5 Cases Podcast - Episode 27

Well, I'm gonna get started with the Local Court cases, which are pretty clear points, but for all our listeners, and obviously for us too, always really worthy reminders.

Paul, have you ever had a case where the police haven't served a brief within 14 days of a Local Court hearing? Do you remember this rule?

I'm glad you've asked me off the cuff, Sophie.

Yes, I seem to recall sections 183 and 188 has some role to play in that, and also a decision of the DPP and West.

Yes, good memory.

Well, that particular provision in terms of the 14-day rule is under consideration in the case I'm talking about, which is Nash and the Local Court of New South Wales 2026 New South Wales Supreme Court 197.

So that was a case where the accused was self-represented and was found guilty in the Local Court after a hearing on a charge of a common assault, so relatively simple and straightforward.

But at the hearing, the self-represented person apparently left the magistrate with the impression that he had been served with a brief of evidence 14 days before the hearing.

But in fact, what had really happened was that he'd just been served with a police fact sheet.

But guess what? So he hadn't been served with the brief, and he probably wasn't aware of the distinction between a fact sheet and a brief of evidence, and evidently was not aware of how the Criminal Procedure, uh, Act works.

So as all of us lawyers know, Section 188(1) provides that a court must refuse to admit evidence sought to be adduced by a prosecutor if they have not complied with the service provision, uh, uh, requirements, which are found in Division 2 of that Act and usually is included in Section 183.

The plaintiff, as he was in the Supreme Court, um, then took the matter on judicial review and argued that there'd been a denial of procedural fairness as he'd not been, uh, served with that brief of evidence before the hearing.

And at that particular Supreme Court hearing, the police basically conceded as much, and then the court was therefore satisfied that there had been a procedural unfairness and it was established, and that's gone through in the decision at paragraph 32.

The court ultimately really was left with no other choice than to quash the magistrate's orders and finding that there'd been a jurisdictional error, um, and that because he'd been denied procedural fairness at the hearing, uh, by way of not being provided with the brief of evidence within 14 days of the hearing, that he would succeed on his appeal.

The failure to disclose the brief before the hearing, the court found, deprived the plaintiff of a meaningful opportunity to prepare and respond to the prosecution's case and had the capacity to influence his cross-examination, what witnesses were called, and his own election to give evidence.

And those are really, uh, the purple passages in terms of what is important to consider at paragraphs 35 and 36.

So take a look at them.

So in terms of...

Yes, that, that was an important reminder to us all.

all.And what orders did the Supreme Court name, Sophie?

So as a result of establishing the jurisdictional error, basically the court then remitted the matter to the local court.

And it's interesting this part of it because it talks...

This is sort of the tail piece in the decision where, of course, uh, there was a question about whether or not a further hearing would then eventuate.

Um, and the court made some interesting remarks there about a prosecutorial discretion as to whether or not the police decide to prosecute the plaintiff again, and at that point noted, uh, of particular importance was the fact that the police or the prosecutors in the local court really failed to alert the magistrate to this issue and sort of behaved in a way where, uh, there was an omission by not drawing it to the attention of the magistrate.

So it's quite an interesting subtle read in terms of any orders there.