MASON & ORS v. LYON & ANOR [2005] NSWSC 804

Mason v. Tritton & Anor (1994) 34 NSWLR 572 CASES CITED : House v. The King (1936) 55 CLR 499

KEVIN MASON & ORS v. PARTIES : PAUL LYON & ANOR

Plaintiff: B. Levet COUNSEL : 1st Defendant: Submitting appearance 2nd Defendant: P.I. Lakatos/J. Waters

Plaintiff: S. O'Connor SOLICITORS : 1st and 2nd Defendants: I.V. Knight

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: The summons in these proceedings was filed on behalf of the 11 plaintiffs on 28 July 2005. The first defendant, his Honour Magistrate Paul Lyon, is the presiding magistrate in relation to prosecution proceedings brought in the Local Court at Narooma. A submitting appearance was filed in these proceedings on his behalf on 2 August 2005 whereby he appeared and submitted to the orders of the court, save as to costs. 2 The second defendant, New South Wales Fisheries, charged the plaintiffs with 20 offences under ss.16 and 18(2) of the Fisheries Management Act 1944 alleging possession of more than the maximum permissible quantity of abalone or lobsters and pursuant to clauses 123(2) and 130(2) of the Fisheries Management (General) Regulation 1995 for shucking abalone in or adjacent to waters. 3 The plaintiffs have not contested the prosecutions by disputing the particular elements of the alleged offences, but they have raised a number of affirmative defences. These are:-

(e) The "Freedom of Trade, Commerce and Intercourse" defence. 4 The summons was supported by the affidavit of Michael Sergent, solicitor, sworn 27 July 2005. In that affidavit, it is contended that the first defendant has directed that written submissions be filed and served by the Crown and by the plaintiffs and that such written submissions were to be filed by 1 July 2005. 5 It is also contended that the plaintiffs, through their counsel, objected to this procedure. 6 The proceedings before the first defendant are lengthy and complex and a great deal of evidence, including expert evidence, has been taken and they are to be re-listed for the purposes of addresses or submissions on 15 August 2005 and for a number of days thereafter. 7 The second defendant relies upon the affidavit of Warren Mark Abadee, solicitor, sworn 2 August 2005. This affidavit annexes extracts from transcript of the proceedings of 14 June 2005.

Relief claimed in the summons 8 The plaintiffs claim, inter alia, declarations in the following terms:- "2. Declarations that in respect of the extant proceedings before the first defendant in the Local Court at Narooma (a) the plaintiffs, through their counsel, are entitled to commence their addresses after the closure of any address made for or on behalf of the Crown,

(b) that it is unlawful that the first defendant direct that any written submissions to be filed in such proceedings by or on behalf of the plaintiffs be filed prior to the close of any final address made by or on behalf of the Crown.

(c) that in respect of any final addresses to be delivered in such case, that the proper (sic) cause of such addresses is that address on behalf of the Crown be delivered in its entirety followed by the address on behalf of each of the plaintiffs in this matter in their entirety."

Preliminary matters 9 Before turning to submissions of counsel and the analysis of them, I should record as I pointed out to the parties' representatives that, by a strange coincidence, when at the Bar, I had been briefed and appeared in the proceedings in Mason v. Tritton & Anor (1994) 34 NSWLR 572 in which one or more of the plaintiffs to the current proceedings was/were parties and in which certain native title issues were argued and determined. The plaintiffs and the second defendant, however, raised no objection to the hearing of the summons proceeding before me. 10 Before dealing with the parties' submissions, one significant matter should be recorded at the outset. On Friday 29 July 2005, the solicitors for the second defendant provided to the plaintiff's legal representatives a copy of the prosecutor's written submissions which are to be relied upon in the proceedings. The submissions are both detailed and extensive and traverse and analyse the evidence in the proceedings, legislative provisions and case law relevant to the various issues that have so far been litigated. The submissions, in all, run to 161 pages. The service of a copy of the written submissions accordingly serves to provide the plaintiffs and their legal representatives with advance notice of the matters relied upon by the prosecution in terms of both issues of fact and law. To that extent, the written submissions provide the plaintiffs and their representatives with an opportunity to consider the prosecution's submissions and to prepare their own submissions with knowledge of the matters relied upon by the prosecution. 11 Counsel who appeared on behalf of the second defendant, Mr. P.I. Lakatos and Mr. J.A. Waters, confirmed that the second defendant's present intention is not to rely upon any matter of fact or law outside the framework or scope of the written submissions.

