Hamilton v Director of Public Prosecutions

9These issues may be summarised as follows: (i)Was Mr. Andrew Hamilton present in court during the hearing as an Australian Legal Practitioner, rather than as a son supporting his father; and (ii) If Mr. Andrew Hamilton was present as a legal representative, was he entitled to remain in court, s.291 CPA notwithstanding; and (iii)Did the exclusion of Mr. Andrew Hamilton, in the circumstances, constitute a denial of procedural fairness giving rise to jurisdictional error?

10The issues concerning the second decision are as follows: (i)Was s.25 Bail Act infringed? (ii)Was any infringement of s.25 a misapprehension of the limits of the Local Court's functions or powers in dealing with the charges summarily under s.260 CPA? (iii)Are there discretionary grounds for a refusing the relief to which Mr. Kyran Hamilton might otherwise be entitled?

Some Legal Considerations 11It is always important to bear in mind that a decision to make an order in the nature of certiorari is a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or a substitution of the order or decision which the superior court thinks should have been made: Craig at 175. 12The duties of the superior court in the exercise of this jurisdiction do not go beyond the declaration and enforcing of the law which determines the limits of the inferior court's power, and governs the exercise of that power. The exercise by the superior court of its powers [is] not calculated to secure judicial scrutiny of the merits of a particular case: Attorney General (NSW) v. Quin (1990) 170 CLR 1 at 35 - 36. 13It is well established that the failure to afford procedural fairness where it is due, as it must always be in the case of a court of ordinary jurisdiction, constitutes jurisdictional error, rather than a separate species of error capable of founding certiorari: Kirk at 569 [60]; Re. Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89.5, 91 - 101 [17] - [42], 143 [170]. The requirement of natural justice is concerned with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process, not the decision, as Lord Brightman put it: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at 34 per McHugh and Gummow JJ. (The reference to Lord Brightman is a reference to his Lordships speech in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1115 at 1173.) 14It is important to bear in mind that natural justice, or procedural fairness, is not an abstract concept. As Gleeson CJ explained in Ex parte Lam at 14 [37] - [38]: [37] ...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. [38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. 15Courts of ordinary jurisdiction must by definition afford litigants natural justice, especially in criminal cases. A unanimous High Court of Australia approved the following famous dictum from Jones v. National Coal Board [1957] 2 QB 55 at 67, in Stead v. State Government Insurance Commission (1986) 161 CLR 141 at 145: There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it. However, as their Honours pointed out the general principle is not without qualification. 16Heydon J explained the "centrality" of natural justice to the administration of justice in International Finance Trust Co Ltd v. NSW Crime Commission (2009) 240 CLR 319 at 379 [141] in the following terms: One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequences there generally should be a "hearing". A hearing takes place before a Judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. His Honour went on to point out that the principle is fundamental to the adversarial system. 17The right to a fair trial has particular significance, of course, in criminal proceedings. It has been described as a central pillar of our criminal justice system: Dietrich v. The Queen (1992) 177 CLR 292 at 298. Sometimes, but not always, the right to a fair trial will extend to the necessity of legal representation. I have expressed it this way because in Dietrich at 311 Mason CJ and McHugh J formulated the law as follows: ... it should be accepted that Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of a particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused. (Emphasis added). Despite differences of emphasis, the consensus amongst the majority in Dietrich was expressed by Mason CJ and McHugh J at 315, that in the interests of the provision of a fair trial according to law a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation should grant it until representation is obtained. See Deane J at 337; Toohey J at 357; cf Gaudron J at 369. 18It may be significant for the present case that in Craig the decision of the trial judge to apply Dietrich and grant a stay, if the trial judge had erred, would have been held to be an error within jurisdiction, and not a jurisdictional error. 19At the time Dietrich was decided the New South Wales legislature in common with the legislatures of other Australian States and Territories, had made provision enshrining the right of an accused person to have the assistance of counsel in defending himself or herself at a criminal trial: s.402 Crimes Act 1900 (NSW); Dietrich at 303 - 4 per Mason CJ and McHugh J. As their Honours pointed out this provision is simply the descendent of the Trials for Felony Act 1836 (Imp). Prior to the enactment of the imperial legislation, the common law did not recognise the right of a person charged with a felony to be defended by counsel. Since their commencement on the 7th of July 2003, s.36 CPA, which permits an accused person to appear by an Australian legal practitioner, and s.37(2) CPA, which allows the case of the accused to be conducted by an Australian legal practitioner, do the same work but in my judgment do not extend the statutory right beyond that stated in Dietrich. 20I emphasise, ss 36 and 37 CPA do not extend the previous law. In Dietrich Mason CJ and McHugh J said at 304: ...the most that can be extracted [from the statutory provisions] is that an accused should not be forced, by exercise of the judge's discretion, to go to trial unrepresented for reasons that are not well founded in law. This is hardly language bespeaking an absolute entitlement. 21In Dietrich each of the Justices of the High Court referred to Article 14(3)(d) of the International Covenant on Civil and Political Rights, to which Australia is a party, which were it the law of this State, would extend the statutory right of an accused to legal representation to legal assistance of his own choosing, amongst other things. It may be established in Australian law that the rules of statutory interpretation favour a construction, in the case of ambiguity, which is in conformity, and not in conflict, with Australia's international obligations: Ex parte Lam at 33 [100] per McHugh and Gummow JJ and the cases there referred to. On the other hand: ...a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations (Ex parte Lam 33 [101]). Dietrich rejects the idea that Article 14 of the International Covenant has a direct legal effect upon domestic law. Absent legislation, the rights and obligations contained in the international covenant are not incorporated into Australian law. And the common law in Australia has not developed to incorporate a right fashioned in conformity with Article 14 (3)(d): Dietrich at 306 per Mason CJ and McHugh J; R. v. Sandford (1994) 33 NSWLR 172; ss. 36 and 37 CPA do not enact Article 14 (3)(d) as part of the law of New South Wales. 