DIRECTOR OF PUBLIC PROSECUTIONS v JOHN KENNETH MILGATE

COUNSEL : P.I. Lakatos - appellant P. Byrne SC - respondent SOLICITORS : S.E. O'Connor - appellant Western Aboriginal Legal Service - respondent CATCHWORDS : Justices; service of brief of prosecution evidence; requirements and operation of ss.66A to 66H inclusive; Justices Act 1902(NSW) ACTS CITED : Justices Act 1902 (NSW) ss.66A to 66H inclusive DECISION : Appeal dismissed with costs

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12823/98 - DIRECTOR OF PUBLIC PROSECUTIONS v John Kenneth MILGATE

1 HIS HONOUR: By a summons filed on 18 November 1998 Erik Anderson, as appellant, brought into Court a case stated by a Local Court Magistrate. The respondent to the appeal thus instituted was John Kenneth Milgate. By notice dated 8 February 1999 the New South Wales Director of Public Prosecutions took over, in accordance with sections 9 and 10 of the Director of Public Prosecutions Act 1986 (NSW), the conduct of Mr. Anderson's appeal by way of stated case. 2 On or about 7 February 1998 Mr. Milgate was charged with an offence of assault occasioning actual bodily harm. On 26 May 1998 he appeared in the Dubbo Local Court, and represented by a solicitor, for the purpose of answering to that charge. It appears that the respondent had been previously before the Court in connection with the matter, and had then entered a plea of not guilty to the charge. In the events which happened, - and I shall turn presently to their detail, - the learned Magistrate dismissed the charge against Mr. Milgate. 3 The proceedings in the Local Court were governed by the provisions of Sub-division 6A of Division 2 of Part 4 of the Justices Act 1902 (NSW), ["the Act"]. It is convenient to note at once the relevant provisions of that part of the Act. 4 Sub-division 6A comprises sections 66A to and including 66H. Section 66A is a definitions section; and, so far as is material for present purposes, it is sufficient to note the following portions of that section: "(1) In this Subdivision: brief of evidence, in relation to a prescribed summary offence, means documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes: (a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and (b) any document, or other thing, identified in such a written statement as a proposed exhibit. ……………………………………………………………………….. prescribed summary offence means a summary offence other than: (a) an offence for which a penalty notice may be issued, or (b) an offence prescribed by the regulations for the purposes of this paragraph. prosecuting authority means: (a) the Director of Public Prosecutions, or (b) a police officer, or (c) a person prescribed by the regulations for the purposes of this definition, who is responsible for the conduct of a prosecution. (2) In this Subdivision, a reference to the defendant includes a reference to the barrister or solicitor of the defendant." 5 Sections 66C, 66D and 66H have no particular relevance to the present appeal. Sections 66B, 66E, 66F and 66G are, however, of central importance to the issues raised by the present appeal. Those latter sections provide as follows: 66B Brief of evidence to be served on defendant unless otherwise ordered (1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence. (2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require. "66E Discretion to order that copy of brief of evidence need not be served (1) The Justice or Justices may order that all or part of the copy of the brief of evidence need not be served if the Justice or Justices are satisfied: (a) that there are compelling reasons for not requiring service, or (b) that it could not reasonably be served on the defendant. (2) The Justice or Justices may make an order under this section in their own initiative or on the application of any party. (3) An order may be made subject to such conditions (if any) as the Justice or Justices think fit." "66F Evidence not to be admitted (1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority. (2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable. (3) Subsection (2) does not apply to any requirement referred to in subsection (1) that is declared by the regulations to be a requirement that may not be dispensed with under subsection (2)." 66G Adjournments Without limiting the power of a Justice or Justices to adjourn proceedings, the Justice or Justices are to grant such adjournments as appear to be just and reasonable if the copy of the brief of evidence is not served in accordance with this Subdivision, and may extend accordingly the time for hearing the matter." 