Director of Public Prosecutions v Shannon Paul Wunderwald

LOWER COURT Local Court JURISDICTION : LOWER COURT 527/2003 FILE NUMBER(S) : LOWER COURT P. O'Shane, Lower Court Magistrate JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12068/03 - DIRECTOR OF PUBLIC PROSECUTIONS v SHANNON PAUL WUNDERWALD

JUDGMENT 1 HIS HONOUR: By a summons filed on 13 August 2003 the Director of Public Prosecutions brings as plaintiff proceedings in this Court by way of appeal against an order of a Local Court magistrate. The right of the Director to bring such proceedings depends upon the provisions of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), (hereinafter "the Appeal and Review Act"). 2 Particularly relevant are sections 56 and 59 of the Appeal and Review Act. Section 56 provides, relevantly, that a prosecutor may appeal to this Court against an order made by a Local Court dismissing a matter the subject of any summary proceedings; but may do so only on a ground that involves a question of law alone. 3 Section 59(2) provides, relevantly, that this Court "may determine" such an appeal either by dismissing the appeal, or by setting aside the order from which the appeal has been brought; and by making such other order as this Court thinks just. 4 Two defendants are cited by the summons. The first is one Shannon Paul Wunderwald. Mr Wunderwald was the defendant in the Local Court proceedings which give rise to the present appeal. The second defendant thus cited is Miss Patricia O'Shane, who is a Local Court magistrate and who was the magistrate who made the order from which the present appeal is brought. 5 The first defendant, Mr Wunderwald, has appeared by counsel, and has put reasoned submissions in opposition to the granting of any relief as sought in the summons. The learned Magistrate has entered an appearance submitting to such order as this Court might think fit to make, save only any adverse order as to costs.

