Supreme Court New South Wales Medium Neutral Citation: Emily Salisbury v Local Court of New South Wales and anor. [2016] NSWSC 1082 Hearing dates: 4 August 2016 Date of orders: 10 August 2016 Decision date: 10 August 2016 Jurisdiction: Common Law Before: Bellew J Decision: (1) Leave is granted to the plaintiff to appeal, under s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), against the interlocutory order of the Local Court that the plaintiff serve expert evidence upon which she proposed to rely by 31 May 2016. (2) The appeal is allowed. (3) The order made on 3 May 2016 by Magistrate Corry in the Local Court, requiring the plaintiff to serve expert evidence upon which she proposed to rely by 31 May 2016, is set aside. (4) The matter is remitted to the Local Court for determination according to law. (5) The second defendant is to pay the plaintiff's costs within 28 days of this date of this order in an amount agreed between the parties. Catchwords: PRACTICE AND PROCEDURE – Local Court – Extent of powers of Local Court – Plaintiff charged with traffic offence – Matter called on for hearing before Magistrate – Plaintiff's counsel made reference to expert report – Objection raised by prosecutor to any expert evidence being called without notice – Where Magistrate made orders vacating the hearing date and requiring the plaintiff to serve an expert report and requiring the prosecution to serve an expert report in reply – No system of case management in the Local Court applying to proceedings of this nature – No power to make orders requiring a defendant to serve evidence in a criminal proceeding – Orders set aside and matter remitted to the Local Court to be dealt with according to law Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Local Court Act 2007 (NSW) Road Rules 2014 (NSW) Cases Cited: Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 Caltex Refining Co Pty Limited v State Pollution Control Commission (1991) 25 NSWLR 118 Coco v R [1994] HCA 15; (1994) 179 CLR 427 Director of Public Prosecutions (NSW) v Wililo & Anor [2012] NSWSC 713 Grassby v R [1989] HCA 45; (1989) 168 CLR 1 Ling v South Australia Police [1996] SASC 5856 NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; (2008) 72 NSWLR 456 Petty v R; Maiden v R [1991] HCA 34; (1991) 173 CLR 95 R v Soma [2003] HCA 13; (2003) 212 CLR 299 Sutherland Shire Council v Benedict Industries Pty Limited [2013] NSWLEC 121 Category: Principal judgment Parties: Emily Salisbury – Plaintiff Local Court of New South Wales – First defendant Sergeant Natasha Crawford – Second defendant Representation: Counsel: Mr S. Boland – Plaintiff Ms A Bonnor – Second Defendant Solicitors: Younes and Espiner – Plaintiff Submitting appearance – First Defendant Crown Solicitor for New South Wales – Second Defendant File Number(s): 2016/160905 Publication restriction: Nil Judgment INTRODUCTION 1. By an amended summons filed on 15 June 2016 the plaintiff (who is the defendant in proceedings before the Local Court) seeks to appeal against orders made by his Honour Magistrate Corry in the Katoomba Local Court on 3 May 2016. 2. A court book was tendered with the consent of the parties and marked Ex. A. It contained an affidavit of Claudia Pendlebury, the solicitor for the second defendant, affirmed on 20 July 2016. Annexed to that affidavit was a transcript of the proceedings before the Magistrate. 3. It is noted that s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) provides as follows: (3) 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. 1. The issue raised in the present case concerns the power of a Magistrate in the Local Court to make orders requiring a defendant charged with an offence to serve expert evidence in advance of the hearing. There is no dispute that such issue raises a question of law alone. Similarly, the second defendant (who was the only active defendant in the proceedings) took no objection to a grant of leave. 2. For the reasons which follow, I am satisfied that leave should be granted, the appeal allowed, and the matter remitted to the Local Court to be dealt with according to law. FACTUAL BACKGROUND The charge brought against the plaintiff 1. On 3 October 2015 the plaintiff was issued with a penalty infringement notice alleging an offence of exceeding the speed limit by greater than 20kmh whilst driving a class A motor vehicle, contrary to Rule 20 of the Road Rules 2014 (NSW). 2. On 4 January 2016, pursuant to s. 23A of the Fines Act 1996 (NSW), the plaintiff elected not to pay the amount of the infringement notice and to have the matter dealt by a Court. The matter came before the Local Court at Katoomba on 22 February 2016, at which time a plea of not guilty was entered. A hearing date of 3 May 2016 was set. 3. Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW) ("the CPA") prescribes various pre-trial procedures applicable to criminal matters heard before the Local Court. Section 183 of the CPA requires a Brief of Evidence to be served by the prosecution on a defendant, where a plea of not guilty is entered, at least 14 days before the hearing. However, pursuant to s. 187(5) of the CPA there is no requirement for the service of a Brief of Evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the Regulations. There is no issue in the present case that s. 187(5) applied in the present case, such that there was no requirement to serve a Brief of Evidence upon the plaintiff. 