(2010) 241 CLR 390
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Maxwell v Keun [1927] All ER Rep 335
Source
Original judgment source is linked above.
Catchwords
(1993) 67 ALJR 841
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32(2010) 241 CLR 390
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Maxwell v Keun [1927] All ER Rep 335
Judgment (3 paragraphs)
[1]
Solicitors:
Blair Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2016/00261698
[2]
EX TEMPORE Judgment
HIS HONOUR: Before the Court is a summons filed today, being a summons titled "Summons (Judicial Review)" in which the plaintiff, Beau Robert Bartlett, seeks orders, the effect of which would be to overturn a judgment of the Local Court. It is necessary to be more precise.
On 25 August 2016, the Local Court at Parramatta heard an application made by the plaintiff herein, being the accused in proceedings before the Local Court, in which the accused sought the vacation of dates set for committal proceedings before the Local Court. The committal proceedings were fixed for 1 September 2016; that is, tomorrow.
Apparently, there was thought by the plaintiff to be an agreement, reached a couple of days prior to the listing with the Office of the DPP that it would consent to the adjournment that was to be sought before the Local Court. There is a dispute as to whether there was "an agreement". In any event, as described in [12] of the Affidavit of Aloysius Robinson, and indeed in accordance with that which I have been informed of from the bar table, the DPP informed the Local Court that they did not oppose the vacation of the dates.
The vacation of the dates arose broadly in the following way. The matter had been dealt with, at the earlier stages, on behalf of the accused, by the Legal Aid Commission of New South Wales, through its employed solicitors, who had been representing the accused up until the time, approximately 24 August 2016, when the Legal Aid Commission contacted the solicitors now on the record for the plaintiff, in order to enquire as to whether they would be able to represent the accused in the further proceedings relating to the matter. I have been told from the bar table that the reasons for the change in solicitors was occasioned by the desire of the plaintiff, or accused below. I accept that proposition.
The courts have made it clear on a number of occasions that where an accused changes solicitor without good reason, the courts may not take into account the change in solicitor in determining dates or the proper time for preparation. However, I am not aware of whether there was good or other reason for the change in solicitors and, of course, each matter must be dealt with on its merits.
The matter came before the Local Court. Apparently there was before the Court more than one application for the vacation of dates at that call over and the Magistrate understandably was critical of the number of applications that were made for the vacation of dates. As a consequence, the Magistrate refused the application for vacation of the date set for 1 September 2016, notwithstanding the application and the non-opposition by the office or officer of the Director of Public Prosecutions.
The summons, in its terms, seeks relief under s 53 of the Crimes (Appeal and Review) Act 2001 (the Act). Section 53(3) of the Act provides for any person against whom an order has been made by a Magistrate in relation to that person in any committal proceedings has the capacity to appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone and otherwise only by leave of the Supreme Court.
The officer of the Director of Public Prosecutions, who appears in these proceedings but does not seek at this stage to deal with the merits of the stay or the application, submits that s 53(3) of the Act does not apply to a refusal to vacate a date because that is not an "order". A question does arise as to whether the ground of appeal involves a question of law alone.
That phrase has been given judicial interpretation in various statutes, including the Criminal Appeal Act 1912, the Local Court Act 2007, and various other provisions. It has been the subject of judicial interpretation at the highest level and I refer in particular to the judgment of the High Court in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 and to the decision of the Court of Criminal Appeal in Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69 and Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318.
Nevertheless, I will deal with the issue that has been raised by the DPP. The House of Lords in Maxwell v Keun [1927] 1 KB 645; All ER Rep 335 dealt with a refusal of the vacation of dates and determined that the refusal of an order to vacate the dates was itself an order within the ordinary meaning of that term. That approach was adopted by the High Court in Haset Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 and other cases. As a consequence, at least as a preliminary view, I would take the view that a refusal of an order to vacate is an order within the meaning of s 53(3) of the Crimes (Appeal and Review) Act 2001. I have, of course, not dealt with the issue of whether this raises a question of law alone.
The plaintiff, Mr Bartlett, also, in the alternative, seeks orders in the nature of certiorari and mandamus quashing the decision. Those are orders under 69 of the Supreme Court Act 1970, and orders in the nature of prohibition and/or declaratory relief, presumably under s 75 of the Supreme Court Act, relating to the decision.
There is much authority for the proposition that where an appeal is available and it is not limited so as to preclude an appeal in the circumstances of the particular case, prerogative relief will not issue. However, in these proceedings there is a serious question as to where an appeal under s 53 would lie given the nature of the grounds sought to be relied upon and the matters raised by the DPP. It seems to me that it is not an abuse of process to seek in this Court orders under both s 53(3) of the Crimes (Appeal and Review) Act and also relief in the nature of certiorari, mandamus and/or prohibition.
I turn then to whether there is an arguable case in relation to orders in the nature of the prerogative relief sought. It has long been the law that a court or tribunal exercising judicial power, or required to act judicially, is required to give each party a reasonable opportunity to prepare and to present that party's case, and failure so to do would amount to a breach of the rules of procedural fairness and/or natural justice.
Of course, it is not the court's or the tribunal's task, once a reasonable opportunity is given, to ensure that the party uses that reasonable opportunity to its best advantage. So much was adumbrated by Deane J when a member of the Full Court of the Federal Court of Australia in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, and that rationale has been cited with authority by the Full Court of the High Court in subsequent proceedings.
It seems to me where the accused below has had a reasonable opportunity to prepare and to present his case, or would have had by 1 September, is at least an arguable proposition and I need decide nothing more. In those circumstances, there seems to be an arguable case that the accused may have been denied procedural fairness by the Court below in requiring the accused to proceed on 1 September 2016 in circumstances where, plainly, those representing him would not be in a position to present the case on his behalf.
One then must deal with the question of the balance of convenience. Were I to refuse the stay that has been sought, the accused would have the opportunity once more to approach the Local Court for the vacation or adjournment of the proceedings tomorrow. That seems, on its face, to be requiring the accused to take his rights in his own hands and not to protect them appropriately.
The accused is in custody and has been refused bail. He remains on remand and the DPP does not point to any significant prejudice or irremediable damage that would be occasioned by a stay of the committal proceedings. Indeed, on one view, it is the accused, or plaintiff in these proceedings, who would be more severely damaged, particularly if ultimately he were found to be not guilty.
I have read the facts sheet provided to me by the Crown, for which I am grateful. It cannot be said the Crown case is weak. Nevertheless, it seems to me, balancing the convenience on the one hand, subject, of course, to the application that could be made again to the Local Court, the accused's rights to have a reasonable opportunity to prepare and to present his case would be rendered nugatory if the matter proceeds tomorrow. On the other hand, no damage or real prejudice is done if it does not, and in those circumstances, it seems to me a stay of the proceedings is appropriate.
The Court orders that:
1. Proceedings number 2015/141119, proceedings number 2015/46153, and proceedings number 2015/52100 against Beau Robert Bartlett in the Local Court of New South Wales at Parramatta be stayed pending determination of this application or other order of this Court, and further, grant leave to the Local Court to fix another date suitable to the parties for the committal proceedings or any other application.
2. I will give leave to withdraw the proceedings at any time.
[3]
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Decision last updated: 14 December 2016