DPP v Tong

LOWER COURT Local Court JURISDICTION : LOWER COURT U1455 96/02 MSG-C2; U1732 3/03 JRW-A1 FILE NUMBER(S) : LOWER COURT L Gould JUDICIAL OFFICER :

• 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10576/03 Director of Public Prosecutions (NSW) v Peter Emmanuel Tong

JUDGMENT 1 DOWD J: The Plaintiff, the Director of Public Prosecutions (NSW) ("DPP") sought by way of summons an order under s109(a) of the Justices Act 1902 that the order of Mr L Gould, Magistrate dismissing an information against the Defendant Peter Emmanuel Tong for the offence of Dangerous Driving (Drive Under the Influence of a Drug Occasioning Grievous Bodily Harm) be quashed. 2 Alternatively, the DPP sought an order pursuant to s109(d) of the Justices Act that the information against the Defendant referred to above be remitted to Mr L Gould Magistrate to be dealt with according to law. A further order was sought that the Defendant pay the DPP's costs of and incidental to the summons.

3 At 6am on 8 December 2001, the Defendant was driving on The Entrance Road at Long Jetty with his girlfriend in the front passenger seat. Whilst negotiating a right hand curve in the road, the Defendant lost control of the vehicle, crossing onto the incorrect side of the road and colliding with a power pole, the Defendant being thrown from the vehicle. His girlfriend was trapped inside, and after the car was cut open by police and ambulance officers both she and the Defendant were taken to Gosford Hospital. The passenger suffered injuries to her right femur and knee. The Defendant suffered serious head injuries and injuries to his wrist and shoulder.

4 Blood samples were taken from the Defendant at 7.20am at the Royal Prince Alfred Hospital when he was transferred there that morning, which were found to contain 0.025g of alcohol per 100ml of blood; 0.017 mg of delta-9THC per litre of blood; and in excess of 0.1g of delta-9THC acid per litre of blood. The delta-9 THC is the active component in marijuana. 5 The police obtained a statement from Dr Perl, which stated, after setting out her qualifications, that at the time of driving the Defendant was under the influence of cannabis to the extent that his driving ability would have been impaired. 6 On 16 September 2002, the first day of the hearing, where evidence of the informant was being heard, the following exchange took place during the course of the informant's evidence, at T.12:4-20: Prosecutor: Q. …I understand that it is in dispute, however I show you a statement from Judith Perl. Is that the statement you obtained from Ms Perl? A: It is. Prosecutor: Your Worship I don't know if my friend objects to me tender (sic) that statement at this stage or if it could just be marked for identification Mr O'Neill: I would prefer it to be marked. MFI C STATEMENT FROM JUDITH PERL Prosecutor: On the basis that the witness is to be cross-examined, is that correct? Mr O'Neill: Mm. 7 Arrangements were made for Dr Perl to be called on a date convenient to her, namely 20 December, 2002, when the hearing resumed. 8 On 20 December 2002, Dr Perl was called. The following exchange occurred, at T2.26 - 40: Prosecutor: I call Dr Perl. O'Neill: There's no need to call her at this stage. Bench: No need to call her? O'Neill: No, there'll be some argument about her. Maybe she could identify the report. Just for the record, O'Neill, continuing with and for the defendant. Bench: Well it's the prosecutor's case, she can call her if she likes. It's a matter of whether you'd cross-examine her, that's all. O'Neill: No, I'm going to object to the entire report. 9 The statement, being a certificate dated 5 March 2002, was tendered. The tender was expressed to be under s177 of the Evidence Act 1995 ("the Act"), and was objected to on the basis of it being totally devoid of any reasoning process or underlying methodology in the statement. 10 Section 177 of the Act is in the following terms:

(1) Evidence of a person's opinion may be adduced by tendering a certificate ("expert certificate") signed by the person that: (a) states the person's name and address, and (b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and (c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge. (2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party: (a) a copy of the certificate, and (b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion. (3) Service must be effected not later than: (a) 21 days before the hearing, or (b) if, on application by the party before or after service, the court substitutes a different period - the beginning of that period. (4) Service for the purposes of subsection (2) may be proved by affidavit. (5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence.

