Director of Public Prosecutions (NSW) v Yeo and Anor

Crimes (Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) Act 1999 LEGISLATION CITED : Criminal Procedure Act 1986 Crimes Act 1900 Traffic Act 1909 Suitors' Fund Act 1951

Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 Director of Public Prosecutions v Wunderwald [2004] NSWSC 182 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402 Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746 Clout v Hutchinson (1950) 51 SR(NSW) 32 R v Buttsworth (1983) 1 NSWLR 658 Simpson v Peat [1952] 2 QB 24 Ex parte Graham; re Dowling (1968) 88 WN (Pt1) (NSW) 270 Ex parte Musgrove; re Howard (1961) 78 WN(NSW) 88 R v Cains (NSW Court of Criminal Appeal, 7 April 1971) 2 Petty Sessions Review 796 R v JMR (1991) 57 A Crim R 39 R v Serratore (1999) 48 NSWLR 101 CASES CITED : R v Birks (1990) 19 NSWLR 677 Meissner v The Queen [1994-1995] 184 CLR 132 Maxwell v The Queen [1995-1996] 184 CLR 501 R v Martin (1904) 4 SR(NSW) 720 Marlow v R [1990] 1 Tas SR 1 Blazevski v Judges of the District Court (NSW Court of Appeal, 10 November 1992, BC9101492) (1992) 62 ALD 197 Nitiva v Director of Public Prosecutions [1999] NSWCA 332 Underhill v Murden (2007) 173 A Crim R 336 Nudd v The Queen (2006) 80 ALJR 614 Whitehorn v The Queen (1983) 152 CLR 567 R v Meher [2004] NSWCCA 355 Robinson v R (2006) 162 A Crim R 88 Director of Public Prosecutions v Lee [2006] NSWSC 270 at [68] Director of Public Prosecutions (Cth) v Fabri [2008] NSWSC 655

Director of Public Prosecutions (NSW) (Plaintiff) PARTIES : Kim Soon Yeo (First Defendant) Patricia June O'Shane (Second Defendant)

COUNSEL : Mr ID Bourke (Plaintiff) Ms S Orman-Hales (First Defendant)

SOLICITORS : Solicitor for Public Prosecutions (Plaintiff) Robert John Nixon (First Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11539/08 Director of Public Prosecutions (NSW) v Kim Soon Yeo and Anor

JUDGMENT 1 JOHNSON J: By Amended Summons filed 21 July 2008, the Plaintiff, the Director of Public Prosecutions (NSW), seeks relief arising from the dismissal at Ryde Local Court on 23 January 2008 by the Second Defendant, Magistrate O'Shane, of a charge of negligent driving occasioning grievous bodily harm against the First Defendant, Kim Soon Yeo. 2 The Plaintiff appeals under s.56(1)(c) Crimes (Appeal and Review) Act 2001 alleging error of law on the part of the Second Defendant and, in the alternative, seeks prerogative relief upon the basis that the Second Defendant fell into jurisdictional error and denied the prosecutor procedural fairness.

