Director of Public Prosecutions (NSW) v Peckham

Supreme Court of NSW|2022-05-30|Before: Hamill J

Solicitors: Solicitor for Public Prosecutions (NSW) (Plaintiff) Aboriginal Legal Service NSW/ACT (First Defendant) Crown Solicitor's Office (NSW) (Second Defendant) File Number(s): 2022/00069637 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 10 February 2022 Before: Wilson LCM File Number(s): 2022/00039266

Judgment

Between 10:40am and 10:42am on 10 February 2022, Faiva Peckham attended the premises of his erstwhile girlfriend, or "person in need of protection", in breach of an apprehended domestic violence order ("ADVO"). Police arrived and the person in need of protection told them, falsely, that Mr Peckham was not there. However, the police saw Mr Peckham inside the premises. He was arrested at about 10:50am. He was taken to the Dubbo Police Station, bail was refused by an authorised officer and, at around 2:44pm, he appeared in the Dubbo Local Court via a video link from the police station. Mr G Wilson LCM was presiding. The Magistrate had finished the generally busy Dubbo list at 2:20pm. The Court had adjourned, and the Police Prosecutor who appeared in the list was in her office nearby. Mr Peckham was represented by a solicitor from the Aboriginal Legal Service ("ALS"). Three minutes later his court case was over. The Magistrate recorded a conviction but imposed no further penalty. [1] Mr Peckham was released from custody a short time later.

The absence of the Prosecutor and "the papers"

Mr Peckham's solicitor raised the absence of the Prosecutor at the outset. It was the first thing she said.
His Honour said: "We need the prosecutor." [8] His Honour was correct.
Regrettably, the Magistrate immediately reversed his position: "We don't really." [9] His Honour was, self-evidently, wrong.
The Magistrate then asked the ALS solicitor questions about the case in the absence of both the Prosecutor and the accused man. This probably ought not to have occurred, but it may not have mattered much if things had not continued to spiral.
Once Mr Peckham popped up on the screen and his appearance by video link was announced (at 2:44pm), Magistrate Wilson asked: "Has someone telephoned Amy?" [10] "Amy" is a reference to Ms Jenner, a Senior Constable of police, who appeared for the prosecution throughout the day. There was no recorded reply, but his Honour commenced making inquiries of Mr Peckham's solicitor about her client's criminal and custodial history, where he had been living, and with whom. When Mr Peckham answered one of his Honour's questions, the Magistrate spoke with Mr Peckham directly. Again, such informality is common enough in a busy Local Court and can be conducive to the efficient disposition of the massive workload with which the State's Magistrates are confronted. However, it should not have happened in the absence of the Prosecutor. Sometimes such communications happen but, when they do, it is customary to tell the other party what occurred in their absence. That could not happen in this case because the Prosecutor was never present.
His Honour told Mr Peckham: "We're just waiting for the prosecutor. We're waiting for some papers." He then asked the Court Officer: "When are we getting papers Cathy?" [11] There is no recorded response and his Honour moved on to ask Mr Peckham about his employment status.
At no stage thereafter does it appear from the transcript that the Court papers arrived. Certainly, the Prosecutor did not arrive.
The ALS solicitor said in her affidavit: "It happened very quickly, and I had trouble keeping up with what was being said between Magistrate Wilson and Mr Peckham. I did not interject in what was happening because I did not want to disrespect the Magistrate and because I was nervous." [12]
Her affidavit also indicates that she was 22 years old at the time and had only been practicing for a few weeks. There is some irony in the fact that a 22-year-old solicitor did not intervene because she did not want to disrespect the Magistrate's office, while the senior holder of the office seemed prepared to disrespect the entire, if ephemeral, process.

Failure to give reasons

Once Mr Peckham finished telling the Magistrate about his job and the fact that he had his L's (his learner's driving licence), the Magistrate announced his decision: "Well I'll tell you what I'm going to do. Give you a break. Record a conviction and send you on your way." [13]
No reasons were provided. There was then a further exchange between the Magistrate and Mr Peckham about the fact that they "had had these conversations before". [14] The parties seemed to agree that this indicated the Magistrate had some knowledge of previous breaches of the ADVO and the ADVO itself. The result of the case was then repeated: "So it's a conviction recorded, no other action is taken. So you are good to go." [15]
Once again, no reasons were provided.

