McCarthy (Blacktown City Council) v Prasad

[2007] NSWSC 997

CITATION:	McCARTHY (BLACKTOWN CITY COUNCIL) v PRASAD [2007] NSWSC 997
HEARING DATE(S):	30 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	30 July 2007
DECISION:	1. Decision of Brown LCM made in the Blacktown Local Court on 24 April 2007 be set aside; 2. Matter be remitted to the Local Court for determination according to law.
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Legal Profession Act 2004
CASES CITED:	Connor v Petelo [2005] NSWSC 1025 Damjanovic v Maley [2002] 55 NSWLR 149; [2002] NSWCA 230
PARTIES:	Raymond McCarthy (Blacktown City Council) (1P) Sergeant Terry James (2P) Suresh Prasad (1D) Brown LCM (2D)
FILE NUMBER(S):	SC 12479/07
COUNSEL:	B Baker (Pltfs) No appearance (1D) Submitting appearance (2D)
SOLICITORS:	I V Knight, Crown Solicitor (Pltfs)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Brown LCM
LOWER COURT DATE OF DECISION:	24 April 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

MONDAY 30 JULY 2007

12479/07 McCARTHY (BLACKTOWN CITY COUNCIL) & ANOR v PRASAD & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiffs challenge a decision by a Local Court Magistrate in relation to the person entitled to prosecute proceedings for a parking offence in the Local Court. Suresh Prasad allegedly parked in the area of the Blacktown City Council contrary to a sign.

2 Proceedings were brought in the Local Court. Raymond McCarthy, an officer of Blacktown City Council, was named as the prosecutor on the relevant process.

3 There is an agreement in place between the Council and the relevant State instrumentality by which the administration of parking matters in Blacktown City is to be conducted by the Commissioner of Police. That agreement was entered into in September 2002. Since that time the relevant State instrumentality has become the State Debt Recovery Office.

4 The original agreement required the Commissioner of Police to provide a police prosecutor to appear in court to prosecute these matters. Although the Commissioner of Police is no longer the primary state instrumentality under the agreement, nevertheless the arrangement by which a police prosecutor is to appear continues.

5 The present proceedings came before Magistrate Brown in the Local Court at Blacktown. Application was made by police prosecutor Sergeant Terry Jones for leave to appear on behalf of the Council to prosecute the proceedings. That leave was denied and on 24 April 2007 his Honour published written reasons for rejecting the application.

6 The Crimes (Appeal and Review) Act 2001 provides for appeals by prosecutors to this Court. Section 56(1) provides an appeal as of right in relation to an order made by a Local Court dismissing a matter, the subject of any summary proceedings, "but only on a ground that involves a question of law alone" (s 56(1)(c)).

7 Pursuant to s 57 a prosecutor may appeal to the Supreme Court against an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings but like s 56 "only on a ground that involves a question of law alone" and, furthermore, "only by leave of the Supreme Court" (s 57(1)(c)).

8 The plaintiffs submitted that the magistrate erred in law when he determined that he would not exercise the power which he had to grant leave to Sergeant James to prosecute the proceedings on behalf of the Council.

9 The magistrate's reasons commence with consideration of the relevant provisions of the Criminal Procedure Act 1986, in particular ss 36 and 37. Section 36 provides for representation of both a prosecutor and an accused person in proceedings. Apart from appearing in person or by a barrister or solicitor, a person "empowered by an Act or other law" may appear and, by s 37, prosecute the matter.

10 Section 36(2) provides that where a prosecutor is a police officer a police prosecutor may appear. However, where the prosecutor is not a police officer another person, which relevantly would include a police prosecutor, may only appear if s 36(1) so provides.

11 Section 36(1) provides for a person empowered by any Act to appear but also provides that a person empowered by any other law may appear for the prosecutor.

12 Before the Act came into force there was no difficulty in a magistrate in a Court of Petty Sessions or Local Court granting leave in the present circumstances. The approach which was adopted was that the Local Court, having a power to control proceedings before it, could grant leave for another person to appear and prosecute.

13 This was recognised by the Court of Appeal in Damjanovic v Maley [2002] 55 NSWLR 149; [2002] NSWCA 230 at 163 where Stein JA said:

“There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons”.