6 It will be necessary to look later and more closely at the purport and effect of these provisions; but before doing that, it is convenient to summarise the course of the proceedings on 26 May 1988. That can be done, sufficiently for present purposes, by reference to the following portion of the stated case: "(9) No evidence was led in relation to the substantive charge. Rather the prosecution sought an adjournment of the proceedings. In the course of submissions my attention was also drawn to the discretionary provisions provided for in section 66B(2) and 66F(2) with a view to varying or dispensing with the 14-day time limit prescribed by section 66B(2). During the course of the submissions the following emerged - (a) The prosecution proposed to call five witnesses, two of whom were civilian witnesses. Those witnesses were present at court. (b) The solicitor for the defendant objected to any evidence being led by the prosecution by reason of non-compliance with the time limit prescribed by section 66B(2) of the Act. (c) The Solicitor for the defendant objected to any dispensation being granted under section 66F(2) to the requirements provided for in section 66F(1). (d) It was common ground that the brief was not served 14 days before the hearing; instead it was served 12 days before the hearing. (e) On behalf of the prosecution an explanation for the delay was put forward and it was submitted that the matter, as a whole, be adjourned if late service of the brief placed the defendant at a disadvantage. That explanation was to the effect that the police officer responsible for preparation of the brief had been unable to obtain clarification of a handwritten notebook entry by a fellow officer in sufficient time to complete the brief in accordance with the requirements of section 66B(2) of the Act. (10) The defendant did not contend that he suffered prejudice due to late service of the brief. (11) I refused the prosecutor's application for an adjournment. (12) I refused to reduce the time for service of the brief. (13) Having found that the brief of evidence was inadmissible, I held that there was no prima facie case and dismissed the information." 7 To the foregoing summary the following facts should be added: (a) The prosecutor, at the very inception of the hearing, informed the Magistrate that he would be unable, in any event, to complete his case on that day. The reason given was the unavailability of a potential witness. The Prosecutor indicated that it was his wish to put the Court and the defendant on notice that, having taken the prosecution case as far as he could, he would be asking for the matter to go over. The defendant's solicitor demurred briefly to that suggestion. The Magistrate, correctly and sensibly if I may remark, said that he would say nothing at that stage, but would wait until an application of substance was in fact made to him. (b) The Prosecutor thereupon called the informant. As soon as he did so, the defendant's solicitor submitted that the evidence could not be received for the reason that the prosecution had not complied with the relevant requirements of Subdivision 6A. The solicitor explained the nature of the default on which he was relying. This information appeared to take the Prosecutor by surprise; and there appears to have been a pause of some kind while the Prosecutor obtained precise instructions about the point. (c) That having been done, the Prosecutor put a submission that sought to explain why the brief of evidence had not been served within the relevant prescribed statutory period. The Prosecutor gave a very brief explanation to the effect that there had been a problem with the transcription of a hand-written statement which had been made by an investigating police officer in his notebook, and which it had been thought necessary to have transcribed into typewriting, thus causing the comparatively slight delay in complying with the relevant prescribed statutory period for service of the brief of evidence. The Prosecutor submitted that there had not been any egregious failure to comply with the relevant legislation; and he suggested to the Magistrate that, if it were to be thought that some unfair prejudice had been caused to the defendant, then the Court might consider an adjournment to be appropriate. (d) There followed some exchanges between the Magistrate, the Prosecutor, and (very briefly) the defendant's solicitor. The Magistrate then asked the defendant's solicitor to indicate his attitude towards the application by the Prosecutor for an adjournment. (e) The defendant's solicitor thereupon made a fairly long and spirited objection to that adjournment application. The thrust of the submission, put shortly, was that no good cause had been shown for the adjournment, the application being, in any event, made at the very heel of the hunt and only after the actual hearing had been called on by the Court. (f) The learned Magistrate then gave judgment ex tempore. His Worship reviewed briefly the relevant provisions, as he saw them, of Subdivision 6A; and concluded his judgment in the following terms: "I'm told that the brief was not served in this case because the statement of the alleged victim was in the handwriting of an officer who took the statement and that the informant was seeking to obtain a typed transcript of that statement because of the difficulty of reading that statement. He was trying to contact the officer who took the statement but because of the differences in shifts he did not succeed in doing so. He could have clearly served a copy of the handwritten statement within