Ground 1: Denial of procedural fairness and the right of the parties to be heard

A fundamental requirement of procedural fairness is that the parties to litigation are given the opportunity to be heard. No authorities need be cited for this proposition. The requirement of procedural fairness applies to criminal proceedings and applies equally to all parties to such proceedings. The Director referred me to some cases where the Prosecutor was not given the opportunity to make submissions on the ultimate outcome of a criminal case, on the appropriate penalty, or in relation to diversion under mental health legislation. [16] In each case the decision was quashed. In one of those cases (DPP v Gatu), Button J said "[t]he defendant appeared unrepresented. The Police Prosecutor was, of course, in court as well." [17] The denial of procedural fairness in DPP v Gatu occurred when, after an adjournment, the matter was dealt with in chambers. However, his Honour's statement that the Police Prosecutor was "of course" present in court demonstrates the radical extent to which the conduct of Mr Peckham's case departed from orthodoxy.
There are statutory provisions that guide the process of listing and what happens if a party (including a Prosecutor) does not appear. [18] There are well entrenched rules as to when cases can proceed in the absence of a party who has deliberately absented themselves. None of these provisions authorised what occurred in the present case. To the contrary, the Prosecutor was not even put on notice that the case was being heard and the Magistrate made a choice to conduct the entirety of the proceedings in her absence.
As Mr Styles properly conceded, the prosecution was denied procedural fairness. Ground 1 is established.

Ground 4: Failure to provide reasons

This is not a case where there was any debate about the contents of the reasons or whether they were adequate. There are many cases resolved in the conduce of busy Local Court lists where brief, even scanty, reasons may suffice. The parties agree that this is not the occasion to attempt to define the scope and extent of the duty to give reasons in sentence matters disposed of summarily. The adequacy of such reasons will vary from case to case. It would be wrong to attempt to be prescriptive. The sometimes absurd workload of the magistracy must be acknowledged. For those reasons, it is inappropriate to determine ground 3.
Even so, as Gibbs CJ said at 667 in Public Service Board of NSW v Osmond: [19] "… it is no doubt right to describe the requirement to give reasons as Mahoney J.A. did in Housing Commission (N.S.W.) v. Tatmar Pastoral Co. [(1983) 3 NSWLR 378, at p 386], as 'an incident of the judicial process', subject to the qualification that it is a normal but not a universal incident."
It might be inferred that Magistrate Wilson reached his decision because he accepted that Mr Peckham did not understand his obligations under the ADVO, or because he considered the breach to be a relatively benign one in which the complainant was somehow complicit. [20] It may also be that his Honour was impressed that Mr Peckham had found a job and appeared to be genuinely contrite. While there was no evidence of some of those matters (the lack of violence and a misunderstanding of the strictures of the ADVO), a Magistrate can often accept such factual matters when submissions are made based on instructions.
However, the preceding paragraph is speculation. In the present case, no reasons were provided. Ground 4 is established.

Unnecessary to determine remaining grounds

Since grounds 1 and 4 are established, it is unnecessary to determine ground 2 (which relates to the failure to comply with relevant statutory provisions and which dovetails with the more fundamental complaint of a denial of procedural fairness) or ground 3 (which is a more detailed complaint concerning the adequacy of the reasons).

