By Amended Summons filed in the Registry of this Court on 8 April 2016, the plaintiff seeks leave pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") to appeal against interlocutory orders made on 16 November 2015 by his Honour Magistrate Richardson sitting in the Local Court of New South Wales. Alternatively, relief of the nature set out in ss 65 and 69 of the Supreme Court Act 1970 (NSW) is sought.
The matter came before me for hearing on 31 May 2016 but was ultimately resolved, with the parties agreeing that proceedings in the Local Court had miscarried, and asking for orders to be made by this Court by consent setting aside the orders of the Local Court.
The orders made by this Court on 31 May 2016 are:
1. Pursuant to s 54(1) of the Crimes (Appeal and Review) Act leave granted to the plaintiffs to appeal.
2. The appeal is upheld.
3. The order of the second defendant refusing the plaintiffs' applications for separate hearings pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) is set aside.
These are my reasons for the orders made on 31 May 2016.
[2]
The Background to the Application
The plaintiffs read and relied upon affidavits of Michael Jaloussis of 11 April 2016 and Helen Langley of 18 May 2016, together with annexures referred to by each deponent. What follows is drawn from that evidence.
The plaintiffs are all corrective services officers employed by the Department of Corrective Services and working within prisons as members of a tactical response squad, known as the Immediate Action Team. They, together with six other officers who are not party to these proceedings, have been charged with a number of offences connected with the alleged assault of inmates of the Metropolitan Remand and Reception Centre ("MRRC"), a correctional facility in Sydney operated by the Department. All of the charges against the plaintiffs are offences listed in Table 1 or 2 to Schedule 1 of the Criminal Procedure Act, and are ordinarily heard summarily in the Local Court. These matters will proceed to finality in that jurisdiction.
The prosecution of the plaintiffs is being conducted by the first defendant, the Director of Public Prosecutions (NSW) ("the DPP"), and is presently before the Local Court at Burwood.
On 28 October 2015 the matters were listed before the Magistrate for a number of interlocutory applications to be heard and determined. The DPP sought to adduce tendency and coincidence evidence pursuant to ss 97 and 98 of the Evidence Act 1995 (NSW) against the plaintiffs, and to conduct the hearings as a joint hearing pursuant to s 29(2) of the Criminal Procedure Act. The plaintiffs objected to the admission of tendency and coincidence evidence, and sought an order separating the proceedings pursuant to s 21(2) of the same Act.
The applications were heard on 28 October 2015, and rulings made on that date and on 16 November 2015. The Magistrate held that both tendency and coincidence evidence was admissible with respect to the plaintiffs Hammond and Faitua, whilst tendency evidence was admitted with respect to the plaintiff Chasle. The application by the plaintiffs for separate hearings was refused.
The plaintiffs challenge the rulings of the Magistrate, contending that the orders made by the court were not open to it to make.
The first defendant concedes that proposition, and submits that the orders of the Local Court with respect to a joint hearing should be set aside.
[3]
The Error in the Local Court Proceedings
Since the parties both agree that the proceedings before the Local Court miscarried, the nature of the error can be briefly stated.
The interlocutory applications were determined in the Local Court by the tender of statements of some witnesses, principally of those inmates who alleged assaults by the plaintiffs. A summary chart was also provided referencing the documentary evidence. No witnesses were called and, although reference was made in submissions to evidence in the nature of recordings from closed circuit security cameras in operation at the MRRC, no recordings were in fact tendered to the Local Court. The parties each made written and oral submissions as to the orders that should be made.
The evidentiary material tendered to the Local Court has not been provided to this Court, but the parties agree that there was no evidence before the Local Court that was capable of identifying the plaintiffs as the individuals involved in the alleged assaults. The absence of such evidence was a feature noted during the course of the proceedings by the Magistrate, who commented that identification of the plaintiffs was simply "assumed."
Unhelpfully, the summary chart prepared jointly by the parties that was tendered to the court relied on such an assumption. The chart was provided to his Honour as, in the words of counsel for the plaintiff, "a heads up as to particular alleged victims, particular prison officers, particular dates, so your Honour can see where they are on each date" (T10:44 - 46 of 28.10.2015). The chart named the plaintiffs in the context of the allegations made by the various plaintiffs, presuming the identification of each.
