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Supreme Court 26 July 2022

Transport for NSW v Chapoterera

[2022] NSWSC 976

Traffic & driving
CRIMINAL PROCEDURE SUMMARY PROCEEDINGS PROCESS FUNDAMENTALLY FLAWED HEARING EXAMINATION AND CROSS EXAMINATION OF WITNESSES

Citation: Transport for NSW v Chapoterera [2022] NSWSC 976
Court: Supreme Court of New South Wales
Date: 26 July 2022
Judge: Walton J

Background

The defendant was charged with using a mobile phone while driving, contrary to Rule 300 of the Road Rules 2014 (NSW). The charge arose from a camera-detected offence. On the first return date at Gosford Local Court, the defendant entered a plea of not guilty and explained to the Magistrate that he had been unlocking his phone with a fingerprint before passing it to a passenger.

Without hearing any sworn evidence, the Magistrate reviewed the infringement photograph and formed a view that the defendant may have been within an exception under the Road Rules. The Magistrate stated that he had "a reasonable doubt" and dismissed the charge. When the prosecutor's representative asked that a proper hearing be listed, the Magistrate refused, describing a hearing as not "justified" and a waste of the court's time. The prosecutor was not invited to make submissions on the applicable law.

Transport for NSW appealed to the Supreme Court under section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The defendant ultimately conceded that procedural fairness had been denied and did not oppose the appeal.

  • Whether the Magistrate denied the prosecutor procedural fairness by dismissing the charge without hearing sworn evidence or allowing submissions on the law
  • Whether the Magistrate failed to comply with the statutory requirements of the Criminal Procedure Act 1986 (NSW) governing the conduct of summary hearings
  • Whether the Magistrate failed to give adequate reasons for the dismissal
  • Whether the Supreme Court, on a statutory appeal under the CAR Act, had power to set aside the Local Court's order and remit the matter for rehearing before a different Magistrate

Decision

Denial of procedural fairness. Walton J held that the Magistrate erred in law by denying the prosecutor the opportunity to cross-examine the defendant and to make submissions on the proper construction of "use" under Rule 300 of the Road Rules. The prosecutor's right to be heard before an adverse order was made against it is a fundamental requirement of procedural fairness. The defendant's own concession reflected that the denial was clear and obvious.

Failure to conduct a statutory hearing. Although strictly unnecessary to decide given the procedural fairness finding, the Court held that the Magistrate also failed to comply with the requirements of the Criminal Procedure Act 1986 (NSW) governing summary proceedings. Those provisions contemplate a hearing, the examination and cross-examination of witnesses, and the opportunity for parties to make submissions before a determination is reached. The Court observed that if there is a Local Court practice of disposing of summary proceedings in this manner after a not guilty plea, that practice is contrary to law.

Inadequate reasons. The Court also found that the Magistrate failed to provide adequate reasons for the dismissal. The bare statement that there was "a reasonable doubt" because the conduct may fall within an exception did not constitute sufficient reasoning, particularly in the absence of any evidence or submissions on the point.

Remittal. The Court held it had power under section 59(2)(a) of the CAR Act, which permits the making of "such other order as it thinks just," to set aside the Local Court's order and remit the matter for rehearing. Given the views expressed by the Magistrate during the original proceedings, the Court considered it appropriate that the matter be remitted to a differently constituted court.

Orders Made

  • The appeal under section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 was allowed.
  • The order of the Local Court at Gosford (Magistrate A. George) made on 1 December 2021 was set aside.
  • The proceedings were remitted to the Local Court at Gosford to be heard and determined according to law by a Magistrate other than Magistrate A. George.
  • No order as to costs.

Key Takeaways

  • A Magistrate cannot dismiss a summary charge on a not guilty plea without conducting a hearing, receiving sworn evidence, and affording the prosecutor the opportunity to make submissions. Doing so constitutes a denial of procedural fairness and an error of law.
  • Where such a fundamental procedural defect occurs, the Supreme Court confirmed it has power under section 59(2)(a) of the CAR Act to set aside the Local Court's order and remit the matter for rehearing, including before a different Magistrate.
  • Under the Criminal Procedure Act 1986 (NSW), summary proceedings require the examination and cross-examination of witnesses and the hearing of submissions before a determination is made. A practice of short-circuiting those steps after a not guilty plea is contrary to law.
  • Adequate reasons are required when dismissing a charge. A bare assertion of reasonable doubt, made without evidence or argument, does not satisfy that obligation.
  • The statutory appeal pathway under the CAR Act was held to be a sufficient and appropriate remedy in this case, without the need to pursue prerogative relief, because it provides an equally effective route to setting aside the flawed order and remitting the matter.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 56 and 59
- Criminal Procedure Act 1986 (NSW), ch 4 pts 2 and 3, ss 190, 194, 195 and 202
- Road Rules 2014 (NSW), r 300
- Supreme Court Act 1970 (NSW), s 69
- Supreme Court Rules 1970 (NSW), pt 51B r 10
- Uniform Civil Procedure Rules 2005 (NSW), r 59.3

Cases
- Annetts v McCann (1990) 170 CLR 596
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
- Director of Public Prosecutions (NSW) v Gatu [2014] NSWSC 192
- Director of Public Prosecutions (NSW) v Lopez-Aguilar [2013] NSWSC 1019
- Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147
- Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713
- Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308
- Director of Public Prosecutions (SA) v District Court of South Australia (2005) 92 SASR 94; [2005] SASC 260
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Housing Commission (NSW) v Tatmar Pastoral Co (1983) 3 NSWLR 378
- Sasterawan v Morris [2008] NSWCA 70
- Wise v Schneider [2015] NSWSC 725