Taylor v Local Court of NSW

Judgment - ex tempore 1HER HONOUR: Adam Taylor faces two charges of larceny as a servant contrary to s 156 of the Crimes Act 1900. The charges are due to be heard in summary proceedings in the Local Court in a hearing listed for two days commencing tomorrow. The application has accordingly been heard and determined on an urgent basis. 2On 28 July 2014, after being served with a late expert report by the prosecution, Mr Taylor applied to have the hearing date vacated so as to enable him to brief his own expert to respond to that report. The application was evidently referred to a magistrate in chambers. His Honour refused to list the application for an oral hearing and refused the application. Mr Taylor seeks to challenge those decisions. 3The application proceeded by reference to an amended summons filed in court yesterday. The amended summons raises two sources of power. The first is the power to determine an appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001. The second invokes this Court's jurisdiction under s 69 of the Supreme Court Act 1970 to grant relief in the nature of the prerogative writs. 4The application to the extent that it relies on s 53(3)(b) of the Crimes (Appeal and Review) Act requires leave. That section provides: (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (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. 5The decisions in respect of which leave is sought are discretionary decisions on a matter of practice and procedure. It is well recognised that this Court will be slow to grant leave in respect of such a decision. It is further well-established that this Court should be loath to interrupt criminal proceedings on foot in the Local Court. That said, the case for the grant of leave is arguably stronger in a case such as the present where the challenge is brought before rather than during the criminal proceedings in the court below. The Act plainly contemplates that there will be cases in which it would be appropriate to grant leave. The fact that an appeal lies with leave indicates of its own that it is not a complete answer to such an application to say that the decision is an interlocutory order made by the Local Court in relation to a person in summary proceedings - such an approach would obviate the utility of the section. 6I would not purport in this judgment to state categorically the kinds of cases in which a grant of leave might be appropriate. But historically such applications would ordinarily be confined, I would think, to questions of law that can be distilled with clarity and which assume some significance in the conduct of the case. In matters of practice and procedure the Local Court should ordinarily be allowed to control its own processes. 7The circumstances in which Mr Taylor's application for an adjournment was made are as follows. On about 10 April 2014 the prosecution sought to have an earlier hearing date vacated owing to the need to serve an additional statement from the forensic accountant "in relation to the unexplained wealth". The basis of the application was that the prosecution's forensic accountant was then overseas and would return "only three weeks before the listed hearing date". As noted on behalf of Mr Taylor at the hearing before me, that application implicitly recognised that three weeks would be an inadequate period for Mr Taylor to respond to the statement that was to be served. Mr Taylor consented to that application and it was granted. 8It is perhaps surprising in those circumstances to see what happened next. The magistrate who vacated the hearing date made a direction that the balance of the Crown brief be served by 29 May 2014 and listed the proceedings for further mention on 5 June 2014 to fix a new hearing date. The crown prosecutor then informed the magistrate that the forensic accountant would not be able to complete his report by 13 May 2014 (perhaps a date previously foreshadowed) but could complete it by mid to late July. Notwithstanding that further information the order was made requiring the police brief to be served by 29 May. 9When the matter came before the court on 5 June 2014 it was listed for hearing on 7 and 8 August 2014. The supplementary report of the forensic accountant was not served until 17 July 2014, 3 weeks before the hearing. 10Mr Taylor reacted relatively quickly, engaging his own forensic accountant just over a week later. It was then that he was informed that that expert required six weeks to respond to the report served by the Crown. Since that indication was given, the person retained has in fact retired and it is now necessary for Mr Taylor to retain a further expert. However, I do not think that last fact was known in to Mr Taylor at the time he made his application to vacate the hearing date. 11The application for an adjournment was prepared on 28 July 2014 and served on the prosecution that day. The process by which that occurred was perhaps curious. There is a form in the Local Court which enables a person to apply to have a hearing date vacated. The form has a section for completion by the applicant's opponent, who ordinarily returns it to the applicant for filing. In the present case, however, it appears that the prosecutor completed the form and submitted it to the court without returning it to Mr Taylor. Accordingly, it appears Mr Taylor was not aware of the prosecutor's response as submitted to the Local Court. No evidence was put before me of any document recording the prosecutor's response. 12The hearing before me proceeded on the assumption that the response was in accordance with correspondence sent by the prosecutor on 28 July 2014 which communicated his view that, since the hearing was likely to go over part-heard after the first two days on 7 and 8 August, there should be sufficient time for Mr Taylor to obtain a review of the forensic accountant's statement. 13That proposal has obvious difficulties. Mr Taylor should be entitled to commence the hearing in possession of the complete Crown brief and having had an opportunity to consider it properly. His consideration, with expert assistance, of the prosecutor's expert evidence may well inform the forensic choices to be made on his behalf. That is plainly an important aspect of his undoubted entitlement to a fair hearing. 