Ward v Zimmer [2015] NSWSC 525 | Case summary

Ward v Zimmer [2015] NSWSC 525 | Case summary | Zoe

[3]

Evidence in Support of the Application to Re-open the Hearing

The application to re-open was supported by the affidavit of Detective Zimmer sworn 8 April 2014. This affidavit was exhibited as part of Exhibit AA1 to the affidavit of Mr Ali Abbas dated 11 November 2014 in the present proceedings.
Detective Zimmer's evidence was that he had made a formal request on 23 December 2013, following the plaintiff's not guilty plea, for eight elastic bands which bound together the abovementioned currency found by police in the glove box of the plaintiff's car to be swabbed for trace DNA material by Coffs Harbour Crime Scene (there were in fact ten rubber bands in total). In the written record created by him (referred to as an "EFIMS") Detective Zimmer requested, under the heading "job criticality", that the analysis be completed "in less than one month" and indicated that the hearing of the proceedings against the plaintiff had been fixed for 21 February 2014 in an "administration note" attached to the request.
The administration note created by Detective Zimmer at the time of making the request was as follows: "Investigators are seeking to establish if the DNA profile of Paul LANSDOWNE (Dob: XXX) (on the DNA database in Qld) is on the elastic bands. It will be alleged that he handed a second suspect (who has not touched the elastic bands) a sum of money which was secured by the elastic bands. This request has only been submitted upon a plea of not guilty. The hearing date for this matter is 21/02/14." (Affidavit of Detective Sergeant Zimmer at [7])
In para [9] of his affidavit, Detective Zimmer stated: "The 'rubber bands' subject to the examination were those used to secure $20,000 in cash seized from the accused on the 20th day of March 2013."
On 24 December 2013, Senior Constable Gane of Coffs Harbour Crime Scene individually swabbed each of the elastic bands for trace DNA.
On 30 December 2013 the DNA swabs were forwarded to the Forensic and Analytical Science Services laboratory for DNA analysis. Detective Zimmer created a further administration note attached to his examination request as follows: "…21/3/13 a suspect vehicle was stopped by Police. Upon searching this vehicle it was found to contain approximately $20,000 cash. The occupant of the vehicle was not able to supply Police with a reasonable excuse for being in possession of this cash. The cash was bundled, with the bundles being secured by elastic bands. Inquiries by OIC has revealed possible OMCG links to the cash which is suspected of being proceeds of criminal activity. A request to swab the elastic bands for trace DNA was made in order to establish possible criminal links to the money. Matter is set for court hearing on 21/2/14." (Affidavit of Detective Zimmer at [11])
DNA comparison results had not been completed as at the date of the hearing on 21 February 2014.

[4]

Information Received by Police Subsequent to the Hearing

The prosecution brief of evidence in the Local Court proceedings had been served in accordance with court orders made prior to the hearing. As stated above, no mention was made in any of the material served by the prosecution of an intention to call evidence in relation to DNA testing or analysis.
At no stage prior to, during, or at the conclusion of the evidence, or after closing addresses, was any application for an adjournment made by the prosecution for the purpose of obtaining results of DNA tests or analysis.
At the completion of the prosecution case the learned Magistrate held there was a case to answer. The plaintiff then gave evidence in his case. The prosecution did not call evidence in reply.
Following closing addresses by the prosecutor and counsel for the defendant, the Magistrate indicated that he intended to reserve his judgment in the matter and would notify the parties when he was ready to hand down judgment.
In the period mid to late-March 2014, the plaintiff received notice that the proceedings were to be listed at Coffs Harbour Local Court for judgment.
It appears from Detective Zimmer's affidavit that the next events of significance occurred on 8 and 22 March 2014. In paras [13] and [14] of his affidavit he stated: "On the 8th day of March 2013 [sic - 2014], an EFIMS 'Analysis Finding Result' was created by staff from the Forensic and Analytical Science Services which stated 'Profile obtained and uploaded to the DNA database for matching purposes - item reference XF000125831.' On the 22nd day of March 2013 [sic - 22 March 2014], I received an EFIMS 'Analysis Job Result' which stated the following 'NCIDD Link NA4978 linking scene to Qld person sample. The major contributor in a mixed DNA profile. Link to Paul Jeffery LANSDOWNE, Dob: XXX. Link DNA detected dated; 11/03/2014.'"
On 25 March 2014, Detective Zimmer advised the Sunshine Coast Criminal Investigation Branch of the Queensland Police, of the information received concerning the DNA profile and a link to Lansdowne. He inquired of Queensland Police as to whether a DNA reference sample of Lansdowne could be forwarded to the Forensic and Analytical Science Services, Sydney, for comparison purposes.
Detective Zimmer set out in his affidavit the advice that he had received from Detective Senior Constable Hutton of the Queensland Police as to the circumstances in which Paul Lansdowne's DNA sample came to be on the DNA database as follows: "16. On the 4th day of July 2013, Paul LANSDOWNE was arrested in Queensland for trafficking prohibited drugs. 17. An evidence DNA sample was obtained from LANSDOWNE under the authority of Detective Senior Sergeant Darren EDWARDS. 18. This evidence sample was taken by Detective Senior Constable Shannon DOWD at 3.12pm on the 4th day of July 2013. 19. This evidence sample was referenced 'Exhibit P1300219282' and was lodged on the 4th day of July 2013 by Detective Senior Constable DOWD. 20. On the 5th day of July 2013, this DNA exhibit was transported by Senior Constable SPENCER to Queensland Laboratories. 21. On the 8th day of April 2014, the DNA profile of Paul Jeffery LANSDOWNE was forwarded to the Forensic Intelligence Results Management department, Sydney."
Detective Zimmer then set out in his affidavit details of communications he had on 8 April 2014 with Ms Kim Miller of the National Criminal Investigation DNA Database section as follows: "22. At 1.00pm on 8th day of April 2014, I spoke with Kim MILLER of the National Criminal Investigation DNA Database section. She advised that she had received the DNA profile of Paul Jeffery LANSDOWNE this date and that she would immediately forward this profile to the Forensic Analytical Science Services section where a comparison would be made. 23. Kim Miller advised that the comparison would take place this week (week ending 11 April 2014) and the results of that comparison could be prepared in a court report. The current turnaround time for the production of a court report is 60 days unless otherwise ordered by the court. If a 'Fast-Track' order was ordered by the court then application for expedient preparation of the court report would be arranged by the officer in charge."
Mr Abbas, solicitor for the plaintiff, received an email on 25 March 2014 from the Prosecutor in which reference was made to the DNA results.
The proceedings were then listed at Coffs Harbour Local Court on Friday, 28 March 2014. On that date, as stated above, the Prosecutor indicated that he was making an application to re-open the prosecution case for the purposes, in due course, of adducing evidence relating to the DNA testing and analysis.

