Director of Public Prosecutions v Horstman

Supreme Court of NSW|2022-11-07|Before: McNaughton J

Solicitors: Solicitor for Public Prosecutions (Plaintiff) No appearance (First respondent) Crown Solicitor for NSW (Second Respondent) File Number(s): 2022/00196816 Decision under appeal Court or tribunal: Wyong Local Court Jurisdiction: Criminal Date of Decision: 6 April 2022 Before: Magistrate Ellis File Number(s): 2020/00345384

JUDGMENT

The Director of Public Prosecutions (NSW) ("the plaintiff") has appealed to this Court by way of summons filed on 6 July 2022 against the decision of Magistrate Ellis sitting at the Local Court of NSW at Wyong ("the second respondent") to dismiss a charge against Christopher Richard Horstman ("the first respondent") for assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW). [1] The decision was made on 6 April 2022.

Non-appearance by the first respondent before this Court

Evidence was tendered before the Court which satisfied me that the first respondent was personally served with documents informing him that the hearing was listed before this Court on 7 November 2022 (in accordance with Pt 51B r 11 of the Supreme Court Rules and rr 10.21, 10.27 and 59.5 of the UCPR). On the basis of the evidence, I determined that it was appropriate to proceed with the hearing in the absence of the first respondent in accordance with r 29.7(2)(a) of the UCPR.

Evidence

The evidence before me included the following documents obtained from the court file of the Local Court of NSW at Wyong: 1. Court Attendance Notice ("CAN") Master Coversheet; 2. Two CANs; and 3. Police Facts Sheet dated 23 September 2021.
Also tendered was: 1. A transcript of proceedings from Wyong Local Court dated 28 September 2021; and 2. A transcript of proceedings from Wyong Local Court dated 6 April 2022.

Background

This matter arises from events alleged to have occurred on 4 December 2020, which resulted in the first respondent being charged with two offences detailed below.
It is convenient to summarise the facts from the Police Facts Sheet. Under the heading "Full Facts", the first sentence is as follows: "The victim in the matter is [Mr S] and the accused in this matter is Christopher Horstman [the first respondent]".
It was alleged that on 4 December 2020, the first respondent was in a relationship with Ms D, the ex-partner of Mr S. Ms D had two children with Mr S. In December 2020, Mr S was in a relationship with Ms P.
At around 7:00pm on 4 December 2020, the first respondent and Ms D (and one of the children of Ms D and Mr S ("the first child")) went to Mr S' house. Ms D attempted unsuccessfully to get into the house. She shook the front screen door, swore at Mr S and Ms P, and yelled at them to come out. The first respondent remained in the car with the first child at this time.
Mr S and Ms P told Ms D to leave because there were children around. Ms D ignored their request and continued to yell abuse at both of them for a few minutes. Ms D also continued to shake and kick the screen door.
Ms D was then joined by the first respondent, who said "I'll open the fucken door". The first respondent shook the door vigorously and ripped the top half of the screen door from the frame. The first respondent threw the dislodged half of the screen door at the roller garage door before reaching through the hole and unlocking the screen door.
Once the door was open, Ms P grabbed Ms D and pinned her against the garage door to prevent her from "coming in and getting at" the second child (that is, the second child of Ms D and Mr S). Ms P was yelling and hitting Ms D in the face and pulling at her hair. Mr S then approached them to try and intervene and the first respondent put his arm out and told him not to.
The Police Facts Sheet then records the following: "The victim has looked back into the sun room at [the second child] which is when the victim was struck to the left side of his jaw knocking the victim unconscious where he fell to the ground. It is unknown what the victim was hit with."
The first respondent then approached Ms P and told her to "Get your hands off [Ms D]". The first respondent and Ms D then took the second child with them and left the premises.
Ms P observed Mr S lying on the ground unconscious and bleeding heavily from the mouth/face area. Ms P contacted emergency services and Mr S regained consciousness shortly thereafter. The police and ambulance then attended the scene. It was noted that Mr S suffered injuries including swelling to the left cheek, lacerations inside his mouth and a puncture wound to the left side of his mouth.