(6) The expert certificate is not admissible as evidence if such a requirement is made.

(7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section. 11 The basis of the objection by Defence counsel was that Dr Perl's statement did not set out the methodology and reasoning supporting her conclusion. In support of this argument, counsel relied on the decision of Heydon JA, as he then was, in the Court of Appeal decision of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

12 In his decision on 20 December 2002, the learned Magistrate quoted Heydon JA in Makita at p744 saying, at T.18:19-25: "…demonstration or examination of a scientific or other intellectual basis of the conclusions reached. That is the expert's evidence must explain how the field of specialised knowledge… upon which the opinion is wholly and substantially based applied to the facts… If all these matters are not made explicit it is not possible to make sure whether the opinion is based wholly or substantially on the expert's knowledge. The Court cannot be sure that the evidence is strictly speaking not admissible and so far as it is admissible of diminished weight". 13 The Magistrate's quotation should have been "if the Court cannot be sure of that, the evidence is strictly speaking not admissible, and so far as it is admissible, of diminished weight" (Makita v Sprowles (supra), at p744). 14 The learned Magistrate, relying on submissions concerning Makita v Sprowles (supra), held that that case was binding on him, and thus the expert certificate under s177 of the Act was not admissible. His Worship then went on, in answer to the argument put on behalf of the Defendant in these proceedings, that in accordance with s66G (sic) of the Justices Act, he was obliged to refuse the admission of evidence sought to be adduced by the prosecutor if Subdivistion 6A of the Justices Act had not been complied with. His Worship held that the certificate did not expose any reasoning process and was thus inadmissible in accordance with Makita v Sprowles. 15 The prosecutor then sought to adduce the oral evidence of Dr Perl, on the basis that clearly counsel for the Defendant was not caught by surprise, and that evidence could be elicited from Dr Perl. His Worship held against the application of the prosecutor on the basis of non-service of her evidence on the Defendant, citing s66A, but meaning s66B of the Justices Act, holding that he was relying on Makita v Sprowles. His Worship then dismissed the information. 16 Magistrate Gould had granted an extension of time pursuant to Pt51B r6 SCR for the DPP to bring this appeal.

Analysis of Makita v Sprowles 17 It was submitted by the Defendant in the appeal that the admission of the certificate under s177 is discretionary, and that it is necessary to comply with tests as to relevance and, in particular, to s79 of the Act. The defendant submitted that Makita v Sprowles obliges the exposure of the reasoning process.

18 The DPP argued that the Magistrate erred in applying the considerations in Makita to the circumstances of this case. The DPP argued that first, Makita's case had no application at all to s177 of the Act, and secondly, that in any event the Magistrate applied the wrong test. The DPP submitted that the test as to whether the Court is satisfied that the opinion is based wholly or substantially upon the expert knowledge is to be determined on the balance of probabilities, as set out in s142 of the Act. That section provides: Section 142 Admissibility of evidence: standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding, and

(b) the gravity of the matters alleged in relation to the question. 19 The DPP further relied on the case of Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCA FC 157 in arguing that it is not necessary that the Court be 'sure' that an expert's opinion is based wholly or substantially upon the expert's knowledge. 20 The DPP submitted that the comments of Heydon JA in Makita were obiter and were made in the context of expert evidence about a 'slippery floor', being evidence which sought to contradict uncontradictable facts, and not intended to be statements of universal application. The DPP also sought to distinguish between HG v R (supra) and Makita and the present case. 21 The DPP in its submissions argued that in HG v R, the comments made by Gleeson CJ were made in the context of a report by a psychologist which revealed a process of reasoning apparently extending well beyond his field of expertise. 22 The DPP submitted in relation to HG v R and Makita that the views of the members of the Court in relation to HG v R were disparate and established no binding principle as to the interpretation of s79 of the Act. It further submitted that Gleeson CJ observed that s79 had the effect of focusing attention on form, so that it is possible to determine whether the opinion was based upon specialised knowledge resulting from study, or experience. That question was directly answered in Dr Perl's certificate, the Act having mandated an appropriate form. The DPP further submitted that the common feature in HG v R and Makita was a dubious nexus between the suggested expertise and the opinion. It was submitted that those cases go no further than emphasising the requirement that the expert evidence must satisfy s79, as determined by the form and the subject matter.

