors that she says pertain and has done I might say a substantially magnificent job in relation to all but the five matters left.

Why the matters remaining have not been able to come to a resolution I do not know, nor do I expect to be told.

The amended charge certificate were withdrawn that is just spoken of was presented to her she says yesterday 25 October, leaving those matters, those circumstances five matters two of which to be dealt with summarily and three in the other place.

Ms Melhuish says she was unable to discuss the matter until today “I was only able to speak to Mr Elwood over the phone". When the matter came before the Court earlier today being advised of those things I stood the matter down so that Ms Melhuish could speak with Mr Elwood whose [sic] available at whatever facility he is actually at, he being on the screen twice now. First time unaffected by the electrical interference and secondly, significant affected by the electrical interference.

Given the capacity of Ms Melhuish to have already had have 24 of the matters withdrawn by the Crown, given the understanding that Mr Elwood would have had and must have had in relation to providing Ms Melhuish with the instructions to successfully negotiate the withdrawal of 24 sequences. I am not satisfied that Ms Melhuish really needed to have any further discussions in relation to the matter with Mr Elwood because all of those discussions would have been had already in relation to the Crown accepting whatever it is that Ms Melhuish put up on behalf of Mr Elwood to have the Crown accept that they could not prove to a prima facie case level or to any other level the 24 matters that they have subsequently withdrawn.

In those circumstances I must say that I have considered the interest of justice, they are greater than the interest of justice maintained or agitated for by both Ms Melhuish on behalf of Mr Elwood and the Crown on behalf of itself because they have just failed to take into account the three or four complainants already spoken of and how the further inexplicable and continuing delays is anything other than an abrogation of proper procedure, anything other than a undermining of the concepts spoken of by Acting Justice of Appeal Basten in Landrey whereas he says,

“The purpose of a committal proceeding is to ensure proper case management of the criminal process with the dual intention that cases are not listed for trial until the possibilities of guilty pleas have been explored and so far as the possibilities exhausted and again to the extent possible challenges to the evidence the prosecution witnesses have been explored so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire.”

There has been within Acting Justice Basten's of appeal’s [sic] decision purpose of going through the chronology more than adequate opportunity for all of those factors to be discussed because the only rational inference available ..(not transcribable).. that the Crown has gone to water or withdrawn 24 of the 29 allegations is that those things have been discussed in detail and the deficiency in the Crown case pointed out.

It is not feasible for five matters to somehow have some special and separate status applied to them to say that 'we have not been able to discuss those matters because of or 'due to' or anything along those lines. They cannot be severed, hived off, separated out or dealt with as though they are creatures from a separate lagoon entirely.

There has been more than sufficient time for matters to be discussed. I accept what Ms Melhuish said this morning that she may not have been able to speak to Mr Elwood in person, the matter was stood down and there has been plenty of time today for that to occur.

Ms Melhuish says the pleas are not able to be entered, she is not required to explain why. I do not propose to insist upon it because (a) I cannot and (b) Ms Melhuish would tell me that she is not obliged to tell me in any event, quite rightly I hasten to add.

But in the absence of any rational explanation it seems to me to given the chronology and given all the other things that I have said now meets the test of being an unreasonable failure by the legal representative of the accused person to complete a case conference certificate.

And in those circumstances,

I PROPOSE TO COMMIT MR ELWOOD FOR TRIAL IN RELATION TO SEQUENCES 13 AND 16 AND 25 AND MAKE IT CLEAR ON THE PAPERS THAT A PLEA OF NOT GUILTY HAS BEEN ENTERED BY THE COURT.

The present proceedings

24. The summons was filed on 20 February 2023, an extension of time having been given by the Local Court on 6 December 2022, pursuant to Pt 51B r 5(5A) of the Supreme Court Rules 1970 (NSW). However, the DPP’s submissions challenged whether the grounds of appeal in the summons constituted questions of law alone.

25. Accordingly, the plaintiff filed an amended summons on 26 June 2023 seeking leave to appeal on the following grounds:

1. The Magistrate erred in his consideration of the question of whether there had been an “unreasonable failure" by the legal representative of the accused, as required by s 76(3) of the Criminal Procedure Act 1986 (NSW) (CPA) in a manner involving the following questions of law alone:

a.   Whether the length of time between a matter’s first mention and the filing of a charge certificate, including any delay in that period, is relevant to that question;

b.   Whether a Magistrate may decide, in advance of a mention and the receipt of any evidence and submissions, to refuse to adjourn a matter further and commit the accused if they do not enter a plea;

c. Whether the failure to complete a case conference certificate may be unreasonable under s 76(3) where negotiations between prosecution and defence are active and ongoing and there is a prospect of resolution without a trial.