the time even if he was not able to get a typed transcript of it. That does not appear to me to be adequate reason for the non-compliance with the provisions of s 66(B). The matter had been set down some almost seven weeks ago. There does not appear to me to be any good reason why if there was a problem with the service of the brief an application could not have been made well before today's date for an adjournment of the proceedings to enable the provisions to be complied with. Application is only made after the proceedings had been called on for hearing. That appears to me to not provide adequate reason for the granting of an adjournment and in the circumstances I refuse to reduce the time for the service of the brief and: THE APPLICATION FOR AN ADJOURNMENT IS REFUSED." (g) What then followed is none too clearly recorded in the transcript furnished by the Local Court and attached to the present stated case. It seems, however, that is fair to understand that the learned Magistrate, having refused the adjournment application, thereupon called on the Prosecutor to proceed with the prosecution case. The Prosecutor appears to have taken the view that, his adjournment application having been refused, section 66F(1) necessarily entailed that he could call no evidence out of the prosecution brief of evidence. The learned Magistrate thereupon dismissed the charge against Mr. Milgate. 8 At the hearing of the present appeal, a great deal of argument took place concerning the correct understanding of the way in which, in particular, sections 66B, 66E, 66F and 66G are intended to operate. It is convenient to express the views in that regard to which I have come. 9 The first thing to be recognised is that the Court must strive to give a purposive construction to the four particular sections, having in mind the policy of the Legislature in enacting them. The Second Reading speech of the Attorney-General upon the Bill for the amending Act that inserted Subdivision 6A into the Act contains a clear exposition of the underlying legislative policy. The Attorney-General said, among other things, "In more recent times it has been increasingly common for legislatures to create offence provisions that allow prosecutions to be conducted in a summary manner before magistrates. That procedure is appropriate for offences of a less serious nature because the cost to the community of such offences does not justify the expense involved in the conduct of a trial by jury. In New South Wales it has not to date been a feature of the requirements for such prosecutions that the defendant be fully apprised in advance of the evidence to be led by the prosecution. Rather, it has been considered sufficient to meet the requirements of fairness that the defendant be advised simply of the offence that is charged, along with, in general terms, the alleged facts that constitute the offence. For a number of reasons that approach can no longer be regarded as sufficient. First, as referred to above, for legitimate economic reasons there has been an increasing tendency for Parliament to provide that new offences may be disposed of summarily. Second, for those same reasons, in recent years a number of offences that previously could not be dealt with summarily have been brought within the jurisdiction of the Local Court. Some of those offences may be dealt with summarily only with the consent of the defendant. Others are required to be dealt with in that fashion unless the prosecution elects to proceed on indictment." 10 The Attorney-General went on to explain to Parliament that the proposed summary disposal of more serious offences entailed a responsibility on the part of the Legislature "…….. to ensure that that does not result in injustice". Then, and having referred to various particular arguments supporting the policy concepts behind the amendments, the Attorney-General said: "In recognition of these arguments, in many Local Courts an unofficial practice has already developed whereby the defendant is served with all or part of the brief prior to hearing. ……………………………………………………………………………….. (This) system can only benefit from the formalisation of the practice by way of legislation." 11 Against the background of that legislative history, and turning first to section 66B of the Act, it is in my opinion clear that the act which brings into operation section 66B and the associated sections is the entering by the particular defendant of a plea of not guilty. As soon as such a plea has been entered, the Magistrate before whom it is entered must, then and there, apply his mind to the following questions:

1. Is the particular case one in which a proper application of section 66E of the Act would entail dispensing with what would otherwise be the statutory requirement for service of the brief of evidence? The particular Magistrate does not have to wait for any particular application, either by the Prosecutor or by the defendant, before having to consider this question. The Magistrate himself may, if he thinks the case a proper one, exercise the dispensing power conferred by section 66E.