Hearing in the Local Court 3 On 23 January 2008, the First Defendant appeared, represented by a solicitor, in response to a Court Attendance Notice first returnable on that day which alleged the offence of negligent driving occasioning grievous bodily harm contrary to s.42 (1)(b) Road Transport (Safety and Traffic Management) Act 1999. The maximum penalty for that offence is a fine of 20 penalty units or imprisonment for nine months or both (in the case of a first offence). 4 The First Defendant's solicitor, Mr Nixon, entered a plea of guilty and, in accordance with usual practice, a Statement of Facts was handed to the Second Defendant. 5 The Statement of Facts revealed that, at approximately 6.15 pm on Saturday, 4 August 2007, the First Defendant was driving his vehicle west on Terry Road, Eastwood. At the same time, Graham Lade was riding his bicycle east on Terry Road. At the intersection of Terry Road and Valley Road, a T-intersection, the First Defendant slowed to make a right turn into Valley Road. He proceeded into the eastbound lane of Terry Road at a speed of about 10-20 kph and collided with the front wheel of Mr Lade's bicycle, causing Mr Lade to be propelled from his seat into the air and thrown about five to eight metres forward in an easterly direction, where he landed heavily on the grassed nature strip on the north-eastern corner of the intersection. The bicycle was propelled a further five metres east landing about 10-15 metres east of the point of impact. The First Defendant immediately stopped his vehicle in Valley Road and attended to Mr Lade. Damage to the First Defendant's vehicle was minor, with dents in the front bonnet and bumper/registration plate area. 6 Police attended and the First Defendant was subjected to a roadside breath test which was negative. In response to questions by police, the First Defendant said: "I came to the intersection of Valley Road and slowed down ready to make my right turn. I did not see any cars or anything else and so I started to turn. All of a sudden I see something fly up into the air. I turned into Valley Road and stopped straight away and ran over to see a male lying on the corner on the nature strip." 7 He told police that he was driving at a "slow speed, about 10-20 kph" when he was turning right. He told police that he did not see any safety lights or reflective indicators coming towards him prior to the collision. 8 At the time of the collision, the road surface was dry-sealed bitumen and traffic was light. The weather was overcast, it was night time and the street lighting was illuminated. 9 The First Defendant was 51 years old at the time of the collision and had been driving in New South Wales since 1988. 10 Following the collision, Mr Lade was treated at the scene and then conveyed to Westmead Hospital for treatment. Injuries sustained by him in the collision included a right proximal humeral fracture, intra-articular head split type (right shoulder fracture), a segmental fracture of the clavicle (broken collar bone), right rib fractures, cup and ball joint fracture, left knee lacerations requiring stitches and grazes to his buttocks and right hand. He underwent surgery on 8 August 2007 to intra-operatively stabilise the fracture with three screws. Following this treatment, Mr Lade required extensive physiotherapy and ongoing rehabilitation. 11 All that I have said in [5]-[10] above has been drawn from the Statement of Facts handed to her Honour following the entry of the plea of guilty on 23 January 2008. It was common ground before me, as is obvious, that Mr Lade had the right of way so that the First Defendant was required to give way to him. 12 After being handed the Statement of Facts, the following exchange took place between her Honour and the prosecutor (T1-2, 23 January 2008): "HER HONOUR: I will just take a short time to read these documents. I have a difficulty with these facts, Sergeant. The fact that the present accused collided with the - was it a motor cycle or a bicycle? PROSECUTOR: Bicycle. HER HONOUR: Is not of itself evidence of negligence. Where was the - there is nothing in these facts to say what direction the bicycle was travelling in, where it was in the roadway, there's just nothing here. I'm looking for it and I can't see it, unless I've missed something altogether. PROSECUTOR: Your Honour, perhaps the matter might be put over so I can have the facts amended again to include that information. HER HONOUR: Do you have the information. If the information isn't contained in the facts then that's it. After all, when did this - this happened - it is alleged the incident occurred on 4 August which is, let's face it, five months ago. Actually, it is almost six months ago. PROSECUTOR: The police referred the matter to the Serious Motor Vehicle Collision protocol and were waiting for a response. They only.. [not transcribable] .. and they are still waiting for medical reports. HER HONOUR: Well that's not good enough, is it. If this is the return date and the Defendant has an option of pleading guilty then the matter has to be ready to proceed on a full account of what occurred. There is nothing in these facts to suggest negligence. With a matter of negligence it is not a situation of res ipsa loquitur, the facts speak for itself, it isn't. On the facts, this information should simply be dismissed out of hand, that's it. PROSECUTOR: Your Honour, I can only ask for an adjournment to enable the Prosecution to amend the facts. HER HONOUR: Is the prosecution going to be capable of amending the facts? PROSECUTOR: I believe so your Honour, I have a brief of evidence here but . HER HONOUR: You have a brief of evidence there? You are entitled to hand up statements on a plea of guilty but I just don't know why a plea of guilty is being entered, I have to say, Mr Nixon. The facts simply do not disclose an offence of negligence. As I said, the fact that there was a collision is not, of itself, evidence of negligent driving. I have read the statement made by the driver at the time. The weather was overcast but the road surface was dry, traffic was light, it was night-time, street lighting was illuminated, which doesn't really tell us anything very much at all. NIXON: As I understand, there was a light fitted to the bike which wasn't on. HER HONOUR: It wasn't on, on your instructions? NIXON: On my instructions. My client tells me that the first he knew that he had hit anything … HER HONOUR: I've read the facts do you have something further to hand up to me, Sergeant? PROSECUTOR: Your Honour, I can hand up the cyclist's statement. HER HONOUR: Do you have anything further from the informant than what's contained in the facts? PROSECUTOR: The statement from the cyclist certainly indicates further information other than what's contained in the facts. HER HONOUR: That doesn't actually tell me anything either, does it? His account is from his point of view and is, essentially, the same account as the driver tells from his point of view. No. If that's as high as it goes then it's not good enough. THE INFORMATION IS DISMISSED. He is free to go." 13 What appears in the preceding paragraph represents the entirety of what took place following the entry of the plea of guilty before the Second Defendant. The bench sheet which is in evidence (Annexure A, affidavit of RV Paul, 7 April 2008) records that a plea of guilty was entered and that the matter was "dismissed". No other order is noted whereby the plea of guilty was rejected or withdrawn.

