Director of Public Prosecutions (NSW) v Chaouk and Anor

Director of Public Prosecutions (NSW) v Chaouk and Anor - [2010] NSWSC 1418 - NSWSC 2010 case summary — Zoe

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The Incident on 16 January 2009 4 As at January 2009, the First Defendant and Shane Towney had been neighbours for approximately two years, residing in a street in Granville. Mr Towney lived directly across the road from the First Defendant. The relationship between them was characterised by much animosity. 5 About 11.40 am on 16 January 2009, the First Defendant arrived home. At the time, Mr Towney was placing his council bin at the front of his premises across the road. It is alleged that the First Defendant looked at Mr Towney and said words to the effect of "What are you doing, fat boy?" An argument then ensued with both hurling abuse at one another. Both remained on opposing sides of the street. However, the argument became increasingly heated, with the First Defendant yelling "I'm gunna fix you". 6 It is alleged that the First Defendant went inside his house for a short time and Mr Towney remained on the other side of the street. The First Defendant then returned, brandishing a silver knife with a 15 centimetre fold-out blade, which he was carrying in his right hand. It is alleged that he stormed across the street towards Mr Towney, who saw the knife upon approach, but stood his ground. The First Defendant is alleged to have approached Mr Towney, raised his right hand and jabbed Mr Towney to the upper-left cheek with the knife in hand. This action caused Mr Towney immediate pain and opened an eight centimetre abrasion to his upper-left cheek. It is alleged that Mr Towney then said to one of his young children, who was present throughout, "Go and get me a knife". 7 It is alleged that the First Defendant then retreated across the street to his front yard. Both men continued to hurl abuse at each other from opposite sides of the street. Mr Towney is alleged to have said words to the effect "If you want a fight, we'll go at it in the street like men. Anyone can use a knife". It is alleged that one of Mr Towney's sons then returned with what is described as a butcher's knife. He gave it to Mr Towney, who then charged into the middle of the street yelling "If you want to fight, come over here" whilst waving the knife, described as having a black handle and a silver blade and being about 20-30 centimetres in length. 8 The First Defendant is then said to have retreated further to the front porch of his home, whilst Mr Towney moved onto the front driveway of the First Defendant's home, continuing to entice him into a further confrontation. At that point, an independent witness and Mr Towney's wife both contacted the police. It is alleged that, upon hearing that the arrival of police was imminent, Mr Towney gave the knife back to his son and advised him to return it to its kept place. 9 It is alleged that, at about 11.55 am, police arrived at the scene and placed the First Defendant under arrest. It is said that police questioned the First Defendant as to the whereabouts of the knife used by him, and he led police into his kitchen and showed them where he put the knife. 10 It is said that Mr Towney was questioned by police, who initially denied ever producing a knife during the altercation. However, an independent witness came forward at the scene and informed police of his observations. Mr Towney was cautioned and questions were put to him in relation to the production of a knife, with him allegedly then stating that he had a knife, but had returned it to his kitchen prior to the arrival of the police. 11 Both the First Defendant and Mr Towney were conveyed to Parramatta Police Station and advised of their rights. Each was invited to participate in an electronically recorded interview by way of an ERISP. The First Defendant declined to be interviewed. Mr Towney chose to participate in an ERISP and, during the interview, made admissions to producing what he described as a "butcher's knife" although he stated that he remained on his property and had no intention of using it. This statement contradicted that made by the First Defendant (presumably orally to the police before attending the police station) and that of an independent witness. 12 Both the First Defendant and Mr Towney were charged with affray (s.93C(1) Crimes Act 1900), being armed with intent to commit an indictable offence (s.114(1)(a) Crimes Act 1900), assault occasioning actual bodily harm (s.59(1) Crimes Act 1900) and common assault (s.61 Crimes Act 1900).

