Gooley v Senior Constable Chad Stewart

Supreme Court of NSW|2018-07-25|Before: Button J

Introduction

By way of a summons seeking leave to appeal filed on 2 February 2018, Brett Raymond Gooley (the plaintiff or applicant in this Court, but because of his role in the Local Court, hereinafter "the defendant") impugns a decision of her Honour Magistrate Follent of 31 January 2018. By that decision, the learned magistrate refused to make orders sought by the defendant pursuant to an application for so-called particulars, and, in the alternative, a stay of criminal proceedings pertaining to an alleged breach of the road rules by way of speeding.

Background

The following is a broad overview of what brought the matter before me. A more detailed analysis of the interactions between the parties after the proceedings were commenced is provided later in this judgment.

Two preliminary questions

At the hearing before me, two initial questions about the proceedings in this Court were identified that were, at my request, addressed by both parties by way of supplementary submissions filed after the hearing.
The first question was whether the decision of the magistrate is an order for the purposes of the appeal-creating provision, s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act"). The provision is as follows: 53 Appeals requiring leave … (3) Any person against whom: … (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. …
The second question was whether leave should be granted with regard to this interlocutory aspect of a summary hearing to do with a speeding ticket, in accordance with the same section of the same Act.

Submissions of the defendant - an order?

With regard to the first question, it was submitted that the reasons of the magistrate make it clear that both the application for an adjournment and the application for more extensive details were refused. Those refusals were said to constitute, at the least, an implied order.
The following analysis was said to support the proposition that the decision of Magistrate Follent was indeed an interlocutory order.
Because the wording of s 5F of the Criminal Appeal Act 1912 (NSW) and s 53(3)(b) of the CAR Act are "sufficiently analogous", one can look to decisions of the Court of Criminal Appeal interpreting the meaning of the word "order" for the purposes of s 5F(3) of the Criminal Appeal Act, in order to construe the meaning of that concept in the appeal-creating provision under consideration.
It was submitted that the most recent authority considering the question is R v Matthews [2018] NSWCCA 7, in which it was said at [28]: "That question was addressed most recently in KN v R [2017] NSWCCA 249 at [55]-[56], which in turn referred to the decisions in AF v R [2015] NSWCCA 35 at [32] and R v Steffan (1993) 30 NSWLR 633 at 636. A judgment or order in the sense identified in those authorities is "the decision of a court which determines the proceedings (or an identifiable separate part of them) and which is entered in the records of the court" or "a command by a court that something be done (or not done)". The essence of a court order is that it is a command to someone that a thing be done or not done which is enforceable by the Court should there be non-compliance: KN v R at [56]."
Attention was also drawn to the judgment of Spigelman CJ in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309, in which it was said at [29]: "The issue of whether or not a decision or ruling by a Court is a judgment or order, for purposes of appeal provisions, has arisen in many different contexts. The general thrust of the case law on the matter is that there must be an operative judicial act."
Whilst it was acknowledged that classifying a decision of the court as an order is a "notoriously difficult question", it was submitted that no bright line exists to discriminate between judgments, orders or rulings. In the absence of determinative case law with regard to whether a refusal of an application for more extensive details is an interlocutory order for the purposes of s 53(3)(b), it was submitted that the matter is to be addressed from "first principles".
To determine whether or not a judicial decision falls within the statutory criterion of constituting an order, it was a submitted that at one end of the spectrum is the "well-established line of authority in [the Court of Criminal Appeal] that a ruling on the admissibility of evidence is not "an interlocutory judgment or order" within s 5F" (see Dao v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [6]).
Attention was also invited to R v Bozatsis and Spanakakis (1997) 97 A Crim R 296, in which Gleeson CJ explained at 303: "One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it."
It was submitted that decisions which "go beyond" bare rulings in terms of their practical effect on the controversy may constitute an order under s 53(3)(b) of the CAR Act. The proposition was that the effect of the ruling, in the circumstances of this case, meant that it was "not possible [for the defendant's expert] to provide a scientific report…". That ruling, it was submitted, could not practically be reviewed in the course of the proceedings, as it would be "too late" for the purpose of determining whether the defendant had a defence.
Reliance was also placed upon the recent decision of Bellew J in Salisbury v Local Court of New South Wales & Anor [2016] NSWSC 1082, in which a decision of a magistrate to require the defendant to serve expert evidence was found to constitute an order for the purposes of s 53(3)(b) of the CAR Act, and thereafter quashed.
To conclude my summary of the submissions of the defendant on the first question, the defendant submitted that the order of Magistrate Follent constituted a "judicial act" and thus was an "interlocutory order" for the purposes of the CAR Act.