Submissions of the Parties 14 Mr Bourke, counsel for the Plaintiff, submitted that a number of errors of law had been demonstrated in this case:

(a) there was no basis in law for the Second Defendant to have found, effectively, that there was no prima facie case of negligence - such a finding was contrary to the plea of guilty which constituted an admission of the elements of the offence and the matters contained in the Statement of Facts;

(b) if the Second Defendant did not accept the plea of guilty, such a finding ought to have been recorded, a plea of not guilty entered and the proceedings adjourned for hearing at a later date: ss.190, 193(2), 194, 195, 202 Criminal Procedure Act 1986 ;

(c) in proceeding as she did, the Second Defendant had acted contrary to the statutory scheme contained in Division 3, Part 4 of Chapter 4 Criminal Procedure Act 1986 (ss.190-210), which contained the appropriate steps required by law with respect to a summary hearing in the Local Court;

(d) if her Honour intended to entertain an application by the First Defendant for leave to withdraw his plea of guilty, it was necessary for the Court to proceed in accordance with the principles laid down in Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 - her Honour did not comply with the law in this respect;

(e) in refusing the prosecution application for adjournment, the Second Defendant failed to comply with the requirements of the Criminal Procedure Act 1986 , including s.202, thereby denying the prosecutor procedural fairness: Director of Public Prosecutions v Wunderwald [2004] NSWSC 182;

(f) finally, in purporting to dismiss the charge, the Second Defendant failed to give reasons as required by law for this determination: s.202 Criminal Procedure Act 1986 ; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402 at 408 [19]. 15 Mr Bourke submitted that it appeared that the Second Defendant had either misread or misunderstood the evidence tendered by consent on the plea of guilty, given her initial queries concerning the absence of certain facts. It is apparent from [5]-[10] above, that a clear summary of the facts had been provided to her Honour following the plea of guilty, and this was supplemented by the statement of Mr Lade which did not contradict anything contained in the Statement of Facts but supported it. 16 Mr Bourke submitted that an order should be made under s.59(2)(a) Crimes (Appeal and Review) Act 2001 setting aside the order of dismissal and remitting the matter to the Local Court for hearing before a Magistrate other than the Second Defendant. He submitted that such an order was appropriate in this case given the course taken by the Second Defendant at the hearing on 23 January 2008: Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746 at [31]. 17 Ms Orman-Hales, counsel for the First Defendant, submitted that the Plaintiff had not demonstrated error with respect to the course of proceedings in the Local Court and that, even if some error had been demonstrated, that relief ought be refused on discretionary grounds. 18 She submitted that, on the material before the Local Court, the Second Defendant was correct in concluding, effectively, that there was no prima facie case of negligence. Reference was made to Clout v Hutchinson (1950) 51 SR(NSW) 32 where Street CJ observed at 35 that negligent driving (under then s.4 Motor Traffic Act 1909) was "something less serious than reckless or furious driving" and involved a "different and lesser degree of negligence" than that which was necessary to prove an offence of negligent act causing grievous bodily harm under s.54 Crimes Act 1900. 19 Ms Orman-Hales submitted that it was open to the Second Defendant not to accept the First Defendant's plea of guilty. Although it was nowhere noted, Ms Orman-Hales submitted, in effect, that her Honour did not accept the plea of guilty and proceeded thereafter to consider the material which had been tendered by the prosecutor. Having done so, Ms Orman-Hales submitted that the Second Defendant concluded, correctly, that there was no prima facie case to support the element of negligence. Although no application was made for leave to withdraw the plea of guilty, Ms Orman-Hales submitted that the appropriate conclusion is that her Honour did not accept the plea of guilty. 20 Ms Orman-Hales submitted that no error had been demonstrated in the refusal to adjourn the proceedings. This was a discretionary matter and it was open to the Second Defendant to conclude that the prosecutor had placed the necessary material before the Court in the form of the Statement of Facts and Mr Lade's statement, and that no purpose would be served by adjourning the proceedings. She also submitted that the prosecutor ought to have had all available documentary material at the Court on the first return date, so that it might be provided to the Court if needed. 21 If a basis for relief was demonstrated, Ms Orman-Hales submitted that the matter ought not be remitted to the Local Court or, if it was to be remitted, that this Court should make an order allowing the plea of guilty to be withdrawn. Ms Orman-Hales accepted that it was open to the Court to remit the matter to the Local Court to be heard before a Magistrate other than the Second Defendant, but submitted that such an order ought not be made in this case.