Procedural history

On 5 December 2020, the first respondent was charged by police with assault occasioning actual bodily harm (Sequence 1) and intentionally destroy or damage property (Sequence 2). On 21 May 2021, the first respondent entered a plea of guilty to Sequence 2. The contested charge of assault occasioning actual bodily harm was adjourned for hearing.
On 28 September 2021 at Wyong Local Court, the prosecution sought a hearing date for the contested charge. Neither the first respondent nor his solicitor were present on 28 September 2021, the solicitor having communicated with the Court by email to request a hearing date. The second respondent listed the hearing for 6 April 2022. The second respondent then relevantly ordered: "REGISTRAR TO NOTIFY DEFENDANT IF FAILS TO ATTEND MATTER WILL BE DEALT WITH."
On 6 April 2022, the prosecutor indicated that he was ready to proceed and had three witnesses in attendance (Mr S, Ms P, and the officer-in-charge of the police investigation). The matter was called but there was no appearance by the first respondent or his representative. The matter was stood down and after making enquiries, the prosecutor re-mentioned the matter on behalf of the first respondent's representative, indicating that by error the first respondent's representative was appearing in a Children's Court hearing in Gunnedah and that he had instructed his client not to attend. The prosecutor proposed an adjournment, which the second respondent refused.
The prosecutor next proposed having the first respondent's representative dialled into the Court. However, the second respondent noted that the first respondent was on bail and had been informed in writing by the Registrar of the hearing date and that the matter would be dealt with in his absence if he failed to attend. The second respondent stated: "I am satisfied that [the first respondent] has been made aware of the matters and I will deal with the matter today."
The prosecutor tendered the Police Facts Sheet and the criminal antecedents of the first respondent. The second respondent indicated that she was dealing with the matter under s 196 of the Criminal Procedure Act 1986 (NSW) ("CPA"). The second respondent then indicated to the prosecutor that the police facts dealt primarily with the interaction between Ms P and Ms D and the charge of intentionally destroy or damage property (which was for sentence following the earlier plea of guilty) and enquired if the assault occasioning actual bodily harm (Sequence 1) had been withdrawn. In response, the prosecutor confirmed that Sequence 1 was still on foot and directed the second respondent's attention to a paragraph in the police facts, reading it onto the record and identifying it as the act constituting Sequence 1: "The accused has put his arm in front of the victim and said, 'Let it go, stay out of it.' The victim was struck to the left side of the jaw, knocking the victim unconscious. It is unknown what the victim was hit with."
The second respondent questioned, "Well, where does it say it was [the first respondent]?" The prosecutor then apologised and sought leave to amend the police facts, stating it was her "oversight". The second respondent said: "You've tendered it, I've accepted it under s 196. On what basis do you say you can withdraw the facts that you have tendered after the Court has accepted them?"
In response, the prosecutor submitted that it was open to the second respondent to find from "what's reflected there in the facts" that the first respondent struck the victim. The second respondent responded, "It's not my job to assume" and dismissed the charge under s 196 of the CPA on the basis that there was "no prima facie case for assault and causation of actual bodily harm".
It appears that neither the second respondent nor the police prosecutor adverted to the first sentence under the heading "Full Facts" in the Police Facts Sheet which stated, as set out above, "The victim in the matter is [Mr S] and the accused in this matter is [the first respondent]."