14The magistrate did not give reasons either for refusing to list the application for an oral hearing or for refusing the application. In noting that circumstance I do not mean to suggest that a magistrate of the Local Court is obliged to give reasons for determining such an application. That would plainly be impractical, having regard to the immense workload of that Court and the immense pressure under which its magistrates operate. I simply intend to record that there is no record before me as to his Honour's reasons for refusing the application. 15Informally, it was conveyed to Mr Taylor's solicitor that the application had been refused because it had been made too close to the hearing date. Two observations may be made about that. First, if that was the case, it was through no fault of Mr Taylor, as the circumstances I have recited will reveal. Secondly, this was a case in which in my view any application for an adjournment was better made in advance, even if close to the hearing date, than left to the day. Leaving aside the difficulties concerning the expert evidence, I was informed that no fewer than 17 witnesses will be called for the prosecution, which sustains the informant's view that the hearing will not conclude within two days. [NOTE: SEE ADDENDUM BELOW]. 16In many cases plainly it will be sensible for the Local Court to refuse to entertain an adjournment application brought so close to the hearing date other than on the morning of the hearing but this was a case which marked itself out for separate consideration. Of primary if not determinative significance was the issue of the expert evidence. 17The Court of Criminal Appeal had occasion to consider an accused person's entitlement to have a fair opportunity to respond to expert evidence in the decision of Haoui v Regina [2008] NSWCCA 209. In that case the Court quashed a conviction in circumstances where an accused person had not had a reasonable opportunity to respond to expert evidence served late. The governing principle was the overriding obligation of a trial judge (which applies equally to a magistrate determining a summary hearing) to afford a fair hearing. The main judgment was given by Beazley JA, with whom Johnson J and I agreed. In a separate judgment Johnson J explained the importance of ensuring a fair opportunity to respond to complex expert evidence notwithstanding the curious absence of specific rules of the kind which apply in civil proceedings in the case of criminal trials: see especially at [158] where his Honour observed the curiosity that there is more elaborate provision concerning the use of expert reports in civil proceedings than in criminal trials. 18The important principle to emerge from that decision is that there is a substantial risk that an accused person will not have a fair hearing if he is not afforded an adequate opportunity to respond to expert evidence served late by the Crown. 19I should observe that the expert report served late in the present case was not put before me. However, a significant consideration is the fact that the magistrate, in determining the application in chambers, evidently did not have regard to that important consideration and the defendant did not have an opportunity to put forward the cogent reasons which apply in this case for the granting of an adjournment. 20In all of those circumstances at the hearing before me counsel for the informant very fairly conceded that the magistrate's discretion miscarried on that basis and that the decision was liable to be set aside. Specifically, he accepted that it appears the magistrate did not have before him all of the relevant information about the nature of the expert evidence which had prompted the application for an adjournment. I think his concession also extended to accepting that the defendant did not have an opportunity to address that issue, which meant, in my view, that he was denied procedural fairness. 21It follows that the decision refusing the adjournment is liable to be quashed. 22I have considered whether relief should be granted under s 53 of the Crimes (Appeal and Review) Act. In my view it is doubtful whether the issue brought forward in the present application is "a question of law alone", as required by the section. However, this Court plainly has power under s 69 of the Supreme Court Act to grant the relief sought. 23For those reasons I make the following orders: (1)An order in the nature of certiorari quashing the decision of the magistrate on 31 July 2014 in proceedings 2013/372748 in the Local Court of New South Wales at Burwood refusing Mr Taylor's application for an adjournment of the hearing. (2)An order in the nature of prohibition precluding the hearing of the charges until the determination of the adjournment application in open court. (3)An order remitting the proceedings to the Local Court for determination in accordance with these reasons. 24The plaintiff, having been successful in obtaining relief in the application, seeks his costs. I am persuaded that it is appropriate to make an order that he have his costs, applying the principle that costs follow the event. 25Mr Thomson invited me, in the unusual circumstances of this case, to exercise my discretion so as to require each party to pay his own costs. The factors that have persuaded me that Mr Taylor should have his costs are, first, that he reasonably consented to the first adjournment when sought by the informant; secondly, that it is not clear to me what differing consideration could reasonably have prompted the informant not to consent to what was in effect a mirror application brought by Mr Taylor and visited upon him by the late service of the expert report; thirdly, the fact that he is privately represented in the criminal proceedings in the Local Court and is facing relatively serious charges for which, if he is convicted, he will quite likely serve a term of imprisonment. In those circumstances the present application was warranted. 26In all of those circumstances I think it is appropriate to order the second defendant to pay the plaintiff's costs of the proceedings. 27ADDENDUM: During the course of correcting this ex tempore judgment it has come to my attention that I overlooked a matter I had intended to record as to the desirability of determining the adjournment application before the hearing date rather than leaving it to be determined on that date. That was the fact that Mr Taylor is privately represented. I appreciate that concerns over legal costs cannot always be accommodated by a busy court. However, in the present case, the duplication of legal costs, if counsel has to work the matter up for hearing notwithstanding the fact that he has a strong basis for obtaining an adjournment, was a powerful reason for bringing the adjournment application in advance of the hearing date.