The Statutory Offence of Negligent Driving 22 Before moving to resolve the issues raised in these proceedings, it is appropriate to make some observations concerning the offence of negligent driving. 23 A person must not drive a motor vehicle negligently on a road or road-related area: s.42(1) Road Transport (Safety and Traffic Management) Act 1999. If the negligent driving occasions grievous bodily harm, the maximum penalty (in the case of a first offence) is a fine of 20 penalty units or imprisonment for nine months or both: s.42(1)(b). 24 Section 42(3) is in the following terms: "(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following: (a) the nature, condition and use of the road or road related area on which the offence is alleged to have been committed,

(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road or road related area." 25 The offences of negligent driving occasioning death or grievous bodily harm were introduced by amendment to s.4 of the Traffic Act 1909 by the Traffic (Driving Offences) Amendment Bill 1994. 26 The statutory offence of negligent driving in s.42(1) is the successor to the offence of negligent driving originally enacted in s.4 Motor Traffic Act 1909. The history of this offence, and its relationship with culpable driving under s.52A Crimes Act 1900 and manslaughter, was considered by O'Brien CJ of CrD (Street CJ and Nagle CJ at CL agreeing) in R v Buttsworth (1983) 1 NSWLR 658 at 664ff. 27 Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672. 28 The provision now contained in s.42(3) demonstrates that the statutory offence of negligent driving may be committed although there may be no other traffic on the road, if other traffic might reasonably be expected to be there: R v Buttsworth at 667-668. 29 The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances, including the circumstances as set out in s.42(3): Simpson v Peat [1952] 2 QB 24. 30 To prove the offence of negligent driving under s.42(1), it is not necessary that there be any injury to a person or damage to property: R v Buttsworth at 667-668. Of course, if the negligent driving occasions death or grievous bodily harm, the driver will be liable to a higher maximum penalty: s.42(1)(a) and (b). 31 In R v Buttsworth at 682, O'Brien CJ of CrD said: "If, therefore, it were necessary to deal with the offence of manslaughter by criminal negligence and the offence of culpable driving, it would, I should think, obviously be necessary to indicate to the jury the differing standards of neglect for the safety of the public as other road users liable to be affected by the three standards in ascending order if the jury were to have any realistic appreciation of what the law was talking about in offences of manslaughter and of culpable driving and how they stood in relation to the well-known summary offence of negligent driving and the standard of negligence it involves." 32 It is clear that negligent driving is to be regarded as something less serious than reckless or furious driving or driving at a speed or in a manner dangerous to the public (all offences contained in s.42(2) of the Act): Clout v Hutchinson at 35. In Ex parte Graham; re Dowling (1968) 88 WN(Pt1)(NSW) 270, Asprey JA observed at 282: "Like the tort of negligence, 'negligent driving' is difficult to reduce to a set of rules. It covers a multitude of sins. It relates to the circumstances of the occasion. What would constitute the offence in one instance would pass without censure in another." 33 Given an observation made by the Second Defendant in this case concerning res ipsa loquitur, it is appropriate to refer to other authority. In Ex parte Musgrove; re Howard (1961) 78 WN(NSW) 88, Collins J at 89 observed that the "so called doctrine or principle of res ipsa loquitur can find no place in criminal law". It is important to place this comment in context. Collins J made this statement in the course of determining an appeal from a magistrate who approached the determination of a summary charge of negligent driving by applying the doctrine of res ipsa loquitur, and then proceeded to hold that the defendant had not discharged the onus of proving his innocence. 