Woods v Director of Public Prosecutions (NSW); Fantakis v Director of Public Prosecutions (NSW)

[2016] NSWSC 447

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Woods v Director of Public Prosecutions (NSW) ; Fantakis v Director of Public Prosecutions (NSW) [2016] NSWSC 447
Hearing dates:	8 April 2016
Date of orders:	08 April 2016
Decision date:	08 April 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)The hearing is adjourned. (2)Mr Woods, the Plaintiff in Matter No 2016/10749, is to file and serve his written submissions by 22 April 2016. (3)Mr Fantakis, the Plaintiff in Matters No 2016/14432 and 2016/36676 is to file and serve his written submissions by 29 April 2016. (4)The First Defendant in the matter is to file and serve its written submissions by 7 May 2016. (5)The Second Defendant is to file and serve its written submission by 7 May 2016. (6)List the matter for directions before the Common Law Case Management Registrar at 9.00am on 10 May 2016. (7)Direct the Registrar to issue orders for the appearance of the Plaintiffs by audio video link on 10 May 2016.
Catchwords:	CRIMINAL LAW – administrative law – judicial review of decision of magistrate – adjournment – where relevant transcripts – where plaintiffs are self-represented plaintiffs and in custody
Category:	Procedural and other rulings
Parties:	Andrew Keith Woods; Terry Fantakis (Plaintiffs) Department of Public Prosecutions (NSW) (First Defendant) Local Court of NSW (Second Defendant)
Representation:	Counsel: Self-represented (Plaintiffs); M Smith (First Defendant); T Stevens (Second Defendant) Solicitors: Self-represented (Plaintiffs); Director of Public Prosecutions (NSW) (First Defendant); Crown Solicitors Office (NSW) (Second Defendant)
File Number(s):	2016/10749;2016/14432;2016/36676

ex tempore judgment (rEVISED)

1. Three applications for judicial review of various decisions of Magistrates in the course of committal proceedings have been listed for hearing before me today. There are two plaintiffs: Mr Andrew Keith Woods and Mr Terry Fantakis.

2. Mr Woods challenges two decisions made in the course of the proceedings, both of which were made by his Honour, Magistrate Still. Mr Fantakis challenges the same two decisions of Magistrate Still but also challenges two decisions made by his Honour, Magistrate Mijovich on 11 January 2016 and 18 January 2016 respectively.

3. On 24 April 2015, his Honour, Magistrate Still dealt with the application made by each of the plaintiffs under s 91 for the attendance of witnesses to give oral evidence at the committal proceedings. His Honour made certain orders for the attendance of witnesses by consent but denied other orders sought by each plaintiff requiring mainly police witnesses to attend to give oral evidence.

4. The decision of 21 December 2015 was a procedural decision fixing Mr Fantakis' argument concerning a subpoena issued to the Commissioner of Police on 11 January 2016 and listing the committal for hearing on 18 January 2016.

5. In any event, on the 18th the matter was allocated to his Honour, Magistrate Mijovich for the hearing of the committal proceedings. He also dealt with the subpoena argument on 11 January 2016.

6. Mr Fantakis is aggrieved by the decision on the subpoena argument, in that most of the categories of document that he required to be produced under subpoena were disallowed by his Honour. As things transpired, the committal proceedings did not proceed on 18 January 2016 but were adjourned for a hearing commencing on 11 April 2016, that is to say Monday.

7. On 12 January 2016 Mr Woods filed his summons seeking judicial review in this Court in Matter No 2016/10749. On 15 January 2016 Mr Fantakis filed his first summons in Matter No 2016/14432. Both of those summonses, as I have said, impugn the decisions of 24 April 2015 and 21 December 2015.

8. Following the adverse decision from Mr Fantakis' point of view on the subpoena argument, Mr Fantakis made an application on 18 January for his Honour, Magistrate Mijovich, to disqualify himself from further involvement in the matter on the grounds of, substantially, apprehended bias but the summons has the flavour about it of alleging actual bias. As I have said, his Honour declined the application but it seems the proceedings were adjourned until Monday.

9. The judicial review proceedings have been managed in this Court by the Common Law Case Management Registrar. After a number of adjourned directions hearings, which I need not detail, when the matter came before the Registrar on 4 April 2016 the urgency of the matter, given the closeness of the date for the hearing of the oral testimony in the committal proceedings, was appreciated and the matter was referred to Wilson J sitting as the Common Law Division Duty Judge.

10. In an understandable, with respect, attempt to expedite the determination of these matters prior to the date fixed in the Local Court for the oral testimony in the committal proceedings, which have an estimate of five days, her Honour made orders for the urgent production of Local Court transcripts which she had in mind would enable the matters to be heard and determined by me today.

11. One of the difficulties which the plaintiffs have encountered in preparing these matters for hearing is that they are both in custody on remand. The charge they each face, the subject of the committal proceedings, is one of murder.

12. Mr Fantakis, in particular, has been attempting to obtain the transcripts of the various applications and hearings in the Local Court since 23 December 2015 to put himself in a position to prepare the matter for hearing in this Court. His attempts have been unsuccessful. I am prepared to assume that the lack of success has been due to the enormous pressure on the agency responsible for the production of transcripts of court proceedings. It is my experience that in the Local Court or the District Court, transcripts can take some months to be produced. And if an application is made some months after the hearing date, there may be added delay in the provision of the transcript.

13. In any event, the plaintiffs wish to have the opportunity of considering the transcripts for the following dates: 24 April 2015, 22 July 2015, 23 July 2015, 18 December 2015, 21 December 2015, 11 January 2016, 18 January 2016 and 17 January 2016.