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The Local Court Proceedings 13 The proceedings against the First Defendant came before the Parramatta Local Court on a number of occasions for mention, with an order being made for the prosecution brief to be served and for the defence to reply to the brief. On 27 May 2009, the charges against the First Defendant were fixed for hearing on 7 October 2009 at the Parramatta Local Court. 14 The police brief of evidence was served on the defence on 10 September 2009. 15 The matter came before the Parramatta Local Court for hearing on 7 October 2009. The prosecutor informed the Court that the charges of affray and being armed with intent to commit an indictable offence were to proceed (by way of summary hearing) with the charges of assault occasioning actual bodily harm and common assault being backup charges. The First Defendant was represented by counsel at the hearing on 7 October 2009. 16 At the outset, the prosecutor informed the Magistrate that Mr Towney was to be called by the prosecution, that a subpoena had been served for his attendance and that he was not yet at Court. Discussion ensued during which the First Defendant's counsel informed the Court that, although Mr Towney's ERISP had been served upon the defence, he had not made a written statement as a witness. 17 Whilst discussion continued concerning the absence of a written statement, Mr Towney arrived at Court. His Honour allowed a short adjournment for the prosecutor and the First Defendant's counsel to discuss the issues in the case. 18 Upon resumption, the prosecutor made application under s.188(2) Criminal Procedure Act 1986 to dispense with the requirements of s.188(1), so as to permit evidence to be adduced from Mr Towney, although the relevant statutory requirement for service of a written statement from him had not been met. The prosecutor referred his Honour to the decision of the Court of Appeal in Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 in support of the application. 19 The First Defendant's counsel opposed the prosecutor's dispensation application under s.188(2) (pages 5-6, 7 October 2009). During the course of submissions to the Local Court, defence counsel said (page 6.2, 7 October 2009): "It is my submission that if the prosecution are in a position to take the statement [from] the witness [Mr Towney] that an adjournment to allow that to proceed and an adjournment to allow that new evidence to be properly considered and instructions taken would be an appropriate way of correcting the defect in this case." 20 Soon after, defence counsel submitted to his Honour that the ERISP recording was not a written statement for the purpose of s.183 Criminal Procedure Act 1986 and, as a result, no written statement had been served by the prosecution as part of the brief of evidence. He submitted (page 6.23, 7 October 2009): "The criteria outlined in [ Director of Public Prosecutions v West ] I would submit provides a recourse for the court to turn to to remedy that and that is to grant an adjournment for taking of that statement and then the service of it. If that is my friend's application to adjourn the proceedings to allow for that statement to be taken, then I would consent to that adjournment. But at this stage in the absence of a statement, a written statement being in existence taken from Mr [Towney] that to proceed with the case and seek to rely simply on the ERISP recording." 21 Although the transcript prepared from the sound recording of the hearing is slightly confusing in the lastmentioned passage, it is clear that the position of the First Defendant's counsel at the Local Court hearing was:

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(b) words to the effect that the statement contains no lies. (3) A written statement that is in a language other than English and has a document purporting to contain an English translation of the statement or part annexed to it in accordance with section 79 (5) of the 1986 Act must also have annexed to it a certificate by the translator stating his or her qualifications and certifying that the translation is a correct translation of the document." 31 At the hearing in this Court, counsel for the Plaintiff accepted that an ERISP was not a written statement for the purpose of these provisions. In particular, it was accepted that Mr Towney's ERISP did not comply with Rule 3.13(2)(b) and (d) Local Court Rules 2009 in that it did not carry the endorsement required by Rule 3.6(1). Further, it was not signed by Mr Towney so as to comply with Rule 3.13(2)(d). 32 It is noteworthy that Rule 3.13(1) provides that a written statement may be in the form of questions and answers. The provisions do not require a narrative statement only. However, it is necessary that the written statement (even in the form of questions and answers) include the endorsement by the witness that the statement accurately sets out the evidence that the witness would be prepared to give, and that the statement is true to the best of the witness' knowledge and belief and that the witness is making the statement, knowing that if it is tendered in evidence, then he or she will be liable to prosecution if he or she has wilfully stated in it anything known to be false or not believed to be true. This endorsement is no formality. It is intended to ensure that the witness understands the importance of the statement, the need for truth and accuracy and the consequences of the making of any knowingly false statement. 33 Of course, an ERISP is in the form of questions and answers. Ordinarily, there will be no controversy concerning the accuracy of the recording of what was said by the person being interviewed, given the electronic measures used for that purpose. However, a person being interviewed by way of an ERISP is ordinarily a suspect, being interviewed under caution. The person is not being interviewed, at that stage at least, as a possible witness in proceedings against another person. There is a significant difference between an interview with a suspect conducted by way of an ERISP, and a written statement from a witness taken for the purpose of inclusion in a brief of evidence under s.183 Criminal Procedure Act 1986. 34 It might be said that service of an ERISP given by a person proposed to be called as a witness is better than the absence of any document containing the account of the person who is to be called. If the person refuses to make and sign a written statement which complies with the legislative scheme, then it may be that service of an ERISP from a person whom the prosecution seeks to call will be a necessary step, in support of a prosecution application under s.188(2), that the Court dispense with the requirements of s.188(1) so as to permit that person to give evidence. 35 However, that is not this case. There was no suggestion in the Local Court that police had sought to obtain a written statement from Mr Towney but that he had refused to give one. The position appears to have been that the view was formed by one or more police officers that service of Mr Towney's ERISP would suffice, accompanied by the service of a subpoena directed to him to attend Court on the hearing day. 36 As the Magistrate described in direct terms, this approach was clearly wrong. To comply with the statutory scheme, it was necessary for the prosecution to obtain a written statement from Mr Towney containing the necessary endorsement, as well as his signature. This was not done.

