Drug Court of New South Wales CITATION : R v Sheedy (No.1) [2001] NSWDRGC 13 Regina PARTIES : -v- Sheedy, Shane Mark FILE NUMBER(S) : 0190 of 2001 CORAM: His Honour Judge Neil Milson CATCHWORDS: :- Conduct of proceedings to determine persons accepted into Drug Court program - Drug Court Act 1998 ss 7(2) and 26 - admissibility of evidence Drug Court Act 1998 LEGISLATION CITED: Bail Act 1978 Evidence Act 1995 CASES CITED: R v Sloane [1999] NSWDRGC 3 DATES OF HEARING: 12/12/2001 EX TEMPORE JUDGMENT DATE : 12/12/2001 Regina - D. Muddle, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender - S. Healy, Legal Aid Commission (NSW) JUDGMENT: 1. The Court is conducting a hearing to determine whether the applicant before the Court is eligible to enter a Drug Court program. That is a decision which is envisaged by the provisions of s7(2) of the Drug Court Act 1998. The Court will also determine whether, having regard to the applicant's antecedents, it would be appropriate for the person to participate in a program under this Act, as well as exercising the general discretion that the Court has in s7(2). 2. Objection has been taken to the admissibility of the statements prepared for this hearing by police officers who are to give oral evidence together with a number of annexures to those statements, and a transcript of a Supreme Court bail application made by this applicant. This is evidence which may not be admissible in a criminal trial because of hearsay and relevance provisions of the Evidence Act 1995. The Crown argues that the provisions of s26 of the Drug Court Act 1998 entitles the Court to consider the material. That section provides 26. Court proceedings (1) This section applies to proceedings before the Drug Court in the exercise of its jurisdiction under this Act, but does not apply to proceedings before the Drug Court in the exercise of the criminal jurisdiction of the District Court or the criminal jurisdiction of a Local Court. (2) Proceedings before the Drug Court are to be conducted: (a) in accordance with the directions of the Judge presiding in the proceedings, and (b) subject to paragraph (a), with as little formality and technicality, and with as much expedition, as the requirements of this Act and the regulations and the proper consideration of the matters before the Court permit. (3) The Drug Court is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate. (4) … 3. The section applies to proceedings before the Drug Court in the exercise of its jurisdiction under the Act. It does not apply to proceedings before the Drug Court in the exercise of the criminal jurisdiction of the District Court, or the criminal jurisdiction of a Local Court. Quite clearly, I am not exercising either of those jurisdictions today. I am making no finding of guilt; that is not the question that comes before me to determine. This is an unusual inquiry and it certainly is not a trial. 4. It is not unusual for hearings of this nature to be conducted in conjunction with criminal proceedings and I refer specifically to s32(2) of the Bail Act 1978 where the Court there is given some unusual and different powers of being able to take into account evidence or information which the Court considers credible or trustworthy in the circumstances. So elsewhere within the system of dealing with matters associated with criminal cases it is recognised that there will be different methods of conducting hearings. 5. It is the practice of the Drug Court to allow the Director of Public Prosecutions to present information, to allow the representatives of the applicant or the drug offender, should he or she become one, the right to challenge and test that information, and that opportunity will again be allowed today. Quite clearly and without doubt, this is a proceeding in the exercise of jurisdiction under the Drug Court Act 1998 and not in the exercise of any District Court or Local Court jurisdiction. I have no doubt that it was intended by the legislation that s26 of the Act would apply to proceedings of this nature. I am therefore of the view that proceedings are to be conducted in accordance with the directions that I give today and, of course, that also takes into account the practices that have been established by the Court in the past. I am not bound by the rules of evidence and may inform myself of any matter that I consider appropriate. 6. The second point I think I need to make in relation to an inquiry of this nature, and the evidence that I receive, is to acknowledge that the effect of the decision is irrevocable in that it will not be a decision which can be appealed (Drug Court Act 1998 s7(5)). This reinforces the need for the Court to proceed with fairness in every respect to every person. In deciding whether it is appropriate and whether to exercise the discretion under s7(2), there are a number of considerations, but it is my view that although the Drug Court Act is beneficial legislation (R v Sloane [1999] NSWDRGC 3), one of the considerations the Court at all stages must have is that the purpose of the Court is, after all, to protect the community. For that reason offences of violent conduct are excluded by the provisions of s5, and that underlies the nature of the inquiry made by s7(2) as well. For that reason, whilst I cannot disregard the obvious principles of fairness contained within the Evidence Act 1995, it encourages me to hear what information people have to submit to the Court to make sure that any decision I make is fair to the community as well as fair to the offender. 7. For those reasons and allowing, of course, right to challenge and if necessary, question the evidence of the officers, I propose to allow the documents that are sought to be tendered to be placed before the Court. Until I have heard from the witnesses I will refrain from reading those statements which will form, as I understand it, the background to the evidence that the prosecution seeks to call from the officers. So far as the transcript of the Supreme Court on the applicant's bail application in which the applicant gave evidence in relation to the offences before this court today, it is patently relevant and important to any decision that I have to make that I consider what was said there. ******** 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.