Submissions of the defendant - grant leave?

Turning now to the second question, as to whether leave to appeal should be granted, the defendant made the following submissions.
It was said that the principles to be applied with regard to the question of granting leave pursuant to s 53(3)(b) of the CAR Act are those that are to be applied pursuant to s 5F of the Criminal Appeal Act.
In accordance with the principles found in [25]-[27] of Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108, it was submitted that the interests of justice require intervention in this matter for the following reasons.
First, because the legal issues underpinning the application concern the extent of disclosure required by a prosecutor in criminal proceedings in which the prosecutor is not obliged to provide the defendant with a brief of evidence, and those issues are worthy of illumination by this Court, leave should be granted.
Secondly, if leave were granted, that would provide further guidance by this Court about the scope of the power of the Local Court to make directions pursuant to s 28 of LC Act.
Thirdly, despite the fact that the offence alleged is surely at the less serious end of the spectrum of criminal offences, the matters raised by the application are issues of principle and general public importance.
Fourthly and finally, there is potential for injustice for the defendant if the requested details are not provided.

Submissions of the prosecutor - an order?

The prosecutor submitted that the decision made by the magistrate could not be characterised as an order, and therefore this Court does not have jurisdiction to hear the appeal.
The prosecutor agreed with the submission of the defendant that it is appropriate to consider judgments about s 5F of the Criminal Appeal Act in order to determine whether the decision is an order for the purpose of this appeal-creating provision.
The prosecutor also referred to the decision of R v Matthews, in order to emphasise that an order must be an "enforceable command".
The prosecutor undertook an examination of cases about the precursor to s 53(3)(b) of the CAR Act, and submitted that the current provision should be construed as manifesting the same legislative intent: to restrict access from the Local Court to the Supreme Court in proceedings such as these.
It was submitted that the decision of the magistrate was to decline to make an order compelling the provision by the prosecutor of more extensive details to the defendant. What actually occurred here, in other words, was a refusal to make an order, not the making of an order amenable to an appeal of this kind.
The prosecutor also disputed that the practical effect of the decision of the magistrate is that the defendant could not obtain a report of an expert, or adduce expert opinion evidence.

Submissions of prosecutor - leave granted?

Alternatively, if this Court does have jurisdiction, the prosecutor submitted that leave to appeal ought not to be granted.
As for the question of leave generally, the prosecutor submitted that the interests of justice tend against intervention, as it was submitted that in truth the refusal of the solicitor for the defendant to view the pertinent in-car video ("ICV") "is the cause of these proceedings".
Furthermore, it was submitted that, in a case that involves a matter of practice and procedure, leave "should not readily be granted" to interfere in a summary hearing in progress. Rather, it was submitted that the defendant should wait until the conclusion of the hearing, before making a decision whether to appeal to the District or Supreme Court.