2. The Magistrate misconstrued the “interests of justice” for the purposes of s 76(4) of the CPA, which conditions the exercise of power under s 76(3), in a manner involving the following questions of law alone:

a. Whether the “interests of justice" require a Magistrate satisfied under s 76(1) that a case conference certificate has not been filed by the date set to consider the available pathways under s 76, including discharge under s 76(2) (if satisfied there has been an unreasonable failure by the prosecutor), adjournment under s 76(2)(b) or s 76(3)(b), or committal under s 76(3)(a);

b. Whether in considering the "interests of justice" a Magistrate must consider the impact of the exercise of the power under s 76(3)(a) on an accused, including depriving an accused of the benefit of the discount on sentence available for an early plea of guilty under s 25D(2)(a) of the Crimes (Sentencing Procedure] Act 1999 (NSW);

c.   Whether in considering the “interests of justice" a Magistrate must consider the purpose of committal proceedings, including to exhaust the possibilities of guilty pleas and avoid unnecessary trials.

3.   The Magistrate's finding that the Plaintiff’s representative had unreasonably failed to complete the case conference certificate was made without evidence.

4. The Magistrate took into account irrelevant considerations in exercising the discretion to commit the accused under s 76(3)(a) of the CPA, including:

a.   The length of time, including delay, between the first mention of the accused’s matter and the complete service of the brief of evidence;

b.   The perceived simplicity or complexity of the charges; and

c.   The Magistrate's personal views about the merits of the Early Appropriate Guilty Plea Scheme.

5. The Magistrate failed to consider mandatory relevant considerations in exercising the discretion to commit the accused under s 76(3)(f) of the CPA, including: 

a. The impact of the exercise of the power under s 76(3Ka) on an accused including depriving an accused of the benefit of the discount on sentence available for an early plea of guilty under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW): and

b.   The purpose of committal proceedings, including to exhaust the possibilities of guilty pleas.

6. The Magistrate’s decision to commit the accused under s 76(3)(a) of the CPA was legally unreasonable.

26. The DPP accepted that paragraphs 1b, 2a, and 2b raised questions of law alone. In those circumstances, the DPP submitted that it was not necessary to consider grounds 3 to 6 which were the grounds seeking certiorari on the basis of error of law on the face of the record.

Ground 1a – whether the length of time between the first mention and the filing of the charge certificate is relevant to “unreasonable failure”

Plaintiff’s submissions

27. The plaintiff submitted that the first question of law that arises was whether the length of time between a matter's first mention and the filing of a charge certificate, including any delay in that period, is relevant in considering whether the legal representative of the accused has unreasonably failed to complete a case conference certificate in accordance with s 76(3) of the CPA.

28. The plaintiff submitted that the Magistrate effectively read into the provision a time limit after which any failure to complete a case conference certificate must be unreasonable. The plaintiff submitted that the Magistrate recited the full chronology of the case, stretching back to the first mention, and was critical of the length of time the proceeding had been on foot, including delays in serving a compliant brief of evidence. The assumption underpinning the reasoning was that the full chronology was relevant to the question of whether the plaintiff’s lawyer's failure to complete the case conference certificate was unreasonable.

29. The plaintiff submitted that the Magistrate’s answer to the question was incorrect. The question of the reasonableness of the legal representative's conduct can only be informed by their conduct in the period when case conferencing was permissible. Anterior delays cannot render their conduct unreasonable when those delays are not in any way attributable to their conduct.

Defendant’s submissions’

30. The defendant drew attention to what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220, and submitted that the question was a mixed question of fact and law because there might be circumstances where the delay the Magistrate took into account could be relevant.

Consideration

31. In Orr, the joint judgment of Bathurst CJ and Bell P said:

[58]   It follows from these decisions that, whether or not the answer to a question framed along the lines of “whether or not it was ‘open’ to a judge to hold, on the facts as fully found, that a particular matter fell within the ordinary English meaning of a statutory expression reveals an error of fact or an error of law” depends upon the answer to the question. If it was open to so find, any error in the judge’s conclusion would be one of fact, and not one with which a court authorised only to intervene on a question of law could disturb: see Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 33-34 (Edwards); if it was not open to so find, the error would be one of law. Edwards has been cited with approval in this context in Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [25] and [109]; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349; [1990] HCA 33.