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Submissions of the Parties 37 Although Mr Bourke submitted that the Magistrate had fallen into error in declining the prosecutor's dispensation application under s.188(2), which would have permitted Mr Towney to be called as a witness on the hearing, his primary submission was that the refusal to adjourn proceedings gave rise to a denial of procedural fairness. I will concentrate on this argument, which I propose to uphold. Mr Bourke submitted that the following particular features pointed to error in the refusal of the adjournment so as to constitute a denial of procedural fairness. 38 Firstly, the Magistrate did not take into account the serious nature of the charges, rather taking a contrary view that the alleged offences were, in some way, not serious. 39 Secondly, it appears that his Honour gave little or no weight to the fact that the First Defendant's counsel had consented to an adjournment of the proceedings. 40 Thirdly, it was submitted that no regard was had to the fact that this was the first time the matter had been listed for hearing. 41 Fourthly, it was submitted that the refusal of the adjournment was fatal to the prosecution case, so that the refusal of an adjournment denied a party a hearing. 42 Fifthly, it was submitted that there was a need to balance the important requirement of the speedy and efficient determination of proceedings with the due administration of justice, whereby serious criminal charges were determined on the merits. 43 Sixthly, it was submitted that the Magistrate's decision was flawed because of a failure to give adequate reasons. 44 The Plaintiff submitted that the Magistrate's discretion was, in effect, not exercised at all, and that there appears to have been an element of punishment of the prosecution in the decision to refuse the adjournment application. 45 The thrust of the First Defendant's submissions was that the proceedings should not go back to the Local Court, given the fact that he had a defence to the charges and by reference to various steps which the First Defendant said he had taken to get his life on track. No specific submission was directed to the grounds of the Plaintiff's claim for relief, with the First Defendant's submissions going to the exercise of any residual discretion to decline to send the matter back to the Local Court.