History in chronological form

Before addressing the above contentions, I shall first proceed to provide more detail about the interactions between the parties leading to this litigation.
The following more detailed précis of events relevant to the application is derived from the affidavit of Mr Maurice Robert Marshan, solicitor for the defendant, sworn 18 April 2018, and which was read before me without objection, and which constituted the entirety of the evidence placed before me.
On 20 July 2017, the solicitor for the defendant wrote to the prosecutor, requesting what was said to be "further and better particulars of the offence", and asking a number of questions relating to the device used to capture the alleged speed of driving of the defendant.
On 9 August 2017, the solicitor for the defendant sent a second letter to the prosecutor. He noted that the prosecutor had requested the ICV regarding the alleged offence (presumably from a police depository of such items), and again spoke of seeking "further and better particulars".
On 25 August 2017, the prosecutor sent the solicitor for the defendant an email attaching various documents (including the statement of Senior Constable Stewart). The prosecutor also advised the solicitor that the technical specifications of the device were available on the internet. He also stated that the ICV was available to be viewed by the solicitor, if required.
On 30 August 2017, the solicitor for the defendant sent a third letter to the prosecutor. In a nutshell, he thanked the prosecutor for providing the attachments in the previous email; stated that he had adjourned the proceedings until 19 September 2017 in order to engage an expert to obtain a report; and asked a number of supplementary questions of the prosecutor for the purposes of permitting the report of the expert to be prepared.
On 27 September 2017, the solicitor for the defendant sent a fourth letter to the prosecutor, and again sought answers to a number of questions about the LIDAR device.
On 16 November 2017, the solicitor for the defendant sent a fifth letter to the prosecutor, after receiving no response to the third and fourth letters. Again, the solicitor sought answers to the questions in the previous letters so that the expert report could be prepared.
On 24 November 2017, the solicitor for the defendant sent the prosecutor a sixth letter, stating that he could not complete the process of qualifying the expert without the further details sought. He stated that if he did not receive full replies by 30 November, he would make an application to the Local Court.
On 30 November 2017, the prosecutor sent an email to the solicitor for the defendant, stating that he could organise a viewing of the ICV that "may assist" with his questions. The prosecutor noted that the testing procedure and testing certificate had been sent, and stated that the website "Kustom signals" provided the details of "specs and accuracy".
On Friday 1 December 2017, the solicitor for the defendant sent a seventh letter, acknowledging receipt of the 30 November correspondence, and stating that he had forwarded on that correspondence to the expert. He also expressed concern that the expert had not yet been able to prepare the report as "you have failed to provide answers to the questions posed by him", and again foreshadowed an application to the Local Court.
On 13 December 2017, the expert engaged by the defendant sent a letter to the solicitor for the defendant, stating that it was not possible to provide the report without the requested information.
On 18 December 2017, the application to the Local Court of the defendant was filed in the Local Court at Sutherland. The application sought, purportedly pursuant to s 28 of the LC Act, so-called "particulars of the offence", and that the hearing date of 5 February 2018 be vacated.
As I have said, on 22 January 2018, that application was part-heard before the magistrate.
On 31 January, the hearing of the application concluded, and the ruling of the magistrate was delivered.

Grounds of appeal

The following grounds of appeal were contained in the summons filed 2 February 2018: The Local Court erred:
In directing itself that it lacked the power (express, implied or inherent) to direct the Defendant/Prosecutor to supply the requested particulars by virtue of the provisions of S. 187(5) Criminal Procedure Act 1986 and Reg. 24 Criminal Procedure Regulations 2017, and
in holding that those provisions prevented the Court from making such directions to the Defendant, and
in holding that the Plaintiff could obtain a fair trial without such particulars notwithstanding the provisions of S. 141 Road Transport Act 2013 in circumstances where the Plaintiff is required thereby to engage the services of an expert to meet his evidentiary burden pursuant thereto, and
in holding that the proceedings could commence without the Plaintiff having the benefit of the expert's assistance or report, notwithstanding the provisions of S. 141 Road Transport Act 2013, and of S. 177(3) Evidence Act 1995, and
in refusing to stay the proceedings in circumstances whereby the Plaintiff is precluded and hindered from properly preparing his defence or properly presenting his case, and
in failing to exercise the discretion available to the learned Magistrate according to the dictates of natural justice and in interests of a fair trial.

Submissions about the substantive question

I proceed to provide an overview of the most significant points made with regard to the substantive question: whether or not the magistrate committed an error of law by permitting the summary hearing to proceed, without having ordered the prosecutor to provide the more extensive details that the solicitor for the defendant had requested.

Submissions of the defendant

In written and oral submissions, counsel for the defendant submitted that the magistrate had the power to order the prosecutor to provide the more extensive details about the circumstances of the alleged offence, and should have done so. That power was said to arise either pursuant to s 28 of the LC Act, or by way of an implied power of the Local Court.

Power pursuant to s 28 of the Local Court Act?

To expand upon the first part of that submission a little, s 28 of the LC Act is located within Part 2 (The Local Court of New South Wales), Division 6 (Rules of count and practice notes) in the LC Act. The section in its entirety is as follows: 28 Court may give directions in circumstances not covered by rules (cf CPA, section 16; LCA 1982, section 26) (1) In relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act. (2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.
It was submitted that the broad terms of s 28 of the LC Act are to the effect that a magistrate of the Local Court could utilise his or her discretion to order that further information be provided to a defendant by a prosecutor.
It was submitted that her Honour erred in construing the power said to be found in s 28 as not applying in circumstances where the combined effect of the Criminal Procedure Act 1986 (NSW) ("the CP Act") and the regulations is that a brief of evidence is not required (an aspect of the matter that I discuss in more detail below). It was said that the request made by the solicitor for the defendant should be characterised as for further details about, or the factual basis of, the offence, and not additional evidence.
Instead, s 28 of the LC Act should be construed "sufficiently widely" to enable the power to be exercised in this case. Therefore, in cases where the interests of justice require it, s 28 should enable the Local Court to direct the provision of further information.
Alternatively, it was submitted that the Local Court has an implied power to make an order of the kind sought in this case. Attention was invited to the decision of Salisbury, whereby Bellew J indicated that s 28 did not confer a power on a magistrate to require an accused to disclose his or her case. That was said to support the proposition that it would be a peculiar outcome if a defendant will not be given information by the prosecutor which an expert considers necessary to prepare a defence.