22In my judgment the limits to the statutory right to be legally represented are illustrated by the decisions in R. v. Sandford and R. v. Birks (1990) 19 NSWLR 677. The former case illustrates that an accused person has no right to legal assistance of his own choosing and therefore no right to have a particular solicitor present in court to instruct. That is to say, a fair trial according to law is not necessarily denied by the unavailability or absence of a favoured legal representative if a competent representative appears: Sandford at 179 Hunt CJ at CL; 186F per Smart J. The requirement of competence is not a very high bar as the statement of principle in Birks illustrates: where an accused is legally represented at a trial he will be bound by the conduct of his counsel regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence: Birks at 685E. It may be otherwise where the legal representative's conduct of the defence is shown to be flagrantly incompetent. (See also Crampton v. the Queen (2000) 206 CLR 161 at 173 [18] - [20]; Fingleton v. the Queen (2005) 227 CLR 166 at [148]). 23The cases mentioned at [22] relate, of course, to criminal appeals rather than judicial review. But there is a conceptual commonality, given the idea of practical justice which informs both procedural fairness and the question of whether there has been a miscarriage of justice. 24Section 191 CPA entrenches the general rule that summary proceedings before a court are to be heard in open court. This provision gives effect to the fundamental attribute of criminal justice in Australia encapsulated in the phrase "open justice, openly administered". But there are statutory exceptions. One such exception highly relevant to the present case is created by s.291(1) CPA which provides: Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera, unless the court otherwise directs. (Emphasis added). Clearly the emphasised words confer a discretion to be exercised judicially, and subsection (3) confines what might otherwise be the width of that discretion by requiring either special reasons in the interests of justice or the consent of the complainant. The complainant is entitled to have a support person or persons present: s.291(7); s.294C CPA. There is no corresponding statutory right for the accused to have a support person or persons present when the complainant is giving evidence. 25It is important to emphasise that orders in the nature of prerogative relief are discretionary. This point has particular importance in relation to criminal proceedings for the reasons explained by Kirby P, with whom Meagher and Handley JJA agreed in Sergi v. The Director of Public Prosecutions [1991] NSWCA 244. The exercise of the supervisory powers of the court requires great circumspection in the context of the administration of criminal justice, particularly to avoid "fragmentation" of the process. (See also Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 338 - 339). On the other hand, where the jurisdictional error is a want of procedural fairness, a strict approach may be required: Ex parte Aala at 109 [59]. Gaudron and Gummow JJ emphasised at [59] that because the concern is with the observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures ... the bearing of the breach upon the ultimate decision should not itself determine [whether relief] should go. The issue is always whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error.... Unless it can be shown that the denial of procedural fairness made no difference to the outcome of the proceedings, relief should be granted: Ex parte Aala at [4] per Gleeson CJ; Stead at 145. 26Although Gaudron and Gummow JJ (Ex parte Aala at 108 [57]) in some respects criticised the statement of Lord Denning MR in F. Hoffman-La Roche v. Secretary of State [1975] AC 295 at 320, their Honours did so in one respect only. That respect related to the refusal of relief where the claimant has in fact suffered no injustice. This led to their Honours statement of what I described as the strict approach. However, their Honours did not criticise this statement of his Lordship (at 320): He may be debarred from relief if he has acquiesced in the invalidity or has waived it. Once again there is a conceptual commonality between the supervisory jurisdiction and the powers exercised by a Court of Criminal Appeal in that "acquiescence" or "waiver" may dovetail with the idea that the accused, as a general rule, is bound by the conduct of his counsel. 27Discretion to refuse relief may be exercised if a more convenient and satisfactory remedy exists such as a statutory right of appeal: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 at 400. 28An appeal as of right lies from conviction or sentence from the Local Court to the District Court, but only within 28 days after sentence is imposed (and not before sentence): s.11 Crimes (Appeal and Review) Act 2001. The appeal is by way of rehearing: ss.17 and 18 of the same Act. Further, albeit limited, rights of appeal lie from the District Court to the Court of Criminal Appeal under s.5B Criminal Appeal Act 1912 (NSW). Of course, an appeal lies from the Local Court to the Supreme Court in the various circumstances set out in ss.52 and 53 Crimes (Appeal and Review) Act 2001. 29These available and appropriate appeal procedures militate against the grant of relief in the supervisory jurisdiction of the court: Sasterawan v. Morris (2007) 69 NSWLR 547 at 550 [8] and [9]; Elias v. Director of Public Prosecutions [2012] NSWCA 302 at [3]. 30The duties of a prosecutor are clear, as are circumstances which breach those duties: Livermore v R (2006) 67 NSWLR 659 at 667 [31] - [32]. It is well established that an egregious breach of those duties may warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial: Whitehorn v. The Queen (1983) 152 CLR 657 at 663 - 664 per Deane J. In these circumstances, a Court of Criminal Appeal in the exercise of its statutory powers will act to quash a conviction. It does not follow from this, however, that even an egregious breach of a prosecutor's duty, where it occurs, of itself can constitute jurisdictional error. Indeed, it cannot. Only judicial error of a particular type will qualify for that description, even if it may be said, in a given case, that the judicial error has its origin in the breach of a prosecutorial obligation. 31The superior court entertaining an application for an order in the nature of certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it: Craig at 176; Allianz Australian Insurance Limited v. Kerr [2012] NSWCA 13 [13] - [20].

The Proceedings Before Me 32In accordance with Craig and Kerr, the parties introduced evidence going beyond the record of the Local Court. A number of affidavits were read which annexed various documents, including the transcript of evidence before his Honour Magistrate Degnan, as well as his Honour's summing up. The prosecutor and the local solicitor who appeared as advocate for Mr. Kyran Hamilton before the learned Magistrate both gave oral evidence. The prosecutor swore an affidavit that was read.