The issue as to whether directions or orders were made 12 In relation to the declaratory relief sought in paragraphs 2(a) and (c), it is to be observed that there is no reference in them to any order or direction by the Local Court imposing a requirement on the plaintiffs, by counsel or otherwise, to address the magistrate before the Crown addresses him nor is there any reference to an order or direction that determines the order of addresses. 13 Mr. Lakatos of counsel raised, in the nature of a preliminary issue, the contention that no binding orders or directions had in fact been made by the learned magistrate either in terms or in substance in the nature or the terms of paragraphs 2(a) or (c). 14 I have read the extracts of transcript of the proceedings attached to the affidavits of Mr. Sergent and Mr. Abadee. A reading of them does not substantiate or confirm that an order or direction relating to those matters was made by the first defendant and I consider Mr. Lakatos' point well-taken. 15 In relation to paragraph 2(b), I raised with counsel for the plaintiffs, Mr. B. Levet, as to where in the transcript excerpts there is in fact to be found an order or a direction dealing with the matter referred to in paragraph 2(b) of the summons, for it seemed to me that the transcript does not clearly evidence that the learned magistrate did make any direction in terms or in substance relevant to that paragraph of the summons. The transcript of 15 November 2004 records the exchange between counsel and his Honour and in that context, the learned magistrate referred on more than one occasion to being provided with some notice of matters of law, or as he put it, "flagging" matters in order to assist him when it came to understanding the written submissions. The transcript indicates that his Honour was referring to a document in the nature of an outline before written submissions were received, for he used that term on a number of occasions during the course of discussing the matter with counsel (see, in particular, transcript pp.461, 463, 718, 749) ("…only just the general principles …"). Subsequently, on 14 June 2005, his Honour spoke in terms of needing "an outline of the submissions together with any cases …" in advance. The plaintiffs' counsel is noted in that respect as stating, "we're in a position to do that, your Honour" (t.906). 16 Having asked counsel for the plaintiffs to take me to relevant parts of the transcript, I am by no means satisfied that any direction was in fact given requiring the plaintiff to file written submissions, nor in particular requiring them to file submissions prior to the close of any final address made by or on behalf of the Crown. 17 Mr. Levet contended that on 22 November 2004, objection was taken by the plaintiff to the exchange of written submissions having regard to the criminal nature of the proceedings. It was further contended that the first defendant modified any suggestion that there be such an exchange and merely required both parties to file written submissions. It was said that, even though there was no requirement on the parties to serve each other with their respective submissions, objection was taken to the modified procedure, but that the learned magistrate ruled against the plaintiffs' objection. 18 An examination of the transcript does not, in my view, substantiate the contention that there was any ruling to that effect. The transcript reveals an ongoing dialogue in which no objection, in principle, was taken to the course discussed whereby written submissions would be lodged with the court, but not served. 19 On this basis, accordingly, there is a sound foundation for resisting the declaratory relief sought in paragraph 2 of the summons. However, as extensive submissions were put before the court by counsel for the plaintiffs and the second defendant, I will in deference to them deal with the principle issues argued on this application.

The plaintiff's contentions 20 The argument developed on behalf of the plaintiffs may be distilled into three points:-

(a) The inherent nature of criminal proceedings requires a prosecutor to adduce evidence before a defendant elects whether to call evidence or not and an accused is entitled to hear the address or submissions of a prosecutor before his or her counsel is required to address the court.

(b) The claimed direction made by the first defendant required the second defendant to prepare written submissions, as it was put, "on the blind" before receiving the prosecutor's written submissions. This, it was contended, is contrary to the principle by which the procedures of a criminal trial are determined.

(c) The procedure whereby the second defendant is allegedly required to lodge its written submissions with the court (but not required to serve them upon the prosecutor) not only abrogates an accused person's right to hear a prosecutor's case in full before being put to his or her election to respond, but produces a disadvantage to them, in particular, in having to prepare and file written submissions before hearing the oral submissions of the prosecutor.

