New South Wales Supreme Court CITATION : DPP (NSW) v A West [1999] NSWSC 1195 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 12238/99 HEARING DATE(S) : 01/12/99 JUDGMENT DATE : 15 December 1999 PARTIES : Director of Public Prosecutions (NSW) v Anthony West JUDGMENT OF : Sperling J LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : J Heagney (Magistrate) COUNSEL : (Plaintiff): P A Johnson SC (Defendant): M Buscombe SOLICITORS : (Plaintiff): S E O'Connor (Defendant): B Sandland (Legal Aid Commission) CATCHWORDS : CRIMINAL LAW - summary offences - construction of Justices Act 1902, Div 2, subdiv 6A (service of briefs of evidence) - time for service of briefs of evidence. ACTS CITED : Justices Act 1902 Justices Amendment (Briefs of Evidence) Act 1997 CASES CITED : DPP v Milgate (NSW SC, 19 February 1999, unreported) CHECK DECISION : Proceedings removed into the Court of Appeal; Reserve the costs of the hearing before Sperling J IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SPERLING J Wednesday, 15 December 1999 12238/99 - Director of Public Prosecutions (NSW) v Anthony West JUDGMENT HIS HONOUR: 1 By the amended summons filed in these proceedings, the Director of Public Prosecutions (NSW), as plaintiff, appeals pursuant to s 104 of the Justices Act 1902 against an order of the Burwood Local Court dismissing informations laid against the defendant, Anthony West. Such an appeal is confined to questions of law. 2 Relevantly, pleas of not guilty were entered on 27 April 1999 and the informations were adjourned to 21 May 1999. The prosecution brief was delivered to the defendant's legal representatives on 10 May 1999, that being less than 14 days before 21 May 1999. On 21 May 1999, the proceedings were marked "not reached" and adjourned to 27 July 1999. On that date, the court ruled that because of late service of the prosecution brief the prosecution was precluded from adducing evidence. The informations were accordingly dismissed. 3 The legislative context is as follows. By the Justices Amendment (Briefs of Evidence) Act 1997, subdivision 6A was introduced into Div 2 of the Justices Act 1902. So far as is presently relevant the new sections were as follows: "66B. Brief of evidence to be served on defendant unless otherwise ordered (1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence. (2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require. 66E Discretion to order that copy of brief of evidence need not be served. (1) The Justice or Justices may order that all or part of the copy of the brief of evidence need not be served if the Justice or Justices are satisfied. (a) that there are compelling reasons for not requiring service, or (b) that it could not reasonably be served on the defendant. (2) The Justice or Justices may make an order under this section on their own initiative or on the application of any party. (3) An order may be made subject to such conditions (if any) as the Justice or Justices think fit. 66F Evidence not to be admitted (1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority. (2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable. (3) Subsection (2) does not apply to any requirement referred to in subsection (1) that is declared by the regulations to be a requirement that may not be dispensed with under subsection (2). 66G Adjournments Without limiting the power of a Justice or Justices to adjourn proceedings, the Justice or Justices are to grant such adjournments as appear to be just and reasonable if the copy of the brief of evidence is not served in accordance with this Subdivision, and may extend accordingly the time for hearing the matter." 4 It is common ground that s 66B applied in the present case. The objectives of s 66B are obvious enough and are confirmed by the second reading speeches in the parliament: first, to further the just and efficient conduct of trials by advance notice of the prosecution evidence; and, secondly, to provide an adequate opportunity before trial for informed reconsideration of the decision to plead not guilty. Section 66F(1) prescribes the sanction for non-compliance with s 66B. Other provisions introduce flexibility to guard against s 66B and s 66F(1) operating unjustly to the prosecuting authority, without injustice to the defendant. 5 When read as coherent scheme, designed to serve the purposes to which I have referred, the sections are to be construed as follows. (a) Section 66E is designed to operate prospectively. The language is not apt for retrospective relief against non-compliance. The time for operation of s 66E is before the date on which the brief is required to be served. (b) The time for operation of the sanction prescribed by s 66F(1) is when evidence is sought to be adduced by the prosecution. If, at that time, s 66F(1) has not been complied with, the prosecuting authority is precluded from adducing evidence, unless the obligation of compliance has been or is then dispensed with or relevantly modified. (c) Section 66F(2) speaks of the requirements of s 66F(1). That is the requirement to refuse to admit the prosecution evidence on the particular occasion if there has been non-compliance with s 66B and no relieving order has been made under s 66E or s 66F(2). The time for operation of s 66F(2) is at or before the occasion on which the prosecution