14 The question of power to grant leave to a police prosecutor to appear on behalf of a government instrumentality to prosecute an offence was considered by Adams J in Connor v Petelo [2005] NSWSC 1025. In that case his Honour was concerned with whether a police prosecutor could prosecute on behalf of the State Rail Authority or, as the magistrate had determined, could only do so through a solicitor or barrister.

15 His Honour held that the long-standing practice of permitting police prosecutors to appear with leave in such matters was not removed by s 36 of the Criminal Procedure Act. Although his Honour does not rest his decision upon the reference to “other law” in the section, in my view the conclusion which his Honour expressed was correct.

16 In the present case the learned magistrate carefully examined the decision of Adams J and, although he obviously had considerable reservations about whether or not it was correct, accepted that he was obliged to follow it. For that reason it is unnecessary for me to further consider whether or not there is power in a Local Court magistrate to grant leave to a police prosecutor to prosecute in the present circumstances.

17 Apart from expressing his reservations about that question Brown LCM gave consideration to another difficulty which he believed may stand in the way of a grant of leave. His concern was that by providing the services of a prosecutor to prosecute proceedings in the Local Court a breach of ss 14 or 15 of the Legal Profession Act 2004 may be occurring.

18 I have previously indicated that the arrangement by which prosecutions are conducted by a prosecutor is embodied in an agreement between the Council and the Commissioner of Police. Although the agreement anticipates that a prosecutor will be available when required, a necessary implication of the arrangement is that a prosecutor will only appear if leave of the court is granted for that purpose. In that event the appearance of the police prosecutor will be authorised by the grant of leave. That grant both sanctions the prosecutor's appearance and, being an appearance under the authority of a law of this State, a breach of s 14(1) of the Legal Profession Act 2004 cannot occur (s 14(2)).

19 The mere appearance with leave to prosecute a matter would not constitute engaging in legal practice which is prohibited by s 15(2) unless carried out by an incorporated legal practice or a complying community legal centre.

20 Having raised concerns about whether or not a breach of the Legal Profession Act is occurring, the magistrate turned to consider the principles discussed by Stein JA in Damjanovic relevant to the exercise of his Honour’s discretion. His Honour discussed each in turn.

21 The plaintiffs are not critical of his Honour's consideration of matters relevant to the complexity of the case or difficulties for an unrepresented party, although they are critical of some aspects of his Honour's discussion of the question of disciplinary matters. In any event those issues are not significant to the resolution of these proceedings.

22 However, criticism is made of his Honour's discussion of matters under the headings “Protection of the client and the opponent”, “Lay Advocates in inferior courts and tribunals”, and “The interests of justice”. In Damjanovic Stein JA said:

“Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse at 546 highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S .

One should also not lose sight of a lawyer's duty to his/her opponent, Scotts Head at 3. None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer.”

23 His Honour does not analyse for himself the elements considered by Stein JA in those paragraphs. He says without further discussion, that “all the comments under this head in Damjanovic apply to unqualified representatives whether or not members of the police force”.

24 In my view that decision by the magistrate reflects a fundamental misunderstanding of the relevant principle. Although a police prosecutor may not be a qualified legal practitioner, and this is the case in the present matter, he may not be without very considerable experience. Police prosecutors are, of course, employed to appear every day in the courts prosecuting both relatively straightforward matters and some with greater complexity. They do so with the burden of the disciplinary structure of the police service and mindful of their responsibilities to the court. Although not an officer of the court they are nevertheless obliged to conduct themselves in a responsible manner assisting in the efficient and just disposition of the court's business. They are not just ordinary members of the public, they are certainly not “unqualified, unaccredited and uninsured” in the sense discussed by Stein JA.

25 Because the magistrate does not engage in a discussion of Stein JA’s remarks under this subheading, it can only be concluded that his Honour was of the view that it was appropriate to deny leave to a police prosecutor in the present case for the same reason that leave might be denied an entirely unqualified and inexperienced advocate. In so doing, in my view, the magistrate misapplied Damjanovic and failed to have regard to an essential matter relevant to his decision.