The matter should not have been advanced before the Local Court on the basis of presumed identification, where no concession as to that point had in fact been made and where there was no evidence before the Magistrate which could make good the identification of the plaintiffs. The chart did no more than further cloud was should have been, absent a concession, a fundamental issue of proof.
Although the question of identification of the plaintiffs was plainly a significant point that ought to have figured prominently during the proceedings, it was not raised in the submissions for the first defendant, or in the oral submissions for the plaintiffs. Counsel for the first defendant has advised the Court that there was a reference to identification in the plaintiffs' written submissions to the Local Court, but those submissions do not form part of the evidence before this Court.
In an ex tempore decision delivered on 28 October 2015, the Magistrate referred again to the issue of the absence of evidence capable of identifying the plaintiffs:
"I say this, repeating the observation I made earlier, which is that between the statements being made by these complainants and today, here, there would appear to have been identification either conceded or established or in some other way. There is very little identification evidence in any of these statements, on the face of it, but it would appear from the submissions that something has happened between then and now to enable names to be put to phrases like "Islander squad member", "Caucasian squad officer". I will only say that once, I will not say it again, but it appears to me that that has occurred somehow and I accept, for the sake of this decision, that there is no issue for me to dwell on in regard to that." (T27:39 - 48 of 28.10.2015)
Proceeding on the basis that the issue of identification was not one that he had to determine, the Magistrate went on to consider the admissibility of tendency and coincidence evidence, and the consequential issue of separate hearings, ultimately making the orders referred to in summary form above.
It is clear from his Honour's remarks extracted at [18] that, probably misled by the chart and the complete absence of focus upon the issue by the parties, he considered identification to have been conceded by the plaintiffs or, at least, that no issue was taken with that aspect of the evidence for the purposes of the applications then being determined.
How that error could occur, given the way the matter was approached by the parties, is entirely understandable; that it was an error however, is plain.
His Honour's erroneous conclusion as to the concession made concerning the identification of the plaintiffs as the squad members responsible for the alleged assaults of inmates was a conclusion fundamental to the rulings concerning the admission of tendency and coincidence evidence, and in turn a conclusion fundamental to the order made for the matters to proceed as a joint hearing. In that sense, the orders of the Local Court have been fatally infected by the error as to identification evidence.
The review sought in the first instance by the plaintiffs is pursuant to s 53(3)(b) of the CAR Act. That provision is in the following terms:
"53 Appeals requiring leave
[…]
(3) Any person against whom:
(a) […]
(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.
(4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court."
The orders made in the Local Court for a joint hearing pursuant to s 21 of the Criminal Procedure Act are interlocutory orders susceptible to review pursuant to s 53(3)(b).
The grounds relied upon by the plaintiffs in the Amended Summons do not include a ground asserting error of law in the decision to order a joint hearing. Instead, grounds are advanced relevant to the decision to admit tendency and coincidence evidence. This Court has not been asked to determine those grounds which were, in effect, abandoned.
Before this Court the plaintiffs contend, and the first defendant concedes, that there was error of law in the order made for a joint hearing. I am satisfied that there was such an error of law infecting the order for a joint hearing, and that it is therefore appropriate to make the orders that the parties jointly seek.
Whilst this Court is not asked to set aside the orders of the Local Court as to the admission of tendency and coincidence evidence, the Local Court can itself reconsider those questions if necessary, pursuant to s 130A(1) of the Criminal Procedure Act.
It is noted that the determination of questions connected with the admissibility of such evidence is a matter for the Local Court, as is the determination of the application for separate trials that is to be pursued by the plaintiffs. Nothing said in this judgment can, or should, have any bearing on those questions.
[4]
ADDENDUM TO THE JUDGMENT OF 1 JUNE 2016: Following publication of this judgment, the parties contacted the Court to advise that the documents referred to at [14] and [17] as not being before the Court on the hearing of the application, were in fact filed with the Registry as part of the evidentiary material relied upon. It would therefore appear that some of the documentary evidence annexed to the affidavit material submitted through the Registry was not placed with the Court's file. Although the absence of the material is of no significance in the determination of the matter, or to the Court's reasons, the fact that it was filed is acknowledged here by this addendum.
[5]
Amendments
02 June 2016 - At [9] - spelling correction
08 June 2016 - Addendum to the judgment inserted
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Decision last updated: 08 June 2016