[6]

Factual Matters Concerning the Offence Charged

The Written Outline of the Plaintiff's Submissions sets out the factual matters relating to the prosecution of Mr Ward under the heading "Case Summary". Reproduced below are the facts as summarised in the plaintiff's submissions: 12. On 21 March 2013, the Plaintiff met with a person named Paul Lansdowne at the Star Hotel, River Street, Macksville. The person Lansdowne was a person of interest to the Queensland police and was suspected to be involved in crime including the illicit drug trade. 13. The two were under police surveillance and police also obtained CCTV footage of when the two men went into the hotel and were observed to have a drink. Shortly after they were seen to be in the vicinity of a Commodore Sedan motor vehicle (later established to be driven to the scene by Lansdowne) with the bonnet up and at one stage with the boot open and also the driver's door in the open position. 14. Nothing was seen to pass from one man to the other and there was no evidence that Lansdowne handed anything to the Plaintiff. 15. The two men were seen to shake hands and then the Plaintiff entered his vehicle parked in the immediate vicinity. Surveillance footage shows that upon entering his vehicle, the Plaintiff leant across towards his glove box area but no mention was made of this in the course of the evidence in the case and no detail was elicited as to what he did when he so manoeuvred within his vehicle. 16. The Plaintiff was stopped by a number of police in four police cars on the Pacific Highway at Barraganyatti and when questioned freely admitted that he had the sum of $20,000 in cash in his glove box and this was then located by police and seized. 17. The Plaintiff was interviewed at the roadside by the informant and that interview was recorded on video and produced in evidence. 18. The Plaintiff in essence told the informant that he had attended the Star Hotel to inspect and possibly purchase a commodore motor vehicle. He met with Lansdowne who he knew as Max and having inspected the vehicle decided that the asking price was too high and he was not prepared to buy it. 19. He maintained that the money was his and that he had earnt it by buying and selling things over time including imported cars and the like. 20. At no time, either at the roadside interview or during the conduct of the defended hearing was the Plaintiff asked when he had last touched or examined the money or whether he had touched it after the meeting with Lansdowne and there did not appear to be any necessity to do so on the case the Plaintiff had to answer. 21. The Defendant allowed the Plaintiff to leave the area requesting that he provide evidence of the origin of the $20,000. 22. On 24 March 2013 the Plaintiff sent an email with attachments (Exhibit 9 in the proceedings), to the informant setting out transactions in which he had been involved and from which he made profits and accounted for the sum of $20,000. 23. The Plaintiff gave evidence that over months thereafter he made numerous attempts to contact the Defendant for the return of his money without success and was not able to speak to the Defendant. 24. On Tuesday, 23 July 2013 the Defendant contacted the Plaintiff by telephone and indicated that he would like to ask him further questions about the money and about the person Max and the Plaintiff declined whereupon the Defendant told the Plaintiff he would be issuing him with the CAN for the offence with which he was ultimately charged. 25. The Plaintiff put his character in issue and gave evidence that when he was in a defacto relationship with four children and on 30 June 1998, the day his second son was born he became intoxicated and he had a run in with the police and that this was the only time he had ever been in trouble. 26. During the course of the case evidence was admitted over objection as to crime rates and criminal activities in Queensland from the experience of Detective Senior Constable Christopher Kevin Eaton attached to the Sunshine Coast District Drug Enforcement Team; the telephone and its registration in the possession of the Plaintiff and some statements of listed witnesses for the prosecution which do not affect the current appeal."

[7]

The Present (Appeal) Proceedings

The proceedings in this Court are brought by the plaintiff under Part 5 of the Crimes (Appeal and Review) Act 2001, which is entitled Appeals from Local Court to Supreme Court. Subdivision 1 of Div 1, Appeals by Defendants, provides for appeals as of right (s 52) and appeals requiring leave (s 53).
The plaintiff relies upon the provisions of s 53(3)(b) of the Act which are in the following terms: s 53(3)(b): 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.
The plaintiff also seeks an order extending time as the proceedings were not filed within the prescribed time.
The issues arising in these proceedings under s 53(3)(b) include: 1. Whether the Magistrate's decision to re-open the hearing was an "interlocutory order"; 2. Whether the grounds for the Amended Summons raise "a question of law"; and 3. Whether leave to appeal should be granted if no question of law is raised.
The initiating Summons, as stated above, was filed in this Court on 22 July 2014.
On 2 October 2014, the plaintiff filed an Amended Summons Commencing an Appeal (Pt 50).
On 17 November 2014, a Further Amended Summons Commencing an Appeal (Pt 50) was filed on his behalf.
At the hearing, Mr Earl of counsel who appeared on behalf of the plaintiff, stated that he wished to rely upon grounds set out in a further document entitled "Appellant's Amended Grounds of Appeal" dated 24 March 2015. That document was marked as MFI-1 in the proceedings. Mr Earl stated at the hearing of the proceedings on 26 March 2015, that the grounds set out in the original Amended Summons were inadequate and accordingly he relied upon the grounds set out in MFI-1 in respect of the whole of the decision of the Magistrate. The grounds set out in MFI-1 are as follows: "1. The Learned Magistrate misdirected himself as to the legal requirements that must exist prior to exercising a discretion to allow the prosecution to re-open the prosecution case in that: (a) The Learned Magistrate failed to consider the question of fairness to the Appellant prior to exercising his discretion. (b) The Learned Magistrate misdirected himself as to the meaning of 'the occasion for calling the further evidence ought reasonably have been foreseen'. (c) The Learned Magistrate wrongly disregarded the requirement that 'the occasion for calling the further evidence ought reasonably have been foreseen'. (d) Them Learned Magistrate wrongly relied upon the principle that the primary objective was the administration of justice in New South Wales in disregarding (c) above prior to exercising his discretion to allow the prosecution to open its case."

