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Supreme Court 8 April 2016

Woods v Director of Public Prosecutions (NSW) ; Fantakis v Director of Public Prosecutions (NSW)

[2016] NSWSC 447

Public order & justice offences
CRIMINAL LAW ADMINISTRATIVE LAW ADJOURNMENT WHERE RELEVANT TRANSCRIPTS WHERE PLAINTIFFS ARE SELF REPRESENTED PLAINTIFFS AND IN CUSTODY

Citation: Woods v Director of Public Prosecutions (NSW); Fantakis v Director of Public Prosecutions (NSW) [2016] NSWSC 447
Court: Supreme Court of New South Wales
Date: 8 April 2016
Judge: Campbell J

Background

Two plaintiffs, both unrepresented and held on remand facing murder charges, brought multiple applications for judicial review of decisions made by magistrates during committal proceedings in the Local Court. The first plaintiff challenged two rulings by Magistrate Still, including a decision under section 91 of the relevant legislation denying orders requiring police witnesses to attend and give oral evidence. The second plaintiff challenged those same two rulings, plus two further decisions by Magistrate Mijovich, including a ruling on a subpoena to the Commissioner of Police and a refusal to disqualify himself on grounds of apprehended (and possibly actual) bias.

The matter was referred urgently to the Supreme Court duty judge given the imminence of the five-day committal hearing, at that point scheduled to commence on 11 April 2016. Wilson J made orders requiring the transcription agency to produce transcripts of all relevant hearing dates to the Court Registrar by 9:30 am on 7 April 2016, with copies to be provided to all parties.

When the matter came before Campbell J on 8 April 2016, it emerged that the transcripts had not reached the Court as directed. The transcription agency appeared to have produced the documents, but a communication failure meant most transcripts had not been forwarded to the Court or the plaintiffs. Counsel for the DPP and Commissioner of Police had received the 2016 transcripts, but the plaintiffs had received none.

  • Whether the hearing of the judicial review applications should proceed on 8 April 2016, given that the plaintiffs had not received the required transcripts
  • Whether a short adjournment over the weekend to Monday would be sufficient, potentially preserving the committal hearing dates
  • Whether denying the plaintiffs time to prepare written submissions would be fair, given they were self-represented and in custody

Decision

Campbell J found it was impossible, even for an experienced lawyer, to review what amounted to hundreds of pages of transcripts received at short notice and mount coherent argument on the same day. The position of self-represented persons in custody was considerably worse, given their limited access to resources. All parties, including counsel for the DPP and the Commissioner of Police, accepted it was unreasonable to proceed.

The DPP argued for only a weekend adjournment to preserve the Local Court committal dates. Campbell J acknowledged the attractiveness of that approach but rejected it as unfair to the plaintiffs. The court accepted that the plaintiffs needed to review the full course of proceedings before the magistrates, particularly in relation to the natural justice and apprehended bias arguments, not merely the legal grounds in isolation.

Campbell J also declined to dispense with written submissions, noting that courts must accept self-represented litigants will take longer than trained lawyers to produce useful documents. Being unrepresented, the court observed, is not a privilege but a disadvantage. A timetable was set for the filing of written submissions by each party, with the matter to return before the Common Law Case Management Registrar in May.

Orders Made

  • The hearing is adjourned
  • The first plaintiff to file and serve written submissions by 22 April 2016
  • The second plaintiff to file and serve written submissions by 29 April 2016
  • The first defendant (DPP) to file and serve written submissions by 7 May 2016
  • The second defendant (Commissioner of Police) to file and serve written submissions by 7 May 2016
  • Matter listed for directions before the Common Law Case Management Registrar at 9:00 am on 10 May 2016
  • The Registrar directed to issue orders for the plaintiffs to appear by audio-video link on 10 May 2016

Key Takeaways

  • Every party in litigation is entitled to a fair opportunity to present their case, and that entitlement is not displaced by the urgency of related proceedings in another court.
  • Proceeding with a judicial review hearing where self-represented remand prisoners had not received transcripts ordered to be produced would have denied them that fair opportunity, regardless of the inconvenience to the Local Court timetable.
  • Courts must accept that self-represented litigants will generally take longer to prepare useful documents than trained lawyers, and that access to resources in custody is significantly constrained.
  • Where grounds of judicial review include allegations of breaches of natural justice and apprehended bias, the court accepted it may be necessary to examine the full course of the proceedings before the decision-maker, not merely isolated legal questions.
  • A failure in the administrative communication of transcripts from the producing agency to the Court, rather than a failure by the agency to produce them, was the cause of the difficulty in this case.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW) (referenced in argument concerning questions of law)

Cases cited: None cited in the provided text.