Citation: Mason & Ors v Lyon & Anor [2005] NSWSC 804
Court: Supreme Court of New South Wales, Common Law Division
Date: 11 August 2005
Judge(s): Hall J
Background
Eleven plaintiffs faced prosecution in the Local Court at Narooma on 20 offences under fisheries legislation, including allegations of possessing more than the permissible quantities of abalone and lobsters, and shucking abalone in or near waters. Rather than contesting the elements of the charges, the plaintiffs raised a series of affirmative defences, including native title, freedom of religion, constitutional, and trade and commerce grounds. The proceedings were lengthy and complex, with substantial evidence including expert testimony already on the record.
In anticipation of the final addresses phase, the presiding magistrate discussed with counsel the filing of written submissions in advance of oral argument. The prosecution subsequently served a 161-page set of written submissions on the plaintiffs' legal representatives and confirmed it would not rely on any matter of fact or law outside those submissions. The plaintiffs objected to aspects of the proposed procedure and brought a summons in the Supreme Court seeking declaratory relief.
The plaintiffs sought declarations that they were entitled to address the magistrate after the Crown, that it was unlawful for the magistrate to require their written submissions to be filed before the Crown's final address concluded, and that the conventional sequence of addresses (Crown first, then defendants) must be followed.
Legal Issues
- Whether the magistrate had in fact made any binding order or direction requiring the plaintiffs to file written submissions before the close of the Crown's final address, or determining the order of addresses
- Whether any such direction, if made, was unlawful as infringing the plaintiffs' right to address the court
- Whether the procedure of filing written submissions with the court (without serving them on the other party in advance) was capable of creating disadvantage or prejudice to the plaintiffs
- Whether a magistrate has a discretionary power to direct the manner and form of procedure for taking submissions in complex proceedings
Decision
Hall J first examined the transcript extracts in evidence and found that no binding order or direction had been made by the magistrate in the terms alleged by the plaintiffs on two of the three declarations sought. The transcript showed the magistrate was seeking an outline or "flagging" of issues to assist him in understanding submissions, not directing the sequence of addresses. The plaintiffs' case on those declarations therefore lacked a factual foundation.
On the third declaration, concerning the filing of written submissions before the close of the Crown's address, Hall J again found the transcript did not clearly establish that any such direction had been made. Importantly, the court noted that the prosecution had already served its full written submissions on the plaintiffs, providing advance notice of every factual and legal matter the Crown intended to rely upon. In those circumstances, the plaintiffs' representatives were actually better informed than they would be under conventional procedure.
Hall J held that the procedure of filing written submissions with the court, in a case where the prosecution had in any event served a copy on the plaintiffs, was not capable of creating disadvantage or prejudice. The transcript also recorded plaintiffs' counsel acknowledging that the procedure would make little practical difference, given the predominantly legal nature of the issues. The magistrate's conduct was described as having evolved through discussion with counsel and as appropriate to the nature of the proceedings.
On the question of discretion, Hall J held that section 26 of the Local Courts Act 1982 vests a discretionary power in a magistrate to determine the manner and form of procedure for taking submissions in lengthy and complex matters. No error of the kind required to attract appellate intervention, as established in House v The King, had been demonstrated. The summons was dismissed.
Orders Made
No orders were made in this decision.
The summons was dismissed. Costs were reserved for further hearing.
Key Takeaways
- A magistrate presiding over lengthy and complex criminal proceedings holds a discretionary power under section 26 of the Local Courts Act 1982 to determine the manner and form in which counsel's submissions are received, including directions about written submissions.
- No error warranting Supreme Court intervention was established where the magistrate's procedural directions had evolved through discussion with counsel and were appropriate to the circumstances, consistent with the principles in House v The King (1936) 55 CLR 499.
- Where the prosecution serves a comprehensive copy of its written submissions on the defence in advance, the procedure of filing (but not serving) written submissions with the court is not capable of creating disadvantage or prejudice to the accused.
- Declaratory relief in relation to alleged procedural directions will not be granted where the transcript does not clearly establish that any such binding direction was in fact made.
- The fact that a magistrate acts as judge of both fact and law is a relevant consideration when assessing whether a procedural departure from the conventional sequence of addresses causes any material prejudice.
Legislation and Cases Referenced
Legislation
- Fisheries Management Act 1944 (NSW), ss 16 and 18(2)
- Fisheries Management (General) Regulation 1995 (NSW), cls 123(2) and 130(2)
- Local Courts Act 1982 (NSW), s 26
- Criminal Procedure Act 1986 (NSW)
Cases
- Mason v Tritton & Anor (1994) 34 NSWLR 572
- House v The King (1936) 55 CLR 499