[9]

The Magistrate's Decision to Re-open the Proceedings

At pages 6-7 of the transcript of 9 April 2014, the ex tempore decision of the Magistrate is recorded as follows: "This is an application to the Court to re-open the prosecution's case in regard to a situation that developed subsequent to the evidence discovered with a large amount of money in his glove box, wrapped in a sock. It was covered by a rubber band. During the hearing of this matter before [word omitted] for the charge of the proceeds of crime matter there was no evidence that there was any DNA evidence upon the sock or the rubber band. That stage was crucial piece of evidence but it appears now from what the prosecution says, they are requesting to re-open their case on the basis that they now have discovered that that rubber band was not properly dealt with in regard to the DNA analysis. And they say that that should now be carried out and the case should be held over until that evidence has been produced. The law in regard to re-opening these cases is the case of Queen v Chin where it was held by a majority that the Court should not split its cases and call further evidence after the close of the defence case. Only in exceptional circumstances. In fact the major decision in regard to that matter was that, 'The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence he (it says here) should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and then and generally speaking, not if the occasion for calling the further evidence ought reasonably have been foreseen.' Mr Cox has argued that because this evidence would have been normally foreseen that I should not re-open this case. And also this is giving the prosecution, as it were, a second go at their case. We have (sic) all, in these courts know the difficulty we have regarding to (sic) getting evidence from laboratories in regard to DNA evidence and drug evidence and that has become such a situation in New South Wales that we have had to firstly order these urgent applications for the court to get this type of material and time and time again we find that it is not produced. The delays have become such in this Court that it has become outrageous that the police cannot produce these cases in time. This case I think is a case that falls directly in regard to that. Was it reasonable (sic) foreseeable that this evidence should have been produced to the Court? Well it appears from the affidavit before the Court today that there were apparently some mistake make (sic). Should the defendant benefit for that in the circumstances where it is reasonable (sic) foreseeable that should have been done and it has not been done. Well, as I have alluded to, the reality in regard to these types of matters is that evidence is difficult to produce on time in regard to drug type matters. Generally speaking, as the Judge says in that matter, it would be reasonably foreseeable that that could be a possibility but I think in the circumstances I have to disregard that because the primary objective of course is the administration of justice in New South Wales and THIS CASE I AM OF THE VIEW FALLS INTO WHAT CAN BE REGARDED AS AN EXCEPTIONAL CIRCUMSTANCE AND I AM GOING TO ALLOW, IN THE EXERCISE OF MY DISCRETION TO RE-OPEN THE CASE IN REGARD TO THAT PART OF THE EVIDENCE." (original emphasis).

[12]

(ii) Question of Law

In the plaintiff's submission the Magistrate had misdirected himself as to the requirements that must exist before he could exercise his discretion to permit the prosecution to re-open its case: Written Outline of the Plaintiff's Submissions at [43].
The written submissions helpfully set out extracts from well-known authorities that have enunciated and applied the general rule that the Crown is not to be permitted in criminal proceedings to split its case. Reference was also made to the principles that address the limited circumstances in which the discretion to do so may be exercised: These included the High Court's judgments in Shaw v The Queen (1952) 85 CLR 365 ('Shaw') and The Queen v Chin (1984-1985) 157 CLR 671 ('Chin').
It was noted in the written submissions for the plaintiff at [49] that although the defendant "always knew" that the plaintiff maintained the position that the money was his and that it did not come from Lansdowne (which was said to have been the crux of the suspicion relied upon by the prosecution) the defendant did nothing to obtain DNA evidence until December 2013. Further, it was noted that no mention had been made of the possibility of this type of evidence being sought or obtained prior to the hearing of the proceedings on 21 February 2014, and no application for an adjournment was made so that DNA evidence could be obtained. It was submitted that the prosecution effectively elected to proceed without that evidence: Outline of the Plaintiff's Written Submissions at [50].
Whilst it was submitted that the Magistrate in giving his decision had correctly summarised the relevant principles as stated in Chin, it was contended that he had misdirected himself as to the requirement for there to be exceptional circumstances. Additionally, it was contended that his Honour had misdirected himself as to the fact that it had been foreseen by the prosecution that such evidence may be available and that the prosecution, with such foresight decided to proceed with the case to completion without it, which, on the authorities it was submitted, was ground for refusing the application: Written Outline of the Plaintiff's Submissions at [54].
Finally, it was submitted that the Magistrate erred in principle in stating that, "… the primary objective is the administration of justice" (T 13:45-T 14:10). This, it was argued, constituted an error on a question of law. The Magistrate had, in effect, employed that matter to, "… effectively rule out … foreseeability as required …" (T 14:1-5).

[13]

(iii) The Question of Fairness

It was further contended that the Magistrate had misdirected himself because he had not directed his consideration to the question of fairness: Written Outline of the Plaintiff's Submissions at [55].
It was submitted that the admission of the evidence concerning DNA testing and analysis would: "… lead to a grave injustice and effectively require a re-examination of the prosecution witnesses who were performing surveillance of the person Lansdowne and the plaintiff. They admit there is no evidence that the property was handed to the Plaintiff by Lansdowne which was the basis of the suspicion relied upon." (Written Outline of the Plaintiff's Submissions at [56])
It was observed that the evidence tendered during the proceedings indicated an "interaction" between the plaintiff and Lansdowne, including an inspection of the plaintiff's vehicle and shaking hands, and that there was no evidence adduced "… as to the easy transference of DNA from one object to another after physical contact with the person whose DNA is referred to": Plaintiff's Written Submissions at [58].
Mr Earl submitted that unfairness to the plaintiff would occur as a result of the Magistrate's decision due to the fact that there would essentially be a "re-run" of the case: T 12:35-40. He submitted that it would be necessary, if the proceedings were re-opened, to cross-examine police officers who had conducted surveillance on the plaintiff during which there were the incidents of Lansdowne shaking hands and inspecting the vehicle. He maintained that the prejudice would be "enormous" by reason of what would be a "re-run of the whole case".
In his oral submissions in reply Mr Earl identified the inconvenience, delay and the financial cost associated with the proceedings to date and of any further hearing as relevant to the question of fairness. The plaintiff, he observed, is a married man and he does not qualify for legal aid. He would be required to travel up to Coffs Harbour in relation to any further hearing. The proceedings to date, it was submitted, had already been "very costly" to the plaintiff. These matters, it was submitted, all contributed to what was said to be "an enormous pressure" upon the plaintiff: T 37:25-38:10.
It was also submitted by Mr Earl that the evidence established that the availability of DNA evidence was foreseeable by the prosecution: T 10:15-25; 35-40.
Mr Earl again submitted that the learned Magistrate had not turned his mind to the question of fairness to the plaintiff and that he had misdirected himself in not finding that the evidence "ought reasonably have been foreseen": T 10:39.
Mr Earl stated it was clear that the police knew they had material upon which DNA testing could be carried out but that no application had been made "for a fast-track order" for DNA testing or analysis. Mr Earl accepted that the swabs taken from the elastic bands had been sent to Queensland so that this was not a normal case where swab material was usually only sent to the laboratory in Sydney. Mr Earl also properly acknowledged that the police had to send away to obtain Lansdowne's DNA profile: T 11:39-50.