Relevant Facts 33Mr. Andrew Hamilton was admitted as a solicitor of this Court on 20th December 1996. He obtained a practising certificate on 14th April 1998 and an unrestricted practising certificate in either 2000 or 2001. Following his admission, he acquired extensive experience in private practice and as "in-house counsel". The defendant does not challenge that he has substantial experience in litigation and advocacy here and overseas. During the course of his legal practice in Australia, he was accustomed to working on large cases, developing the theory of the case and fully engaging with counsel to ensure they were prepared and had the benefit of his views. Since about July 2009 he has been living overseas. He currently works in Tel Aviv, Israel, for the Israel Law Centre pursuing terrorist organisations by legal means internationally. He had not maintained his local practising certificate constantly as it is unnecessary for his work there. 34Although based and living overseas, he learnt of the allegations against his father when home, visiting his parents, on 16th October 2011. He immediately offered to act for Mr. Kyran Hamilton and was willingly retained by him. Notwithstanding his return to Israel on 24th October 2011, he renewed his local practising certificate on 15th November 2011, primarily to act for Mr. Kyran Hamilton. 35Mr. Kyran Hamilton was formally charged on 16th November 2011, and the officer in charge of the investigation corresponded with Mr. Andrew Hamilton in his capacity as his father's solicitor. Prior to Mr. Kyran Hamilton's first court attendance he prepared a letter to be sent to the police prosecutor at Central Local Court, informing that person that he acted for Mr. Kyran Hamilton, that a plea of not guilty would be entered, and making submissions on behalf of his client that he be permitted to travel overseas on a prearranged trip in December and January 2012. 36Mr. Andrew Hamilton returned to Australia on 17th February 2012 and undertook work in relation to the case, including the preparation of necessary subpoenas. He attended at Bega Court on 13th February 2012 to file the subpoenas, and appeared for Mr. Kyran Hamilton on 14th February 2012 when the matter was before the Court. On that occasion, he completed a Notice of Appearance, which he handed to the court officer prior to his appearance. The Notice of Appearance was a pro-forma of the type one commonly sees in Local Courts throughout the State. It is annexed to his affidavit sworn on 19th September 2012 as Annexure AH-13A. 37That form of Notice of Appearance is not the form of Notice of Appearance in Summary Criminal Trials attached to Local Court Practice Court No. 7 of 2007, which was current at the time. However that may be, on the same day he completed the Local Court Listing Advice required by the practice note (Annexure AH-13B). 38When in Bega he took the opportunity to discuss the case with Ms. Kim Stanley and the police officer in charge. Ms. Stanley was then the solicitor handling the matter for the DPP. She did not appear on the hearing as prosecutor. Mr. Andrew Hamilton had formed the view that it would be better for him not to appear for Mr. Kyran Hamilton given the familial relationship and that it would be an advantage to his father's defence for a solicitor practising in Bega with experience in criminal work to be retained to appear as advocate on the hearing of the charges. A barrister whom he knew recommended the local solicitor who appeared at the hearing. 39None of this evidence was challenged. Nor was any of it put before the Magistrate, I interpolate. I accept it. On the basis of it, I accept that Mr. Kyran Hamilton retained Mr. Andrew Hamilton as his solicitor. From the affidavit of Mr. Kyran Hamilton, who was not cross-examined, I accept that he was not happy about engaging another lawyer, but accepted Mr. Andrew Hamilton's advice about that. I accept Mr. Kyran Hamilton's evidence that he regarded Andrew Hamilton as continuing to act, that is to say that he did not terminate Andrew Hamilton's retainer notwithstanding the engagement of another lawyer. 40The local solicitor engaged issued a Criminal Costs Agreement and Disclosure Notice signed by him on 5th March 2012 which was signed by Mr. Kyran Hamilton on 7th March 2012 (Exhibit B). That document does not reflect, however, an understanding or awareness that Mr. Andrew Hamilton continued to be retained. I find however, on the basis of the evidence of Mr. Kyran Hamilton and Mr. Andrew Hamilton, that both Mr. Andrew Hamilton and the local solicitor were retained to act for Mr. Kyran Hamilton in relation to the matter. 41Mr. Andrew Hamilton continued to do legal work on behalf of Mr. Kyran Hamilton after the appointment of the local solicitor and following his return to Israel on 29th February 2012. His affidavit annexes printouts of emails to the local solicitor discussing the evidence and trial tactics. About one month out from the hearing the two solicitors had a lengthy telephone conversation discussing the case. 42The solicitors again discussed a wide range of issues regarding the conduct of the trial, defence strategy, cross examination and the calling of witnesses on 14th May 2012, after Mr. Andrew Hamilton had returned to Australia. On 19th May 2012, Mr. Andrew Hamilton emailed the local solicitor (Annexure AH-18) setting out his views about the inferences to be drawn from correspondence that had passed between Mr. Kyran Hamilton, the complainant, and his mother, and suggesting that those persons need to be cross-examined in detail about a number of salient topics. Apparent inconsistencies were pointed out. Other material, including medical evidence corroborative of Kyran Hamilton's defence, was discussed. I accept that this evidence demonstrates a continuing professional involvement by Mr. Andrew Hamilton in Mr. Kyran Hamilton's case. Again this detail was not put before the Magistrate. In my judgment, the role Mr Andrew Hamilton was performing was akin to that of an instructing solicitor briefing counsel, even though, it is apparent to me, there had been no proper discussion between him and the local solicitor properly defining their respective roles. The failure to do this - and I imply no criticism of either - partly explains what happened at the hearing. 43The local solicitor gave this evidence before me about the relationship between him and Mr. Andrew Hamilton (9.50 - 10.5T): The discussion, as I recall, regarding Mr. Andrew Hamilton in representing his father, was along the lines of Mr. Andrew Hamilton saying that he wanted to play an active role in the defence of the matter, that he wanted to see the sort of working relationship as one of him being able to assist in a way that a solicitor is representing someone, but it was certainly my understanding from the meeting that I was going to have the conduct of the matter, but he was going to assist in all the ways a solicitor might be able to assist. As will be seen, this "view" was not exactly put to the Magistrate. It was not put that Mr Andrew Hamilton was a solicitor representing Mr Kyran Hamilton.