23 The DPP submitted that in the present case, by contrast, it was not necessary to provide detailed reasoning in order to answer the questions posed by s79 of the Act, because the opinion was so clearly within the field of expertise, and the questions were directly addressed. It submitted that Dr Perl's opinion was based upon clearly identifiable and longstanding expertise as a clinical forensic pharmacologist; Dr Perl expressed an opinion based upon specific facts and her specialised knowledge; the opinion expressed went precisely to her area of expertise, as disclosed by her qualifications and experience; and that the evidence was prima facie admissible, and any deficiency of detailed reasoning went to weight rather than to admissibility. 24 The DPP submitted that Dr Perl's certificate under s177 of the Act complied with the requirements of that section. It was submitted that the provision is a facilitative one, designed to expedite proceedings, and that the learned Magistrate was in error in rejecting the certificate on the basis of non-compliance with Makita v Sprowles. His Worship found no other fault in the certificate. 25 In Makita, Heydon JA quotes the following passage from HG v R at 427, in relation to ss76-80 of the Act, at p742: An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question ( Ramsay v Watson (1961) 108 CLR 642; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348). Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. 26 Section 79 of the Act states: 79 Exception: opinions based on specialised knowledge If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

27 In Makita, Heydon JA then went on to say at pp743-744: In short, if evidence tendered as expert opinion evidence is to be admissible,it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.

28 In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (supra), Branson J quoted Makita as extracted in para 27 of this judgment above, and said, at para 7: The approach of Heydon JA as set out above is, as it seems to me, to be understood as a counsel of perfection. As a reading of his Honour's reasons for judgment as a whole reveals, his Honour recognised that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined in the above paragraph. 29 Her Honour then went on to say at para 10: Thirdly, as I pointed out in Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-4, the common law rule that the admissibility of expert opinion evidence depends on proper disclosure of the factual basis of the opinion is not reflected as such in the Evidence Act 1995 (Cth) (the Evidence Act). The Australian Law Reform Commission recommended against such a precondition to the admissibility of expert opinion, expressing the view that the general discretion to refuse to admit evidence would be sufficient to deal with problems that might arise in respect of an expert opinion the basis of which was not disclosed (ALRC Report No 26, vol 1, para 750). That general discretion is to be found in s 135 of the Evidence Act. 30 In relation to Heydon JA's judgment in Makita, Branson J stated at para 14: However, if Heydon JA, in the paragraph set out in [6] above, intended to use the word "sure" in its usual sense of subjectively certain, I respectfully disagree with the view that when determining the admissibility of evidence of an expert opinion (perhaps more accurately, a purported expert opinion), it is necessary for the court to be " sure whether the opinion is based wholly or substantially on the expert's specialised knowledge ". The test is whether the court is satisfied on the balance of probabilities that the opinion is based wholly or substantially on that knowledge (s 142 of the Evidence Act). However, as identified in [12] above, satisfaction of that test is not sufficient to render the evidence of the expert opinion admissible. To be admissible the evidence must also be relevant. It is the requirement of relevance, rather than the requirement that the opinion be based wholly or substantially on the expert's specialist knowledge, that, as it seems to me, most immediately makes proof of the facts on which the opinion is based necessary. If those facts are not at the close of trial proved, or substantially proved (see Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846), it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding to which the evidence is directed.

31 And further at para 16: Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. 32 In their reasons for judgment, Weinberg and Dowsett JJ added at para 87: The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However, many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process. 33 Section 177 of the Act creates a procedure for the admission of expert evidence throughout all courts of the State, which is intended to prevent the unnecessarily expensive task of proving relatively routine matters in court proceedings. The admission process can be prevented by the service of a notice by the opposing party under s177(5) of the Act obliging the calling of oral evidence. The expert certificate therefore does not become admissible. There is a sanction to prevent the unnecessary calling of a witness, in that a cost penalty may be imposed. 34 In these proceedings, as there was no notice given under s177(5) of the Act, the evidence was admissible at the discretion of the Magistrate hearing the proceedings. It should be noted that the actions of counsel for the Defendant before the Magistrate in these proceedings was not to give notice, and thus did not prevent the admissibility of the certificate under the section, and indeed, not to require the witness for cross-examination.