The statutory provisions

The relevant statutory provisions are contained in Chapter 4, Part 2, Division 3 of the CPA. Chapter 4 deals with "Summary procedure", in other words, procedure which applies to the Local Court (when dealing with criminal matters). Part 2 is headed "Trial procedures in lower courts". Division 3 is headed "Hearings". It sets out the hearing procedure for matters prosecuted in the Local Court. Relevantly, ss 196 to 200 concern the procedure where an accused is not present, and s 202 empowers the Court to make final orders after hearings.
Section 196 relevantly provides: 196 Procedure if accused person not present (1) If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division. … (3) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing.
Thus, s 196 empowers the Court below to hear and determine charges in an accused person's absence. If the Court determines to hear a matter in the accused person's absence, having been satisfied that the accused has had reasonable notice of the hearing, the accused is taken to plead not guilty: s 198 CPA. Sections 199 and 200 of the CPA outline how the Court is to then proceed in the accused person's absence (including as to evidence), relevantly in the following terms: 199 Material to be considered when matter determined in absence of accused person (1) The court may determine proceedings heard in the absence of the accused person on the basis of the court attendance notice without hearing the prosecutor's witnesses or any other additional evidence of the prosecutor, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence. (2) Before determining the matter, the court must consider any written material or recorded statement given to the court by the prosecutor, or lodged by the accused person under section 182. 200 When court may require prosecution to provide additional evidence (1) The court may, in proceedings heard in the absence of the accused person, require the prosecution to provide additional evidence if it is of the opinion that the matters set out in the court attendance notice are not sufficient to establish the offence. …
Finally, s 202 sets out the available means of disposition after any hearing, as follows: 202 Determination by court (1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter. (3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing.

Question of law alone

The primary basis for the plaintiff's appeal is pursuant s 56(1)(c) of the CAR Act. The appeal is as of right so long as it can be established that it involves a question of law alone. The plaintiff set out the relevant authorities in relation to the determination of this question.
The summons setting out the grounds of appeal pursuant to s 56(1)(c) of the CAR Act contended the second respondent erred in law by: 1. Failing to hear and determine the matter in the first respondent's absence in accordance with Chapter 4, Part 2, Division 3 of the CPA, as required under s 196(1) of that Act. 2. Failing to either: 1. Determine the proceedings on the basis of the CAN, pursuant to s 199(1) of the CPA; or 2. Determine the proceedings after hearing the prosecutor's witnesses and evidence, pursuant to s 202(1) of the CPA.
Put another way, the plaintiff submits: "the question of law alone that arises is whether it is an error of law to hear and determine a matter in a defendant's absence by sole reference to a police facts sheet, without regard to the court attendance notice pursuant to s. 199(1) of the [Criminal Procedure] Act and without hearing prosecution witnesses and evidence pursuant to s. 202(1) of the [Criminal Procedure] Act."
The plaintiff submits that the grounds of appeal involve questions of law alone and can be considered separately from the facts of the proceedings below. The plaintiff submits the questions of law pleaded in the summons arise in this matter as they concern distinct and separate statutory steps that the Court below was required to take before disposing of the matter to finality.

Erroneous nature of the process of the Court below

In its written submissions, the plaintiff submits that having been satisfied that the first respondent had been given reasonable notice of the hearing, it was open to the second respondent to deal with the matter in the absence of the first respondent pursuant to s 196(1) of the CPA. The decision to deal with the matter in the first respondent's absence was a discretionary decision. The second respondent could have equally determined without error to adjourn the proceedings.
The plaintiff contends that having decided to hear and determine the matter in the absence of the first respondent, it was incumbent on the second respondent, pursuant to s 196(1), to ensure that the hearing and determination were "in accordance with this Division." That aspect of s 196(1) is not discretionary.
The plaintiff further submits that by the combined effect of ss 199(1) and 200(1), it was not open to the second respondent to hear and determine the matter in the first respondent's absence by sole reference to a Police Facts Sheet, without regard to the sufficiency of the CAN to establish the offence (s 199(1)), and without hearing additional evidence if the Court considered the matters in the CAN to be insufficient to establish the offence (s 200(1)).
The plaintiff submits that in hearing and determining the first respondent's matter only by reference to a Police Facts Sheet, the second respondent erred in law.