The Events of 22nd May 2012 44When the local solicitor, his employed solicitor, Mr. Andrew Hamilton and Mr. Kyran Hamilton entered court on the morning of 22nd May 2012, before the Magistrate came on the bench, they all sat at the bar-table. The local solicitor suggested to Mr. Andrew Hamilton that he should sit behind him because there was limited space at the bar-table. Mr. Andrew Hamilton was sitting close enough to tug [his] coat and get [his] attention without any difficulty from where [he was] sitting (11.35T). The employed solicitor remained at the bar-table. 45There is a dispute between the local solicitor and the prosecutor about whether there was a discussion between them prior to his Honour coming on the bench. The evidence of the prosecutor is at paragraph 8 of his affidavit of 20th September 2012 in the following terms: Prior to the hearing commencing I spoke to [the local solicitor] and he said to me words to the effect: "Look, the son wants to be able to sit in" I said words to the effect: "I don't think he can". [The local solicitor] and I looked at the terms of s.291 of the Criminal Procedure Act 1986. I said words to the effect: "He's not the solicitor" [The local solicitor] said words to the effect: "Look, I know, but I'll make the application. Those are my instructions". The prosecutor was adamant this had occurred. When asked about it, the local solicitor said he did not have a specific recollection of the conversation (15.5T). He was equally adamant that he did not say the words attributed to him in the last statement of the passage I have quoted. He explained to me that he had no application to make under s.291 and his only recollection of such a discussion is the discussion which took place in front of his Honour to which I will return in a moment. He accepted that he might have used the word "son" to describe Mr. Andrew Hamilton, but only to distinguish him from his father. The local solicitor said the first notice he had of the application was a conversation sotto voce across the bar-table while the Court was sitting (16.25T). 46The local solicitor accepted that he and the prosecutor had had a conversation regarding witnesses before the commencement (18.10T). He agreed that he did not have a specific recollection of the conversation. He said it's possible that the conversation deposed to by the prosecutor occurred (18.40T). 47At 18.50 - 19.5T, the following evidence appears: Q.And it could have occurred with reference to whether or not the son, Andrew Hamilton, stayed in court during the course of your earlier conversation with [the prosecutor] before court about witnesses? A.I don't think so because of the nature of the section, my understanding of this section and the way it came to my attention in the context of the hearing. If it had come up earlier I would have had the same response to it, which was I was not prepared for it. So its more a recollection of when I had that sensation, if I can put it that way. So that's why I do not believe in the context - there might have been discussion about the son as far as assisting or whatever, but there was no discussion about the closed court. Q.Beforehand? A.Beforehand that I recall. Q.That you recall? A.That I recall. 48It is convenient to set out at this stage evidence given by the prosecutor in answer to some questions asked by me at 43.45 - 45T: Q.... what am I to make then of par. 8 of your affidavit where you said according to that (sic) on your oath to [the local solicitor]: "He is not the solicitor"? A.Yes. Q.Did you have a belief about that one way or the other? A.That [Mr Andrew Hamilton] wasn't the solicitor? Q.Yes? A.Yes, I believed he was not the solicitor .... Q.... [W]ould [the section exclude] a solicitor instructing counsel? A.No. Q.... It was [the local solicitor] and [employed solicitor] but because just they were appearing and they were solicitors did that necessarily exclude in your mind, Mr. Hamilton being there wasn't acting for his father as a solicitor in an instructing role? A.I hadn't been informed that that was the case. Q.Do you think as [counsel] asked you and I asked you earlier that you rather may have made an assumption about his role given that there were two other solicitors involved? A.Well, as far as I am concerned there was one solicitor involved and that was [the local solicitor]. He had a junior solicitor there to make take (sic) notes but it was my understanding on (sic) conversations that [the local solicitor] was the solicitor. 49I raised doubts about the admissibility of the evidence on this topic given the limited nature of the inquiry (12.30 - 13.15T). I admitted it because counsel for Mr. Kyran Hamilton wished to argue that misconduct by the prosecutor in making the submission he made (which I will come to below) was relevant to determining whether the Local Court fell into jurisdictional error. I gathered that the question of whether any prior notice of an application to exclude Mr. Andrew Hamilton had been given added colour, or weight, to that argument. Because of the view I have already expressed about the law in this regard at [30] above, I remain unconvinced of the relevance of this material. Accordingly, it is strictly unnecessary for me to resolve the differences in the evidence between the local solicitor and the prosecutor. But as I may be wrong in my view, and in fairness to the prosecutor, I feel compelled to make some findings. 50Let me say at the outset that despite the differences between them, I find the local solicitor and the prosecutor to be conscientious legal professionals, both of whom gave a truthful account of the events as they recalled them. That they both cannot be correct in their recollections says nothing about either of them personally, but only confirms what is notorious about the frailties of human memory. Both impressed me as earnest in the attempts to provide an accurate and honest account. 51Making due allowance for the frailty of human memory, I accept that a conversation occurred between the local solicitor and the prosecutor before the commencement of the hearing. Given that the matter was listed as a special fixture, it would be surprising were it otherwise. I accept there was discussion about the witnesses and the anticipated course of the hearing. I accept that during the course of that discussion the local solicitor referred to Mr. Andrew Hamilton as "the son". I accept that the prosecutor said something to the effect he's not the solicitor. And I accept that the local solicitor said nothing to clarify Mr. Andrew Hamilton's role that day. 52Mr. Andrew Hamilton also gave evidence relevant to this issue. Paragraphs 100 and 101 of his affidavit of 19th September 2012 are in the following terms: 100. About 5 minutes before the trial hearing commenced, [the local solicitor] indicated to me that the prosecutor... had just indicated to him that he was going to make a submission to the Magistrate that I should be excluded from the Court during the evidence of the complainant... 101. I indicated to [the local solicitor] that he should oppose my exclusion from the Court. Taking this evidence into account, I accept that the local solicitor is mistaken in his recollection that no mention of s.291 CPA was made before the commencement of the hearing. I accept his evidence that he did not foreshadow an application for Mr. Andrew Hamilton to remain in court; rather in my judgment the probabilities favour a finding that the prosecutor informed the local solicitor that he intended to apply to have Mr. Andrew Hamilton excluded. 53Doubtless, the prosecutor had always had in mind, given the nature of the charge, that the complainants evidence would be taken in accordance with s.291 CPA. I infer that from his point of view, so much would have gone without saying.