Wrongful exercise of discretion?

It was also submitted that the magistrate erred in refusing to exercise the power as a matter of discretion, and, in the circumstances of this particular case, it was said that that refusal was unreasonable or unjust.
That was said to be due to the circumstances that are unique to this case, as follows.
First, a legislative structure particular to criminal prosecutions of this kind restricts the way in which a defendant can counter evidence derived from a LIDAR device. Sections 140 and 141 of the Road Transport Act create a presumption in favour of the prosecution, and a restriction upon a defendant in the ways in which he or she can rebut that presumption; namely, by way of expert evidence that falls within the well-known exception to the prohibition upon opinion evidence to be found in s 79 of the Evidence Act 1995 (NSW). The sections are relevantly as follows: 140 Evidence of accuracy and reliability not required if certificate tendered (cf STM Act, ss 46 (2), 47 (6), 47B (3), 57 (4) and 57B (5)) If a certificate under this Division is tendered in proceedings for a detectable traffic offence, evidence: (a) of the accuracy or reliability of the approved traffic enforcement device concerned, or (b) as to whether or not the device operated correctly or operates correctly (generally or at a particular time or date or during a particular period), is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating correctly is adduced. 141 Rebuttal of evidence concerning operation of approved traffic enforcement devices (cf STM Act, s 73A) (1) This section applies to the determination of whether evidence is sufficient to rebut prima facie evidence or a presumption, or to raise doubt about a matter, as referred to in section 137, 137A, 138, 140 or 164 and for the purposes of proceedings to which those sections apply. (2) An assertion that contradicts or challenges: (a) the accuracy or reliability, or the correct or proper operation, of an approved traffic enforcement device, or (b) the accuracy or reliability of information (including a photograph) derived from such a device, is capable of being sufficient, in proceedings to which this section applies, to rebut such evidence or such a presumption, or to raise such doubt, only if it is evidence adduced from a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience).
The submission was, in a nutshell, that that restriction must surely inform the exercise of the asserted power reposed in a magistrate to order the provision of the information necessary for a defendant to be able to, at the least, consider whether an effort should be made to rebut the statutory presumption.
Secondly, it was conceded that, given the nature of the offence involved - a traffic offence able to be dealt with by way of penalty notice - there is no obligation on the prosecution to provide a brief of evidence: see ss 183 and 187 of the CP Act, reg 24 of the Criminal Procedure Regulation, and r 122 and Schedule 5 of the Road Transport (General) Regulation 2013 (NSW).
Despite that legislative mandate (or rather absence thereof), it was submitted that, in circumstances where a defendant wishes to bring forward a defence to challenge the LIDAR evidence by way of an expert report, the discretion to order the provision of the necessary details should be exercised when the prosecution had not provided the majority of the information requested.
Furthermore, the inability of the expert to create his report without the requested information or to determine whether a valid defence was available was said by counsel for the defendant to be unchallenged by the prosecutor.
In response to the first course suggested by the magistrate in the judgment, namely, to apply for an adjournment at the close of the prosecution case to obtain expert evidence, counsel for the defendant submitted that that would not "cure" the prejudice to her client.
In response to the second suggestion that the defendant could subpoena the documents sought, it was submitted that a problem would arise if no document answering the questions posed exists, with the result that the information would be required from the police officer himself or herself.
As for the third suggestion of the magistrate, namely to cross-examine the police officer and then seek an adjournment to take advice from an expert, that was said to be an unwieldy outcome. If the report obtained in such circumstances disclosed that the defendant did not in truth have a valid defence available, he could have pleaded guilty at a much earlier stage, and obtained a utilitarian discount. It was said that the suggestion of the magistrate operated to "oblige" the defendant to defend proceedings that he may not have defended, if the information had been provided from the outset. It was also said that the granting of an adjournment in such circumstances would not be automatic, thereby giving rise to the risk of refusal, with the result that the defendant would be in no position whatsoever to defend himself.
Furthermore, the suggestion of the magistrate that the defendant could cross-examine the police officer and then seek to obtain the expert report would force his solicitor to cross-examine without the benefit of already being armed with expert evidence.
As for the other suggestions of the magistrate, including the officer-in-charge being made available to the expert by way of an informal conference, counsel for the defendant submitted that they would not solve the problem. That was said to be because any conversation between a police officer and expert may be "potentially productive of dispute". It was also said to give rise to the risk of unnecessary expense to the defendant, bearing in mind that the proposed expert is based in Melbourne.
In relation to the exercise of the discretion, it was submitted that the magistrate acted on a wrong principle, by confining her decision to considerations of whether or not the defendant would receive a fair trial. Instead, the broader and relevant matter the magistrate should have considered was to allow the defendant to make an informed decision on whether to defend the proceedings "at all".
Counsel for the defendant also submitted that her Honour took into account irrelevant or extraneous matters in exercising the discretion not to make the order. That was said to be the case because of the simple impracticality, indeed likely inutility, of all the alternative solutions proposed by her Honour.
It was said that the result of the discretionary refusal of the magistrate to exercise the power to make the order to provide the further evidence led to the defendant having unfairly to "prospect about" for details of the case he was required to meet; forced the defendant to defend a case that he may not have defended, if given the opportunity to receive the benefit of expert evidence; and did not allow the defendant to cross-examine the police officer with the benefit of expert evidence.
Counsel for the defendant concluded by submitting that the practical and simple way forward is for the prosecution to provide the evidentiary material as requested by the defendant, so that the defendant can determine how to proceed with the case. That requested detail can hardly be equated with a brief of evidence: it is simply the material sought by the defendant, in order to prepare a defence or reflect upon his plea, and is not a request for further evidence.
In short, in the interests of justice, whether the power is found under s 28 or is implied, the discretion to direct further information should have been exercised.
Finally, in brief submissions in reply, counsel rebutted the submission of the prosecutor that viewing the ICV would answer the questions of the solicitor. It was said that it was clear to the prosecution that the defendant required such answers in order to prepare an expert report in order to advance the matter. The request for details went well beyond the ICV, as it was a request for information about what the police officer who was at the scene did with the machine, not what the machine recorded.

