Director of Public Prosecutions v Lazzam

The service of a police brief

1. The Criminal Procedure Act 1986 (NSW) (the Act) makes provision for service of a police brief. For present purposes, the relevant sections are ss 183, 187 and 188 which provide as follows: "183 Brief of evidence to be served on accused person where not guilty plea (1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence. (2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include: (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit. (3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. (4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it. . . . 187 When brief of evidence need not be served (1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied: (a) that there are compelling reasons for not requiring service, or (b) that it could not reasonably be served on the accused person. (2) The court may make an order under this section on its own initiative or on the application of any party. (3) An order may be made subject to any conditions that the court thinks fit. (4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence. (5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations. 188 Evidence not to be admitted (1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor. (2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable."

The making of rules under the Act

1. The reference to "rules made under this Division" in s 188 (1) requires consideration of the rule-making power. Section 4(2) of the Act provides that a Rule Committee for a court may make rules including with respect to matters of practice and procedure. The term "Rule Committee" is defined in s 3 of the Act as a person or body having power to make rules for the court. Section 25(1) of the Local Court Act 2007 (NSW) provides for a Rule Committee of the Local Court. Section 25(2) provides for its membership. Schedule 3 of the Local Court Act makes provision for the Rule Committee.

The power to make Local Court Practice Notes

1. Section 27(1) of the Local Court Act confers power on the Chief Magistrate to issue practice notes in relation to any matter with respect to which rules may be made.

Local Court Practice Note Crim 1

1. Local Court Practice Note Crim 1 (the Practice Note) was issued by the Chief Magistrate on 24 April 2012. The objects of the Practice Note are identified in cl 2, which provides: "Objects The objects of this Practice note are to ensure that matters in the Local Court's criminal jurisdiction are finalised in a timely and proper fashion in accordance with the Local Court's published time standards, and to set out practices in relation to other procedural or ancillary aspects of such proceedings."
2. The relevant time standard published by the Local Court (referred to in the objects of the Practice Note) is that 100% of the court's summary criminal trials are to be completed within 12 months.
3. Clause 5.4 of the Practice Note relevantly provides: "First mention (a) On the first mention, if the accused enters a plea of not guilty, a Magistrate or the Registrar is to: (i) Make orders for service of the prosecution brief of evidence upon the accused in 4 weeks, and (ii) Adjourn the proceedings for mention for reply in 6 weeks."
4. Clause 5.6 of the Practice Note relevantly provides: "Adjournments . . . (b) Failure to finalise a brief in accordance with the above timetable will not, of itself, provide the basis for an adjournment for further time for service of the brief. Unless a plea of guilty is entered or the interests of justice require otherwise, the court will: (i) List the matter for hearing, and (ii) Order that the balance of the brief be served not less than 14 days prior to the allocated hearing date."

The making of directions in Local Court proceedings

1. Section 28(1) of the Local Court Act provides that, in relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure not provided for by any Act.

The incident the subject of the charges

1. At 11pm on 16 November 2014 police were called to a private address in Glen Innes to deal with a complaint that a metal bar had been thrown by the second defendant's girlfriend at a neighbour's window. An altercation ensued, following which the defendants were charged.

The charges

1. On 16 November 2014 the first defendant was charged with: two counts of intimidate police officer in the execution of duty (s 60(1), Crimes Act 1900 (NSW)); one count of behave in an offensive manner in public (s 4(1), Summary Offences Act 1988 NSW)); one count of assault police officer in the execution of duty (s 58, Crimes Act); and one count of hinder police officer while in the execution of duty (s 546C, Crimes Act). The charges against the second defendant were one count of assault police officer in the execution of duty (s 58, Crimes Act) and resist police officer while in the execution of duty (s 546C, Crimes Act).

The first mention date: 12 December 2014

1. The matter was first mentioned before Stafford LCM on 12 December 2014. The defendants entered pleas of not guilty to all charges. In accordance with cl 5.4(a) of the Practice Note, the Magistrate directed that the brief be served by 16 January 2015 and that the matter be listed for reply on 30 January 2015. The direction regarding service of the brief was not complied with. As at the due date, only two statements, of civilian witnesses, Mr Mellor and Mr Cole, had been served.