What Happened in Court 54What happened when proceedings commenced is best described by the transcript. I will set out the relevant passage in full: [Prosecutor]:Perhaps if I start off with this your Honour. The allegations are of a sexual nature. The alleged victim in the matter, or the complainant, will be giving evidence in open court however the Court will need to be closed. Mr. Hamilton's son is a practising solicitor and has requested that he remain in the Court. He is not instruction (sic) and he's not involved in it and it'd be my understanding that it's not a discretionary matter for your Honour; it is a closed court and he would need to remain outside the Court until [the complainant] has finished his evidence. HIS HONOUR: What do you say about that, [local solicitor]? [Local solicitor]: Well your Honour, apart from I suppose not completely understanding the relationship between solicitors as far as being instructing or not instructing, it is the case that Mr. Hamilton Junior has assisted in the preparation of the case. I don't know if it was your Honour but he appeared on the first mention of the matter .. HIS HONOUR: It wasn't me. [Local solicitor]: It wasn't your Honour. He appeared in the first mention of the matter in the Local Court and did have conduct of the matter until it was passed over to me and he's been instrumental in the preparation of the case since that time. But I suppose he's not instructing in as much as I suppose I didn't sort of embrace the nature of that relationship like you would with a barrister or something like that; I've prepared the case otherwise from the material that he's supplied me as well. You'll note also that [employed solicitor] who works with me in my office was going to assist me in note taking and in the more conventional relationship that one might anticipate. So I don't know what discretion your Honour has in that regard and what's open to your Honour but certainly he has a current practising certificate as a solicitor in New South Wales and I don't know what... HIS HONOUR: Yes but he's not really here as a solicitor; he's here as support for his father surely. So his role isn't - don't shake your head when I'm talking please sir - his role isn't really to act as a solicitor here today, and the idea of a closed court for the benefit of a witness in those circumstances is to ensure only those persons that are necessary to be present are present in court to facilitate the easier giving of evidence by the person, and you and I would both know giving evidence in any matter is difficult. It's quite an anxious position one is placed in. In matters of allegation of indecent assault that has its extra difficulties, I might put it that way. [Local solicitor]: Yes your Honour. HIS HONOUR: So unless you're able to point to me to a particular discretion I've got, I propose to close the Court in the normal terms. [Local solicitor]: No, I'm not able to indicate that your Honour has a discretion. HIS HONOUR: Yes. And that will only be during the evidence of the complainant; it won't be during any other parts of the evidence. [Local solicitor]: I understand your Honour. Thank you your Honour. HIS HONOUR: That the Court will be closed. 55Mr. Andrew Hamilton's affidavit of 19 September 2012 at 99, 100, 101, 102, 103, 104, 105 (with some deliberate repetition on my part) sets out the following account: 99. On 22 May 2012 I was excluded from hearing the testimony of the complainant... in the manner set out below. I had no warning from the Director of Public Prosecutions prior to my attendance at Court on 22 May 2012 that objection to my remaining in Court during in camera proceedings would be taken. [The local solicitor] did not raise with me any such objection prior to my attendance at Court on 22 May 2012. 100. About 5 minutes before the trial hearing commenced, [the local solicitor] indicated to me that the prosecutor had just indicated to him that he was going to make a submission to the Magistrate that I should be excluded from the Court during the evidence of the complainant... 101. I indicated to [the local solicitor] that he should oppose my exclusion from the Court. 102. I have had the benefit of reading the transcript of the hearing of 22 and 23 May 2012 in this matter. 103.At the point in the proceedings between line 18 and 25 on page 2 of the transcript where Magistrate Degnan cut of [the local solicitor's] submissions regarding my involvement in the case and stated "he's not really here as solicitor; he's here are support for his father surely." I shook my head to indicate the incorrectness of this statement and was intending to arise and make submissions myself to Magistrate Degnan regarding the issue. However, Magistrate Degnan's behaviour in cutting off [the local solicitor's] submissions and strong criticism regarding the mere shaking of my head made it clear to me that I would be risking contempt of Court by making any attempt to make submissions on this issue. 104.I was then required to leave the Court for the whole of the complainant's... testimony . 105. Accordingly, I did not have a proper opportunity to assert my right to be present and the objection took me by surprise. Had I been afforded the opportunity to be heard on the objection I would have raised the above facts and circumstances as demonstration that I was solicitor (sic) for Kyran Hamilton. I was not afforded that opportunity by the Court. 56Mr. Kyran Hamilton set out the following at paragraphs 30 to 33 of his affidavit sworn on 14th September 2012: 30.On 22 May 2012: (a) I was sitting next to Mr. Andrew Hamilton in Court at the Trial. (b) I heard the Prosecutor say that Mr. Andrew Hamilton was not involved. (c) Shortly after the Prosecutor said that Mr. Andrew Hamilton was not involved I observed the Magistrate look directly and fiercely at Mr. Andrew Hamilton and say, in a raised and aggressive voice: "don't shake your head." 31. I heard the Magistrate say words to the effect that Mr. Andrew Hamilton had to leave the courtroom. 32. I observed Mr. Andrew Hamilton leave the courtroom. I did not say anything to Mr. Andrew Hamilton before he left the courtroom because I was feeling shocked. 33. I have had the opportunity to review the transcript of proceedings on 22 May 2012. To the best of my recollection, the first time the Prosecutor or anybody acting for the prosecution took any objection to Mr. Andrew Hamilton acting as my solicitor was in court on the morning of 22 May 2012 in the exchange referred to above. 