The prosecutor's contentions 21 Mr. Lakatos submitted that there were four reasons as to why the summons should be dismissed:-

(a) the Magistrate's "direction" contravened no requirement of law;

(b) the Magistrate's "direction" was authorised by s.26 of the Local Courts Act 1982 ;

(c) the direction causes no identified prejudice to the plaintiffs' conduct of their defences; and

(d) the summons should be dismissed on discretionary considerations. 22 I will deal with the submissions of Mr. Levet later in this judgment. I first turn to the above four points raised by the prosecutor.

Powers and procedures of the Local Court: legal requirements

Powers and procedures under the Criminal Procedure Act 1986 23 The court was taken to the provisions of ss.38 and 160 of the Criminal Procedure Act 1986 (NSW). Section 38 is found in Part 3, Criminal Proceedings General, of the Act and provides:- "In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence." 24 Section 160 is a provision within Part 3, Trial Procedures, Division 6, Other Provisions Relating to Trials, of the Act. It provides:- "Closing address to jury by accused person (1) An accused person or his or her counsel, my address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury. (2) If, in the accused persons' closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion." 25 The provisions of s.26 of the Local Courts Act 1982 (NSW) are in the following terms:- "If the manner or form of procedure for taking any step in any proceedings is not prescribed by or under this Act, the Criminal Procedure Act 1986 , the Local Courts (Civil Claims) Act 1970 or any other law under which the step is to be taken or by the practice of Courts, a Court, on application made to it in such manner as it considers appropriate, may direct what manner or form of procedure is to be followed, and any step taken in accordance with a direction so given shall, for the purposes of the proceedings, be regular and sufficient."

Analysis 26 Insofar as the plaintiffs relied upon the conventional principles and procedures that apply to criminal proceedings to support the argument put to the Court, it is of some importance to observe:-

(a) The right to address a court in accordance with the provisions of s.38 of the Criminal Procedure Act is not expressed in absolute terms but is qualified by the phrase, "as far as practicable" . In determining practicability in this context, the following two factors are relevant so far as the proceedings before the Local Court are concerned:-

(i) unlike most proceedings before the Supreme Court for the trial of an indictable offence, the learned magistrate is the judge of both fact and law;

(ii) the elements of the offences charged are not, in terms, in dispute. The substantive issues arise from the affirmative defences raised by the plaintiffs (as detailed above). Their complex and, to a point, novel implications, make them entirely suitable for the written submission procedure as they will assist the Local Court in dealing with them, without disadvantage or detriment to the plaintiffs (as to which see below).

(b) The procedure envisaged for the filing of written submissions is not one which would, in my assessment, produce any identifiable or particular disadvantage to the plaintiffs nor would it in any broader sense undermine or impair the plaintiffs' right to a fair hearing.

(c) As events have transpired with the service of a copy of the written submissions by the prosecutor on the plaintiffs' legal representatives, there is, in my opinion, no scope for disadvantage or prejudice to the plaintiffs.

No contravention of any requirement of law 27 The provisions of s.160(1) of the Criminal Procedure Act are not, in my opinion, determinative of the issue in these proceedings. The provisions preserve an accused person's right in a jury trial to address a jury after the prosecutor has made his or her closing address. There is no parallel between a jury trial and the proceedings before the first defendant. In this matter it may well be that the prosecutor will supplement its written submissions with oral submissions, whether by way of elaboration or explanation, but that, in my opinion, does not in any way detract from the principle that is subjacent to the sequence of addresses envisaged by s.160(1). That principle is directed to preserving in a jury trial an accused's right to hear the Crown case as put in addresses. On the basis of the confirmation provided by counsel for the prosecutor to this Court, there is no risk or prospect of the prosecutor departing or changing its stance as propounded in the written submissions. The plaintiffs, accordingly, are fully alive to the propositions and contentions which the prosecution will urge upon the Local Court when this matter is listed for oral submissions. 28 The nature and scope of the proceedings and the particular issues raised do not lend themselves to the closing address sequential procedure as described by s.160. There is a relevant distinction between an address to the jury as comprehended by the provisions of s.160(1) and a case, as here, in which detailed and complex questions of law and related matters are required to be determined by the relevant forum which is both the judge of the law and of fact.