34 In R v Cains (NSW Court of Criminal Appeal, 7 April 1971) 2 Petty Sessions Review 796, O'Brien J (as his Honour then was) (in delivering the judgment of the Court) referred to Ex parte Musgrove; re Howard and said (at 804-805): "His Honour [Collins J in Ex parte Musgrove; re Howard ] agreed with submissions that if the phrase [res ipsa loquitur] has any place in the language of the criminal law, it can only be used to describe a factual situation where the prosecution's case is based on circumstantial evidence. Turning to the Magistrate's judgment, his Honour said it was clear that 'having first introduced a statement of the phrase res ipsa loquitur, he then proceeds to hold that the onus of proving his innocence was on the accused person, and convicted him because he had not discharged this onus'. This, of course, was clearly wrong, even if the maxim be used in civil law, and the Magistrate, so far as the charge before him was concerned, was bound to consider whether, on the whole of the evidence, the offence had been established by the prosecution beyond reasonable doubt. He ordered the rule to be made absolute because, as he said, 'the Magistrate was in error in holding that the applicant was guilty of the said offence, not because there was no evidence that the applicant was guilty, but because the reasons that he gave for finding him guilty completely vitiate his decision'. From this decision it can be seen in the first instance that his Honour did not hold that in a circumstance where a car leaves the road for no established reason it is not open to a Magistrate to infer, in the circumstances of the case before him, that the prosecution has not established the offence of negligent driving beyond reasonable doubt. In this case, the submissions of counsel at the trial, did not correctly represent the grounds of the decision of the case he cited. More importantly, it can be seen that in this judgment nothing can be found which requires, as a matter of law or as a desirable practice, that in an offence arising out of a collision on a road, the jury should be directed that they could not draw any inference of criminal conduct from a so-called unexplained accident. Of course, the decision could be used for the proposition, if authority were really needed, that the jury should not be told to follow some such process as the Magistrate there followed. It was not suggested, of course, before me that the learned Chairman had made any such suggestion." 35 A negligent driving case, like any other case, may depend largely or entirely on circumstantial evidence. In the absence of an admission by the driver charged, the case may fall to be determined by application of principles relevant to a circumstantial case, including the drawing of inferences from proved facts. 36 To establish a prima facie case in a prosecution based upon circumstantial evidence, it is necessary for the prosecution to show, at the close of its case, that an inference consistent with guilt reasonably arose on the evidence. It does not have to prove that this was the only inference that arose or that there was no inference arising from the evidence inconsistent with guilt: R v JMR (1991) 57 A Crim R 39 at 43-44; R v Serratore (1999) 48 NSWLR 101 at 130; Director of Public Prosecutions (Cth) v Neamati at [14]. 37 Putting aside, for the moment, the First Defendant's plea of guilty, the Statement of Facts and Mr Lade's statement provided the foundation for a very clear inference that the First Defendant was not keeping a proper lookout, and was not driving with due care and attention (and had thus departed from the standard of care for other road users to be expected of an ordinary prudent driver) when he made the right-hand turn from Terry Road into Valley Road, Eastwood, on the evening in question, driving straight into Mr Lade's bicycle which had the right of way. 38 It might be thought that this very clear inference serves to explain the plea of guilty entered on the First Defendant's behalf by his solicitor.

Determination 39 The Plaintiff has demonstrated error of law in a number of respects in these proceedings. I regret to say that the course taken by the Second Defendant at Ryde Local Court on 23 January 2008 bore little resemblance to what was required by law under applicable statutory and common law principles. 40 The First Defendant appeared together with a solicitor and a plea of guilty was entered to the charge. A court should approach such a step upon the basis that the plea announced in open court, in the presence of the First Defendant, represented his instructions to his solicitor: R v Birks (1990) 19 NSWLR 677 at 683-684. Thereafter, no application was made by the First Defendant for leave to withdraw the plea of guilty. 41 A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or nor guilty, and a Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interest of the person entering the plea: Meissner v The Queen [1994-1995] 184 CLR 132 at 141. 42 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen at 157; Wong v Director of Public Prosecutions at 45-46. 43 Where an application is made for leave to withdraw a plea of guilty, evidence ought be adduced from the accused person as to the circumstances in which he or she came to plead guilty: Wong v Director of Public Prosecutions at 40 [14].