[15]

(i) Interlocutory Order

In the Written Outline of the Defendant's Submissions dated 30 October 2014, it was submitted that the Magistrate's ruling did not constitute an "interlocutory order" for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act. This point was said to be the primary focus of the defendant's submissions. It was contended that the Magistrate's ruling did not command that anything be done. It was a ruling on the law as to whether the prosecution should be permitted to re-open its case: Written Outline of the Defendant's Submissions at [43].
The written submissions referred to a number of authorities that considered whether rulings, including, in particular, rulings on procedural matters, can be regarded as either interlocutory judgments or interlocutory orders: Written Outline of the Defendant's Submissions at [35]-[42]. This was further addressed in the Written Outline of the Defendant's Supplementary Submissions at [3]. In the latter submissions, reference was made to the judgment of Spigelman CJ in Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309, in particular at [30] where the Chief Justice approved remarks made by King CJ in Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126 at 127. In the latter case the Chief Justice stated: "… judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of the hearing."
It was submitted for the defendant that the Magistrate's ruling that the prosecution had leave to re-open its case constituted an "incidental ruling" made in the course of the hearing: Written Outline of the Defendant's Supplementary Submissions at [4].
Mr McGorey's submission was that in accordance with judgment of the Chief Justice in The Queen v Steffan (1993) 30 NSWLR 633, an order involves a judicial operative act, in essence one that constitutes a command: T 23:45-50.
The defendant's submission was that a ruling permitting a case to be re-opened was no more a command than a ruling that the prosecution could lead evidence over objection: T 23:45-50.

[17]

(iii) Exceptional Circumstances

The defendant took issue with the plaintiff's submission to the effect that the learned Magistrate had misdirected himself in law as to what constituted "exceptional circumstances". "Exceptional", it was noted, is defined by the Oxford English Dictionary as meaning "out of the ordinary course, unusual, special": Written Outline of the Defendant's Supplementary Submissions at [8]-[9].
It was submitted that, generally speaking, to be exceptional, the circumstances would need to be unusual, special or outside of the ordinary course. The defendant's contention was that this was a straightforward concept and there was no evidence that his Honour misdirected himself in law as to the principles underpinning the "exceptional circumstances" requirement: Written Outline of the Defendant's Supplementary Submissions at [10].
In large part, it was submitted, the plaintiff's complaint was really about how his Honour applied the principles and on that basis there was no question of law involved: T 26:15-25.
On the issue of exceptional circumstances, Mr McGorey submitted that police had made a request for DNA testing to be performed in a timely manner. Notwithstanding that request, the fact was that the results were not available as at the time the hearing commenced. Reference was also made by Mr McGorey to what he termed "the pragmatic realities of the Local Court in the significant wait lists" and that an adjournment of a hearing can cause difficulties to the Local Court list (T 35: 20-25). The officer in charge of the investigation, it was submitted, had not left it to the last moment in seeking testing and analysis of the swab material taken from the elastic bands. An additional fact of relevance was said to be that the DNA material of Mr Lansdowne was in Queensland and that there was a need for it to be transferred to New South Wales. All such matters, it was submitted, are to be taken into account on the subject of exceptional circumstances: T 35:19-26.

[19]

(v) The Principle of Fairness

In the Written Outline of the Defendant's Supplementary Submissions it was noted that Dawson J in Chin at 685 noted that the principle that the prosecution not be permitted to split its case is "essentially one of fairness" (at 685) to the accused.
The defendant's submission was that the issue of "fairness" underpinned the requirement that the learned Magistrate be satisfied that "exceptional circumstances" existed before permitting the prosecution to re-open to call further evidence after the close of the defence's case. The principle of fairness thereby operated in the exercise of the discretion: Written Outline of the Defendant's Supplementary Submissions at [21].
Mr McGorey stated that in analysing his Honour's reasons for granting leave to the prosecution to re-open the hearing for the purposes of adducing DNA evidence, it was relevant to take into account the submissions that were made to his Honour both by the prosecution and the accused. Mr McGorey submitted that, a reading of the transcript of submissions indicates that the plaintiff's contention focussed on the issue of "reasonable foreseeability" and that his Honour was not requested to have regard to particular aspects of unfairness: T 27:20-30.
It was submitted by the defendant in the present proceedings that the question of fairness arises in two respects. Firstly, in terms of the fairness requirement that underpins the requirement for exceptional circumstances. Secondly, the role that the question of fairness plays in the exercise of the discretion: T 31:25-50.
On the matters raised by Mr Earl said to give rise to prejudice to the accused, Mr McGorey questioned whether, on a further hearing, there would in fact be a need to recall police officers who carried out surveillance as to what they saw take place between the plaintiff and Mr Lansdowne and the submission that there could be a downside or detriment to the accused in doing so: T 32:20-26.
On the other hand Mr McGorey accepted that, on the basis of the transcript of the evidence of the proceedings before the learned Magistrate there seemed to be an evidentiary basis for an argument to be mounted by the plaintiff as to transference of DNA material. In those circumstances it would be for the Crown to exclude the possibility that there has been any transference of Mr Lansdowne's DNA: T 32:35-40.
In relation to any interaction between the plaintiff and Mr Lansdowne when they were together in the bar, it was submitted that the CCTV footage of them would speak for itself and show any "interactions" between them. The evidence in that respect it was noted was objective evidence in itself: T 32:45-50.
In addition to the matters referred to in [78] above, it was submitted that, having regard to the learned Magistrate's reasons, appropriate regard should be given to the practical realities of a Local Court and the expectation that a prompt and practical judgment be delivered: Written Outline of the Defendant's Supplementary Submissions at [22].
It was submitted that leave to appeal should be refused, or, alternatively, the substantive appeal dismissed, and that an order for costs in the defendant's favour be made: Written Outline of the Defendant's Supplementary Submissions at [23].