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Determination of Proceedings 46 In my view, the strength of the Plaintiff's case and the resolution of these proceedings lies in the area of the Magistrate's refusal to adjourn the Local Court hearing. As Mr Bourke acknowledged, the challenge to the Magistrate's ruling on the s.188(2) application is complicated by the absence of any satisfactory explanation by the prosecutor as to why a written statement had not been sought from Mr Towney. The prosecution position appears to have arisen from an erroneous view concerning the use of an ERISP, when it ought to have been clear that Mr Towney's ERISP did not comply with the requirements for a written statement. 47 Section 187(4) Criminal Procedure Act 1986 provides that the Local Court may adjourn proceedings, if it appears to be just and reasonable, where a brief of evidence has not been served in accordance with the statutory scheme. In Director of Public Prosecutions v West, consideration was given (at 655-657 [24]) to s.66G Justices Act 1902, the statutory predecessor to s.187(4). Section 187(4) is not identical in terms to s.66G. It is clear that s.187(4) reposes a discretion in the Local Court to adjourn proceedings if it appears to be just and reasonable to do so. 48 In Watson v Watson (1968) 70 SR(NSW) 203 at 206, Asprey JA observed (at 206E) that, whilst it is the paramount duty of the court to see that justice is done, nevertheless "in doing justice a court proceeds on a two-way street and in the exercise of a discretion the rights of both the parties to the litigation must be considered". 49 The requirement to accord procedural fairness extends to both the defence and the prosecution in criminal proceedings: The Queen v Lewis [1988] HCA 24; 165 CLR 12 at 17. 50 In Blazevski v Judges of the District Court (1992) 29 ALD 197, Kirby P (as his Honour then was) referred to cases where appellate courts will intervene on an appeal against the refusal of an adjournment, and said at 200: "In 'particular circumstances', therefore, appellate courts will resolutely intervene both for the assurance of justice and the manifest appearance of justice and to uphold the integrity of the system of justice. See R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 (CA) at 258. Courts providing judicial review to rectify departures from the requirements of procedural fairness will likewise give relief for departures from such requirements which will have taken the trial court outside the proper exercise of its jurisdiction. In criminal cases, they will do so where the injustice has been done to the prosecution as well as to the accused. See for example R v Dudley Justices; Ex parte Director of Public Prosecutions , (Times Law Reports, 24 June 1992) at 10 (Mann LJ)." 51 In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal (Sheller and Beazley JJA and Cole AJA) said at [64]: "The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at 343 '… it is important to remember that the relevant duty of the court is to ensure that a party is given a reasonable opportunity to present his case'." 52 In the context of an appeal from a Magistrate's decision refusing a prosecutor's adjournment application, it was observed that, whilst the power to adjourn is discretionary, it must not be exercised so as to work a manifest injustice on one party by depriving a party of a hearing, unless there is no other way to do substantial justice between the parties: Bell v Imrie (Yeldham J, 24 February 1989) 8 Petty Sessions Review 3905 at 3906. 53 A Magistrate may be more inclined to refuse a prosecution adjournment for the hearing of a minor offence as opposed to what might be characterised as more serious offences: McRae v Redmond (Smart J, 7 May 1987) 8 Petty Sessions Review 3534 at 3540-3542. There is a public interest in the determination of criminal charges by a hearing on their merits: Director of Public Prosecutions (NSW) v Fungavaka [2010] NSWSC 917 at [38]. 54 The proper exercise of the discretion to adjourn entails a balancing exercise taking into account relevant considerations. These considerations include the gravity of the charges, the public interest in the determination by way of a hearing on the merits of criminal charges, the attitude of the accused person to the adjournment application and the circumstances which have given rise to the application for adjournment. It has been said that the principle of double jeopardy ought also be considered where a prosecution application for an adjournment of criminal proceedings is made: Director of Public Prosecutions (NSW) v Ozakca [2006] NSWSC 1245; 68 NSWLR 325 at 330-331 [17]-[25]. In that case, Rothman J expressed the view that it would take exceptional circumstances before an appellate court, exercising powers of appeal or prerogative relief, will interfere with an exercise of discretion refusing a prosecution application for adjournment (at 331 [23]). 55 It is the case that the First Defendant, through his counsel, consented to the prosecution application for adjournment. This aspect was of fundamental importance to the exercise of discretion whether to adjourn the proceedings. The accused person was not opposing the adjournment, nor contending that double jeopardy considerations ought lead to a refusal of the prosecution application. To the contrary, the First Defendant was consenting to the prosecution application. This was a fundamental factor which, if not controlling the outcome of the application, ought to have weighed heavily in favour of the prosecution application. 56 I am satisfied that the present charges may be appropriately characterised as serious, albeit with the charges to be determined summarily in the Local Court. The prosecution alleges that the First Defendant used a knife during the course of the confrontation, with an injury resulting to Mr Towney's face. These are not trivial charges. There is a public interest in the hearing and determination of these charges on the merits. The learned Magistrate fell into clear error in downplaying, in the way mentioned earlier at [24], the apparent seriousness of these charges. 57 It was clear that the refusal of the application would be fatal to the prosecution case. The prosecution had Mr Towney in attendance at Court, so that it may well be concluded that a statement would be obtained from him for the purpose of a future hearing. Further, this was the first listed hearing of the matter. 58 The Magistrate was entitled to be concerned that the prosecution had allowed this state of affairs to come about through an apparent fundamental misunderstanding of the requirements for a brief of evidence. His Honour was also entitled to express dissatisfaction that the First Defendant's legal representative had not raised this issue at an earlier time. However, judicial dissatisfaction concerning the inefficient conduct of the proceedings by the parties should not have controlled the outcome of the adjournment application, which fell to be determined in accordance with the principles referred to at [47] to [54] above, and with the defence consent to the adjournment application being kept firmly in mind. 59 Accepting that this Court should not lightly interfere with the exercise of discretion on an unsuccessful prosecution adjournment application, I am well satisfied that the Plaintiff has established an entitlement to relief in this case. I accept that the appropriate form of relief is an order in the nature of certiorari under s.69 Supreme Court Act 1970. There has been no hearing on the merits, so that the Magistrate's order of dismissal of the charges should not stand in the way of a grant of such relief: Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 168-171, 173-174. 60 I do not consider that this Court should decline, for discretionary reasons, to remit the matters to the Local Court for hearing. Clear error has been established. There is a real public interest in the determination of these criminal charges on the merits. The appropriate course is that the matters should proceed to a hearing on the merits in the trial court.

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