4. It is also relevant to note at this point that, unlike the position in this Court (pursuant to powers conferred by ss. 134 and following of the CPA) there is no case management regime operating in the Local Court in respect of summary criminal proceedings: Director of Public Prosecutions (NSW) v Wililo and Anor. [2012] NSWSC 713 at [50] per Johnson J. The proceedings before the Magistrate 1. On 3 May 2016 the charge against the plaintiff came before Magistrate Corry in the Local Court for hearing. Counsel for the plaintiff told the Magistrate that the matter was ready to proceed, before saying (T1 L18-20): "It's a speeding matter, your Honour, but I must say, it's likely to have a little bit of length to it. We have an expert here, and there's a couple of tricky issues that are raised." 1. The Magistrate then inquired of counsel as to the likely length of the hearing. Counsel responded that he thought that the hearing was likely to take "a number of hours". The Magistrate then inquired of the police prosecutor as to whether or not he was ready to proceed. The prosecutor responded by saying the following (T1 L28-35): "I am, from the point-of-the-view that the officers are here, but, your Honour, there was no notice given that there was to be an expert to be brought to today. There has been nothing served. I'm not in a position to cross-examine an expert without having opportunity to have an expert of my own. I have one available not today, but there is one available to the police to bring, but, other than this morning, this is the first I've been told of this. If that's the case, I should have been given the opportunity to bring my expert. So, no, I'm not ready to proceed on that basis." 1. Counsel for the plaintiff responded by asserting that notice had in fact been given. He then said (T2 L7-18): "It's not really incumbent upon the defence at all (to) provide disclosure. There's no disclosure provisions like there are in the District Court, when you've got a trial, and there's 10 day requirement that you let the other side (know) that you've got an expert. There's no 21 day requirement, if you're going to serve an expert's certificate: there obviously is one. So there's simply no requirement that we provide notice, and it's specifically the case in circumstances where there's no 14 days service obligation that the prosecution has, and frankly, they gave me a brief five minutes ago. So the fact that I have brought an additional witness can hardly be something the prosecution can complain about. But we're ready to proceed, your Honour". The Magistrate's reasons 1. Following further exchanges, the Magistrate said (T2 L27-30): "I don't propose to start the matter. If there's going to be expert evidence called, you should serve an expert's report; the prosecution can serve a report in reply; and if the matter is going to turn on whether or not the light R speed is reliable, then there should be proper evidence served (emphasis added)" 1. Counsel for the plaintiff again submitted to the Magistrate that there was no disclosure obligation upon a defendant. The Magistrate then observed (commencing at T2 L45): "Well, ultimately, there's an obligation to provided procedural fairness … to both parties in the proceedings, and frankly, I don't propose to commence proceedings today in circumstances where the matter, it would appear, is going to turn on expert evidence." 1. Counsel for the plaintiff then alluded (T3 L4-10) to what he asserted were "admissibility difficulties with fundamental aspects of the prosecution case". He indicated that if the matter proceeded, it was likely that he would make a no case submission at the close of the prosecution evidence. He expressed some confidence that such a submission would be successful. However, the Magistrate rejected the suggestion that the matter should commence, saying (at T3 L12 – 17): "I'm not going to start the matter, I'm going to make some directions about service of expert reports… I don't propose to start." 1. Counsel for the plaintiff then repeated (commencing at T3 L19) his submission that there was no obligation upon a defendant in criminal proceedings to serve evidence. Indeed, counsel went so far as to say: "There's no obligation for us to do so, and we don't propose to do so." 1. His Honour then said (commencing at T3 L23): "This Court controls its own proceedings. This Court is entitled to make directions for the control of the proceedings before it. I can't recall the name of the case, but there's a Supreme Court decision that indicates that the Court has control of its own proceedings, and can make its own directions. I propose to make some directions about the way in which the matter should move forward, which will involve the service of expert reports, and the adjournment of the matter then for mention, to be fixed for hearing with, at that point, after the relevant parties have served their expert reports…. That's what I