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.