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Supreme Court 22 August 2005

CONNOR v PETELO

[2005] NSWSC 1025

Other
LOCAL COURT PROSECUTION STATUS OF POLICE PROSECUTOR RELEVANT CONSIDERATIONS

Citation: CONNOR v PETELO [2005] NSWSC 1025
Court: Supreme Court of New South Wales (Common Law Division)
Date: 22 August 2005
Judge(s): Adams J

Background

The defendant was charged with an offence under the Rail Safety Regulation 2003 relating to smoking on a train. The informant (the person who laid the charge) was not a police officer. A police prosecutor sought to appear in the Local Court on the informant's behalf.

The Magistrate acknowledged that, because the informant was not a police officer, section 36 of the Criminal Procedure Act 1986 did not automatically confer a right of appearance on the police prosecutor. Leave was therefore required. The Magistrate declined to grant leave, apparently taking the view that the informant ought to have arranged for a solicitor or barrister instead, and that using a police prosecutor was simply a cost-saving measure.

The prosecution appealed to the Supreme Court. The defendant did not appear at the appeal.

  • Whether a Local Court has power to grant leave to a police prosecutor to appear on behalf of an informant who is not a police officer
  • Whether section 36 of the Criminal Procedure Act 1986 extinguished or limited that power
  • What considerations are relevant when a court decides whether to grant such leave

Decision

Adams J held that the Local Court has an implied power to grant leave to persons who do not otherwise have a right of appearance, including police prosecutors appearing for non-police informants. The court drew a clear distinction between section 36, which confers a right of appearance in defined circumstances, and the separate implied power to grant leave in cases falling outside that right. Section 36 was not directed at the court's leave power and did not abrogate it.

His Honour rejected the Magistrate's reasoning that use of a police prosecutor was merely a cost-saving device. Even if that were true, the alternative was not necessarily representation by a solicitor or barrister. The more likely outcome of refusing leave was that the informant would have been required to prosecute the matter personally, which would not have served the administration of justice.

Adams J emphasised the practical value of having a police prosecutor appear. Police prosecutors bring familiarity with local court procedures, are subject to the Commissioner's instructions, and understand the ethical obligations attached to their role. That experience and accountability generally benefits the court. Leave should therefore be refused only in rare cases, and the appropriate question is not whether representation by a police prosecutor was strictly necessary, but whether it was desirable in the interests of the administration of justice.

Orders Made

  • Appeal allowed
  • Decision of the Local Court set aside
  • Matter remitted to the Local Court for hearing in accordance with the Supreme Court's reasons
  • No order as to costs

Key Takeaways

  • The Local Court retains an implied power to grant leave to a police prosecutor to appear for an informant who is not a police officer, notwithstanding the absence of a statutory right under section 36 of the Criminal Procedure Act 1986.
  • Section 36 operates to confer rights of appearance in specified circumstances; it does not address, and therefore does not limit, the court's implied power to grant leave to persons who lack such a right.
  • A court considering whether to grant leave should ask whether representation by the police prosecutor is desirable in the interests of the administration of justice, not whether it is strictly necessary.
  • Refusal of leave will be appropriate only in rare cases. Police prosecutors bring procedural experience, operate under the Commissioner's instructions, and are subject to professional ethical obligations, all of which benefit the court.
  • The assumption that refusing leave will result in professional legal representation is not well-founded. The practical alternative may be self-representation by the informant, which is unlikely to assist the administration of justice.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 36
- Rail Safety Regulation 2003 (NSW)

Cases:
- Grassby v The Queen (1989) 168 CLR 1