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Supreme Court 19 February 1999

DIRECTOR OF PUBLIC PROSECUTIONS v JOHN KENNETH MILGATE

[1999] NSWSC 90

Also reported as 107 A Crim R 301
Assault & violence
JUSTICES JUSTICES ACT 1902(NSW)

Citation: Director of Public Prosecutions v John Kenneth Milgate [1999] NSWSC 90
Court: Supreme Court of New South Wales, Common Law Division
Date: 19 February 1999
Judge(s): Sully J

Background

The respondent, John Kenneth Milgate, had been charged with assault occasioning actual bodily harm and appeared in the Dubbo Local Court on 26 May 1998. The prosecution served its brief of evidence on the defendant 12 days before the hearing rather than the 14 days required under section 66B(2) of the Justices Act 1902 (NSW). The reason given for the two-day shortfall was that the responsible officer had been unable to obtain clarification of a handwritten notebook entry from a colleague in time.

The defendant's solicitor objected to any evidence being led, citing non-compliance with the 14-day requirement, and opposed any dispensation under section 66F(2). The Magistrate refused the prosecution's application for an adjournment, found the brief of evidence inadmissible for non-compliance, and dismissed the charge on the basis that no prima facie case had been established.

The original appellant, Erik Anderson, brought a stated case to the Supreme Court. The DPP took over conduct of the appeal under the Director of Public Prosecutions Act 1986 (NSW). The question for the Supreme Court was whether the Magistrate had erred.

  • Whether the Magistrate was required, under section 66G of the Justices Act, to grant an adjournment where the brief of evidence was not served in compliance with section 66B(2).
  • Whether the word "are to" in section 66G imposes a mandatory obligation on the Magistrate to grant an adjournment, or whether the provision preserves a discretion.
  • Whether the Magistrate erred in refusing the adjournment application and in declining to dispense with the section 66F(1) requirements under section 66F(2).
  • Whether the Magistrate's conduct of the proceedings as a whole resulted in an injustice warranting the Supreme Court's intervention.

Decision

Sully J examined the structure and language of the relevant provisions of Subdivision 6A of the Justices Act. His Honour concluded that section 66G does not impose an absolute, unconditional obligation to grant an adjournment whenever the brief is not served in strict compliance with the Subdivision. The phrase "are to grant such adjournments as appear to be just and reasonable" retains an element of evaluative judgment: the adjournment must appear just and reasonable in the circumstances of the particular case.

On the facts before the Magistrate, the prosecution's explanation for the two-day shortfall was that a police officer had been delayed in clarifying a colleague's handwriting. The Magistrate was not persuaded that justification had substance, and Sully J found that conclusion was reasonably open to him. The defendant had not claimed any actual prejudice from the late service.

Sully J also noted that refusal of the adjournment did not prevent the prosecution from making a separate substantive application under section 66F(2), which would have allowed the Magistrate to dispense with the admissibility bar on terms and conditions appearing just and reasonable. No such application was made. The court found no proper basis to disturb the Magistrate's exercise of discretion.

More broadly, Sully J declined to find that the refusal of the adjournment had worked a practical injustice of the kind that would warrant intervention by the Supreme Court, drawing on established principles requiring that natural justice assessments remain responsive to circumstances rather than rigid or technical.

Orders Made

  • Appeal dismissed with costs.

Key Takeaways

  • Section 66G of the Justices Act 1902 (NSW) does not create an absolute duty to adjourn whenever the prosecution brief is served late. The obligation to grant an adjournment remains qualified by whether such an adjournment "appears to be just and reasonable" in the circumstances.
  • A Magistrate who refuses an adjournment application on the basis that the prosecution's explanation lacks substance acts within a reasonably available discretion, particularly where the defendant has not asserted actual prejudice from the late service.
  • Under section 66B(2), the 14-day service requirement is a minimum period that can be shortened with the defendant's consent or where the Magistrate considers the circumstances require it. Failure to comply triggers the admissibility bar in section 66F(1), subject to the discretion in section 66F(2).
  • Section 66F(2) provides a separate avenue by which a prosecution can seek dispensation from the admissibility bar on terms the Magistrate considers just and reasonable. Failure to invoke that provision, in addition to seeking an adjournment, may leave the prosecution without a remedy once the adjournment is refused.
  • No error was established in the Magistrate's conduct; the Supreme Court confirmed that the principles of natural justice are not applied rigidly in summary proceedings and must be assessed against the particular circumstances of each case.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), ss 66A to 66H (Subdivision 6A of Division 2 of Part 4)
- Director of Public Prosecutions Act 1986 (NSW), ss 9 and 10

Cases:
- Watson v Watson (1968) 70 SR (NSW) 201
- Blazevski v Judges of the District Court (1992) 29 ALD 197
- Jago v District Court (1989) 168 CLR 23
- Ritzau v Wheaton (unreported, Badgery-Parker J, 26 June 1990)
- Smith v Attard (unreported, Studdert J, 8 November 1993)
- McRae v Redmond and anor (1987) 8 Petty Sessions Review 3534