[20]

The Issue of "Interlocutory Order"
The exercise of jurisdiction which the plaintiff seeks in these proceedings is that provided for in s 53(3)(b) of the Crimes (Appeal and Review) Act. However, in that respect the defendant's submissions dispute jurisdiction.
As discussed above, the plaintiff submitted that the decision of the Magistrate made on 9 April 2014 constituted an interlocutory order. In that respect, it was contended on his behalf that the decision to permit the prosecution to re-open in the circumstances of the case was more than a mere ruling on procedure: Written Outline of the Plaintiff's Submissions at [40].
As also noted above, the defendant took a contrary position submitting that the "ruling" by the Magistrate granting leave to the prosecution to re-open its case constituted an "incidental ruling" made in the course of the hearing and did not constitute an "interlocutory order": Written Outline of the Defendant's Supplementary Submissions at [4]-[5]. On that basis the defendant effectively submitted that in these proceedings the jurisdiction under s 53(3)(b) is not available to the plaintiff.
There is no definition in the Crimes (Appeal and Review) Act of the expression "interlocutory order" in s 53(3)(b) of the Act.
Section 5F of the Criminal Appeal Act 1912, permits an appeal to the Court of Criminal Appeal from an "interlocutory judgment or order" made in proceedings to which the section applies. There are authorities that hold that a ruling on admissibility of evidence does not generally amount to "an interlocutory judgment or order" within s 5F. However, in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 (cited with approval in DPP v Leonard (2001) 53 NSWLR 227 at [40] per James J) a case involving an appeal under s 5F of the Criminal Appeal Act, the interlocutory decision effectively brought to an end the prosecution of the respondents by excluding all of the evidence the Crown might seek to rely upon, the decision relying upon s 138 of the Evidence Act 1995. That decision was held not to be a mere ruling but was held to be an interlocutory decision.
The approach taken in R v Bozatsis accordingly involved one that took into account the effect of what was argued to have been an interlocutory order, or the consequences flowing from it to the viability of the proceedings, in determining whether or not it constituted or amounted to an "interlocutory order", for the purpose of the Criminal Appeal Act.
As to a ruling on evidence, in R v Steffan [1993] 30 NSWLR 633, the Court (Hunt CJ at CL, Grove and Sharpe JJ) observed, at p 636: "A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a 'judgment', but that is an altogether different usage of the word 'judgment' and denotes the reasons which have been expressed rather than the formal act of the court."
There is authority for the proposition that rulings made during a trial are not interlocutory orders: R v Powch (1988) 14 NSWLR 136 (refusal of a trial judge to direct recall of a Crown witness for further cross-examination was held not to be an interlocutory judgment or an interlocutory order).
A ruling on evidence made in advance of or in the course of a trial is not an interlocutory judgment or order within s 5F: R v Steffan, supra, at p 639. See also R v Adamson [2005] NSWCCA 7.
In Salter v Director of Public Prosecutions (NSW), Spigelman CJ observed: "14. Whether a decision or ruling constitutes a 'judgment or order' turns on whether there is an operative judicial act: see Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [29] …"
In Legal Practitioners Complaints Committee v a Practitioner, King CJ observed at 127: "There is no completely satisfying definition of either 'judgment' or 'order' and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. Fortunately it is unnecessary for present purposes to make such a distinction. If the decision falls within either description it is appealable. A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave." (emphasis added)
There being no statutory definition of the phrase "interlocutory judgment or order" and no bright line test that distinguishes between what is an interlocutory order and an incidental ruling, there is necessarily a degree of uncertainty into which category the Magistrate's decision in this case (to grant the prosecution's application to re-open the case for the purpose of adducing evidence based on DNA testing and analysis), falls.
On the jurisdictional issue to which I have referred it is essential that attention be given to: 1. The nature of the application the Magistrate was called upon to decide; 2. The nature and terms of the Magistrate's decision or ruling; 3. The specific terminology of s 53(3)(b) that confer and define rights of appeal in relation to an interlocutory order; and 4. The principles that must be applied in the construction and application of s 53(3)(b).
As to (1), the application was an oral application made by the prosecution to re-open its case on the basis of the results of DNA analysis sought by police before but received following the hearing. The Magistrate was informed that if leave to re-open was granted, the prosecution indicated that it would require time to put the evidence into admissible form.
As to (2), the terms of the Magistrate's determination have been extracted and reproduced in [40] above. The decision or ruling was given ex tempore. The Magistrate said that he was going to "allow" the application. There was no order expressly referred to or made by the Magistrate when giving his decision or ruling which involved a discretionary exercise of power with respect to the further conduct of the proceedings permitting the prosecution to re-open its case.
As to (3), the legislature chose to limit the right of appeal on a question of law alone (and only by leave of the Supreme Court) to "an interlocutory order" made by the Local Court in relation to a person in summary proceedings. The legislature chose not to extend the right of appeal to an interlocutory "decision" or to an interlocutory "judgment".
As to (4), the principles that guide the construction of s 53(3)(b) were considered by Spigelman CJ in Salter v Director of Public Prosecutions (NSW), supra.
In that case, the magistrate had dealt with two preliminary questions of law, one being the proper interpretation of s 308H of the Crimes Act and the other an issue of duplicity of the charges brought against the plaintiff.
There was no issue in that case as to whether the magistrate's determination was "interlocutory". The issue was whether her Honour had made an "order" within the meaning of s 53(3)(b).
The following observations of Spigelman CJ in Salter are pertinent to the issue in the present case. 1. It was noteworthy, the Chief Justice noted, that the word "order" appears in s 53(3)(b) alone and not, as is often the case, as part of a broader formulation extending to "judgment or order": cf Criminal Appeal Act 1912, s 5F, a matter discussed in R v Steffan, supra, at 636-639; Salter at [10]-[11]. 2. The word "order" is narrower in scope than the word "judgment", although they may substantially overlap in a particular statutory framework. For example, a decision on a separate question of law will constitute a "judgment" in a particular statutory context: at [13]‑[14]. 3. Whether a decision or ruling constitutes a "judgment or order" turns on whether there is an operative judicial act: Johnston v Nationwide News Pty Ltd at [29]. In Salter there was held to be no operative judicial act: (at [14]-[15]). 4. Where there is no more than an answer by a magistrate on a question of law, there is no order: Salter at [15]-[16]). Such a determination does not "command that anything be done (or not done) in the sense of an order of the court. It remains no more than a ruling, one which can be tested on appeal to this Court after conviction": Steffan at 639.
In addition to the above matters, Spigelman CJ in Salter addressed the issues of ultimate rights of appeal and the undesirability of fragmenting summary proceeding as matters that bear upon or provide a basis or rationale for confining the jurisdiction under s 53(3)(b).
The Chief Justice observed at 395 in that respect: "By s 53(1) of the Crimes (Appeal and Review) Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word 'order' in both par (a) and par (b) of s 53(3) should not be given an expansive meaning."
The terms of s 53(3)(b) do not permit appeals against "decisions" of an interlocutory nature. This was made plain in Salter at [24]: "Section 53(3)(b) of the Crimes (Appeal and Review) Act cannot be interpreted as if it said "an interlocutory decision" has been made. Nor can s 53(3)(a) be read as if it said a decision has been made in committal proceedings. That would permit fragmentation of both kinds of proceedings to a degree which could not have been intended. I note that the leave requirement would not, of itself, serve that purpose because of the possible disruption occasioned by applications for leave." (at [24])
Campbell JA in Salter was of the same opinion on the restrictive nature of appeals permitted under s 53(3)(b). "The summons in the Supreme Court failed to reflect the terms of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001, in that it sought 'leave to appeal from the interlocutory decision in the Tribunal below'. Section 53(3)(b) does not confer jurisdiction for the Supreme Court to give leave to appeal against an 'interlocutory decision' only against an 'interlocutory order'. There are some interlocutory decisions, of which those involved in the present case are examples, that are not in themselves interlocutory orders, and do not ever come to be given effect to by an interlocutory order." (at [32])
Whilst the Magistrate's determination in the present case can be said to have had the effect of permitting the prosecution to re-open its case to pursue an additional line of evidence based upon a DNA analysis undertaken by the Forensic and Analytical Science Services, I do not consider that the character and effect of the Magistrate's determination by way of granting the application to re-open answers the description of an "order" or "interlocutory order" in terms of s 53(3)(b). It was a ruling on a discretionary question involving legal principles on whether the prosecution ought, in the circumstances established by evidence on the application, be permitted to re-open its case.
Accordingly, on that basis, it must follow that the proceedings do not fall within the jurisdiction conferred by that provision.