Construction of the relevant provisions

The plaintiff points to the legislative history of the relevant legislation as instructive and supportive of its reading of the provision.
The plaintiff contends that the relevant provisions of the CPA are "nearly identical" to ss 75A to 75F of the Justices Act 1902 (NSW), which governed the procedure for Local Court matters before reform in 2001.
Sections 75A to 75F were inserted by the Justices Amendment (Procedure) Act 1997 (NSW). In the Second Reading Speech for the introduction of that scheme, the Minister for Corrective Services (on behalf of the Attorney-General) explained the rationale for those sections of the Bill as: "Currently, the Justices Act allows a magistrate to hear and determine a matter in the absence of a defendant. However, the Act does not enable a defendant to be convicted without the informant and other witnesses being called to give oral evidence to the court. This means that witnesses, both civilian and police, are called to court to give evidence in a case where everyone is present except the defendant. … The bill seeks to overcome these problems by reducing the number of unnecessary appearances before the Local Court and streamlining the procedures for determining a matter in the absence of the defendant. … The proposed new ex parte provisions will allow a magistrate to hear and determine a matter in the absence of a defendant and proceed to convict that defendant without the need to take oral evidence. The magistrate may determine the matter on the basis of material contained in the information, if that material is sufficient to constitute an offence. If the magistrate requires additional information from the informant, the amendments provide for that information to be given in the form of written statements unless the magistrate decides that it is necessary for witnesses to be called to the court to give oral evidence." [2]
The plaintiff contends that the scheme set up in ss 196 to 200 of the CPA, as the successor to ss 75A to 75F of the Justices Act, is plainly intended to streamline the Local Court's process where an accused person does not attend. That legislative purpose also accords with the limited judicial consideration of ss 196 to 200, see for example: Hammond v Director of Public Prosecutions [2013] NSWSC 888; (2013) 231 A Crim R 88 at [46]. Beyond identifying the legislative purpose, ss 196, 199 and 200 have not been the subject of detailed higher court analysis.
The predecessor provisions, ss 75A to 75F of the Justices Act, were given some judicial consideration in the four years during which they were in operation. Relevantly, they were held to establish the procedure to be followed when the discretion to deal with a matter in an accused's absence was enlivened: Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136 at [34].
The plaintiff contends that read in this context, Keys v West provides some support from this Court for the proposition that the predecessor provisions to ss 199 and 200 of the CPA constituted a code for how a summary hearing was to be dealt with in the absence of a defendant. It is submitted that this supports the contention that to determine a matter in the absence of a defendant on the basis of a Police Facts Sheet alone was erroneous.
The plaintiff submits that a reading of the provisions in context, and the legislative history of the provisions, makes it clear that they are in effect a legislative "scheme" or "code" for how to deal with a matter in an accused's absence. The plaintiff contends that once the Local Court has determined, under s 196(1) of the CPA, to deal with a matter in the absence of an accused person, pursuant to that statutory scheme, both the hearing and the determination of the matter must be in accordance with Division 3 of the CPA.
The plaintiff contends that by purporting to hear and determine the proceedings solely by reference to the Police Facts Sheet, the second respondent both failed to hear the proceedings on the basis of the CAN pursuant to s 199(1) and failed to consider additional evidence pursuant to s 200(1). Pursuant to s 202(1), the hearing was not "in accordance with this Act", particularly with regard to the failure of the second respondent to consider whether the offence was established on the basis of the CAN alone.

The law in relation to question of law alone under CAR Act

Whether a contended error is a question of law alone withing the meaning of s 56(1) of the CAR Act has been dealt with quite recently in Director of Public Prosecutions (NSW) v Swellings [2022] NSWSC 201, where the relevant authorities were discussed by N Adams J. At [49] of that judgment, N Adams J sets out the following passage which is a useful summary of the relevant principles: "In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [39]-[46] ("Bimson"), Beech-Jones J (as his Honour then was) considered the authorities concerning how to properly identify a question of law alone and extracted three propositions. They can be summarised as follows: (1) An appeal on a ground that involves a question of law alone does not include a mixed question of fact and law (see R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [25] per Spigelman CJ ('PL (No 1)'). (2) It is incumbent on the parties contending that a question of law was decided erroneously, to identify the question in abstract terms which can be stated and considered separately from the facts in the case: Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibbs CJ. (3) To identify an 'error' on the part of the Local Court in the exercise of its discretion in terms of 'House v R' error (House v The King (1936) 55 CLR 499 at 504; [1936] HCA 40) does not of itself answer the question posed by s 56(1) of the CAR Act."