57A number of things should be said about this evidence: (a)First, once again, the affidavit evidence about what happened before the Magistrate came on the bench and outside of court after Mr. Andrew Hamilton was excluded is of questionable admissibility. This is not material to which the Magistrate had access. However, these affidavits were read without objection or cross examination; (b)The Prosecutor, having an obligation to the court to use his best endeavours to ensure a fair trial according to law was bound to draw the learned Magistrate's attention to s.291 CPA. I accept his evidence that he honestly, if mistakenly, believed that Mr. Andrew Hamilton was not acting for Mr. Kyran Hamilton. He believed that the local solicitor had the sole conduct of the matter and that his employed solicitor was there to assist him. His mistake did not bring his conduct into the category of misconduct discussed by Deane J in Whitehorn or the categories discussed by the Court of Criminal Appeal in Livermore, assuming for the moment that type of misconduct could properly be regarded as providing a basis for a finding of jurisdictional error, as opposed to appellable error. (c)The local solicitor did not clearly articulate Mr. Hamilton's proper role. Indeed, he seemed to disavow that he was acting in the capacity of an instructing solicitor. His expression that the matter ... was passed over to me suggested that Mr. Andrew Hamilton had ceased to act and, with respect, emphasising that his employed solicitor was in the more conventional relationship that one might anticipate did not help advance the case that Mr. Andrew Hamilton was there instructing. Furthermore, the reference to a discretion and what's open to your Honour were inconsistent with Mr. Andrew Hamilton having a right to be in Court. In the end, the initial submission amounted to no more than Mr. Andrew Hamilton was a person with a practising certificate who had had a hand in the case but was not a legal representative of the accused. (d)Contrary to Mr Andrew Hamilton's impression, the learned Magistrate did not cut the local solicitor off. The statement yes, but he's not really here as a solicitor; he's here as support for his father surely, on the findings I have made on the different evidence before me, was a misapprehension of fact. I repeat the evidence before me is different to what was put to the Local Court. Having said that however, the proposition put forward by the Magistrate, I think in a Socratic way, was not challenged in any way. It seems clear that if it had been put to his Honour that Mr. Hamilton's role was really to act as a solicitor... today it seems clear that the Magistrate's order would have been different. His Honour correctly, with respect, stated the purpose of s.291 CPA. The local solicitor by saying yes your Honour acquiesced to the proposition put by the Court and did not seek to counter it. (e)When invited by the Magistrate to point ... to a particular discretion, the local solicitor was not able to do so. It should be pointed out, as I have at [24] above, that s.291 is subject to a closely confined discretion, to which the Magistrate's attention was not directed. It was not said that Mr. Andrew Hamilton's role, if he was not instructing, which I have found he was, constituted special reasons in the interests of justice for him to remain notwithstanding that the Court would otherwise be closed in the normal way. I am not suggesting that such an argument would have passed through the narrow gate of special reasons. The real point is, with respect, Mr. Andrew Hamilton's true status at court should have been clearly articulated. (f)The Magistrate was, of course, bound to apply s.291 CPA according to its terms. And a solicitor not representing the accused who was present in court for another matter would be lawfully caught by the order. (g)Both parties referred me to ss.87 and 88 Legal Profession Act 2004 (NSW). The emphasis in Mr. Kyran Hamilton's argument being that solicitors may appear and have a right of audience in any court as advocates extending to appearing together as advocates. In my view this does not advance Mr. Kyran Hamiton's case as it is clear that Mr. Andrew Hamilton was not purporting to appear as an advocate, given my finding that he was there to instruct. (h)But, a consideration of Mr. Andrew Hamilton's legal right of audience is not irrelevant. If the Magistrate had misapprehended the facts, as I have found he did and, with respect, the local solicitor did not make the point that Mr. Andrew Hamilton was there to instruct, it was incumbent upon Mr. Andrew Hamilton to speak up. I have already found that the learned Magistrate did not cut the local solicitor off. Fair opportunity was given for every submission to be made. Whether the Magistrate's rebuke when Mr. Andrew Hamilton shook his head amounted to strong criticism, or even ferocity, a member of the legal profession, whether barrister or solicitor, has the obligation to stand up to the Magistrate in the robust advancement of his or her client's cause. I cannot accept on any objective basis that Mr. Andrew Hamilton was risking contempt of court by making any attempt to make submissions on this issue. (i)The exclusion of Mr. Andrew Hamilton may have been an affront to his professional rights and privileges as a legal practitioner; but it was not an affront to Mr. Kyran Hamilton's rights: he was not deprived of legal representation to conduct his defence. 58I certainly do not regard the local solicitor's failure to articulate the status of Mr. Andrew Hamilton as flagrant incompetence as discussed in Birks. As he himself said, he was not prepared for the application, and I infer to that extent was caught by surprise. However, as I said at [22], in my judgment, a fair trial according to law is not necessarily denied by the unavailability, or absence, of a favoured legal representative, if a competent representative appears. No question arises about the local solicitor's competence. 59In his written submissions, counsel for Mr. Kyran Hamilton submitted that the absence of Mr. Andrew Hamilton led to suggested lines of cross-examination not being followed (pp. 16 -17 written submissions 19th September 2012). It is notable, however, that Mr. Andrew Hamilton, who has considered the transcript, did not refer to any such matters in his affidavit of 19 September 2012, nor was any question asked of the local solicitor to elicit evidence from him of any disadvantage he suffered due to the absence of Mr. Andrew Hamilton during the cross-examination of the complainant. The submissions of senior counsel for the DPP, and the schedule and index to cross-examination provided by senior counsel for the DPP (written submissions 28 September 2012) amply support the argument that subject to the discretion of the cross-examiner, the cross-examination covered the topics raised by Mr. Andrew Hamilton in Annexure AH-18. Moreover conducting a case not in accordance with the wishes of the client or contrary to the client's instructions are not matters which render a trial unfair: Birks at 685E. Neither errors of judgment or negligence are sufficient. It is not said, and nor could it be, that the local solicitor's advocacy was incompetent; let alone flagrantly incompetent. 60Bearing in mind that natural justice is concerned with the avoidance of practical injustice, to adapt the language of Gleeson CJ in Ex parte Lam (see [14] above) to this case, no practical injustice has been shown. The applicant, Mr. Kyran Hamilton, lost no opportunity to advance his case.