[22]

(i) Principles

The following principles are well-established: 1. The general principle is that the prosecution must present its case completely before the accused is called upon for his/her defence: R v Chin (1985) 157 CLR 671 per Gibbs CJ and Wilson J at 676. 2. In a criminal trial, a trial judge has a discretionary power to allow the prosecution to call evidence after the close of the case for the defence. However, the exercise of the power must be exercised in accordance with established principles. That said, there is no rigid formula by which the discretion is to be exercised: Shaw at 380. 3. The prosecution should only be permitted to call evidence after evidence given for the defence if the circumstances are very special or exceptional: Chin, supra, at 676. 4. "Generally speaking" the prosecution should not be permitted to do so if the occasion for calling the further evidence ought reasonably to have been foreseen: Chin, supra, at p 676. 5. The principle would not prevent the prosecution from giving reply evidence directed to an issue the proof of which did not lie on the prosecution. Examples include a defence of insanity or rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of that kind and led evidence with regard to it, for the prosecution must not split its case on any issue: Chin, supra, at p 676. 6. Evidence in rebuttal may be permitted in circumstances, if for some reason, it was not available to the prosecution until after it had closed its case: Chin at 677; R v Rice [1963] 1 QB 857 at 867-8; R v Levy and Tait (1966) 50 Cr App 198.
In Shaw, the appellant had made a potentially incriminating statement to police. The Crown sought to contend that his statement to police at the scene of the murder in question suggested or implied that he knew that the deceased victim had been "throttled".
In Shaw, prior to the commencement of the cross-examination of the appellant, the Crown prosecutor applied to recall the police witnesses who had been present at the crime scene. Leave was granted to do so. After the close of the case for the defence seven police officers were recalled and examined and cross-examined as to rebut the possibility of someone in the course of police investigations at the crime scene having made a statement within the hearing of the appellant (Shaw) to the effect that the deceased had been throttled or strangled and of the appellant having heard it.
In the joint judgment (Dixon, McTiernan, Webb and Kitto JJ) it was noted that the cumulative effect of this evidence: "… was to bring into strong relief the admission made by the prisoner that he had used the word 'throttled' to give great emphasis to the point made by the Crown Prosecutor upon it, as well as the contradiction which was involved of the prisoner's evidence by so many witnesses and also to detract from any advantage the prisoner might obtain in placing before the jury by his personal evidence the answer he made to the charge as the final thing before the addresses of counsel and the charge to the jury by the judge": (at p 378).
The High Court in Shaw addressed the rule against permitting the Crown to re-open its case "unless the circumstances are most exceptional" (p 380). The following remarks were made: "It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise in a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case before the prisoner is called upon for his defence." (at p 380) "… generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foresee." (emphasis added) (at p 380)
In the course of a separate judgment, Fullager J in Shaw stated that the test propounded by Tindal CJ as used in R v Frost (1839) 4 St Tr (NS) at p 386 was "too strict and rigid": at p 383. His Honour there noted: ".. In the second place, the rule so stated is on its face fundamentally unsound and calculated not to aid but to impede the administration of justice. After all, the aim of legal proceedings, including criminal proceedings, is supposed to be to elicit the truth so far as human imperfection permits …" (at p 383)
Fullagar J formulated the test to be applied in the following terms: "These things having been said, however, it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial but it should be regarded as limited in that way, and it is to be remembered that the practical effect of the evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not be regarded as further limited or as governed by any rigid rule or formula … It is impossible to foresee and provide a priori for the infinite variety of circumstances in which either question may arise." (at p 383-384)
In Killick v The Queen (1981) 147 CLR 565, the issue was whether a trial judge may permit the Crown to adduce evidence after the close of the case for the defence in order to rebut an alibi sworn by the accused in the course of his evidence, and not previously the subject of evidence at the trial but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial, because it had been put forward by him in earlier legal proceedings.
In that case, in the joint judgment of Gibbs CJ, Murphy and Aickin JJ, it was stated that: "The general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness. Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution." (at 569) (emphasis added)