44 In Maxwell v The Queen [1995-1996] 184 CLR 501, Dawson and McHugh JJ said at 510-511: "An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered . But otherwise an accused may insist upon pleading guilty." 45 These principles surrounding acceptance or rejection of a plea of guilty, apply in the Local Court under s.193(2) Criminal Procedure Act 1986. It has been said that, where the accused person's version of the facts is inconsistent with the plea of guilty, the court should give the defence an opportunity to withdraw the plea and, if that does not occur and the accused person insists upon pleading guilty, the court should ignore the accused person's version: R v Martin (1904) 4 SR(NSW) 720; Marlow v R [1990] 1 Tas SR 1; Blazevski v Judges of the District Court (NSW Court of Appeal, 10 November 1992, BC9101492) (1992) 62 ALD 197 at 208-209, 212-213. 46 Where a Magistrate determines under s.193(2) not to accept the accused person's guilty plea on the first return date, a plea of not guilty ought be entered and the court must set the date, time and place for the hearing and determination of the matter: s.190(1) Criminal Procedure Act 1986. 47 It will be apparent that none of these statutory or common law principles were applied by the Second Defendant in the present case. Both the transcript of the proceedings and the record of the Local Court disclose a plea of guilty being entered which, although criticised by her Honour, was not rejected or withdrawn by leave. By that plea, the First Defendant admitted the essential elements of the offence, including negligence. Yet the Second Defendant dismissed the charge. Clear error of law is revealed in these circumstances. 48 If the view is taken that her Honour, without recording such an order, rejected the plea of guilty, a further question arises. Her Honour took the view that the Statement of Facts and the statement of Mr Lade did not disclose negligence. Reference was made to the doctrine of res ipsa loquitur having no application. 49 Her Honour's earlier exchange with the prosecutor concerning the suggested lack of factual information in the material is difficult to understand given the contents of the Statement of Facts which I have summarised earlier in this judgment. If her Honour was to reach the point of considering the sufficiency of the evidence by reference to the element of negligence, then the question involved consideration of inferences available from the undisputed facts. There was a very clear inference available that the First Defendant had not acted in accordance with the standards of the ordinary prudent driver in that he failed to keep a proper lookout and failed to pay proper attention so that he did not see the oncoming bicycle (which had the right of way) with which he collided whilst doing a right-hand turn. 50 If the matter had proceeded to a defended hearing, arguments may have been advanced concerning the visibility of the bicycle, although I note that Mr Lade's statement recorded that he had reflective shoes, a front light mounted on his bike and a red flashing light on the rear and that the lights were working at the time of the collision. However, the Second Defendant had before her the admission of negligence conveyed by the plea of guilty, together with a very strong inference of negligence arising from the Statement of Facts. 51 In this Court, both counsel submitted that the Second Defendant concluded (although this was not stated expressly) that there was no prima facie case of negligence. In doing so, I am satisfied that a clear error of law was committed both by disregarding the plea of guilty, and failing to apply the appropriate legal test to reach the necessary conclusion by reference to inferences arising from the evidence placed before the Local Court. 52 Further, I am satisfied that the Second Defendant has failed to comply with statutory procedures in the Criminal Procedure Act 1986 and denied the prosecutor procedural fairness by declining to adjourn the proceedings. 53 In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal (Sheller and Beazley JJA, Cole AJA) observed at [64], in the context of a claim of denial of procedural fairness by a refusal to adjourn criminal proceedings: "The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at ALR 343 'it is important to remember that the relevant duty of [the court] is to ensure that a party is given a reasonable opportunity to present his case'. In our opinion, the claimant was not given that reasonable opportunity." 54 In Blazevski v Judges of the District Court, Kirby P (as his Honour then was) said at 200: "Courts providing judicial review to rectify departures from the requirements of procedural fairness will likewise give relief for departures from such requirements which will have been taken by the trial court outside the proper exercise of its jurisdiction. In criminal cases, they will do so where the injustice has been done to the prosecution as well as to the accused." 55 If the Second Defendant rejected the plea of guilty, the Court ought to have proceeded to set the date, time and place for the hearing and determination of the matter: s.190(1). Thereafter, a Magistrate would determine the matter after hearing the accused person, prosecutor, witnesses and evidence in accordance with s.202 Criminal Procedure Act 1986. That did not occur in this case. It is no answer to this conclusion to assert that the prosecutor had an opportunity to place before the Second Defendant on 23 January 2008 the Statement of Facts and the statement of Mr Lade. 56 Leaving aside, for the moment, the fact that a plea of guilty had been entered and that the evidence before the Local Court was supportive of the guilt of the First Defendant, if the matter was not to proceed to finality pursuant to the plea of guilty that day, the prosecutor was entitled to have the proceedings adjourned so that the witnesses could be called, and submissions made, in light of the evidence adduced at the hearing. In accordance with the principle referred to in Nitiva v Director of Public Prosecutions, the duty of the Court was to ensure that the prosecutor be given a reasonable opportunity to present the prosecution case. In my view, the Second Defendant deprived the prosecutor of such a reasonable opportunity in this case. To force the prosecutor to proceed on the first return date, in the circumstances of this case, gave rise to an injustice and denial of procedural fairness: Underhill v Murden (2007) 173 A Crim R 336 at 339 [11], 342 [25]. 57 The course adopted by the Second Defendant did not afford a hearing according to law to the prosecutor in accordance with s.202 Criminal Procedure Act 1986. In Director of Public Prosecutions v Wunderwald, error of law was found where the presiding Magistrate (the same Magistrate as in this case) part way through the prosecution case, in effect determined that no further witnesses would assist the prosecution case and the hearing was brought to a peremptory conclusion. In the course of granting relief, Sully J said at [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." 58 Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R (2006) 162 A Crim R 88 at [138]-[140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty. 59 Finally, I accept that error of law has been demonstrated by the failure of the Second Defendant to give reasons as required by law for dismissing the charge. In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited, it was observed, at 408 [19], that one of the conventional functions of the requirement to give reasons relates to the appellate process. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the Bench and counsel during submissions to ascertain a Magistrate's reasons for determination. 60 It might be said that it is clear enough that the Second Defendant reached an immovable view that, despite the plea of guilty and the contents of the Statement of Facts and Mr Lade's statement, there was no evidence of negligence revealed. If, however, her Honour had determined to dismiss the charge, the law required the expression of reasons. Although this error is not decisive, it constitutes the final step in a series of errors which I am satisfied occurred in this case.