Returning to the Issues Concerning the First Decision. 61My conclusions concerning the issues are as follows: (1)Mr. Andrew Hamilton was present in court during the hearing as an Australian legal practitioner, rather than as a son supporting his father; and (2)In that capacity, Mr. Andrew Hamilton was entitled to remain in court s.291 CPA notwithstanding and his exclusion from the court proceeded from a misapprehension of fact as to his status by the learned Magistrate; and (3)In the circumstances, his exclusion did not constitute a denial of procedural fairness giving rise to jurisdictional error. Rather, the misapprehension of fact as to his status in court on 22nd May 2012 was an error within jurisdiction. (4)It follows that I am of the view that Mr. Kyran Hamilton has not made out an entitlement to an order in the nature of certiorari in relation to his conviction on the four counts of which he was found guilty. (5)Had I been otherwise persuaded, a question would have arisen about whether in the exercise of my discretion relief should be refused. Given my principal finding,this is a purely contingent question and I will approach it but briefly only. I am fully aware of the narrowness of the discretion in the case of jurisdictional error constituted by a breach of the obligation to accord procedural fairness as discussed by Gaudron and Gummow JJ in Ex parte Aala (see [24] above). (6)Had I found that practical injustice had occurred by the exclusion of Mr. Andrew Hamilton from the court during the complainant's evidence, it would have been difficult to find that that matter made no difference to the outcome of the proceedings. But, of course, that would not be the end of the matter. The conduct of the local solicitor and Mr. Andrew Hamilton, in my judgment, constituted acquiescence or waiver in the sense that as Mr. Kyran Hamilton was bound by the conduct of his legal representatives, their failure to properly articulate the point binds him. Moreover, the availability of an appeal by way of rehearing under s.11 Crimes (Appeal and Review) Act 2001 in the District Court of New South Wales would have engaged the principle discussed in Ex parte Ozone (see [26] - [28] above). The issue of fragmentation of the administration of criminal justice would be an additional factor weighing in favour of the refusal of relief.

The Second Decision - remanding Mr Kyran Hamilton in custody 62Section 25 Bail Act provides as follows: 25 Limitation on length of adjournments by magistrates and registrars where bail refused (1) Where an accused person is refused bail in respect of an offence: (a) an adjournment of the hearing by: (i) a magistrate, or (ii) a registrar of the Local Court, shall be for a period not exceeding 8 clear days except with the consent of the person, (b) a first adjournment of the hearing by an authorised justice who is not a registrar of the Local Court shall be for a period not exceeding 3 clear days, and (c) a second or subsequent adjournment of the hearing by an authorised justice who is not a registrar of the Local Court: (i) shall be for a period not exceeding 48 hours, and (ii) shall be to a court constituted by a magistrate, if a magistrate is reasonably available to deal with the case. (2) Subsection (1) does not apply to an adjournment of the hearing in connection with an offence if: (a) the accused person is in custody in connection with some other offence, (b) the magistrate, authorised justice or registrar is satisfied that there are reasonable grounds for a longer period of adjournment, and (c) the accused person would be in custody in connection with the other offence for the balance of the longer period. (3) The consent of the accused person shall not be sought or given for the purposes of subsection (1) (a) unless the magistrate, authorised justice or registrar first advises the person whether or not bail will be granted to the person and, if so, on what conditions (if any) it will be granted. The Bail Act, of course, is a code R. v. Hilton (1987) 7 NSWLR 745. 63Immediately after recording the convictions, the following appears: HIS HONOUR: Do you wish to proceed to sentence today [local solicitor]? He will go into custody today. ... [LOCAL SOLICITOR]:Your Honour if your Honour is in a position to deal with it, we might proceed down that path your Honour. I'll just confirm that for you before your Honour finalises the paperwork. HIS HONOUR: Thank you. [LOCAL SOLICITOR]: I'm aware of the time, I don't know if your Honour has a view but we would like to proceed to sentence I think your Honour on the matters. HIS HONOUR: Yes. I think I will be assisted by a presentence report [local solicitor]. I am going to order that and I will adjourn the matter. He will be bail refused in the meantime. It will take four weeks and we will do the sentence in Batemans Bay by Audio Video Link on 24 September. Do you understand Mr. Hamilton, you will appear at Batemans Bay Local Court on 24 September for sentence. YOUR BAIL IS REFUSED. You will appear via Audio Video Link on that day. Do you understand all that? ACCUSED:Yes your Honour. HIS HONOUR: Thank you, you can go. ADJOURNED TO MONDAY 24 SEPTEMBER 2012 AT BATEMANS BAY FOR SENTENCE. 64In a letter to Mr. Kyran Hamilton (AH-14) the local solicitor reported as follows: Bail was refused without the right to make an application. We had previously discussed that an application would not be made before this Magistrate as it would certainly be refused. 65I interpolate this is the view of an experienced local solicitor practising in criminal law. It would be quite regrettable for any judicial officer to adopt an inflexible policy with respect to any of her or his powers, including the power to remand convicted persons in custody pending sentence. One can well accept that as each count here, for example, carries a maximum penalty of imprisonment for two years, that a judicial officer who has heard a case may well give consideration, on conviction, to a custodial sentence as one of the appropriate sentencing options. However, in the case of a person of many decades, of admittedly no prior record, and exemplary character, custody, one might think, ought not to be the only option seriously considered. 