6 On 23 April 2003 Mr Wunderwald was presented before her Worship in the Local Court at the Downing Centre in Sydney. He was charged pursuant to section 4(1) of the Summary Offences Act 1988 (NSW). Particulars of the charge were that on 28 December 2002 he had conducted himself in an offensive manner in a public place. It was alleged in that connection that Mr Wunderwald had spat upon a memorial then standing outside the Mascot Police Station, that memorial having been erected as a tribute to a young police officer who had been killed while in the execution of his duties. 7 A police prosecutor appeared before her Worship to prosecute that charge; and Mr Wunderwald was himself legally represented throughout the hearing. 8 The prosecution called evidence from a police officer, Senior Constable Strawbridge. His evidence, put simply, was that at the relevant time and place he had himself actually seen Mr Wunderwald spit directly onto the particular monument. Senior Constable Strawbridge gave evidence of having thereupon approached and apprehended Mr Wunderwald, and of having taken him thereupon into the adjacent police station, where he was subsequently and formally charged. 9 The prosecutor produced a number of photographs of the monument itself; and showing also the size of the monument relative to its immediate surrounds, and the nature of those immediate surrounds. The prosecutor was told by the learned Magistrate that her Worship did not regard the photographs as relevant, and they were marked for identification. 10 The prosecutor tendered, and there was admitted without objection and marked as exhibit 1, a letter from Mr Wunderwald addressed "To the entire staff of Mascot Police Station". The letter is a lengthy document and it embodies, among other things, a very fulsome apology for any supposed wrongdoing on Mr Wunderwald's part. 11 The document contains, as well, an extended explanation by Mr Wunderwald to the effect that he had in fact spat in the vicinity of the monument; that he had intended to spit, not on the monument, but on some woodchips, or the like material, in the immediate vicinity of the monument; and that his apprehension was that he had in fact spat on the chips and not on the monument. The letter contained very strong representations by Mr Wunderwald as to the potential damage that might be done to his prospective career as a high school teacher by a finding that he had committed the particular offence charged against him. 12 There was a deal of cross-examination of Senior Constable Strawbridge. The cross-examination tested, not surprisingly it might be thought, the accuracy of Senior Constable Strawbridge's narrative of what, according to him, he had actually seen done by Mr Wunderwald. A deal of the cross-examination had to do with the mechanics and the formalities of the arrest of Mr Wunderwald, but it is unnecessary for present purposes to have any extended discussion of those aspects of the cross-examination. It was never an issue before the learned Magistrate that Mr Wunderwald had not been lawfully arrested. 13 At the conclusion of the evidence of Senior Constable Strawbridge, the learned Magistrate said to the prosecutor: "Don't call any other witnesses just yet, thank you Sergeant. How many witnesses do you have?" 14 The prosecutor replied that he had four other police officers, but that the evidence which he had been proposing to lead from some at least of them might not be relevant in that such evidence related to things that had occurred inside the police station, and after the particular alleged incident which was the foundation of the prosecution. 15 There was then a sequence of interchanges between the learned Magistrate and the prosecutor. Those interchanges were plainly intended by her Worship to test the potential relevance of any, or indeed all, of the remaining evidence that the prosecutor was proposing to call. Towards the conclusion of those interchanges, her Worship asked the prosecutor about a particular police officer called Hillier, whom it was proposed to call as a witness in the prosecution case. 16 It is expedient to reproduce in full what is recorded in the transcript as having occurred thereupon: "PROSECUTOR: No, he does not give any evidence other than evidence that he does make observations. He does go outside and inspect the monument, your Worship, so that evidence would be relevant. BENCH: I don't think so Sergeant. You think about it. At what point does Hillier say he goes outside and inspects the monument? PROSECUTOR: Just after the defendant is arrested and brought into the police station. BENCH: Will he tell the Court that he saw spittle on the monument? He did not race back inside the police station, grab a camera and photograph it to say 'We'll need this'? I don't think so Sergeant. PROSECUTOR: I suppose it's relevant insofar as an inference can be drawn, your Worship. BENCH: It's a long bow, let me tell you, so I don't need to hear any of these witnesses. In fact, the only cogent evidence that the prosecution has in respect of this particular offence charged under the provisions of section 4 of the Summary Offences Act is this evidence of this officer Strawbridge. PROSECUTOR: Yes, your Worship. Can I speak to the informant? He wanted to tell me something. It may assist. BENCH: It will have to be good, won't it? It will have to be extremely cogent if it is not set down in the statements. PROSECUTOR: It's just in relation to Wilson, your Worship. It's just that he also makes the same observations that Constable Hillier made. Your Worship has already commented--- BENCH: Being what? PROSECUTOR: The observations afterwards of the saliva, that's all." 17 The learned magistrate immediately made this statement: "Well, that certainly doesn't come anywhere near the cogency that I would require, the Court would require, if it were to be presented as corroborating evidence." 18 Her Worship then went on to give a discursive judgment, the conclusions reached in which were expressed by her Worship as follows: "If that is as much as the prosecution has, it would be pushing it to get it over the line of prima facie, but it certainly would not be sufficient upon which to convict the defendant, and I can say that I am not satisfied beyond reasonable doubt." 19 Her Worship then formally dismissed the information; and that is the order which is at issue in the present appellate proceedings. 20 Something, although it is not at all clear what it was, seems to have moved her Worship to the view that it might be desirable for her Worship to say something further in explanation of the order which she had made moments previously. Her Worship said thereupon, this: "To elaborate, to put it more clearly, the officer's response to cross-examination that he had to confirm what was in his mind certainly raises a doubt as to his veracity as to what he saw on the monument. Further to that, of course, is the fact that he did not make any attempts to photograph this offensive spittle on the monument, nor given that he had a companion officer right there at the time, nor did he give any instructions to anyone else to photograph the offending spittle at the time. It raises some further doubts about his veracity." 21 Having regard to the sequence of events as I have described it, it is, I think, relevant to observe at once, and with all proper respect to her Worship, that it was not for her Worship, in effect, to take over herself the conduct of the prosecution case, and, in effect, peremptorily to close off the calling by the prosecutor of any evidence that the prosecutor considered to be potentially relevant to the making out of the charge. Her Worship's duty was to hear fairly, and to judge according to law, such evidence as either party to the proceedings before her Worship might wish to adduce. Those comments seem to me to be particularly in point in connection with the interchanges, which I have earlier quoted, concerning the possible relevance of the evidence of the police officers Hillier and Wilson. 22 No doubt it was relevant to ask, as her Worship did in fact ask, at what time those two officers had seen, respectively, spittle on the monument; but her Worship, having asked that question, did not tarry for an answer. Having been told that the observations were made after the defendant had been arrested and brought into the police station, her Worship took up a point, to which indeed she made subsequent reference, that it appeared that nobody had photographed the offending material on the monument.

