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Supreme Court 15 December 1999

DPP (NSW) v A West

[1999] NSWSC 1195

Public order & justice offences
CRIMINAL LAW SUMMARY OFFENCES TIME FOR SERVICE OF BRIEFS OF EVIDENCE.

Citation: DPP (NSW) v A West [1999] NSWSC 1195
Court: Supreme Court of New South Wales, Common Law Division
Date: 15 December 1999
Judge(s): Sperling J

Background

The Director of Public Prosecutions appealed against a decision of the Burwood Local Court dismissing informations against a defendant charged with resisting and assaulting police officers. The central dispute concerned whether the prosecution had breached the brief of evidence service requirements introduced by the Justices Amendment (Briefs of Evidence) Act 1997.

After the defendant entered pleas of not guilty on 27 April 1999, the matter was adjourned to 21 May 1999. The prosecution delivered its brief to the defendant's legal representatives on 10 May 1999, which was less than 14 days before 21 May 1999. On 21 May 1999 the matter was marked "not reached" and adjourned again, this time to 27 July 1999.

When the matter came before the court on 27 July 1999, the Magistrate ruled that the brief had been served late and excluded all prosecution evidence. The informations were dismissed. The DPP appealed on a question of law: on which date did the 14-day service obligation under s 66B of the Justices Act 1902 actually need to be satisfied?

  • What is the correct construction of Subdivision 6A of Division 2 of the Justices Act 1902, specifically ss 66B, 66E, 66F and 66G, in relation to the timing of brief of evidence service?
  • Does the sanction in s 66F(1) (exclusion of prosecution evidence) operate by reference to the first listed hearing date, or by reference to the occasion on which the prosecution actually seeks to adduce evidence?
  • Was the Magistrate correct to apply the construction propounded in the earlier Supreme Court decision of DPP v Milgate?

Decision

Sperling J held that the statutory scheme in Subdivision 6A forms a coherent whole, and its provisions should be read as operating at different points in the proceedings. Section 66E (power to excuse service) operates prospectively, before service is due. Section 66F(1) (the exclusionary sanction) operates at the moment the prosecution actually seeks to adduce evidence. Section 66G (adjournments) operates to defer that moment, extending the time available for the defence to consider the brief.

On that construction, the relevant date for compliance with the 14-day rule was the occasion on which the prosecution sought to adduce its evidence, namely 27 July 1999. The brief had been served on 10 May 1999, well over 14 days before that date. There was therefore compliance with s 66B, and the Magistrate should not have excluded the prosecution evidence.

Sperling J disagreed with the construction adopted by Sully J in DPP v Milgate, which treated the first listed hearing date as the operative date for the sanction. The two decisions were in direct conflict, creating an unsatisfactory situation for Local Courts conducting summary proceedings daily.

Because of that conflict, and recognising that a single judge resolution was inadequate given the daily operational impact on Local Courts, Sperling J declined to make substantive appeal orders and instead removed the proceedings into the Court of Appeal for a definitive resolution of the correct construction.

Orders Made

  • Proceedings removed into the Court of Appeal.
  • Costs of the hearing before Sperling J reserved.

Key Takeaways

  • Under s 66F(1) of the Justices Act 1902, the exclusionary sanction for late brief service operates at the point the prosecution actually seeks to adduce its evidence, not at the first listed hearing date.
  • Section 66B's 14-day requirement is satisfied if the brief is served at least 14 days before the occasion on which the prosecution seeks to call evidence, even if it was served late relative to an earlier adjourned hearing date.
  • An adjournment under s 66G functions to shift forward the moment at which compliance with s 66B is assessed, potentially curing a late service before any sanction can apply.
  • Sperling J expressed a strong (though not final) view that magistrates are not obliged to act on their own motion under ss 66F(1), 66F(2) or 66G, and that the adversarial system requires a moving party before the court acts under those provisions.
  • The decision was referred to the Court of Appeal because Sperling J's construction conflicted directly with DPP v Milgate (Sully J), and the resulting uncertainty required resolution at a higher level given its daily impact on Local Court practice.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), Div 2, Subdivision 6A (ss 66B, 66E, 66F, 66G)
- Justices Amendment (Briefs of Evidence) Act 1997 (NSW)

Cases:
- DPP v Milgate (NSW Supreme Court, Sully J, 19 February 1999, unreported)