Elwood v Director of Public Prosecutions [2023] NSWSC 772

Elwood v Director of Public Prosecutions [2023] NSWSC 772 · Read the judgment on AustLII

Catchwords: Committal matters – delay – adjournments and ‘no further adjournments’ markings

This decision came to public attention because of the remarks of the Magistrate, who had disparaged judgments – and judges – of the Supreme Court. But the reasons are likely to be important in committal matters where the case conference process is taking a long time – and perhaps in any matter which has been marked, in advance ‘no further adjournments’.

The plaintiff faced 29 indictable charges (unidentified in the judgment) in the Local Court. The brief didn’t even start coming in to the DPP until almost six months after the proceedings had commenced. There was then a number of adjournments for charge certification, during which the time for carrying out that step was extended, each opposed unsuccessfully by the plaintiff. Once charges were finally certified, a first case conference was held – about 11 months after proceedings commenced. Both parties agreed that an adjournment was necessary. When the matter went back to court the next day, the matter was adjourned for a little over a month, the Magistrate marked himself part-heard, and also marked the papers ‘no further adjournments’. The parties continued negotiating. The afternoon before the matter was ultimately back in court – about one year and two weeks after the proceedings had originally commenced – the DPP sent the plaintiff’s lawyers an amended charge certificate, in which 24 of the original 29 charges had been withdrawn. The plaintiff’s solicitor wasn’t able to speak to the plaintiff until the next morning, and even then did not have enough time to discuss the charges or implications with the plaintiff in detail. The parties made what amounted to a joint application for an adjournment. The Magistrate declined the adjournment and committed the plaintiff for trial (he also entered pleas of not guilty in respect of a couple of summary charges which were remaining in the Local Court). In the course of the interchanges that led up to the judgment, the Magistrate expressed the view that certain Supreme Court judges had never been met with the reality on the ground in relation to committal matters, and expressed that he ‘intellectually fundamentally disagree[d]’ with a recent decision of a judge of appeal.

Readers will remember that the so-called ‘Early Appropriate Guilty Plea’ regime for committals includes a provision which requires the parties to file a case conference certificate. Section 76 of the Criminal Procedure Act provides, in summary, that if one of the parties unreasonably fails to complete that certificate, then depending upon who has failed to complete it, the Magistrate may either adjourn the proceedings, or else discharge the accused (if the prosecutor fails to complete the certificate) or commit the accused for trial (if the accused’s legal representative fails to complete the certificate). Unlike the (extendable) six-month time limit for the preceding steps of charge certification, the legislation does not set a default time limit for how long the parties have been when the charges are certified, and when the case conference must have been held. The Local Court has time standards – codified into Practice Note Comm 1 – but the legislation itself is silent on how long the parties have to complete the case conference and resolve the committal proceedings one way or the other.

The plaintiff appealed the Magistrate’s judgment committing him for trial (and entering the pleas of not guilty in the summary matters), on grounds including that the Magistrate erred in considering whether there had been ‘unreasonable failure’ on the part of a legal representative for the accused to sign the case conference certificate; misconstrued the ‘interests of justice’ test for the purposes of s 76 of the Criminal Procedure Act; and failed to take into account the mandatory loss of sentencing discount occasioned as a result of committing the accused for trial. The matter came before Davies J, sitting alone.

One issue was whether a Magistrate can decide, in advance, that a matter won’t be adjourned. The evidence points strongly to the Magistrate having erred by prejudging the matter without having heard from the parties as to why they were seeking an adjournment (at [38]). This included having previously marked the papers ‘no further adjournments’, and a range of comments made during interchanges from the bench on the day, in which it was made clear that he would not countenance a further adjournment.

A judicial officer is not entitled, prior to hearing from the parties, to make a decision that affects the rights of the parties, absence some clear statutory authority for that decision (at [37]). The Magistrate had made his decision without hearing from the parties, having prejudged the matter from the prior occasion and maintained that prejudgment on the day the matter was eventually committed. Although he eventually received and read an affidavit from the plaintiff’s lawyer, and submissions from the prosecutor, he clearly indicated a number of times before that what his decision was (at [44]). It followed that this ground was upheld.

Another issue raised by the proceedings was whether it can be unreasonable for an accused’s legal representative to fail to complete a case conference certificate, in circumstances where negotiations are active and ongoing and there is a prospect of resolution without a trial. However, it cannot be said that there could never be an unreasonable failure on the part of a defendant’s legal representative, because negotiations were continuing (at [50]). There was also an issue raised about it was an error to take into account the time taken before certification in deciding whether there had been unreasonable delay on the part of the representative of the accused, given that the accused has no control at all at that stage of the proceedings. His Honour observed that it cannot be said that the length of time proceedings are on foot could never be relevant, but essentially declined to decide this issue explicitly, because of technical issues about the limits of the appellate jurisdiction being exercised (at [33]).

His Honour then turned to the factors that ought to be taken into account in determining the ‘interests of justice’ for the purposes of s 76 of the Criminal Procedure Act. One of the problems with the Magistrate’s reasoning was that his whole focus was on delay, whereas s 76 does not focus on delay per se, but on a failure to participate in a case conference, or a failure to complete a case conference certificate. Delay will frequently be the cause of the failure, but that is not necessarily so: there may be failure because of wilfulness, or incompetence, or neglect on the part of a legal representative, even in the absence of delay. On the other hand, there may be delay (as here) or even long delay which does not demonstrate unreasonable failure to participate in a case conference or complete the certificate (at [60]). A further difficulty with the Magistrate’s reasoning was that, having determined that both parties were at fault in the cause of the delay, there was no explanation as to why his Honour determined to take the action in s 76(3)(a) – committal for trial, on the basis of a failure of the accused’s legal representative to complete the case conference certificate – rather than one of the other options (which include discharging the accused, or adjourning the matter further) (at [61]).

The Magistrate was bound to consider the different pathways provided for in s 76, as well as the purposes of committal proceedings as set out in the decision of Landrey v Director of Public Prosecutions [2022] NSWCA 211 (at [31] of Landrey), as well as the effect of committal on the defendant (if that was the pathway to be chosen) by reason of the fact that the discount for the plea of guilty would be significantly diminished (at [63]).

To the extent that the Magistrate had made disparaging remarks about judgments (and judges) of the Supreme Court, it is not the place of a magistrate to say that they intellectually disagree with a judgment of the Court of Appeal. The doctrine of stare decisis obliges judges of lower courts to accept the decisions of higher courts. To the extent that there were other remarks disparaging judges, they had a tendency to bring the system of justice into disrepute; the community and those who come before the justice system must have confidence in the courts and the way the justice system operates (at [73]-[74]).

The appeal was allowed, the orders of the Magistrate were set aside, and the matter was remitted to be determined by a different Magistrate.