Requested material unavailable?

In written and oral submissions, the solicitor for the prosecutor submitted that in all of the circumstances of this case, including the manner in which the further information was initially sought; the evolution of the requests over time; the timing of the adjournment application; and the alternatives available to the defendant, the defendant was not obstructed from preparing his defence.
That was said to be due to the fact that the prosecution had responded to the requests of the solicitor by providing documentation and material that would answer his questions.
It was submitted that the only two outstanding particulars requested in the letter of 20 July 2017 (annexure B to the affidavit of Mr Marshan) were "how was it operated?" and "over what distance was the speed of the Defendant's vehicle observed?"
The answers to those questions were said to be available to the defendant by way of a viewing of the ICV, as it provided better and more direct evidence, rather than a written summary by police of the footage. To require the police to create evidence by writing a summary of the ICV would tend against the desired simplification of this particular area of criminal law. It was also submitted that the material provided to the defendant went "possibly well beyond" what would have been contained in a brief of evidence.
The prosecutor recounted the history of the correspondence in the matter, and submitted that it "escalated across the months". Attention was invited to the letter of 30 August 2017, whereby the solicitor for the defendant did not request outstanding answers to questions, but rather asked a number of questions in addition to what was already requested. It was submitted that five of those supplementary questions were really a request for the police to view the ICV and for them to summarise and answer such questions, when the appropriate course was for the solicitor to do that himself.
It was submitted that, as evidenced by the letter of 27 September 2017, the defendant changed his position as "the proceedings have now been set down for hearing". That followed the defendant's plea of not guilty, and therefore the expert report was no longer required to determine whether to enter a plea, but rather for the purposes of the proceedings in general.
It was also disputed that the ability to plead to the charge depended upon the expert opinion: in order to do so, one simply needs to know what the charge is, as evidenced by the requirement (even in those matters in which a brief is mandated by Parliament) to serve a brief after the entry of a plea of not guilty, pursuant to s 183(1) of the CP Act.
As the email of 30 November 2017 reveals, there was a further offer by the police officer to arrange for a viewing of the ICV. Again, it was submitted that, whilst the solicitor for the defendant had written "please let me know if I can bring my client with me to view the ICV and I will then arrange a suitable appointment to do so", he had made no attempt to view the ICV.
To conclude, the detailed analysis of the correspondence was said to show that it is not accurate to suggest that the information requested was not provided to the defendant.