35 Useful as the analysis of the law on expert evidence as by Heydon JA in Makita, it is clear that Makita was a decision in which each Judge in that case, including Heydon JA, held that the trial Judge had erred in accepting the evidence of the expert witness. In particular, they noted that there was no evidence of any other 'slipping' accident on the stairs, which was the basis of the claim in Sprowles v Makita [1999] NSWSC 1239. It was a factual decision made by the Court of Appeal and one that presented no question of principle. The Court simply found that there was little weight in the opinion of the expert. 36 Additionally, on the High Court special leave application, Gleeson CJ and Callinan J held that the unanimous decision of the Court of Appeal case turned on the cogency of the expert's evidence, and that the decision of the Court of Appeal was essentially factual. The Court, in discussing the special leave application found that: "the case presents no question of principle suitable to a grant of special leave, and we are not persuaded that the interests of justice require that there be a grant" ( Sprowles v Makita Australia Pty Ltd, HCA, 31 May 2002). 37 In my view, the certificate of Dr Perl complies with s79 of the Act, and the different circumstances of Makita v Sprowles do not prevent its admission. The obiter of a single Judge in a case which was decided on the facts does not bind the learned Magistrate, and therefore his Worship erred in failing to apply the proper discretionary criteria on the question of the admissibility of the certificate. His Worship had the power to admit the certificate, and failed to exercise the discretionary judgment as to whether that certificate should be permitted, provided by the procedure in the Act, and in holding that he was bound by the decision in Makita v Sprowles. He therefore erred in the exercise of his judgment in that he did not admit the certificate.

38 When the learned Magistrate, on 20 December 2002, suggested that the reasoning of Dr Perl could be exposed by oral evidence, counsel for the Defendant then objected on the basis of the requirement as to notice contained in s66B of the Justices Act, arguing that no brief had been given of the oral evidence of Dr Perl. 39 Subdivision 6A of the Justices Act, entitled "Service of Briefs of Evidence" includes the provision in s66A, which is as follows: Section 66A Definitions

(1) In this Subdivision: brief of evidence , in relation to a prescribed summary offence, means documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes: (a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and (b) any document, or other thing, identified in such a written statement as a proposed exhibit. … 40 Section 66B of that Act provides: Section 66B Brief of evidence to be served on defendant unless otherwise ordered

(1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence. (2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require. 41 Sections 66E, 66F and 66G then provide: Section 66E Discretion to order that copy of brief of evidence need not be served

(1) The Justice or Justices may order that all or part of the copy of the brief of evidence need not be served if the Justice or Justices are satisfied: (a) that there are compelling reasons for not requiring service, or (b) that it could not reasonably be served on the defendant. (2) The Justice or Justices may make an order under this section on their own initiative or on the application of any party. (3) An order may be made subject to such conditions (if any) as the Justice or Justices think fit.

(1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority. (2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.

(3) Subsection (2) does not apply to any requirement referred to in subsection (1) that is declared by the regulations to be a requirement that may not be dispensed with under subsection (2).

Without limiting the power of a Justice or Justices to adjourn proceedings, the Justice or Justices are to grant such adjournments as appear to be just and reasonable if the copy of the brief of evidence is not served in accordance with this Subdivision, and may extend accordingly the time for hearing the matter. 42 The Defendant submitted that the principle objection to the granting of oral evidence was the unfairness of meeting expert evidence "on the run", and that his Worship in his decision had embraced the complaint of denial of a fair opportunity to assess the evidence. The Defendant further submitted that the case had been before the Court in September and December 2002, and that it was proper for his Worship to refuse the application by the prosecution to lead oral evidence.