propose to do. What I propose to direct, is that the defence are to serve the expert evidence upon which they rely, by 31 May and then prosecution is to serve its expert report in reply by 28 June, and I'll re-list the matter on 4 July for mention, to fix a hearing date." THE GROUNDS OF APPEAL 1. The plaintiff relied on two grounds of appeal, and asserted that the Magistrate erred in: 1. ordering that the hearing be adjourned; and 2. ordering that the plaintiff serve, in advance of the hearing expert evidence upon which she proposed to rely. 1. It is the plaintiff's case that the error asserted in Ground 2 caused a miscarriage of the Magistrate's discretion to grant an adjournment, thus giving rise to Ground 1. In these circumstances it is appropriate to consider Ground 2 first. Submissions of the parties 1. Counsel for the plaintiff submitted that the Magistrate had no power to make an order requiring the service of an expert report. It was submitted that the only available inference to be drawn from the passage of the transcript set out in [17] above was that in making such an order, the Magistrate was purporting to exercise what he saw as an implied power of the Local Court to (as his Honour put it) "control its own proceedings". 2. It was submitted that even accepting that a Local Court has a power to make such orders as are necessary to allow it to carry out its functions, it was beyond his powers for the Magistrate to require a defendant in criminal proceedings to serve evidence going to his or her intended defence. It was submitted that the order made by the Magistrate traversed a number of fundamental principles regarding the rights of a person charged with a criminal offence. 3. Counsel further submitted that if, notwithstanding the Magistrate's reference to the Court having power to control its own proceedings, his Honour was purporting to exercise the power contained in s. 28 of the Local Court Act 2007 (NSW) ("the LCA"), the generality of the terms of that section did not reflect an intention of the part of the Parliament to oust fundamental principles governing the rights of an accused. 4. Counsel for the second defendant generally accepted the position advanced by the plaintiff and conceded that in all of the circumstances the Magistrate had no power to make the order that he did. CONSIDERATION 1. For the reasons that follow, the concession made by the second defendant was a proper one. In my view, the Magistrate did not have the power to make an order requiring the plaintiff to serve expert evidence in advance of the hearing. In order to explain why this is so, it is necessary to have regard to the powers of the Local Court, and the nature of our criminal justice system. The powers of the Local Court 1. The Local Court is created by s. 7 of the LCA. It is constituted by a Magistrate pursuant to s. 8 of the LCA. It derives its powers from the LCA, being the statute which creates it. Whilst it has no inherent power, it does have an implied power to do such things as are necessary for the exercise of the power(s) otherwise conferred upon it. In Grassby v R [1989] HCA 45; (1989) 168 CLR 1; Dawson J explained the nature of such an implied power in the following way (at 16-17): "Inherent jurisdiction is elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical … but it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that is powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the necessary principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and they are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental. … It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the exercise of such powers will be called whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as to can be 'derived by implication from statutory provisions conferring particular jurisdiction'". The nature of the criminal justice system 1. Our criminal justice system is accusatory in nature. It obliges the Crown to make out a case before any response is forthcoming from the accused: Caltex Refining Co Pty Limited v State Pollution Control Commission (1991) 25 NSWLR 118 at 127 per Gleeson CJ; NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; (2008) 72 NSWLR 456 at [148] per Spigelman CJ (Hidden and Latham JJ agreeing). 2. In Nutricia (supra) Spigelman CJ also said (at [160]): "The formal presentation of a charge is a critical step in the criminal justice process. As I have indicated above, a prosecuting authority must be taken to assert that, at that point, it is able to establish guilt beyond reasonable doubt. From that point the accusatory nature of our criminal process should be given full effect …". 