[59]   A question so framed is not, in our opinion, obviously or self-evidently a question of law; rather it is simply a question which, depending upon the answer, will reveal either an error of fact or an error of law. If the latter, an appellate court authorised to intervene only in respect of such errors may do so. Putting the matter slightly differently, a question whether or not a particular conclusion based upon facts fully found was “open” to a judge cannot be characterised as a question of law in any a priori sense. It is, at most, a question of mixed fact and law, an expression which, in Da Costa v R (1968) 118 CLR 186 at 195; [1968] HCA 51, Windeyer J said “seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other”.

32. In Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 the High Court said at [24]:

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General:

"[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law".

(citations omitted)

33. Although there seems to me to be a measure of tension between what is said in Orr at [59] and what is said in Vetter at [24], in my opinion, the Director’s submission that this ground does not raise a question of law alone is correct. It cannot be said, for example, that the length of time the proceedings are on foot could never be relevant for the action the Magistrate took. In that way, the question is a mixed question of law and fact. The Magistrate may well have been in error in including in his assessment of “unreasonable failure” the delay prior to the date on which the brief was compliant, and that would simply amount to an error of law, but does not raise a question of law. As was said in Orr at [59], it is simply a question which, depending on the answer, will reveal an error of fact or law, but probably the latter.

Ground 1b – whether Magistrate can decide in advance that matter won’t be adjourned

Plaintiff’s submissions

34. The plaintiff submitted that the next question of law which arose was whether the Magistrate could decide in advance of a mention and the receipt of any evidence and submissions, to refuse to adjourn a matter further and commit the accused if the accused does not enter a plea.

35. The plaintiff submitted that the Magistrate’s approach to the question was incorrect. A magistrate does not have an unrestricted power to commit. It is conditioned on the satisfaction of the matters in s 76(1) and (3), and its exercise must follow a consideration of the interests of justice under s 76(4). The assessment as to whether a legal representative has acted unreasonably must be made at the time when the magistrate exercises the power under s 76(3), and must be based on evidence. The "interests of justice" calculus under s 76(4) may also change over time.

Defendant’s submissions

36. The defendant accepted that this ground raised a question of law alone. The defendant also accepted that the Magistrate pre-judged the matter in advance of hearing arguments about why the matter should be adjourned

Consideration

37. It scarcely needs to be said that a judicial officer is not entitled, prior to hearing from the parties, to make a decision that affects the rights of one party or other to the proceedings, absent some clear statutory authority to do so. This is one of the two traditional rules of natural justice, its Latin name being audi alteram partem.

38. The evidence points strongly to the Magistrate having erred by prejudging the matter without having heard from the parties why they were seeking an adjournment.

39. First, the evidence discloses that when the proceedings were before the Magistrate on 15 September 2022 he had marked the papers “no further adjournments”.

40. Secondly, when the Crown Prosecutor had said only that he would be seeking a short adjournment to enable the lawyer for the defendant to obtain instructions on a fresh charge certificate, with the prosecutor saying that he was aware that the Magistrate was keen to commit the matter that day, the Magistrate said:

No no I’m not keen. It’s just that it’s going to happen.

41. Thirdly, having made the determination under s 76(1) of the CPA, the following exchange occurred:

HIS HONOUR: Good. Well at some stage today either Mr Elwood will be entering pleas to them or the Court will be. In relation to sequences 13,16 and 25 which the Crown wishes to take to the other place as I understand it. You can have whatever time you need now, or today to take those instructions. But in the absence of them, I must say this level of satisfaction I have to achieve under s 76 has been achieved already and pleas of not guilty will be being entered by the Court in tine absence of pleas being entered by Mr Elwood.m

MELHUISH: Sorry if I could just clarify is your Honour satisfied that the unreasonable failure is on behalf of the Crown or of the legal representative?

HIS HONOUR: Both.   

MELHUISH: So that is your Honour planning to discharge?

HIS HONOUR: I don’t know yet I haven't got that far. But the level of satisfaction has been reached merely by the chronology.