43 The DPP argued in this appeal that notice had been given to the Defendant regarding the matters contained in Dr Perl's certificate, and that any perceived deficiency could have been cured by oral evidence. Citing the case of DPP v Sounthorn [1999] NSWSC 786, the DPP submitted that as the certificate complied with the requirements of the statute, the Court was not precluded from receiving supplementary material, particularly where that necessity was contingent upon an objection. 44 In DPP v Sounthorn (supra), Grove J held that a copy of a search warrant authorising entry to premises was not necessarily required to be served as part of the brief of evidence, pursuant to s66B of the Justices Act. Grove J stated, relevantly, at para 15: There is in my view no ambiguity in the legislated definition of the brief of evidence and the requirements of purposive construction of statutory language do not mean that in the present context the prosecution must supply a copy of every document which may possibly become relevant in the course of hearing […] In short, whilst it may be foreseen that if the case took a particular turn, evidence to overcome objection or evidence in rebuttal might come to be tendered, the requirement for inclusion in the brief does not extend to that contingent material. 45 It was submitted by the DPP that his Worship purported to refer to ss66A, 66G, and 66F of the Justices Act, and in refusing to allow oral evidence, relied upon s66A of that Act, which appears to be just the definitions section.

46 The DPP argued that the learned Magistrate failed to consider relevant provisions of the Justices Act in rejecting the oral evidence of Dr Perl, in that he failed to take into account s66E of that Act in basis his decision to reject the oral evidence based on reference to ss66A, 66B, and 66F, and not ss66E, 66F(2), or s66G. 47 Section 66E provides that Justices have a discretion to make an order dispensing with service, if satisfied that there are compelling reasons for not requiring service of all or part of the brief of evidence, or that it could not reasonably be served on the Defendant. It was submitted by the DPP that the Magistrate completely failed to exercise a discretion under s66E, and failed to consider whether there were compelling reasons not to require service, or whether the evidence could not reasonably be served. 48 Section 66F gives the power to dispense with the requirements of s66B on such terms and conditions as appear "just and reasonable". The DPP submitted that the learned Magistrate did not consider this section of the Justices Act, citing the case of DPP v West (2000) NSWLR 647, which held that the inadmissibility provisions of s66F(1) were subject to a broad discretion to be exercised with regard to the public interest. 49 DPP v West (supra) is a matter where, pursuant to s104(2) of the Justices Act, an informant appealed to the Supreme Court against an order made by a Magistrate in summary proceedings dismissing informations laid against the defendant in those proceedings. The appeal was heard by Sperling J, who quashed the order and remitted the matter for determination according to law. The matter was removed to the Court of Appeal by Sperling J as he disagreed with the earlier decision of Sully J in DPP v Milgate (1999) 107 A Crim R 301 on which the Magistrate relied. 50 It was held by the bench in DPP v West, comprised of Mason P, Sheller JA and Giles JA (a p 647) that pursuant to s66E, the Magistrate has a discretion to order that all or part of the copy of the brief of evidence need not be served if the Magistrate is satisfied that there are compelling reasons for not requiring service or that the brief could not be reasonably served on the defendant, such an order may be made subject to conditions. It was held that s66E does not address the shortening of the s66B(2) time frame, but, however, pursuant to s66F(2) but subject to s66F(3), the Magistrate may, and on the application of or with the consent of the Defendant, must dispense with the requirements of ss66F(1) on such terms and conditions as appear just and reasonable. The judicial discretion is a broad one, but it is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice do not occur. 51 Mason P outlined the legislative scheme as contemplated in the Attorney-General's Second Reading Speech on the Justices Amendment (Briefs of Evidence) Bill 1997. In relation to s66F he said, at pp655 - 656: Section 66F(1) imposes a duty upon magistrates ("are to refuse"). They must refuse to admit evidence sought to be adduced by the prosecuting authority in respect of a prescribed summary offence if, in relation to that evidence, the Subdivision has not been complied with by the prosecuting authority. The prohibition will apply to the whole of the evidence if the brief of evidence was not served in due time. Equally, it will apply to an item of evidence not contained in a brief otherwise duly served. In either case, unless the requirements of s66F(1) are dispensed with qua that evidence, the magistrate is required to refuse to admit that evidence. However (and subject to s66F(3), the magistrate may, and on the application of or with the consent of the defendant must, dispense with the requirements of subs (1) on such terms and conditions as appear just and reasonable (s66F(2)). The judicial discretion is a broad one, but it is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice does not occur. 52 Mason P goes on to say, at p 656: The barrier created by s66F(1) need not remain permanently lowered. For example, it would be lifted if and when dispensation ensued in accordance with s66F(2) or an order were made in accordance with the concluding words of s66G. Nor does refusal to admit evidence necessarily spell the dismissal of the prosecution. There may be sufficient evidence contained within a complying brief of evidence and/or in a brief of evidence in respect of which dispensation has been granted under s66F(2). Or compliance with the Subdivision may occur following a s66G adjournment and order extending the time for hearing. 53 The exercise of a discretion to allow oral evidence should have taken into account that the Defendant, at the hearing on 16 December, acquiesced in an adjournment to a date convenient to call Dr Perl. Dr Perl was called, but not pursuant to the s177 procedure of the Act although the learned Magistrate was entitled to assume it. The fact to be taken into account in the exercise of the discretion was that the Defendant acquiesced in a procedure for the calling of the witness, without giving notice of the basis of the objection of the oral evidence, and then claims to be taken by surprise when the evidence was sought to be adduced, and then complained that the procedure for giving notice of evidence to be called under the Justices Act has not been complied with. 54 It seems to me this was a proper basis for the allowing of the oral evidence and the granting of an adjournment at that stage, if the Defendant had required one to answer any material that was properly the subject of any genuine surprise. 55 In order to enliven the powers under Subdivision 6A of the Justices Act, it would simply have been possible for the Court to have made orders providing appropriate orders to the Defendant, if the Court had been made aware that the defendant was going to take objection under the Justices Act. In my view, the learned Magistrate failed to properly apply the powers granted to him under the Subdivision and therefore erred. 56 Counsel's use of the word "Mm", referred to in para 6 above, when the question of cross-examination was asked, could lead a Magistrate to infer that, the proceedings being adjourned for some two months, in the clear expectation that the witness would be called, it was the clear intention of the Defendant to have Dr Perl called without the intention of her giving relevant evidence and then having her cross-examining, which would effectively avoid the s177 procedure. 57 I consider that the learned Magistrate's failure to allow oral evidence was an error, and that in the proper exercise of his discretion, oral evidence should have been allowed.