1. Fundamental to such system is the principle that the Crown bears the onus of proving the guilt of an accused. That principle gives rise to an accused person having a number of rights. In Petty v R; Maiden v R [1991] HCA 34; (1991) 173 CLR 95 Brennan J (as his Honour then was) said (at 108): "The issues for trial are ascertained by reference to the indictment and the plea and, subject to statute, the Crown has no right to notice of the issues which an accused proposing actively to contest. The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exceptions. The Crown must present the whole of its case foreseeing, so far as it reasonably can, any 'defence' which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof. The Crown obtains no assistance in discharging that onus by pointing to some omission on the part of an accused to facilitate the presentation of the Crown's case or some difficulty encountered by the Crown in adducing rebuttal evidence which an accused could have alleviated by earlier notice. Even where an accused proposes to raise an alibi, there is no common law duty to give the Crown notice of the alibi. It was necessary to legislate to require notice of an alibi to be given to the Crown before trial, although a failure to give notice of an alibi might result in the Crown being permitted to call evidence in rebuttal if the alibi is first set up during the defence case. In a criminal trial, an accused is entitled to put the Crown to proof of any issue the onus of which rests on the Crown without giving prior notice of the ground on which he intends to contest the issue. If the ground be some matter of fact, an accused is entitled to abstain from giving notice on the ground until a witness is called during the trial to whom the matter of fact can and should be put." 1. The proceedings brought against the plaintiff in the Local Court were such as to attract the application of these principles. Discussion 1. Even accepting that a Local Court has an implied power of the kind of which Dawson J spoke in Grassby (supra), any such implied power does not extend to the power to make an order, the effect of which is to abrogate fundamental common law principles which govern the rights of an accused. The underlying principle of the accusatorial system is that it is for the prosecution to put its case both fully and fairly, before the accused is called upon to announce the course that he or she will follow: R v Soma [2003] HCA 13; (2003) 212 CLR 299 at [27] per Gleeson CJ. The order that the plaintiff serve an expert report in advance of the hearing traversed that principle. In making it the Magistrate acted beyond his power. 2. I have already noted (at [21]) that in the course of argument before me reference was made to the provisions of s. 28 of the LCA which is in the following terms: Court may give directions in circumstances not covered by rules (cf CPA, section 16; LCA 1982, section 26) (1) In relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986 , the Civil Procedure Act 2005 or any other Act. (2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done. 1. Legislation will not be interpreted as abrogating a fundamental common law right unless the intention to do so is manifested in clear and unambiguous terms: Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 16- 18; Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436-437; Ling v South Australia Police [1996] SASC 5856 at [14]. It follows that, absent such a clear legislative statement, a statutory power should be read as not authorising steps to compel an accused to provide information for the purposes of the proceedings: Nutricia (supra) at [148]-[151]; [159] per Spigelman CJ (Hidden and Latham JJ agreeing); Sutherland Shire Council v Benedict Industries Pty Limited [2013] NSWLEC 121 at [6]. As Spigelman CJ observed in Nutricia (at [161]): "…. Parliament should be taken not to have intended to impinge upon the accusatory nature of our system of criminal justice, after charges are lain, in the absence of express words or necessary intendment". 1. The terms of s. 28 are general. The section contains nothing in the way of a clear legislative statement that the accusatorial system is to be abrogated, or some aspect of it curtailed. In these circumstances, the terms of s. 28 cannot be interpreted as conferring a power on a Magistrate to require an accused person to disclose his case, or to disclose whether evidence will be called and, if so, from whom it will be called and what that evidence is: Ling (supra) at [16]. 2. Section 28 may be usefully contrasted with s. 143(2)(a) of the CPA which confers an express power on this Court to require an accused to serve any expert report upon which he or she proposes to rely in advance of the trial. 3. For all of these reasons, Ground 2 is made out. In those circumstances, it is unnecessary to consider Ground 1. ORDERS 1. I make the following orders: 1. Leave is granted to the plaintiff to appeal, under s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), against the interlocutory order of the Local Court that the plaintiff serve expert evidence upon which she proposed to rely by 31 May 2016. 2. The appeal is allowed. 3. The order made on 3 May 2016 by Magistrate Corry in the Local Court, requiring the plaintiff to serve expert evidence upon which she proposed to rely by 31 May 2016, is set aside;. 4. The matter is remitted to the Local Court for determination according to law. 5. The second defendant is to pay the plaintiff's costs within 28 days of this date of this order in an amount agreed between the parties. ********** 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. Decision last updated: 10 August 2016