66I do not accept that there was no right to make an application for bail; rather the forensic decision was made not to apply for bail. This must be a relevant factor in considering the exercise of any discretion. Moreover, questions of futility arise here given that the Magistrate's decision to refuse bail has been reviewed and Mr. Kyran Hamilton has been on bail since the 11th of September 2012. 67Given that the Bail Act is a code, and by dint of s.317 CPA prevails to the extent of any inconsistency between them, I accept the argument of counsel for Mr. Kyran Hamilton that the Bail Act is legislation which delineates the nature or limits of the functions or power of the Local Court with regard to bail. 68Having said that, I am not persuaded that s.25 has been infringed. 69There is no authority to guide one through the provision, however, the first question is whether the orders made amounted to the adjournment of the hearing by a magistrate. In terms the order made was an adjournment of the matter which I take to be a reference to the proceedings. Section 24 refers to proceedings. Section 40 CPA confers a power to adjourn the proceedings. Section 350 CPA permits the adjournment of proceedings for specified purposes. It is now commonplace to adjourn criminal proceedings after conviction to enable evidence to be martialled relevant to sentence. 70In my judgment, a distinction is to be drawn between the adjournment of a hearing, on the one hand, and the adjournment of the proceedings on the other. Section 6(c) refers to the period of any adjournment including any adjournment or adjournments during the course of a trial. Section 16 extends the scope of s.6(c)(ii) to include (s.16(ei)) the period between the conviction of a person and the sentencing of a person. 71It is notable that s.25(2) refers to an adjournment of the hearing in connection with an offence. Given that s. 25 applies to magistrates, registrars of the Local Court, and other authorised justices, the hearing referred to cannot be limited to a summary trial, but must extend to interlocutory matters. 72The administration of criminal justice would grind to a halt if matters properly before the Local Court in respect of which it is proper to refuse bail needed to be brought back to court every eight clear days. 73In my judgment, the meaning of the word hearing in s.25 is more limited than a reference to the proceedings generally, and refers to a Local Court, however validly constituted, dealing with any necessary matter that has to be decided during the life of the proceedings. To my mind, the adjournment between conviction and sentence is not the adjournment of a hearing and s.25 has no application to the present case. 74If I am wrong in my interpretation of the phrase an adjournment of the hearing, and therefore s.25 did apply to this adjournment, I am of the view that subsection (ii) is engaged because the Magistrate was satisfied that there were reasonable grounds for a longer period of adjournment. When the local solicitor changed his position and decided to ask the Magistrate to deal with sentencing on the day, his Honour said, I repeat: I think I will be assisted by a pre-sentence report ... it will take 4 weeks ... In my judgment, there can be no argument that adjournment for a sufficient time to enable a pre-sentence report that would enable the learned Magistrate to consider all appropriate sentencing options constitutes reasonable grounds for a longer period of adjournment. 75For both those reasons, I am of the view that s.25 did not apply to the adjournment.

Determination of the Issues Concerning the Second Decision: 76In my view: (i)Section 25 Bail Act was not infringed; (ii)Had it been infringed, for the reasons I have already given, the learned Magistrate would have misapprehended the limits of the Local Court's functions or powers in dealing with charges summarily under s.260 CPA; (iii)On the other hand, I would have been of the view that there are discretionary grounds for refusing the relief to which Mr. Kyran Hamilton might otherwise have been entitled. 77Dealing with the third issue, in my judgment the following matters are relevant: (a)A tactical decision had been made not to apply for bail. In my judgment, this constitutes acquiescence or waiver; (b)Section 25 was not drawn to the Magistrate's attention and no protest was raised when he indicated he would adjourn the matter for one month. Mr. Kyran Hamilton is bound by the conduct of his legal representative; (c)Given that Mr. Kyran Hamilton is currently on bail pending sentence, an order in the nature of certiorari is futile; (d)There were clearly more efficacious means of "challenging" the decision, including the procedure that was apparently undertaken i.e. a review of the bail decision under s. 44 Bail Act. And, of course, the power of this Court to grant bail under s.28 Bail Act, a central feature of the code. 78In relation to the question of futility, counsel for Mr. Kyran Hamilton urged a decision in favour of his client because a favourable decision could give rise to a wrongful imprisonment claim in circumstances where the defendant was imprisoned for more than eight clear days (3.20T). I am not convinced that this is a valid argument. In Ex parte Aala at 107 [53] Gaudron and Gummow JJ said: The second [question] is whether prohibition should not issue having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights. In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable (footnotes omitted). Although concerned with "constitutional writs" this statement is clearly apposite to orders in the nature of prerogative writs generally. Moreover, it provides a complete answer to learned counsel's argument. 79Had I been satisfied that there had been an infringement of s.25 Bail Act which constituted jurisdictional error, I would have refused relief on discretionary grounds. 80My orders are: 1.The amended summons filed on 13th September 2012 is dismissed. 2.The plaintiff is to pay the first defendant's costs of the proceedings on the ordinary basis after they have been assessed or agreed.

Amendments 15 November 2012 - Line 15 inserted after the word "wishes" the words "of the". Amended paragraphs: 59 15 November 2012 - Line 8 deleted the words "range of" Amended paragraphs: 65 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: 15 November 2012