Power available?

Separately, the solicitor for the prosecutor did not accept that s 28 of the LC Act provides a broad discretion to impose duties of disclosure in summary matters beyond the statutory requirement. It was submitted that s 28 needs to be read in the context of the whole statutory structure, whereby a prosecutor is not required to serve a brief of evidence in a prosecution for an offence for which a penalty notice may be issued.
In short, it was submitted that her Honour was correct to find that the Court did not have the power to exercise any such discretion, because the decision of Parliament not to require a brief in such a matter "covers the field". As a result, no residual power under s 28 remains for the Local Court to order the provision of further information in relation to the LIDAR device.
As for Salisbury v Local Court, the prosecutor submitted that that judgment does not have much bearing on this case, and does not stand for the proposition that there is some kind of implied power in the Local Court to make the order for compulsory provision of material sought here.

Wrongful exercise of discretion?

Separately, it was said a subpoena to the police is one solution to the problem. And, given that s 141 of the Road Transport Act only allows challenge to evidence derived from a LIDAR device by adducing expert evidence, a subpoena "would [be] readily issued by the relevant Court".
In conclusion, the prosecutor submitted that the exercise of discretion by the magistrate was correct, for the simple reason that the information sought could have been obtained by way of the numerous procedures suggested by her Honour. Furthermore, none of the asserted errors committed by the magistrate in the exercise of that discretion fell within the well-known categories discussed in House v King (1936) 555 CLR 499; [1936] HCA 40.