[23]

(ii) The Issue of a 'Question of Law' in this Case

The difference between the statutory formulation considered by the High Court in Williams v The Queen (1986) 161 CLR 278 and a provision such as s 53(3)(b) of the Crimes (Appeal and Review) Act which restricts the right of appeal to "a ground that involves a question of law alone" was the subject of consideration in R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 and in R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256.
It is now clear from those authorities that the provisions of s 53(3)(b) are to be construed as follows: 1. An appeal under s 53(3)(b) does not lie on a mixed question of fact and law: R v PL per Spigelman CJ at [25]. 2. The process of "applying" a legal principle to the facts of a case involves a mixed question of fact and law which is accordingly not within s 53(3)(b): R v PL per Spigelman CJ at [26]. 3. An error as to an essential legal proposition or a legal requirement which constitutes a distinct and separate step in the reasoning process involves a question of law alone. An example is a case of the interpretation of a statutory provision as considered in R v JS.
If what the Magistrate did in the present case was to wrongly apply correct principles to the facts that would constitute an error of mixed fact of law and an appeal would not lie: Smith v R (2000) 1 WLR 1644 at 1653; Brough v Director of Public Prosecutions [2014] NSWSC 1396 (Button J at [34]).
In determining the prosecution's application to re-open the hearing the question is whether his Honour applied incorrect principle(s) to his consideration of the application and thereby committed an error of law alone. An alternative would be a case in which the alleged errors relied upon involved error in the application of a legal principle to the facts of the case. If so, then it would involve a mixed question of fact and law and not a question of law alone.
The possibility of such evidence before a jury assuming "inflated importance" would not usually be considered a realistic possibility where the trial court is constituted by an experienced Magistrate. In other words, if evidence of DNA testing and analysis performed by the Forensic Analytical Science Services laboratories was admitted in the Crown case no basis exists (and understandably no submission was made) to suggest that such evidence, if admitted, would unfairly gain force or be given "inflated importance" by the Magistrate by reason only of the stage at which the evidence was admitted.
However, that said, the discretion to allow the prosecution to adduce further evidence following completion of the defence case must, of course, nonetheless, be exercised in accordance with the principles defined in Shaw and Chin, in particular, that there be exceptional circumstances. The whole of the relevant factual circumstances of each case in that respect must be taken into account.

[24]

(iii) Application of Principles

The plaintiff submitted, as discussed above at [38], that the Magistrate had misdirected himself as to the legal requirements that must be addressed before the discretionary power to re-open, was exercised. The alleged misdirections, it was argued, went to:

The issue of fairness.
Whether the occasion for calling further evidence ought reasonably have been foreseen; (points (b) and (c) in MFI-1 extracted at [38]).
Reliance by the Magistrate upon the administration of justice in New South Wales as a primary objective in exercising the discretion.