Conclusion 61 Clear errors of law have been demonstrated in this case. The matter ought be remitted to the Local Court. The appropriate course is to set aside the order of dismissal of the charge. 62 The First Defendant pleaded guilty to the charge in the Local Court. The appropriate course is for the proceedings to be remitted in that state. It will be a matter for the First Defendant to decide whether he wishes to make application for leave to withdraw his plea of guilty. In that event, it will be necessary for a Magistrate to determine, in accordance with the principles in Wong v Director of Public Prosecutions, whether leave to withdraw the plea of guilty ought be granted. 63 I propose to make orders under s.59(2)(a) Criminal (Appeal and Review) Act 2001. It is not necessary to address the alternative claim for prerogative and declaratory relief beyond observing that clear jurisdictional error has been demonstrated. Had there been an impediment to the grant of statutory appellate relief, I would have granted the Plaintiff prerogative and declaratory relief. 64 In circumstances where I am well satisfied that the Second Defendant peremptorily dismissed the charge, in the face of a plea of guilty, and without proper regard to applicable law and practice, it is appropriate that the matter be remitted to the Local Court to be determined by a Magistrate other than the Second Defendant: Director of Public Prosecutions v Lee [2006] NSWSC 270 at [68]; Director of Public Prosecutions (Cth) v Neamati at [42]; Director of Public Prosecutions (Cth) v Fabri [2008] NSWSC 655 at [14]-[15]. 65 I make the following orders:

(b) I set aside the order of the Second Defendant made on 23 January 2008 dismissing the charge against the First Defendant under s.42(1) Road Transport (Safety Transport and Management) Act 1999 ;

(c) the matter is remitted to the Local Court to be heard before a different Magistrate conformably with this judgment;

(d) the First Defendant is to pay the Plaintiff's costs;

(e) the First Defendant is granted a certificate under s.6 Suitors' Fund Act 1951 . **********

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