2. If the Magistrate decides that the case is not one in which service of the brief of evidence should be dispensed with, then he must apply his mind, next, to the particular provisions of section 66B(2). That is to say, the Magistrate must apply his mind to the question whether the service of the brief of evidence at least 14 days before the hearing of the evidence for the prosecution is sufficient to the circumstances of the particular case. The Magistrate may not order a period shorter than 14 days, save with the consent of the particular defendant; but he may order, if he thinks that the circumstances of the case justify that course, a period longer than 14 days as the period within which the brief of evidence is to be served. 12 If sections 66B and 66E of the Act operate in the way in which, in my opinion, they are intended to operate, then the defendant who has pleaded not guilty will know, immediately after his plea, his precise entitlement respecting the service upon him of a prosecution brief of evidence. It is that precise entitlement that must be honoured by the Prosecutor if the ultimate hearing of the prosecution is not to run foul of section 66F. 13 When a particular prosecution is called on for hearing, and it appears that service of the prosecution brief of evidence has not been effected in accordance with the relevant provisions of sections 66B and 66E, there does not arise thereupon, in my opinion, some general power in the Local Court to activate, or re-activate, sections 66B and 66E. The relevant requirements of those sections not having been complied with, what is then to be done falls to be decided by reference to sections 66F and 66G. 14 The legislative intent which informs section 66F is, in my opinion, clear. If a brief of evidence has not been served as required by the relevant application of sections 66B and 66E, then prima facie the evidence making up the brief of evidence cannot be led. It is true that such prima facie intent, as expressed in section 66F(1) is mitigated by the provisions that follow in section 66F(2). Apart from the special case where the defendant in question consents to a waiver of the bar raised by section 66F(1), the particular Magistrate must decide whether or not to exercise the discretion, conferred by section 66F(2), to dispense with the requirements of section 66F(1). It can be accepted that the discretion thus conferred is, on its face, a very wide one. But it is not absolute. It is a judicial discretion; and, like any such discretion, it is to be exercised judicially: that is to say, fairly and impartially and with rational discernment in the light of the particular facts and circumstances of the individual case. 15 Section 66F(2) contemplates, clearly, that a Magistrate who has decided that it would be just in the circumstances of the particular case to dispense with the strict requirements of section 66F(1), is empowered so to dispense with those requirements "on such terms and conditions as appear just and reasonable". I do not see why the setting of such just and reasonable terms and conditions would not extend, in an appropriate case, to the adjournment of the hearing. On that approach, section 66G could be seen as having been intended to complement section 66F(2) by making clear beyond argument that the power to set "such terms and conditions as appear just and reasonable" is a power that includes the most broadly conceived power of adjournment. 16 There then needs to be considered the question whether question 66G has, in addition to any legislative purpose complementary to section 66F(2), some additional legislative purpose independent of section 66F. 17 I think that such question must be answered in the affirmative. Section 66G contemplates, on its face, the premise that the brief of evidence has not been served "in accordance with this Subdivision". That is to say, section 66G contemplates, on its face, the state of affairs which gives rise in the first place to the bar contemplated by section 66F(1). It is noteworthy, I think, that the Legislature did not deal with the power of adjournment by, for example, adding to section 66F(2) some such words as "including such adjournment or adjournments of the hearing as may appear just and reasonable". The Legislature, by enacting section 66G separately and in its present terms, seems to me, rather, to have been indicating an intention that section 66G should have some work of its own to do, independently of section 66F as well as complementarily to that section. 18 That said, I confess to having some difficulty in seeing how section 66G could be given, in a meaningful way, such an independent operation in a particular case. After all, if the Magistrate is not prepared to exercise the dispensing power conferred by section 66F(2), then it is not easy to see what practical purpose would be served by granting an adjournment; for, on the adjourned date, the section 66F(1) bar would still be in place. This seeming conundrum arising out of section 66G in its present form might be thought by the Legislature to be deserving of consideration and appropriate clarifying amendment. 19 In the present particular case, the appellant challenges, first, the way in which the learned Magistrate approached the construction and application of section 66G. It is contended that the learned Magistrate did not balance "…….. either sufficiently or at all, the rights of the prosecution with the rights of the defendant in considering what was 'just and reasonable' within the meaning of section 66G …….". The appellant contends, secondly, that the learned Magistrate failed to strike that same balance, as between the rights of the prosecution and the rights of the defendant, in relation to the different question whether the circumstances of the case required a variation of the time prescribed by section 66B(2). The appellant contends, thirdly and finally, that the learned Magistrate failed to strike the appropriate balance of competing rights "in determining whether or not to dispense with the requirements of section 66F(1)". 