42. It should be noted that nowhere thereafter in his reasons does the Magistrate explain how he exonerated the Crown from the above finding that there had been unreasonable failure on the part of both sides.

43. Finally, and before Ms Melhuish was able to speak to the defendant, the Magistrate said to the defendant:

All right well Mr Elwood Ms Melhuish is going to come and ring you, but you can be absolutely confident that at the end of the day the matters’ will progressed.

44. This ground involves a question of law alone. The Magistrate made his decision without hearing from the parties. He had, in any event, prejudged the matter from the prior occasion, and maintained that prejudgment from the outset on 26 October 2022. Although he later received and read an affidavit from the plaintiff’s lawyer and submissions from the prosecutor, he had clearly indicated a number of times before that what his decision was.

45. Leave should be granted to the defendant because the decision deprived the defendant of a significant right of a discount for a plea prior to committal arising by reason of s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), with s 25A preventing any modification of the discount.

Ground 1c – whether failure to complete a case conference certificate may be unreasonable when parties still negotiating

Plaintiff’s submissions

46. The plaintiff submitted that a further question of law arising is whether the failure of the legal representative of an accused to complete a case conference certificate may be unreasonable under s 76(3) where negotiations between prosecution and defence are active and ongoing, and there is a prospect of resolution without a trial.

47. The plaintiff submitted that the Magistrate proceeded on an assumption that the answer to the question was in the affirmative, when the evidence and indications from both parties were that negotiations were active and ongoing. The utility of those negotiations was demonstrated by the filing of the amended charge certificate the day before. The Magistrate did not make any findings rejecting the evidence of the negotiations or dismissing the prospect that the parties might reach an agreement through the case conference process.

48. The plaintiff submitted that the Magistrate’s approach runs counter to the purpose of committal proceedings in the EAGP scheme, which is to avoid listing trials where the possibilities of guilty pleas have not been explored and exhausted. Reliance was placed on what was said in Landrey v Director of Public Prosecution (NSW) [2022] NSWCA 211 at [31].

Defendant’s submissions

49. The defendant repeated her submissions in respect of ground 1a.

Consideration

50. For the reasons I gave with respect to ground 1a, this ground involves a mixed question of fact and law. It cannot be said that there could never be an unreasonable failure on the part of the defendant’s legal representative because the parties were still negotiating. This is a mixed question of fact and law.

Ground 2 – what must be taken into account when the “interests of justice” are being considered under s 76 of the CPA

51. The three sub-grounds here all concern matters which it is asserted should have been taken into account when considering the “interests of justice”. It is convenient to deal with them together.

Plaintiff’s submissions

52. In relation to the “interests of justice”, the plaintiff submitted that the question of law arising was whether the "interests of justice" require a magistrate, who is otherwise satisfied under s 76(1) that a case conference certificate has not been filed by the date set, to consider the available pathways under s 76. The options are a discharge of the accused person, an adjournment of the committal proceedings, or a decision to commit the person for trial or sentence.

53. The plaintiff submitted that, although the Magistrate initially indicated he was satisfied of unreasonable failure on the part of both the parties, the transcript indicates that he did not seriously consider whether any failure might be properly attributable to the prosecutor rather than the accused. More significantly, the plaintiff submitted, the Magistrate did not consider whether the interests of justice favoured an adjournment over committal.

54. The plaintiff submitted that the next question of law was whether in considering the "interests of justice", a magistrate must consider the impact of the exercise of the power to commit an accused, including depriving the accused of the benefit of the discount on sentence available for an early plea of guilty under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The plaintiff submitted that a consideration of the "interests of justice" required the Magistrate to have regard to the impact of his decision on the accused, including the discount of which he would be deprived in the event of a plea of guilty. That would be a forensic disadvantage to the plaintiff.

55. The plaintiff submitted that the Magistrate's reasons reveal that he did not consider the purpose of committal proceedings identified in Landrey at [31] when considering the interests of justice. This is because the purpose of committal proceedings as identified in Landrey goes towards the efficiency of the criminal justice system as a whole, as well as fairness to an accused.

Defendant’s submissions

56. The defendant accepted that grounds 2a and 2b involved questions of law, and that the Magistrate had erred in his approach to the consideration of the interests of justice. In relation to ground 2c, the defendant submitted that, as drafted, the ground does not involve a question of law alone because it does not properly express what is said in Landrey. The plaintiff accepted the defendant’s criticism of the ground and sought leave to amend the ground to include the words “so far as possible” after the word “including”.