Any direction was authorised by s.26 of the Local Courts Act 29 The provisions of s.26 of the Local Courts Act 1982 are designed and intended to provide a Local Court with the necessary capacity and flexibility to determine the manner or form of procedure for taking any step, including addresses or written submissions where such is not prescribed by or under that Act or the Criminal Procedure Act 1986, the Local Courts (Civil Claims) Act 1970 or any other law as referred to in that section. The court may, on application made to it, direct the manner and form of procedure. 30 Implicit in s.160 is the right of an accused person or his or her counsel to address a jury in relation to issues of fact and in relation to evidentiary issues subjacent to them. In the present proceedings, the subject-matter of the dialogue between the learned magistrate and counsel was directed towards written submissions on issues of fact, but more particularly, to the legal issues that arise from the defences raised. Accordingly, I do not consider that s.160 in the light of s.38 of the Criminal Procedure Act 1986 is determinative of the issues which fall for decision on the summons. In any event, as I have stated, the provisions of s.160 are not directed to what has been referred to in the course of argument as legal submissions, that is to say, submissions of law or submissions on the legal principles underpinning or otherwise relevant to the defences. Parts 4 to 8 of the prosecutor's submissions raise a number of complex legal issues and contentions based on extensive case law references.

The plaintiffs' submissions as to prejudice 31 In paragraph 9 of the affidavit of Mr. Sargent, the following appears:- "I have been advised by counsel briefed in the matter by the plaintiffs that in preparing such submissions his initial view has been significantly reinforced that it is inappropriate to put in written submissions prior to the closure of the Crown case, as to do so is meeting a prosecution case which one does not know the parameters of and may involve making concessions of fact or law that one might not otherwise be called upon to make ." (emphasis added) 32 With due respect to this assertion, I do not consider that the procedure of filing written submissions (but not serving them) was capable in these proceedings of creating disadvantage or prejudice of the kind asserted or of any kind. In any event, as events have now transpired, the provision of a copy of the written submissions by the prosecutor to the plaintiffs' legal representatives removes any theoretical possibility of them not knowing or appreciating the parameters of the prosecution case and there is no prospect of disadvantage through the making of concessions of fact or law as contended in paragraph 9 of Mr. Sargent's affidavit. 33 In the event that a submission is made during the course of oral submissions by the prosecutor that in some relevant way is said to take the plaintiffs or their legal advisers by surprise, the learned magistrate is in the position to ensure, by the taking of appropriate procedures, that such disadvantage is cured. 34 I am reinforced in the conclusions which I have expressed as to an absence of disadvantage or prejudice by the filing of written submissions by the exchange which took place between the learned magistrate and counsel for the plaintiffs on 14 June 2005:- "HIS HONOUR: For you to supply a copy of the draft submissions to the Court, will you be able to do that beforehand? We've had this discussion before, not to your opponent but to the Court before the hearing. LEVET: I've got no problem with that …" (t.906, ln.25-35) 35 Later in the exchange on 14 June 2005, counsel for the plaintiff appeared to acknowledge that the provision of submissions would not place his clients in any form of jeopardy. At t.914, ln.25-35, the plaintiffs' counsel, following reference to the conventional procedure and sequence of addresses in a criminal trial with the addresses of the accused following those of the Crown, stated:- "… so far as that is concerned, your Honour, that is a matter of many hundreds of years of standing and as far as this case is concerned the reality is it might not make a great deal of difference because the issues involved are (sic) one of law rather than the facts. Having said that, I wouldn't want to be responsible for creating a precedent whereby …"

Discretion 36 Finally, the provisions of s.26 of the Local Courts Act in my opinion, vests a discretionary power in a magistrate to determine the manner or form of procedure for taking submissions of counsel in a lengthy and complex matter. There has not been demonstrated in these proceedings that the exercise of any statutory discretion by the learned magistrate is the subject of error of the kind necessary to attract intervention: House v. The King (1936) 55 CLR 499, 504-505. 37 A reading of the transcript rather reveals that the learned magistrate, with respect, sought the assistance of counsel particularly in relation to questions of law with appropriate reference to authorities so that he would be in a position to receive and deal with oral submissions. 38 The approach taken by the magistrate appears from the transcript to have evolved through discussion with counsel and in the final analysis appears to be appropriate, having regard to the nature of the proceedings. 39 I accordingly dismiss the summons. I will hear the parties on the question of costs. **********

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.