23 Quite how that lack drove so sharp a wedge into the evidence of Senior Constable Strawbridge as completely to destroy its veracity, is neither explained by her Worship nor, with respect, otherwise at all clear to me. It seems to me, with respect to her Worship, that her Worship was obliged at least to hear any evidence that the prosecutor wished to call; to rule properly upon any objection based upon relevance; or, indeed, based upon any other proper and available ground as to either the admissibility at law or the admission in fact of any such item of evidence tendered by the prosecution; and then to establish clearly whether the prosecutor had in fact closed his case. 24 That latter consideration was not, and is not in any comparable case, a mere formality. The closing formally of the prosecution case marks a point in the proceedings at which it becomes relevant to consider: first, not a question of fact but a question of law, that is to say, the question whether the whole of the evidence in the prosecution case, viewed at its highest in favour of the prosecution, is capable of establishing every essential element of the particular offence charged. 25 If such a ruling is made favourably to the prosecution, then it does not at all follow as a matter of course that there is to be an immediate further finding that the evidence is insufficient to establish the charge beyond reasonable doubt. 26 The finding that there is a prima facie case creates a situation in which the Court should call upon the defendant to make answer to the prima facie case. A defendant may do that by himself giving evidence; or by adducing otherwise evidence, whether oral or documentary, in support of a positive case put forward by him in answer to the prima facie case. That, too, is not a matter of mere formality, for as was pointed out by Kitto J in Zanetti v Hill (1962) 108 CLR 433 at 442, 443 there is no reason why a weak prosecution case may not be, as his Honour put the point, "eked out" by additional evidence provided during the course of a case called for the particular defendant. 27 It is, of course, the case that a defendant faced with a finding that there is a prima facie case against him, may elect to give no evidence at all. It does not thereupon follow as a matter of course that the prosecution must succeed; but neither does it follow as a matter of course that the prosecution must fail. Whether in such a case the prosecution is to succeed or fail must depend upon an analysis of the available evidence, being an analysis quite different in kind from the analysis which is appropriate in the consideration of the question whether there is a prima facie case. 28 As I have pointed out, the question whether there is a prima facie case is to be determined by taking the whole of the prosecution evidence at its very highest point in favour of the prosecution. In other words, the question is to be tested by assuming that the evidence in the prosecution case is in fact accepted at its highest point in the prosecution's favour.

29 The subsequent question whether the whole of the evidence justifies a finding beyond reasonable doubt that the charge has been proved requires an analysis that is not limited by such presumptions in favour of the Crown case.

30 It seems to me to be clear from the transcription of what occurred in the Local Court proceedings that her Worship did not approach the questions of which I have been speaking in the precise and legally correct way of which I have been speaking. That alone would be sufficient, in my view, to entitle the present plaintiff, at least in principle, to some relief.

31 I would add, however, and again with all proper respect to the learned Magistrate, that it seems to me that there was a clear failure of procedural fairness in the way in which her Worship dealt with the prosecution and with the prosecutor. No doubt it is the fashion to speak, as indeed the rules of this very Court speak, in terms of the "just, quick and cheap disposal" of matters; but as the present Chief Justice of the High Court has pointed out: in that formula, the most important part of the formula is the comma after the word "just".