The second mention date: 30 January 2015

1. When the matter came before Stafford LCM on 30 January 2015, police informed her Honour that the statements of Constables S Howe, Gava, M Howe and Marriott were outstanding. The police also called on a subpoena issued to the first defendant's solicitor for a recording of the incident. The police prosecutor explained that there had been difficulties in serving the brief over the Christmas period. At the conclusion of the mention, Stafford LCM directed that the outstanding brief be served by 27 February 2015; that a notice of listing be filed by the defence on 13 March 2015; and appointed a hearing date of 28 April 2015.
2. The due date for service of the police brief, 27 February 2015, was not complied with. On 11 March 2015 the first defendant's solicitor sent a facsimile to the Local Court advising that the notice of listing could not be filed because the balance of the brief was still outstanding. An order was made by Stafford LCM in chambers extending time for the filing of the notice of listing to 14 days after service of the balance of the brief.
3. On 17 March 2015 the police canvassed the public for potential witnesses by door knocking in the area of the alleged incident, as a result of which three further witnesses were identified. Statements were taken from Ms Young and Mr Earl on 21 March 2015 and from Ms Palmer on 23 March 2015.

The service of the balance of the police brief

1. On 25 March 2015 the balance of the police brief was served. It comprised: the statements of Constables S Howe, M Howe, Marriott and Gava; the official notebook transcription; and the statements of lay witnesses, Ms Young, Mr Earl and Ms Palmer.

The hearing in the Local Court

1. The hearing of the proceedings took place before Stafford LCM on 28 April 2015. An objection was taken by the first defendant's solicitor to the statements in the police brief which had been served outside the time permitted by the directions. She did not seek an adjournment, or identify any prejudice occasioned by service outside the timetable and confirmed that she wanted the matter to proceed that day.
2. The police prosecutor submitted that there was no basis to exclude the evidence; that there had been no failure to comply with any provision of the Criminal Procedure Act; and that s 188 required only that the brief be served at least 14 days before the hearing. The prosecutor also referred to the Practice Note and noted that cl 5.6(c) appeared to contemplate that the Court would relist the matter if the brief was not served in accordance with the timetable and the Court, on that relisting, would order that the brief be served not less than 14 days before the hearing. The prosecutor provided various reasons why the full brief was not served in accordance with her Honour's direction, including: that the canvas of the area had not occurred until 17 March 2015; the absence of an officer on leave; and the work commitments of the relevant police officers.
3. The Magistrate upheld the objection and gave ex tempore reasons for the ruling. In the reasons her Honour: 1. referred to the "requirement" that 100% of Local Court matters be completed within 12 months of the filing of the Court Attendance Notice; 2. noted the default in compliance with the directions; and 3. said that the only explanation given was that the police had many commitments.
4. Her Honour concluded: "Returning to s 188 and bearing in mind the non-compliance with the directions of the Court, I am satisfied on balance that the division of the Criminal Procedure Act has not been complied with. In other words that the evidence as sought to be adduced by the prosecutor, being statement evidence from Constable Mitchell Howe, Constable Matthew Graver, Constable Marriott, Constable S Howe, R Young, C Earl and M Palmer have not being served in compliance with the division of the Criminal Procedure Act, bearing in mind the Court's direction made and, therefore, the s 188 as mandatory says, I must refuse to admit that evidence and ACCORDINGLY I REFUSE TO ADMIT THE EVIDENCE OF CONSTABLE M HOWE, CONSTABLE MATTHEW GRAVER, CONSTABLE FEE MARRIOTT, CONSTABLE S HOWE, I YOUNG, C EARL AND M PALMER."
5. As only the statements of Mellor and Cole had been served by 27 February 2015, these statements were sought to be tendered by the police prosecutor. Before they were actually tendered, Mr Schaefer, who appeared for the second defendant, informed the Magistrate that he was instructed to enter a plea to the charge of offensive language. The plea was noted, after which the statements of Mellor and Cole were admitted without objection. The witnesses were not required for cross-examination. The prosecutor informed the Magistrate that identification could not be proved because of the rejection of the remaining statements. On this basis her Honour delivered an ex tempore judgment in which she found both defendants not guilty of the charges and dismissed them.