26 Under the heading “Lay Advocates in inferior courts and tribunals” Stein JA commented that there are indications in some of the cases that Local Courts, “given their jurisdiction and large numbers of unrepresented litigants, maybe more likely to grant leave to unqualified persons”. His Honour went on to say “this is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his or her own case. This may also be the case with some specialist jurisdictions and tribunals.”

27 The magistrate commented that:

“This principle clearly provides no basis for a general rule allowing police prosecutors to appear on behalf of councils or government bodies who are perfectly capable of retaining qualified legal representation”.

28 There are a number of difficulties with his Honour’s statement. Although it may be true that there are many cases where leave has been granted to a lay person to appear for a litigant, there is a long history of police prosecutors also being granted leave. This practice recognises the experience and skill which prosecutors bring to the presentation of criminal proceedings in the summary jurisdiction of the Local Court. It is true that any government body would be able to obtain qualified legal representation to appear for it. However, if in the interests of minimising the cost to the public purse arrangements are made for police prosecutors to appear to prosecute parking offences, I can see no reason why this would not be consistent with the principles previously applied by Local Courts.

29 As Stein JA points out, lay representation has also been allowed in specialist jurisdictions and tribunals. The prosecution of parking offences in the Local Court is an area of confined difficulty where the routine application of rudimentary legal principles is required. The work is akin to work which might be conducted in a specialist jurisdiction. The matters in the main will be straightforward and uncomplicated. Where the proceedings meet that description I see no reason why leave should not be granted to a police prosecutor to appear. If, as the plaintiffs submit, this will bring very considerable financial savings to public authorities, the grant of leave, unless there are special considerations to the contrary, would be almost inevitable. I can see no reason why it should not be granted.

30 The magistrate also considered the remarks of Stein JA under the heading “The interests of justice”. The magistrate recognised that in simple matters where the defendant is unrepresented there is nothing encompassed within the concept of the “interests of justice” that requires or militates strongly in favour of one side being represented by someone exercising police authority in distinction to someone exercising the authority of the prosecutor council.

31 If, as I understand it, the magistrate concluded that a parking matter was simple and where a defendant was unrepresented no injustice would be created by a police officer prosecuting on the council's behalf, this conclusion would be correct. However, his Honour was mistaken in the assumption that in prosecuting on behalf of the council the police prosecutor would be exercising police authority. If granted leave to appear the police prosecutor will be prosecuting on behalf of the council. In this case I can see no injustice if this is allowed to occur.

32 In the final sentence of his consideration of this aspect of the matter his Honour returned to the question of the Legal Profession Act 2004 and again suggested that the arrangement between the Council and the police force maybe a breach of that Act. It is plain from the way his Honour approached that aspect of the matter that it has in part informed his view that leave should not be granted to the police prosecutor. He says:

“If as already suggested the arrangement between the council and the police force is a breach of the Legal Profession Act 2004 then the interests of justice cannot possibly be served by condoning or encouraging the illegal activity by organs of the State.”

33 I have already indicated that in my view the arrangements between the Council and the police force are not a breach of the Act. By approaching the matter as his Honour did it seems to me his decision has been informed by an irrelevant consideration.

34 To succeed in this matter the plaintiffs must satisfy me that the errors which are apparent in the magistrate's reasoning constitute errors of law capable of correction by this Court. I am satisfied that this is the case. The errors which I have identified lead inevitably to the conclusion that the magistrate approached the grant of leave with a misunderstanding of the considerations relevant to that decision.

35 Before the Local Court the magistrate refused leave for the police prosecutor to appear and then refused the Council's application for an adjournment to allow proceedings to be brought in this Court. The basis upon which an adjournment was refused is not evident. I am not able to discern any justification for it.

36 Faced with those circumstances the council offered no case and the proceedings were dismissed. In those circumstances, as I am satisfied that the magistrate's decision to decline leave was infected by an error of law, it should be set aside and the matter remitted to the Local Court to be determined according to law.

37 Accordingly I make the following orders:

1. Grant leave to appeal.
2. Appeal upheld and the decision of the magistrate refusing leave for Sergeant Terry James to appear for the prosecutor is set aside.
3. Remit the matter to the Local Court for determination according to law.

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