In the consideration of each of these points, the following matters are to be taken into account: 1. The discretionary nature of the power to re-open must be exercised in accordance with principles enunciated by the High Court in Shaw, Chin and as applied in Lawrence and Killick. 2. The matters established by the affidavit evidence of Detective Zimmer in support of the application to re-open. 3. The relevant considerations that the Magistrate was required to take into account and the exclusion of any irrelevant consideration. 4. The Magistrate's reasons in support of his determination to re-open the hearing.
As to the failure of the prosecution to adduce DNA evidence in its case on 21 February 2014, the discussion of the factual matters above indicates that this was not a case where investigating police overlooked or failed to exercise due diligence in pursuing investigations with a view to obtaining DNA material and obtaining testing and analysis of any such material. Such inquiries were pursued soon after the entry of the plaintiff's not guilty plea. The written request by police for DNA testing by Forensic and Analytical Science Services noted that the hearing date of 21 February 2014 had been fixed. The laboratory, as discussed above, had been unable to fulfil the request by that date. The Magistrate referred to the fact that delays were commonly experienced in obtaining DNA results. It appears on the basis of what was said by his Honour that that was attributed to the well-known heavy demands placed upon the laboratory for DNA testing and analysis.
The Magistrate made his observations on this problem in his reasons extracted above at [40].
In the course of giving his ex tempore reasons, which were briefly stated, his Honour was clearly mindful of both the limitations that applied to the prosecution in its application as indicated by his reference to the High Court's decision in R v Chin and to the relevant principles as enunciated in that case, in particular: 1. The general principle that the prosecution must present its case completely before the defence is called upon for his defence. 2. The discretion to permit evidence to be called by the prosecution after evidence has been given for the defence, should only be allowed if the circumstances were very special or exceptional and generally speaking, not if the occasion for calling further evidence ought reasonably to have been foreseen.
His Honour, after referring to the difficulty and delays of obtaining DNA evidence from the "laboratories", turned to what was the central issue in the exercise of the discretion, namely, "was it reasonable [sic] foreseeable that this evidence should have been produced to the Court?" This question, taken in context, was addressing the issue of "reasonable foreseeability" to which the High Court referred in Chin. His Honour referred to an apparent mistake having been made (by whom and as to exactly what is not specifically stated). Critically he then referred to the lastmentioned issue in these terms: "… should the defendant benefit for [sic] that in the circumstances where it is reasonable [sic] foreseeable that should have been done and it has not been done. Well; as I have alluded to, the reality in regard to these types of matters is that evidence is difficult to produce on time in regard to drug type matters. Generally speaking, as the judge says in that matter, it would be reasonably foreseeable that that could be a possibility but I think in the circumstances I have to disregard that because the primary objective of course is the administration of justice in New South Wales and this case I am of the view falls into what can be regarded as an exceptional circumstance …". (T 9 April 2014 p 7, Exhibited as part of Exhibit AA1 to the Affidavit of Mr Abbas).
It is necessary to make some allowance for the unedited and unpunctuated record of the ex tempore decision given in a busy magistrate's court. The transcript should be examined with that in mind: Acuthan v Coates (1986) 6 NSWLR 472, 478-9 per Kirby P.
In relation to the above quoted passage from the ex tempore decision in this case, a fair reading, in my opinion, discloses the following matters as having formed part of the decision: 1. It was reasonably foreseeable that DNA testing and analysis would possibly produce or result in evidence relevant to the money found in the plaintiff's vehicle. 2. Although such DNA testing and analysis had been sought by police in accordance with conventional processes or protocols, no results had become available as at the hearing date, 21 February 2014. 3. The unavailability of DNA test results was part of a problem "that evidence is difficult to produce on time in regard to drug type matters": T 9 April 2014 at p 7. 4. It would "be reasonably foreseeable that that could be a possibility …": T 9 April 2014 at p 7. 5. In "the circumstances" the Magistrate stated he had to "disregard" that fact (i.e. the issue of reasonable foreseeability at (4) above) "because the primary objective is the administration of justice."
The Magistrate's reasoning proceeded upon the basis that the principle was as stated in the passage he quoted from Chin, that is, the circumstances needed to be "very special or exceptional" and "generally speaking" leave was not to be granted if the occasion for calling further evidence ought reasonably have been foreseen.
The question of whether the circumstances are "very special" or "exceptional" is to be determined having regard to all of the relevant circumstances: Morris v R [2010] NSWCCA 152 per McClellan CJ at CL at [30] with whom Buddin J and Barr AJ agreed at [37] and [38]. As the then Chief Judge at Common Law there observed, the relevant statement of principle in Chin by Gibbs CJ and Wilson J, extracted in that judgment (and referred to by the Magistrate in this case), makes plain that one of those circumstances which may be determinative is whether the need to call further evidence "ought reasonably to have been foreseen". McClellan CJ at CL also observed at [30]: "That issue is not to be resolved as a separate question although of considerable significance when determining whether the application to re-open should be granted."
The above statement of principle by the High Court in Chin which referred to the proposition that "generally speaking" the prosecution should not be permitted to call evidence after evidence has been given for the defence where the further evidence ought to have been foreseen, was expressed in terms that admitted of the possibility of the discretion in the particular circumstances of a case being exercised permitting the prosecution to do so notwithstanding such further evidence ought reasonably to have been foreseen. As stated in Morris, that would be one of the circumstances to be considered.
In the present case the foreseeability of at least the possibility of DNA evidence becoming available to the prosecution was at the centre of the Magistrate's decision. He considered the particular circumstances bearing upon the question of "reasonable foreseeability" as discussed above. In applying the correct statement of principle to the facts of this case, as his Honour did, he clearly considered and concluded that the delay in the DNA testing and the unavailability of the test results as at the date of the hearing was a "circumstance", along with that of reasonable foreseeability, that gave rise to or that constituted an exceptional circumstance. Even if it could be said that there was error in applying the relevant principles to the facts of the case that, on the basis explained above, could not constitute an error of law alone.

[26]

(v) The Administration of Justice

The reference by the Magistrate to the administration of justice as a primary objective is to be seen in context of the matters that were addressed by him immediately before that reference, namely the fact that police had not received a response from the Department of Analytical Laboratories to its request for DNA testing.
The Magistrate was responding to the matters put before him on the application to re-open. To better understand what the Magistrate was addressing it is necessary to set out the relevant part of the submission made by the prosecutor on 9 April 2014 as follows: "At the time when the matter was set for hearing, in fact at the time of the hearing, nothing had been received from the Department of Laboratory indicating that any analysis had taken place. In fact, nothing had been received saying that nothing was even able to be analysed. Your Honour would be aware if you take judicial notice of how many things go down to these analytical laboratories in which a sample can't even be obtained or it is not suitable for presentation of court. It wasn't until after the hearing. So on that basis the prosecution rightfully in my respectful submission assume that nothing was available to be presented as part of the case. The prosecution presented the evidence as part of the case, what was available to it. And it wasn't until after the prosecution concluded its case, the defence concluded its case and your Honour even asked the prosecution if there is evidence in reply in which we stated there wasn't and the matter was adjourned for decision, that the prosecution became aware that there was in fact a sample which was able to be analysed and that sample came back of understood to be matching Mr Lansdowne's DNA. The importance of that is that Mr Lansdowne is what the prosecution say where this money came from as part of the suspicion attaching to the proceeds of the crime. The chain of events your Honour, as soon as the OIC was notified by email, he notified me. That day I notified Mr Abas (sic), indicating that this evidence had been received. I concede at today's date, it is not in admissible form. The affidavit addresses that your Honour what is required for that to happen now. The reason this has been put on, this application has been put on, and I can see there is no chain of custody statement. …" (T 9 April 2014 at p 4: 15-35)
In context, the Magistrate's reference to the administration of justice was based upon the requirement, as he determined it, that in the circumstances of the receipt of advice as to the DNA testing subsequent to the hearing, the granting of the application to re-open, as he assessed it, was required to provide the prosecution with the opportunity of adducing DNA evidence that was not previously available. The reference by the Magistrate to the "primary objective" of the administration of justice must, in my opinion, be taken as a reference to the objective of allowing parties to criminal proceedings the opportunity to adduce evidence as to relevant facts in the fair and proper conduct of such proceedings.
The proper administration of justice is, of course, a fundamental objective in legal proceedings including criminal proceedings, as Fullager J observed in the extract set out in [122] above. I do not consider that the Magistrate's reference to that aspect, in context as discussed above, can be taken to be or evidence of the adoption by him of incorrect legal principles.

Ward v Zimmer

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