The appeal

1. Although the complete police brief was not served in accordance with the Magistrate's directions, it was served well within the time required by s 183 of the Criminal Procedure Act since it was served almost five weeks before the hearing and s 183 required only that it be served at least 14 days before the hearing. That a police brief is not served in accordance with the court's directions does not independently affect its admissibility and provides no basis to reject the evidence.
2. Neither the first defendant's solicitor, nor the Magistrate, identified any proper basis for excluding the evidence. Section 188(1) did not apply since no non-compliance with "this Division [Division 2 of Part 2 of Chapter 4)] or any rules made under this Division" had been identified. The Magistrate's primary error was to elevate her Honour's direction (that the police brief be served by 27 February 2015) and, possibly, the Practice Note, into a statutory requirement of Division 2 of the Act when neither had any such status. Further, Stafford LCM treated herself as being "bound" to reject the evidence, when s 188(2) required her to consider whether to grant dispensation from any such non-compliance on terms.
3. The Magistrate, in considering herself bound to reject evidence by a section which did not, in terms, apply, erred in law. Her orders ought be set aside and the matter remitted for determination.
4. This is sufficient to dispose of the appeal. However, one of the purposes of appeals such as the present is for this Court to provide guidance. For this reason, I propose to set out how s 188 operates in accordance with its terms and to address, by way of illustration, how the discretion in s 188(2) (where applicable) ought be exercised.