58 It was put that there was no application by the DPP for further adjournment. The Magistrate had, at that stage, purported to exercise, without articulating reasons, power under s66G. On this last point, the DPP submitted that the learned Magistrate did not consider s66G as an alternative to s66F(2), although that section had been raised in discussion by the defendant at T.7:41, and although the matter could have been adjourned and the time for compliance extended. 59 I do not consider in the circumstances of the Magistrate's handling of the matter that failure to seek a further adjournment denies the DPP a remedy. 60 In the Court's view, the Magistrate was in error in dismissing the information. 61 It was submitted by counsel for the Defendant in this Court that s110 of the Justices Act that this Court may dismiss the information, as it is put that there were sufficient grounds before the Magistrate to have authorised the orders that he made. 62 For the reasons that I have set out above, I do not consider that there were sufficient grounds for the making of his Worship's order, and that therefore it is proper for the Court to quash the order dismissing the information and to remit the case to the Magistrate to make the order dismissing the information. For the reasons that I have set out above, I do not consider that there were sufficient grounds to order the dismissal of the information. 63 In the light of the Plaintiff's success in these proceedings, I consider that the Defendant should pay the costs of the Plaintiff in this appeal. 64 The orders, therefore, that I propose, are:

i. Pursuant to s109(a) of the Justices Act, the order of Mr L Gould Magistrate dismissing the information laid against the Defendant be quashed; ii. Pursuant to s109(d) of the Justices Act, the information against the Defendant be remitted to Mr L Gould Magistrate to be dealt with according to law. iii. Defendant pay the costs of the Plaintiff in this appeal.

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