14. To facilitate the hearing of the matter and to assist the plaintiffs in their preparation, Wilson J ordered that the agency responsible for the preparation of the transcripts produce a full transcript of the whole of the proceedings on each of those days to the Registrar of this Court by 9.30am on 7 April 2015. Her Honour further directed that upon the receipt of those transcripts the Registrar was to take all necessary steps to provide copies to each of the parties in each of these matters.

15. Unfortunately, when the matter was called on for hearing before me today, it was apparent, or so it then seemed anyway, that her Honour's orders had not been complied with. The only transcript which my chambers had received was that of 17 March 2016, not a date on which any impugned order was made. It transpired that counsel for the Director of Public Prosecutions and for the Commissioner of Police, who are joined as parties to each of the matters today, had transcripts for each of the 2016 dates but not for the 2015 dates.

16. I caused enquiries to be made and it seems that the agency had produced the transcripts but there seems to have been a slip in the communication of them from that agency to the Court. Further enquiries have been made and four of the five transcripts from 2015 have now been received. The transcript of 22 July 2015 is yet to be received at all but I expect it is on its way.

17. Mr Woods and Mr Fantakis both apply for an adjournment. They say that even had they received the transcripts yesterday they would have had insufficient time to prepare for a hearing today. It is impossible for them to consider the transcripts, even if they receive them soon, and mount any kind of argument in their cases today.

18. The transcripts are likely to run into some hundreds of pages. The transcript for 11 January alone runs to 77 pages. It is obvious given the time now, no-one, not even an experienced lawyer, would be able to review the transcripts, digest them and summarise the salient features in sufficient time to mount an argument today. And the position of self-represented persons in custody on remand must be much worse, given the limited, perhaps almost non-existent, resources available to them.

19. Mr Smith of counsel for the DPP and Ms Stevens of counsel for the Commissioner of Police accept that it is unreasonable to expect the plaintiffs to mount their arguments today, not having had the benefit of the transcripts previously.

20. I have asked the plaintiffs why it is necessary for them to review the whole of the transcripts of evidence. It seemed to me, at least at first blush, that given the grounds of judicial review put forward – and I appreciate that the plaintiffs say there may be an argument available under Crimes (Appeal and Review) Act 2001(NSW) in relation to questions of law about some of the matters – that only limited information would be necessary to mount what is essentially a legal argument. But having heard the response of each of the plaintiffs to my questions about those matters and given that an argument is to be mounted in relation to alleged breaches of the rules of natural justice, including the apprehended bias of the decision-makers, I accept that it may be relevant to have regard to the course of the proceedings before those decision-makers in order to decide those questions.

21. Every party in litigation is entitled to a fair opportunity to present his or her case. And it seems to me, despite the best endeavours of this Court to attempt to provide an expeditious hearing, which are important to the plaintiffs, in the circumstances which have transpired, as I have detailed them, effectively forcing them on today would deny them that fair opportunity.

22. In the circumstances I am persuaded that the interests of justice require me to adjourn the hearing of these summonses.

FURTHER LEGAL ARGUMENT – SEE TRANSCRIPT

23. Mr Smith of counsel, argues that the adjournment should not exceed an adjournment over the weekend until Monday. His main purpose in making that submission is to attempt to preserve the five days that have been set aside in the Local Court; or at least as many of them as can be. It is obvious if the case is listed here on Monday, nothing can happen then at Burwood Local Court.

24. To that end he has argued that the plaintiffs will have the weekend to pour over the transcripts. I can dispense with any requirement that they file written submissions and hear their arguments orally on Monday. Attractive as that proposition is to me, I have been persuaded by the plaintiffs that it would be unfair to them. I think weight has to be given, as I have said already, to the consideration that they are both self‑represented and that their circumstances are that they have access to limited resources only in custody. Although I did remark in the course of argument that Mr Woods’ document prepared earlier in these proceedings seems to have referred, not only to the most pertinent authorities but also to the most pertinent passages from those authorities in relation to his argument concerning apprehended bias.

25. I am conscious of the fact that Mr Smith of counsel has worked very hard to produce a coherent written submission over the few days available since this matter was fixed earlier this week. Being self‑represented is not a privilege; it is a misfortune or a disadvantage. However, even recognising that consideration, I think courts have to accept that self‑represented people will take longer to produce useful documents than trained lawyers. Given that so much litigation is conducted these days with the benefit of written submissions and as both Mr Woods and Mr Fantakis have asked for the opportunity to prepare written submissions, I think it would be unfair to them to deny them that opportunity.

26. Accordingly, I propose to make some directions concerning the filing of written submissions by the parties.

27. My orders are:

1. The hearing is adjourned.

2. Mr Woods, the Plaintiff in Matter No 2016/10749, is to file and serve his written submissions by 22 April 2016.

3. Mr Fantakis, the Plaintiff in Matters No 2016/14432 and 2016/36676 is to file and serve his written submissions by 29 April 2016.

4. The First Defendant in the matter is to file and serve its written submissions by 7 May 2016.

5. The Second Defendant is to file and serve its written submission by 7 May 2016.

6. List the matter for directions before the Common Law Case Management Registrar at 9.00am on 10 May 2016.

7. Direct the Registrar to issue orders for the appearance of the Plaintiffs by audio video link on 10 May 2016.

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Amendments

18 April 2016 - Title change from "Department" to "Director" of Public Prosecutions

Decision last updated: 18 April 2016