32 It seems to me with respect to the learned Magistrate that a little more patience would have led to a good deal more clarity about what exactly the evidence might be that could be added to the prosecution case; and that in turn would have focused in a more precise and useful way upon the successive questions: first, whether that potential evidence had any, and if so, what particular relevance; secondly, what was the condition of the prosecution case at its formal closure; thirdly, whether as a matter of law that case at its formal closure established a prima facie case of the offence charged against the defendant; and, if so, the final question, whether on the whole of the evidence, it ought to be found in fact that the charge had been established beyond reasonable doubt. That failure of procedural fairness seems to me to afford an additional ground upon the basis of which the present plaintiff is entitled, at least in principle, to some relief. 33 I have twice referred to a perceived entitlement "in principle" on the part of the plaintiff to some relief. That has been because of a submission put by learned counsel for the first defendant to the effect that the power conferred by section 59(2) of the Appeal and Review Act is a discretionary power akin to the discretionary power reposing in the Court of Criminal Appeal pursuant to section 6(3) of the Criminal Appeal Act 1912 (NSW). 34 The submission is, that is to say, that even in a case in which this Court finds that there have been errors of law apt to vitiate the relevant order of the Local Court, there remains in this Court nevertheless an overriding discretion to refuse relief because of what is conventionally described as "double jeopardy". 35 Insofar as I have been persuaded that the learned Magistrate did make an error of law apt to vitiate her Worship's order, I accept at once that no fault in that connection can be laid at the feet of Mr Wunderwald. I accept as of course that it is only to be expected that he will be certainly disappointed, and probably indignant, to think that the order dismissing the information laid against him is defective in law, and that there opens up before him the prospect of a rehearing in the Local Court. 36 As to all of those considerations, I would say this: I am not persuaded that the words "may determine" which appear in section 59(2) of the Appeal and Review Act do confer an overriding discretion of the kind to which the submissions of learned counsel for the first defendant refer. It is, however, unnecessary to determine finally that point, because even if I were persuaded that the statutory expression carried with it such an overriding discretion, I would not think it right to exercise such a discretion adversely to the plaintiff in the present proceedings. 37 If it be correct to suppose that a Local Court magistrate has made an order vitiated by fundamental error of law; and more so, if one of those fundamental errors of law is a failure to accord procedural fairness to the prosecution; then I cannot suppose it to be correct, either in principle or in practice, to refuse to intervene in order to correct such a state of affairs. To do so would be, in my view, not to give effect to the statute, but to deprive it of the effect which, as it seems to me, the Legislature clearly intended that it should have. 38 I propose, therefore, to give some relief to the plaintiff. That being so, it is necessary to consider how best that relief is to be framed. The summons proposes a series of elaborate declarations. I do not think that it is appropriate to give relief of that kind. 39 It seems to me that the proper approach is to cleave to the language of the statute itself, which I propose to do by making these orders: 40 The appeal is upheld. The order of the second defendant made on 23 April 2003 and dismissing the information laid against the first defendant, is set aside. The proceedings are remitted to the Downing Centre Local Court, there to be heard and determined according to law and in conformity with this judgment. 41 The prayers for relief in the summons include a prayer for an order that the proceedings, if so remitted, be heard afresh by another Magistrate. I do not think that it is appropriate for the Supreme Court to intrude so far into the affairs of the Local Court as to make such an order. There are reasons, obvious and commonsense reasons as I would respectfully think, for the re-listing of the matter before a Magistrate other than the second defendant; but what is in fact to be done in that regard is, as I think, a matter for the Chief Magistrate or his delegate, and not a matter for a Judge of this Court. 42 The plaintiff makes an application for costs. I accept that in proceedings of this kind there is room for the argument that the conventional stance should be taken, that is to say, that costs should follow the event; but it does not seem to me that it would be fair to make such an order. As I have earlier remarked, it cannot be said in any reasonable way that it is Mr Wunderwald's fault that the proceedings in the Local Court have miscarried. 43 In those circumstances I do not think that justice would be done by imposing upon him the burden of paying the prosecution costs. There will be no order as to costs.

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