The operation of s 188 of the Act

1. Section 188(1) requires the court to refuse to admit evidence if, in relation to the evidence, "this Division or any rules made under this Division have not been complied with by the prosecutor".
2. Section 188 is only concerned with non-compliance by a prosecutor in relation to particular evidence with a provision of Division 2 of the Act or a rule. Accordingly it requires the particular evidence to be considered and the question to be answered whether there was any non-compliance by the prosecutor in respect of that evidence with a section of Division 2 or a rule. The recitation of relevant statutory provisions set out above demonstrates that there is a significant difference between a statutory provision, a rule, a Practice Note and a direction. Section 188 is concerned solely with a provision within Division 2 or a rule (as defined). No other non-compliance engages the section.
3. If any relevant non-compliance with such a provision or rule can be identified, the Magistrate is obliged, for the purposes of s 188(2), to ask whether the accused person consents to dispensation with the requirements of s 188(1); and, if so, the Magistrate is obliged to dispense with the requirements of s 188(1) "on such terms and conditions as appear just and reasonable". If the accused person does not consent, the Magistrate is obliged to consider whether the requirements ought be dispensed with and, if so, grant such dispensation "on such terms and conditions as appear just and reasonable".
4. The discretion conferred on the Magistrate by s 188(2) to dispense with the requirements (of the relevant provision of Division 2 or rule) on such terms and conditions as appear just and reasonable is a broad one and must be exercised judicially. The Act does not list the matters that are to, or may, be taken into account in exercising the discretion. Nonetheless, the purpose of the discretion can be divined from its statutory context and authorities in which this, and analogous discretions, have been considered and exercised.
5. The requirement to serve the police brief is a fundamental aspect of the administration of criminal justice. A defendant is entitled to have adequate notice of all the evidence to be relied upon by the prosecution before the charges are dealt with by the court. The time required to prepare the police brief is necessarily variable. An estimate which seems reasonable at the outset may prove to be optimistic. It is important that a prosecution not be required to be conducted on incomplete evidence since this (as in the present case) is apt to result in an acquittal, which may not have been warranted, if all of the evidence had been available to prove each of the elements of each charge to the requisite standard.
6. A balance is commonly struck by a court's extending the time within which a police brief is to be served and, if necessary, adjourning the hearing so as not to compromise the defendant's opportunity to consider the evidence that comprises the police brief in order to make forensic decisions, such as whether to plead guilty or not guilty.
7. In Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 the Court of Appeal considered the statutory predecessor to s 188 (s 66F of the now repealed Justices Act 1902 (NSW)). Of present relevance, Mason P (Sheller and Giles JJA agreeing) said of the discretion in s 66F(3) (now s 188(2)) at [24]: "(h) However (and subject to s 66F(3)), the magistrate may, and on theapplication of or with the consent of the defendant must, dispense with therequirements of subs (1) on such terms and conditions as appear just andreasonable (s 66F(2)). The judicial discretion is a broad one, but it is to beexercised having regard to the public interest in enabling a prosecution to beheard and determined so long as unfairness or injustice does not occur: seefurther par (m), below. . . . (m) It is possible to conceive of situations where it would not be just orreasonable to grant to a non-complying prosecuting authority an adjournmentand extension of time pursuant to s 66G. However, the general thrust of s 66G is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance. Section 66G thus fits in with the law as explained by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised: Ridgeway v The Queen (1995) 184 CLR 19 at 32 and 75."
8. The circumstances of the instant case can be used by way of illustration. Had there been any relevant non-compliance (such as to engage s 188(1)), the following factors would have been relevant to the exercise of the discretion in s 188(2): 1. Whether there was any prejudice to the defendants; and, if so, whether it could be cured or ameliorated: for example, on conditions that included an adjournment (in the present case, no prejudice was identified; and no adjournment sought); 2. The reason for any non-compliance (in the present case, lack of police resources; absence of relevant police officers; the Christmas break; need to canvass the public); 3. The probative value of the evidence and its importance of the evidence to the proof of the offences charged (in the present case, crucial to the proof of the charges, as illustrated by the fact that its rejection deprived the prosecutor of proof of identification and resulted in an acquittal on that basis alone) ; 4. The public interest in determination of criminal proceedings by reference to probative, (otherwise) admissible evidence (which, in the present case, was subverted by the rejection of the evidence); and 5. The public interest in finality and avoiding delays in proceedings (in the present case, relatively slight delay).
9. It appears that Stafford LCM took umbrage that her direction had not been complied with. This matter cannot be said to have influenced her Honour since her Honour's misreading of s 188 was not only that it applied (when it did not) but that it also deprived her of any discretion (which it did not). However, it is important to note that non-compliance with earlier directions is not a particularly relevant matter to the exercise of the discretion under s 188(2) except where delay has caused prejudice to the defendant which cannot be remedied or ameliorated. Her Honour also appears to have been frustrated by the lack of resources allocated to the local police. While the frustration is understandable (particularly where it leads to court delays) it would not have been a basis for refusing dispensation, unless the delay was such as to create irremediable prejudice to the defendant. It is not part of the purpose of the discretion in s 188(2) to punish the police for lack, or misallocation, of resources.
10. Where the relevant matter was the timing of service of the police brief, the real question, in my view (had there been relevant non-compliance), was whether the proceedings ought to have been adjourned. Since the defendants did not want the proceedings adjourned and no prejudice was identified, the discretionary factors would have greatly favoured dispensation.

Orders

1. I made the following orders at the conclusion of the hearing on 25 February 2016:
2. An order allowing the appeals.
3. An order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) that the order of Stafford LCM made on 28 April 2015 at Glen Innes Local Court dismissing proceedings against: (i) the first defendant for the offences of 2 x Intimidate police officer while in the execution of duty (s 60(1) Crimes Act 1900 (NSW)), 1 x Behave in an offensive manner in public (s 4(1) Summary Offences Act 1988 (NSW)), 1 x Assault police officer while in the execution of duty (s 58 Crimes Act), 1 x Hinder police officer while in the execution of duty (s 546C Crimes Act), and (ii) the second defendant for the offence of 1 x Assault police officer while in the execution of duty (s 58 Crimes Act), 1 x Resist police officer while in the execution of duty (s 58 Crimes Act) be set aside.
4. An order that the matters be remitted to the Glen Innes Local Court to be dealt with according to law.
5. An order that each party bear his own costs.

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: 01 March 2016