McCARTHY (BLACKTOWN CITY COUNCIL) v PRASAD [2007] NSWSC 997

New South Wales Supreme Court

CITATION : McCARTHY (BLACKTOWN CITY COUNCIL) v PRASAD [2007] NSWSC 997

HEARING DATE(S) : 30 July 2007 JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

EX TEMPORE JUDGMENT DATE : 30 July 2007

DECISION : 1. Decision of Brown LCM made in the Blacktown Local Court on 24 April 2007 be set aside; 2. Matter be remitted to the Local Court for determination according to law.

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Criminal Procedure Act 1986 Legal Profession Act 2004

CASES CITED : Connor v Petelo [2005] NSWSC 1025 Damjanovic v Maley [2002] 55 NSWLR 149; [2002] NSWCA 230

Raymond McCarthy (Blacktown City Council) (1P) PARTIES : Sergeant Terry James (2P) Suresh Prasad (1D) Brown LCM (2D)

FILE NUMBER(S) : SC 12479/07

B Baker (Pltfs) COUNSEL : No appearance (1D) Submitting appearance (2D)

SOLICITORS : I V Knight, Crown Solicitor (Pltfs)

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Brown LCM

LOWER COURT DATE OF DECISION : 24 April 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

MONDAY 30 JULY 2007

12479/07 McCARTHY (BLACKTOWN CITY COUNCIL) & ANOR v PRASAD & ANOR

JUDGMENT 1 HIS HONOUR: The plaintiffs challenge a decision by a Local Court Magistrate in relation to the person entitled to prosecute proceedings for a parking offence in the Local Court. Suresh Prasad allegedly parked in the area of the Blacktown City Council contrary to a sign. 2 Proceedings were brought in the Local Court. Raymond McCarthy, an officer of Blacktown City Council, was named as the prosecutor on the relevant process. 3 There is an agreement in place between the Council and the relevant State instrumentality by which the administration of parking matters in Blacktown City is to be conducted by the Commissioner of Police. That agreement was entered into in September 2002. Since that time the relevant State instrumentality has become the State Debt Recovery Office. 4 The original agreement required the Commissioner of Police to provide a police prosecutor to appear in court to prosecute these matters. Although the Commissioner of Police is no longer the primary state instrumentality under the agreement, nevertheless the arrangement by which a police prosecutor is to appear continues. 5 The present proceedings came before Magistrate Brown in the Local Court at Blacktown. Application was made by police prosecutor Sergeant Terry Jones for leave to appear on behalf of the Council to prosecute the proceedings. That leave was denied and on 24 April 2007 his Honour published written reasons for rejecting the application. 6 The Crimes (Appeal and Review) Act 2001 provides for appeals by prosecutors to this Court. Section 56(1) provides an appeal as of right in relation to an order made by a Local Court dismissing a matter, the subject of any summary proceedings, "but only on a ground that involves a question of law alone" (s 56(1)(c)). 7 Pursuant to s 57 a prosecutor may appeal to the Supreme Court against an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings but like s 56 "only on a ground that involves a question of law alone" and, furthermore, "only by leave of the Supreme Court" (s 57(1)(c)). 8 The plaintiffs submitted that the magistrate erred in law when he determined that he would not exercise the power which he had to grant leave to Sergeant James to prosecute the proceedings on behalf of the Council. 9 The magistrate's reasons commence with consideration of the relevant provisions of the Criminal Procedure Act 1986, in particular ss 36 and 37. Section 36 provides for representation of both a prosecutor and an accused person in proceedings. Apart from appearing in person or by a barrister or solicitor, a person "empowered by an Act or other law" may appear and, by s 37, prosecute the matter. 10 Section 36(2) provides that where a prosecutor is a police officer a police prosecutor may appear. However, where the prosecutor is not a police officer another person, which relevantly would include a police prosecutor, may only appear if s 36(1) so provides. 11 Section 36(1) provides for a person empowered by any Act to appear but also provides that a person empowered by any other law may appear for the prosecutor. 12 Before the Act came into force there was no difficulty in a magistrate in a Court of Petty Sessions or Local Court granting leave in the present circumstances. The approach which was adopted was that the Local Court, having a power to control proceedings before it, could grant leave for another person to appear and prosecute. 13 This was recognised by the Court of Appeal in Damjanovic v Maley [2002] 55 NSWLR 149; [2002] NSWCA 230 at 163 where Stein JA said: "There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons". 14 The question of power to grant leave to a police prosecutor to appear on behalf of a government instrumentality to prosecute an offence was considered by Adams J in Connor v Petelo [2005] NSWSC 1025. In that case his Honour was concerned with whether a police prosecutor could prosecute on behalf of the State Rail Authority or, as the magistrate had determined, could only do so through a solicitor or barrister. 15 His Honour held that the long-standing practice of permitting police prosecutors to appear with leave in such matters was not removed by s 36 of the Criminal Procedure Act. Although his Honour does not rest his decision upon the reference to "other law" in the section, in my view the conclusion which his Honour expressed was correct. 16 In the present case the learned magistrate carefully examined the decision of Adams J and, although he obviously had considerable reservations about whether or not it was correct, accepted that he was obliged to follow it. For that reason it is unnecessary for me to further consider whether or not there is power in a Local Court magistrate to grant leave to a police prosecutor to prosecute in the present circumstances. 17 Apart from expressing his reservations about that question Brown LCM gave consideration to another difficulty which he believed may stand in the way of a grant of leave. His concern was that by providing the services of a prosecutor to prosecute proceedings in the Local Court a breach of ss 14 or 15 of the Legal Profession Act 2004 may be occurring. 18 I have previously indicated that the arrangement by which prosecutions are conducted by a prosecutor is embodied in an agreement between the Council and the Commissioner of Police. Although the agreement anticipates that a prosecutor will be available when required, a necessary implication of the arrangement is that a prosecutor will only appear if leave of the court is granted for that purpose. In that event the appearance of the police prosecutor will be authorised by the grant of leave. That grant both sanctions the prosecutor's appearance and, being an appearance under the authority of a law of this State, a breach of s 14(1) of the Legal Profession Act 2004 cannot occur (s 14(2)). 19 The mere appearance with leave to prosecute a matter would not constitute engaging in legal practice which is prohibited by s 15(2) unless carried out by an incorporated legal practice or a complying community legal centre. 20 Having raised concerns about whether or not a breach of the Legal Profession Act is occurring, the magistrate turned to consider the principles discussed by Stein JA in Damjanovic relevant to the exercise of his Honour's discretion. His Honour discussed each in turn. 21 The plaintiffs are not critical of his Honour's consideration of matters relevant to the complexity of the case or difficulties for an unrepresented party, although they are critical of some aspects of his Honour's discussion of the question of disciplinary matters. In any event those issues are not significant to the resolution of these proceedings. 22 However, criticism is made of his Honour's discussion of matters under the headings "Protection of the client and the opponent", "Lay Advocates in inferior courts and tribunals", and "The interests of justice". In Damjanovic Stein JA said: "Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse at 546 highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S .