56. The defendant also accepted that it would be open to the Court to find that the “interests of justice” required the Magistrate to have regard to the impact of his decision on the accused as one relevant factor, including in relation to the sentencing discount only available before committal. The defendant submitted that it would be open to the Court to find that the interests of justice required the Magistrate to consider the purposes of committal proceedings so that cases were not listed for trial until the possibility of guilty pleas had been explored and as far as possible exhausted.

Consideration

58. In R v PL [2012] NSWCCA 31, Bathurst CJ said:

[37]   There remains the issue of whether the error of the trial judge was an error of law alone or an error of mixed fact and law. It was correctly accepted by the parties that the Crown was not entitled to appeal on a question of mixed fact and law. If what the trial judge did was to wrongly apply the correct principles to the facts, that would be an error of mixed fact and law and an appeal would not lie (see Smith v R (2000) 1 WLR 1644 at 1653).

[38]   The respondent contended that in the present case any error of the trial judge was an error of that nature and that at most the trial judge had wrongly concluded, in accordance with the correct principles, that there was not evidence on which a jury could convict, thereby committing an error of mixed fact and law.

[39]   Although support for this argument can be derived from the correct statement of the principles in the opening paragraphs of the judgment of the trial judge, it seems to me for the reasons set out above he failed to apply these principles in reaching his conclusion, in particular in his requirement of sufficient certainty and in his consideration of various hypotheses favourable to the accused. The trial judge in these circumstances in my view, applied incorrect principles to his consideration of the issue and thereby committed an error of law alone.

59. In my opinion both grounds 2a and 2b involves questions of law alone. They deal, effectively, with statutory construction, and what the mandatory considerations are for the exercise of a statutory power. Ground 2c similarly raises a question of law alone for the same reason but, as the defendant correctly asserts, the ground does not accurately state the principle required to be considered. I would grant leave to the plaintiff to amend ground 2c as sought.

60. One of the difficulties about the Magistrate’s reasoning is that his whole focus was on delay. The focus of s 76 is not delay, per se, but on a failure either to participate in a case conference or to complete a case conference certificate. No doubt, delay will frequently be the cause of the failure but that is not necessarily so. There may be a failure from wilfulness, or even from incompetence or neglect on the part of a legal representative despite there not being what may be described as delay. On the other hand, there may be delay (as here) or even long delay which does not demonstrate unreasonable failure to participate in a case conference or complete the certificate.

61. A further difficulty with the Magistrate’s reasons is that, having said that he considered both parties were at fault that the matter had not proceeded further, he does not explain why he took the pathway in s 76(3)(a) rather than one of the other available pathways. There is no explanation why, if both parties were at fault, his final conclusion was only that the applicant’s legal representative was guilty of unreasonable failure. Nor was there any finding about how the applicant’s legal representative was to complete the case conference certificate when it had not been completed by the prosecutor.

62. There is the further problem that the period of time from the laying of the charges in October 2021 until 21 July 2022 (when the charge certificate was filed) was taken into account by the Magistrate against the applicant when, on no view in this case, could there have been any failure in that time by the applicant’s legal representative.

63. In my opinion, the Magistrate was bound to consider the different pathways provided for in s 76. He was also required to have regard to the purpose of committal proceedings as set out in Landrey at [31]. Finally, the Magistrate was required to have regard to the effect of committal, if that was the pathway he chose, on the defendant by reason of s 25D of the Sentencing Act, following what had been said by Yehia J in Coles v Director of Public Prosecutions [2022] NSWSC 960 at [27]-[29] and Button J in Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 at [13]-[19] and [24].

64. The Magistrate, seemingly, had no regard for the different pathways available under s 76. Having considered that both parties were at fault that the matter had not proceeded more expeditiously, no reasons are given, as noted earlier, for taking the course he did.

65. In relation to the s 25D matter, his Honour expressly ignored considering the matter by saying:

Well that’s why I indicated that if the defendant or the accused you should say is not entering pleas, I’ll enter them on behalf of him by the Court and make it quite clear that they were Court entered. Whether that preserves any discount or not, I must say, I'm not concerned. Legally that is. Not legally concerned so this matter is a…

That conclusion was in the face of the written submission made by the prosecutor where both Coles and Hijazi were referred to.

