Ayoub v Stapleton & Anor [2001] NSWSC 767

New South Wales Supreme Court

CITATION : Ayoub v Stapleton & Anor [2001] NSWSC 767 revised - 26/09/2001 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12425/01 HEARING DATE(S) : 28 August 2001 JUDGMENT DATE : 28 August 2001

Joseph Ayoub PARTIES : Stapleton LCM Commissioner of Police JUDGMENT OF : Sperling J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Stapleton LCM JUDICIAL OFFICER :

COUNSEL : Mr I N Asuzu for the Plaintiff Mr G McIlwaine for the Second Defendant SOLICITORS : CATCHWORDS : Criminal Law - application for an order in the nature of certiorari against disimissal by the Local Court of an application under s32 of the Mental Health (Criminal Procedure) Act 1990 - discretion to refuse prerogative relief in relation to part heard proceedings LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990, s32 DECISION : 1. Summons dismissed; 2. Plaintiff to pay costs of Commissioner of Police in these proceedings.

- 1 - THE SUPREME COURT OF NEW SOUTH WALES

COMMON LAW DIVISION

Tuesday 28 August 2001

SPERLING J

12425/01 Joseph Ayoub v Magistrate Stapleton and Commissioner of Police

Judgment 1 HIS HONOUR: There is currently proceeding in the Local Court a summary hearing in relation to some eleven charges consisting of an alleged shoplifting offence, and alleged offences of goods in custody. It is fair to say that the value of property involved appears to be very small. 2 On 3 July 2001, an application was made on behalf of the defendant in those proceedings for an order pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990. The application was refused, and the proceedings were adjourned to be heard on 27 and 28 August 2001. 3 Proceedings were instituted in this court on 2 August 2001, by summons filed on behalf of the defendant in the Local Court proceedings and to whom I will now refer as "the plaintiff". Those proceedings were dismissed on 16 August. 4 A further summons was filed in the same proceedings claiming other relief, in substance an order in the nature of certiorari quashing the determination of 3 July and a further order that the learned Magistrate determine the application according to law. 5 What then occurred need not be recorded until one comes to 27 August, on which date the Commissioner of Police was joined as a defendant to the proceedings and orders were made for short service on the Commissioner, the summons being listed for twelve noon today. 6 In the proceedings before me today, Mr Asuzu appears for the plaintiff and Mr McIlwaine appears for the Commissioner. Evidence in support of the summons has been tendered on behalf of the plaintiff, consisting substantially of the record of the proceedings before the Local Court. An affidavit by the plaintiff has been filed in court but not read. For present purposes I recognise that affidavit as evidence in the proceedings before me. 7 The Commissioner having been notified for the first time this morning of these proceedings, Mr McIlwaine has fairly observed that, in a number of respects, he is not in a position to deal fully and adequately with some of the assertions that are made in support of the application. It is submitted on behalf of the Commissioner that the summons should be dismissed on discretionary grounds. 8 The state of the proceedings in the Local Court is currently that the hearing of the charges proceeded yesterday, 27 August, and, as I understand it, this morning, 28 August. A further date, 14 September, has been allocated, in the event that the proceedings are not completed; but, unless the plaintiff goes into evidence, there is the prospect that the charges will be determined in the space of the two days, 27 and 28 August. 9 It is a relevant consideration that, in the event of the magistrate having erred in the dismissal of the application pursuant to s 32, the error would be available as a ground of appeal against any conviction. 10 It has been said many times that this court will be slow to intervene by way of the grant of prerogative relief in relation to proceedings which are in progress. Because of that reluctance, the fact that any error would be available as a ground upon which to impugn a conviction, the lateness in commencing the proceedings and in putting them into a state where they could proceed against the appropriate defendant, the unreasonableness of expecting that defendant, namely, the Commissioner of Police, to deal adequately with the claim at such short notice, it is necessary to dismiss the summons in the exercise of the court's discretion, notwithstanding that it error may be assumed for present purposes. 11 Accordingly, the order of the court is that the summons is dismissed. 12 The ordinary rule is that costs follow the event. I am not persuaded that there is any reason to the contrary. The plaintiff is ordered to pay the costs of the Commissioner of Police in these proceedings. -oOo-