Disposition

As Dhanji J noted in Director of Public Prosecutions (NSW) v Mahamed [21] at [73], it is well established that prerogative relief will not generally be granted where a statutory avenue of appeal exists. That general proposition favours disposition pursuant to the CAR Act. Further, a considerable amount of legal resources have been wasted as a result of the failure of process and the parties are entitled to a prompt resolution of the case. The CAR Act allows this Court to set aside a sentence and impose a different (more or less severe) sentence. [22] Again, the desirability that the proceedings be disposed to finality favours disposition under the CAR Act.
Those were the reasons that, despite the joint position of the parties reflected in proposed consent orders filed the working day before the hearing, I was initially inclined to proceed under the CAR Act. However, during the oral argument, I was persuaded by Mr Kell SC and Mr Styles that remitting to the Local Court, pursuant to s 69 of the Supreme Court Act, was the better course in all of the circumstances.
As Mr Kell SC submitted, the failures in process in this case were "basal" [23] and there was "something to be said, broadly speaking, for the quashing of a decision in cases such as this and … then remitting the matter." [24] He went on to submit that "the sentence hearing itself was fundamentally flawed for the obvious reasons ‑ without the fault of either party ‑ and it is a matter that is appropriate that there is a record of quashing what's happened and the matter [be] dealt with according to law." [25]
Mr Styles agreed with those submissions and added further reasons why remittal was the preferable course. He noted that remittal was often the preferred remedy when the Court of Criminal Appeal found that there had been a denial of procedural fairness. [26] Relatedly, the Local Court is the more appropriate forum for resolution of any factual disputes. As can be seen from paragraph [25], there are matters of fact that may require resolution.
Further, Mr Styles stressed that remittal of the matter would preserve the ordinary appeal rights of the parties. Significantly, from his client's point of view, the right to appeal to the District Court under s 11 of the CAR Act would be preserved. The nature of such an appeal, being a rehearing, [27] is of broader scope than any appeal that might exist from a decision of this Court under s 59 of the CAR Act.
To those matters, I would add that the record of the Local Court proceeding does not clearly disclose Mr Peckham's plea of guilty. While his conversation with the Magistrate shows he admitted his guilt, neither he nor his lawyer indicted a plea of guilty. As Mr Styles said, the closest it came was when Mr Peckham's solicitor said "[y]es please" to the Magistrate's question as to whether "[w]e going to finalise it?". [28] As I have pointed out, that exchange occurred in the absence of both the defendant and the Prosecutor.
In addition to those reasons of principle, there were two practical matters that militated in favour of the case being remitted to the Local Court. First, I was told that Mr Peckham has at least one outstanding matter before the Local Court and possibly some kind of breach proceeding as well. It is appropriate that the same judicial officer deals with all outstanding matters to ensure the proper application of principles of totality and proportionality. Second, Mr Peckham was not in attendance (nor was he required to be) and to proceed to sentence may have required an adjournment of the proceedings. It may have been necessary to secure to his attendance by one means or another and, if a sentence of imprisonment was imposed, it may be necessary to issue a warrant. All this means that my initial instinct to secure finality may have been based on an illusion.
For those reasons, and as I foreshadowed when I reserved judgment two days ago, the parties' joint position should be accepted.

Orders

Accordingly, and acknowledging the exceptional assistance I have received by the lawyers on both sides of the record, I make the following orders which are largely in accordance with the "consent orders" filed by the parties: 1. An order in the nature of certiorari: 1. Removing the record of the proceedings in the Local Court at Dubbo against the First Defendant on 10 February 2022, for the offence of "Contravene Prohibition/Restriction in AVO (Domestic)" contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) being charge number H 85974722-1 further identified by Court Proceedings No 2022/39266, into this Court. 2. Quashing the order of the Local Court at Dubbo (Magistrate G Wilson) on 10 February 2022 convicting the First Defendant and imposing no other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 1. The proceedings be remitted to the Local Court at Dubbo to be heard and determined according to law. 2. No order as to costs, with the intention each party bears their own costs.

Endnotes

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A.
Tcpt, 10 February 2022, p 1(28).
Tcpt, 10 February 2022, p 1(34).
Affidavit, Amy Maree Jenner, 22 March 2022 at par 8.
Affidavit, [name redacted], 16 May 2022 at paras 22, 25, 26.
Affidavit, [name redacted], 16 May 2022 at par 11.
This notation of the appearance is not correct. The Prosecutor was not present.
Tcpt, 10 February 2022, p 1(46).
Tcpt, 10 February 2022, p 1(46).
Tcpt, 10 February 2022, p 2(5).
Tcpt, 10 February 2022, p 2(45-46).
Affidavit, [name redacted], 16 May 2022 at par 20.
Tcpt, 10 February 2022, p 3(7-8).
Tcpt, 10 February 2022, p 3(14).
Tcpt, 10 February 2022, p 3(22).
See Lutz v JK (2016) 310 FLR 392; [2016] ACTSC 200; Director of Public Prosecutions (NSW) v Gatu [2014] NSWSC 192; Director of Public Prosecutions v Wallman [2017] NSWSC 40.
DPP v Gatu at [6].
Criminal Procedure Act 1986 (NSW), ss 190, 192, 201.
Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7. See also Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCCA 284 at [20] (Handley JA) and [130] (Basten JA).
Although how he may have known that, or drawn that inference, is not apparent on the record.
Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147.
CAR Act, ss 3(3), 59(1).
Plaintiff's Written Submissions, 27 April 2022 at par 23.
Tcpt, 30 May 2022, p 3(25-26).
Tcpt, 30 May 2022, p 3(40-43).
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [43] (Howie J); O'Neil-Shaw v R [2010] NSWCCA 42 at [32] (Basten JA) and [56] (Johnson J); Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118; Milsom v R [2014] NSWCCA 142.
CAR Act, s 17.
Tcpt, 10 February 2022, p 1(28-30). 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 June 2022

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