66. However, I cannot be satisfied that the Magistrate did not give consideration to the purpose of committal proceedings. During the course of the argument, his Honour set out the passage from Landrey, and did so again during the course of giving his reasons. In Landrey, Basten AJA said (Ward P and Simpson AJA agreeing) at [31]:

It is readily apparent from this synopsis of Ch 3, Pt 2 that the purpose of a committal proceeding is to ensure proper case management of the criminal process, with the dual intention that cases are not listed for trial until the possibilities of guilty pleas have been explored and, so far as possible, exhausted, and, again to the extent possible, challenges to the evidence of prosecution witnesses have been explored, so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire. It is apparent from the NSW Law Reform Commission’s 2014 report, Encouraging appropriate early guilty pleas (Report 141) (“NSWLRC Report”), that these were indeed the purposes underlying the proposed amendments. Although the Report did not contain a draft bill, it is clear that the 2017 Amendment Act followed closely the recommendations of the Commission. In formulating those recommendations, the Commission had regard not only to the need for procedural reform in NSW, but also to the range of models for reform which had already been adopted either in other Australian jurisdictions or overseas.

67. During argument, his Honour said that he was bound by the decision, that he would follow it, and, although he considered the decision was irrelevant to the proceedings before him (he did not say why), he said he would apply what was said at [31].

68. Although the plaintiff submitted that the Magistrate focused only on the case management aspects of Basten AJA’s remarks as being the critical ones, I cannot conclude that his Honour did not take into account all that was said in that passage in Landrey. I accept that he did not focus particularly on the “dual intention” referred to by Basten AJA but, having quoted the passage, he did form a view that there had been sufficient time for discussion, saying:

There has been within Acting Justice Basten's of appeal’s [sic] decision purpose of going through the chronology more than adequate opportunity for all of those factors to be discussed because the only rational inference available ..(not transcribable).. that the Crown has gone to water or withdrawn 24 of the 29 allegations is that those things have been discussed in detail and the deficiency in the Crown case pointed out.

69. Although one might have thought that a fresh charge certificate being served the day prior to the Court appearance, with what was said in the affidavit of Ms Melhuish and what appeared in the prosecutor’s written submissions, together with the Magistrate’s own assessment that “the time has been spent well because…the great bulk of the matters …have been withdrawn”, would have resulted in the adjournment pathway in s 76 being followed (especially where the Magistrate had considered both parties at fault), the limits on an appeal under s 53(3)(a) preclude a finding by this Court of error on the part of the Magistrate in that regard.

70. I would uphold grounds 2a and 2b, but not 2c. For the reasons given in relation to ground 1, leave should be granted.

Grounds 3 to 6

71. Since grounds 1b, 2a and 2b have been upheld, it is not necessary to consider these grounds.

Conclusion

72. It may be observed from the portions of the transcript reproduced earlier, that the Magistrate made a number of highly inappropriate remarks which had the tendency to disparage judges of this Court. He also expressed his own personal views about the EAPG system which Parliament enacted.

73. It is not the place of a magistrate to say, “I intellectually fundamentally disagree with [a judge of the Court of Appeal] in the matter that was delivered yesterday”. The doctrine of stare decisis requires that judicial officers in lower courts accept the decision of higher courts. Further, to say of judges of this Court that he does not think that they have “ever been met with reality on the ground in relation to these sort of matters”, particularly when their decisions had been cited to him, is to bring this Court and the system of justice into disrepute.

74. These remarks are not made from any personal sensitivity for the judges of this Court, or for those who enacted the amendments to the CPA in regard to committal proceedings. The community, and those who come before the criminal justice system, must have confidence in the courts and in the way criminal justice operates.

75. For that reason, the proceedings will be remitted to the Local Court to be dealt with by a different Magistrate.

76. I make the following orders:

1. Grant leave to appeal.

2. Uphold grounds 1b, and 2a and 2b of the Amended Summons.

3. Set aside the decision of Magistrate Prowse of 26 October 2022 committing the plaintiff for trial in relation to sequences 13, 16 and 25.

4. Set aside the decision of Magistrate Prowse of 26 October 2022 in relation to sequences 19 and 20.

5. Remit the proceedings to the Local Court at Dubbo to be dealt with by a magistrate other than his Honour Magistrate Prowse.

6. No order for costs of the proceedings to the intent that each party should pay their own.

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Decision last updated: 14 July 2023