Determination

For reasons that will become apparent, I shall deal compendiously and succinctly with the questions of whether the ruling of the magistrate constitutes an order amenable to this appeal; whether leave should be granted; and whether the appeal should be upheld.
As a starting point, these proceedings are to do with a traffic matter; commenced by penalty notice; that can only result in a fine or (at most) interference with the right of the defendant to drive; and in circumstances in which I respectfully believe that a more common sense approach to the litigation by both parties would have obviated the need for this application in the first place.
For those reasons, I shall seek to get to the nub of my opinion of the merits of this application by making a number of assumptions for the sake of argument only, thereby seeking as best I can to cut a number of "Gordian knots". It will be understood that those assumptions, made for the sake of argument only, have no binding precedential effect whatsoever.
First, for the sake of argument only and without affirmatively deciding, I shall assume that the decision of the magistrate is an order amenable to this kind of appeal.
Secondly, despite my misgivings about this matter ever coming to this Court in the first place, about the fragmentation of criminal proceedings that it has entailed, and about the delay in the proceedings occasioned by me being called upon to determine the matter, I shall assume for the sake of argument only, and without affirmatively deciding, that leave should be granted. I do so, as I say, merely to permit me to provide my view about the central question in the matter.
Thirdly, for the sake of argument only and without affirmatively deciding, I shall assume that a magistrate hearing a matter in which Parliament has mandated that a brief of evidence is not required to be served by the prosecutor upon the defendant, nevertheless retains a power pursuant to s 28 of the LC Act to make orders that require provision by the prosecutor of more extensive details about the evidence to be relied upon in support of the alleged offence. And I am prepared to make that assumption even though my general thought is that the true primary meaning of the decision of Bellew J in Salisbury is that the power in s 28 is narrow, not broad.
Fourthly, for the sake of argument only and without affirmatively deciding, I shall assume that the strictures of ss 140 and 141 of the Road Transport Act may inform the exercise of such a power by a magistrate.
Fifthly, having made the third and fourth assumptions immediately above, and therefore having assumed that the power sought to be relied upon did indeed exist, I shall not pause to delve into the complicated question (most recently discussed by the High Court of Australia in NH v Director of Public Prosecutions (SA) [2016] HCA 33, (2016) 260 CLR 546) as to whether a separate inherent power was available to a magistrate of the Local Court of New South Wales. Nor shall I determine whether the magistrate possessed some implied power that is not to be found in the express words of s 28, nor to be thought of as inherent to the exercise of the functions of her Honour.
Having made all of those assumptions - without affirmatively deciding - in favour of the propositions of the defendant, I am firmly of the opinion that the exercise of the discretion by the magistrate not to exercise such a purported power is unable to be assailed in accordance with the various bases of impeachment to be found in House v King. That is for the following reasons.
First, in my opinion, it was open to the defendant to adopt the following alternative procedures to obtain the information, in the absence of the provision of the more extensive details from the prosecutor.
First, cross-examining the officer-in-charge during the course of the hearing.
Secondly, issuing a subpoena for the operation manual of the LIDAR device.
Thirdly, applying for an adjournment of the hearing at the close of the prosecution case in order to obtain expert evidence in light of the evidence given by the officer-in-charge.
Fourthly, if necessary, recalling the officer-in-charge for further cross-examination after the first phase of cross-examination and once the report is to hand.
Fifthly, seeking to conduct (if necessary by telephone) a conference between the officer-in-charge, the expert, and the solicitor.
Sixthly and finally, at the least as a starting point in obtaining some of the answers sought, the solicitor for the defendant sitting down and watching the ICV himself.
In other words, in my opinion, the magistrate was correct to say in the judgment that many alternative solutions to the problem were available to the defendant.
It may be accepted that those procedures may well be more unwieldy, time-consuming, and expensive than a constructive, informal consultation between the prosecutor, the solicitor for the defendant, and the expert of the defendant, whereby the more extensive details were informally provided, and so that the expert could determine whether there was anything to be said about the validity of the measurement of the speed, and the solicitor could properly advise his client.
Nevertheless, in light of the breakdown in the constructive relationship that one would hope for between the solicitor for the defendant and the police officer in preparation for the hearing, it cannot be said that the determination by the magistrate that alternative steps could be taken by the solicitor for the defendant was an exercise of discretion by the magistrate that was simply not open.
Leaving now the enumerated procedural alternatives, and returning to my own reasons, secondly, in my opinion it cannot be said that the magistrate took into account irrelevant considerations when her Honour referred to the alternative solutions discussed above. They were indeed relevant to solving the problem that had developed, and the way that it could and should be solved.
Thirdly, this case was never about particulars of the alleged offence in the true sense. That is because, as I said near the start of this judgment, the court attendance notice was perfectly adequately particularised.
Rather, this controversy is about the provision of more extensive details of the circumstances surrounding an alleged offence. Once that distinction is appreciated, it can be seen that, especially in circumstances where Parliament has made it clear that there is not an obligation upon the prosecutor to provide evidentiary documents about matters of lesser seriousness by way of a brief of evidence, there is a broad discretion reposed in a magistrate to decline to impose nevertheless some sort of compulsory process of provision of documentary evidence by a prosecutor.
Fourthly, as I have respectfully said, a different approach by both parties might have obviated the problem that led to the application in the Local Court, and the application in this Court. But I do respectfully think that the seeming refusal of the solicitor for the defendant even to watch the ICV, or to try to obtain any of the suggested materials from the internet, or to seek to obtain (whether by notice to produce or subpoena) from the prosecutor any relevant documents, militates against the exercise of a discretion in favour of the application. Apart from anything else, one knows from experience that the preparatory phase of criminal defence work can involve watching and listening to many hours of evidence in digital form.
In short, without deciding any of the ancillary controversies between the parties, I am firmly of the opinion that the exercise of discretion adopted by the magistrate in this case was soundly open to her Honour.
I am also affirmatively satisfied that the refusal of the application, when seen in light of the alternative processes suggested by her Honour, did not deprive the defendant of the right to a fair summary hearing.
It follows that, although in accordance with my assumption above I shall (as a matter of formality only) grant leave to appeal, the appeal must be dismissed.

Costs

At the hearing, I queried whether, even if the prosecutor were to succeed, some variation from the usual approach of costs following the event should be adopted, in light of the alternative approach that perhaps could have been adopted by both parties to avoid the need for this litigation in the first place. Counsel for the defendant embraced that very initial thought of mine.
I have reflected on that question since the hearing. Nevertheless, I have come to the view that, in the conclusion of this hard-fought dispute, the usual approach should not be displaced.

Orders

In accordance with the above analysis, I make the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 3. The plaintiff in this Court, Mr Brett Raymond Gooley, must pay the costs of the defendant in this Court, Senior Constable Chad Stewart.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2018

Road Transport (General) Regulation 2013(NSW)

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