Consideration of CAR Act ground

In my view, it is clear that a question of law alone has been identified, as set out in [33] and [34] above. The question or questions identified have been set out in abstract terms which clearly can be considered separately from the facts in the case.
Having reached the satisfaction that the first respondent had been aware of the matter (thus satisfying the pre-requisite in s 196(3)), the second respondent stated that she would "deal with the matter [under] s 196 [of the CPA]". This meant, pursuant to s 196(1), that the matter would be heard and determined "in accordance with this Division."
Having made the discretionary decision to proceed in the absence of the first respondent (rather than, say, adjourn the matter pursuant to s 197), it was incumbent on the second respondent pursuant to s 196(1) to ensure that the hearing and determination were "in accordance with this Division". I agree with the plaintiff's contention that that aspect of s 196(1) is not discretionary.
The terms of ss 199 and 200 are clear. Section 199(1) clearly provides that the court may determine proceedings in the absence of the accused: "on the basis of the court attendance notice without hearing the prosecutor's witnesses or any other additional evidence of the prosecutor, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence." (Emphasis added.)
It can first be observed that if a matter proceeds under Division 3, s 199 provides that the first and perhaps only step is to consider the CAN. Other material can be considered if: 1. The Court is of the opinion that the matters set out in the CAN are not sufficient to establish the offence (s 199(1)); and/or 2. The prosecutor gives the Court "any written material or recorded statement" (s 199(2)); and/or 3. The accused has lodged material with the Court pursuant to s 182.
Section 200 is also in clear terms and again makes it plain that the first step should be the consideration of the CAN. It provides that the Court can require additional evidence (because it is of the opinion that the matters set out in the CAN are not sufficient to establish the offence). For the Court to consider it, subject to certain exceptions, such additional evidence has to be in a certain format and must have been previously provided to the accused (s 200(2)).
It is clear from the terms of the relevant sections (as well as having been made plain from the Second Reading Speech introducing this legislative scheme), that the procedure set out in Chapter 4, Part 2, Division 3 of the CPA has an important function of streamlining the procedures for determining a matter in the absence of the defendant. Unfortunately, in this case the scheme was not followed, and error ensued.
The second respondent erred in law by bypassing the essential and critical first step of considering the terms of the CAN, thus failing to comply with the terms of ss 199 and/or 200 of the CPA. If the second respondent had considered the CAN with the Police Facts Sheet, there could have been no doubt who struck the victim. Indeed, as noted above, even on the Police Facts Sheet alone, if the very first sentence under the heading "Full Facts" was read, the perpetrator of the assault was clearly apparent.
It is, however, also important to note that our Local Court magistrates preside daily over very busy lists with huge pressures each day. In this case, the police prosecutor who appeared on this matter did not assist the second respondent as much as they could have by either pointing to the obligation of the second respondent under the CPA to first advert to the CAN, or indeed, by drawing the second respondent's attention to the first sentence under the heading "Full Facts" in the Police Facts Sheet.
As I have found the ground made out under the CAR Act, it is unnecessary to consider the remaining ground of judicial review.

Orders

Accordingly, the Court makes the following orders: 1. Appeal allowed. 2. Pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), the orders of Magistrate Ellis made on 6 April 2022 at Wyong Local Court dismissing proceedings against the first respondent for the offence of "assault occasioning actual bodily harm" contrary to s 59(1) of the Crimes Act 1900 (NSW) be set aside. 3. The matter be remitted to the Local Court to be heard and determined according to law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2023

Justices Act 1902(NSW)ss 75A, 75B, 75C, 75D, 75E, 75F

Justices Amendment (Procedure) Act 1997(NSW)

Uniform Civil Procedure Rules 2005(NSW)rr 10.21, 10.27, 29.7, 59.5, 59.10

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