evidence is sought to be tendered. (d) Section 66G empowers the court to adjourn the proceedings where there has been non-compliance with s 66B. The time for operation of this section is the same as for s 66F(2). The purpose and effect of an adjournment pursuant to s 66G is to postpone the time when the prosecution evidence is sought to be adduced or will be sought to be adduced to an occasion when there will have been compliance with s 66B. 6 It follows that, in the ordinary case, these sections are designed to operate as follows: (i) On the occasion when a plea of not guilty is entered, the magistrate may, on his own initiative or on the application of a party, order that all or part of the brief need not be served (s 66E). (ii) On the same occasion, the court may shorten the 14 days referred to in s 66B(2) (s 66B(2)). (iii) The prosecution then serves the brief at least 14 days before the trial fixture or within any abridged time (s 66B(2)). (iv) On the occasion fixed for the trial, the magistrate may, or on the application or with the consent of the defendant must, on such terms and conditions as are just and reasonable, dispense with the requirement in s 66F(1); that is, the requirement to refuse to admit evidence sought to be adduced by the prosecution if the brief has not been served as required (s 66F(2)). (v) Alternatively, the magistrate may adjourn the proceedings thereby providing (if the brief has not been served) or enlarging (if the brief has been served late) the time for consideration of the brief (s 66G). (vi) If the obligation to serve a brief pursuant to s 66B has not then been dispensed with by an order under s 66E or s 66F(2) and an adjournment has not been granted under s 66G, and if there is then seen to be non-compliance with that obligation (as may have been modified by an order under s 66E or s 66F), the magistrate must ( on application by the defendant? ) refuse to admit evidence sought to be adduced by the prosecution (s 66F(1)), and the information will necessarily be dismissed. 7 I have left open whether, in relation to s 66F(1), the magistrate is required to refuse to admit the evidence irrespective of whether an application is made to that effect by the defendant. I am strongly inclined to think that there is no obligation on the magistrate to give consideration to orders under s 66E, s 66F(1) or s 66G of his or her own motion. (There is express power to do so under s 66E, but that does not imply an obligation. Application of the principle of expressio unius suggests that there is not even the power to act of the court's own motion under s 66F(2) and s 66G. Under our adversarial system, the courts do not perform an investigative function. It would be a strange thing if a magistrate were held accountable for error in failing to investigate whether there were grounds for such an order, or for failing to make such an order on whatever materials may have fortuitously come into his or her hands without the assistance of a moving party. 8 In the present case, the matter was listed for hearing on 21 May 1999 and adjourned "not reached". Section 66F(1) did not operate on that occasion because evidence was not sought to be adduced by the prosecution. The proceedings were adjourned to 27 July 1999. On that occasion, the prosecution sought to adduce evidence. Section 66F(1) operated then if there was non-compliance with s 66B. But there was compliance with that section. The brief had been delivered on 10 May 1999, more than 14 days before 27 July 1999. That was the relevant occasion on which the prosecution sought to adduce evidence, indeed the only occasion in this case when the prosecution sought to adduce evidence. 9 The learned magistrate was constrained by the decision of this court in DPP v Milgate (Sully J, 19 February 1999, unreported) to hold that s 66F(1) operated as at 21 May 1999 when the matter was first listed for hearing, with the result that he was bound to refuse to admit evidence sought to be adduced by the prosecution on 27 July 1999, notwithstanding that on the latter occasion the brief had been served more than fourteen days previously. That approach does not accord with the construction of the sections I have propounded. In Milgate , Sully J propounded a construction of the relevant sections which is very different from my own. In my view, the learned magistrate should have held there was compliance with s 66B and should not have refused to admit the prosecution evidence. 10 In my opinion, the following orders should be made: (1) Appeal allowed. (2) Order dismissing the informations for the offence of resisting a police officer in the execution of his duty and for two offences of assaulting a police officer quashed. (3) The proceedings be remitted to the Local Court for determination according to law. 11 It is unsatisfactory for the Local Court to be confronted with conflicting decisions on such a matter. The daily workings of those courts are affected. Accordingly, the present proceedings should be referred to the Court of Appeal to settle the correct construction of these provisions. 12 The orders I make are as follows: (1) Proceedings removed into the Court of Appeal. (2) Reserve the costs of the hearing before me. ********** Last Modified: 12/15/1999 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.