20 In so far as the appellant's submissions, as thus summarised, relate to sections 66B(2) and 66F(2), I think, with respect, that the submissions are misconceived, for the reason that the only substantive application before the learned Magistrate, and the only substantive application upon which his Worship ruled, was the substantive application of the Prosecutor for an adjournment. When the Magistrate refused that adjournment, it remained open to the Prosecutor thereupon to make an application of substance, and based upon section 66F(2), for an order dispensing with the bar that would otherwise operate by reason of section 66F(1). I do not think that a fair reading of the transcript establishes that any such application of substance was ever made to, let alone made to and ruled upon by, the learned Magistrate. 21 So far as concerns section 66B, I am of the opinion that the commencement of the hearing before the learned Magistrate marked a stage in the progress of the prosecution at which section 66B no longer had work to do. The facts are that the defendant had earlier pleaded not guilty; that, thereupon, the prima facie statutory requirement of service not later than 14 days before the hearing of the evidence for the prosecution, was let stand; that such requirement as to service was not satisfied by the prosecution; that the statutory bar provided by section 66F(1) became, without more, operative; and that relief against that bar was available, not by recourse to section 66B, but by recourse to section 66F(2). 22 As to the approach adopted by the learned Magistrate on the particular prosecution application for an adjournment, the appellant criticises, in written submissions and on the following bases, the decision to refuse the adjournment: "i. His Worship failed to have regard to the seriousness of the offence; ii. His Worship failed to have regard to the prejudice if any, to be suffered by the defendant firstly by the late service of the brief and secondly, so far as any adjournment of the hearing was concerned. iii. His Worship failed to have regard to the prejudice to prosecution case of his decision - i.e. that the information would be dismissed; iv. His Worship failed to have regard to the fact that the amended law had only recently come into force and that unlike the earlier provisions, the time limits commence not from an order of the court but from the entry of a plea of not guilty; and v. His Worship failed to take into account the fact that the infringement of the time limit was minor - 2 days." 23 I have quoted earlier herein the portion of the Local Court transcript recording what the learned Magistrate actually said in exposition of the process of reasoning by which he came to the conclusion that the adjournment application should be refused. It can be allowed at once that the learned Magistrate did not make any specific reference to any of the matters thus itemised in the appellant's submissions. 24 But that is not, in my opinion, simply the end of the matter. It is necessary, in my opinion, to look with practical fairness at the situation with which the Magistrate was actually dealing. His Worship was asked by the Prosecutor, and in general terms, for an adjournment. The Prosecutor did not show, at least on my reading of the transcript, any reasoned cause why he should have the adjournment, apart from putting the bald proposition that there had been a minor mishap concerning the transcription into legible form of a handwritten police statement; that such minor mishap had led to an inconsequential failure to comply with the statutory requirements as to service of the Prosecution brief of evidence; and that there should therefore be an adjournment. The Prosecutor did not give the Magistrate any idea of how long an adjournment he was seeking. He did not explain what it was that he thought he would be able to do, within the ambit of Subdivision 6A, if granted an adjournment. It is to be borne in mind, of course, that the Prosecutor bore at all times the burden of showing cause why he should have the adjournment for which he had applied. 25 Even if it be accepted that the Prosecutor's adjournment application was unfocused in concept, and insubstantial in articulation, it remained the duty of the learned Magistrate to consider the application fairly and impartially on its merits. I do not see, however, that in the circumstances of this case the Magistrate was called upon to embark upon a lengthy and elaborate analysis of all the theoretical considerations that might be thought relevant to adjournment applications in summary criminal proceedings. The Magistrate was confronted by a simple, practical problem. His Worship had been asked to grant an adjournment. A particular justification for that course had been put before his Worship. His Worship did not think that that suggested justification had substance. I do not see why it was not reasonably open to the learned Magistrate to come to that particular conclusion. That conclusion once reached, it did not become, in my opinion, any part of the proper function of the Magistrate to make, in effect, the Prosecutor's case for him. 26 As I have earlier suggested, the refusal of the adjournment application did not preclude the making by the Prosecutor of a substantive application for relief pursuant to section 66F(2); but no such application was made. I have not been persuaded that, in the circumstances of this particular case, the refusal of the adjournment application wrought in fact such an injustice as would call for the intervention of this Court in accordance with the principles that are to be derived from such decisions as that of the Court of Appeal in Watson v Watson (1968) 70 SR (NSW) 201; Blazevski v Judges of the District Court (1992) 29 ALD 197; Jago v District Court (1989) 16R CLR 23; Ritzau v Wheaton : unreported; Badgery-Parker J: 26 June 1990; and Smith v Attard : unreported; Studdert J; 8 November 1993; all of which decisions were canvassed in the written submissions put in by learned counsel for the appellant. I respectfully agree with the following observations of Smart J in McRae v Redmond and anor (1987) 8 Petty Sessions Review 3534: "The principles of natural justice are not rigid or technical. What justice requires will ever depend on the circumstances, the nature of the enquiry, the rules (or principles) under which the Court is acting, the subject matter that is being dealt with and so forth ……… ." (at p. 3540) 27 For the whole of the foregoing reasons, I have come to the conclusion that the appellant has not demonstrated error on the part of the learned Magistrate. 28 The question asked in the stated case is answered: no. The appeal is dismissed with costs.

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