Recent Decisions Relevant to the Local Court May 2012

RECENT DECISIONS RELEVANT TO THE LOCAL COURT MAY 2012

Costs:
De Verda v Constable Stengord (NSW Police) [2011] NSWSC 868.
Costs in Summary Proceedings – ss211 – 219 CPA, in particular s214 – Jurisdictional error by Magistrate in applying the wrong test in deciding whether to award costs to the defence after dismissing the charge:
The Police had not interviewed a son who had witnessed the incident surrounding the alleged offence. A statement by the son was provided to the Police before the hearing. The Magistrate tested the question of reasonableness in s214 by asking what difference it would have made to the conduct of the hearing if police interviewed the plaintiff’s son. The relevant question was whether the failure to interview the son meant the investigation was conducted in an unreasonable or improper manner. Given the son’s statement supported the defence case, the magistrate should have considered whether the investigation was unreasonable within the terms of s214(c). An offer by the Defendant to Police to provide highly probative forensic material was not pursued by the Police – this was also found to be indicative of an “unreasonable or improper manner”.

Mental Health:
Section 32: Edwards v DPP [2012] NSWSC 105.
The Magistrate failed to get over the first jurisdictional hurdle, s32 (1), as the treating doctor’s report had stated “he does suffer from a mental condition…” [per the 3rd proviso in s.32(1)] but failed to add the remaining words of the section, being “…for which treatment is available in a mental health facility.”The Court made it clear that if the defence is relying on s.32 (1)(a)(iii) to bring a matter within the jurisdiction of s.32, then all three elements of that section must be specified in the report, being:
Suffering from a mental condition;
For which treatment is available in a mental health facility;
But is not a mentally ill person.
Permanent Stay: RM v R [2012] NSWCCA 35
Sets out principles for permanent stay, particularly where Defence bears onus of proof and is disadvantaged by passage of time and disability. Refer Tracey Randall’s paper on Fitness in the Local Court.
IDRS: Guide to Section 32 Applications For the Intellectually Disabled
Sentence:
Muldrock v The Queen [2011] HCA 39
Although this was an appeal from a sentence in the District Court for an offence that carried a standard non-parole period, this decision reaffirms the correct approach to sentencing in all types of cases as set out in Markarian v The Queen (2005) 228 CLR 357: “instinctive synthesis”. It is also a valuable judgement when considering sentence for an accused suffering from an intellectual disability.
Section 10:
R v Mauger [2012] NSWCCA 51
Deemed Supply (20 Ecstasy tablets, small amount of cannabis on a Form1) dealt with in District Court by a 2 year S10 Bond. Inadequacy appeal dismissed and excellent case to use in the Local Court for PPD matters.
Lavorato v R [2012] NSWCCA 61
The fact that an offence is a strict liability regulatory offence does not preclude an applicant from being given the benefit of a s.10 dismissal.
Drugs/S.12: Ismael Amado v R [2011] NSWCCA 197
9 month Section 12 Suspended Sentence imposed in the DCfor Deemed Supply (14.95 gms MDMA) – sentence quashed in CCA and 9 month Section 9 Bond imposed. Analysis of sentencing for these types of matters: “ It is not apparent from the mere nature and circumstances of the offence that a sentence of imprisonment was automatically called for…”(at page 11, 77). Analysis of steps required in imposing a S.12 Bond.
Mental Illness/Cause of Drug Addiction: Turner v R [2011] NSWCCA 189
Error in failing to take into account the defendant’s mental state in assessing objective gravity of the offence.
Error in characterising the defendant’s addiction to prescribed medication as a matter of personal choice.
Dysfunctional Background: R v Millwood [2012] NSWCCA 2
A type of “Fernando” judgement that relates to any offender who appears for sentence and has had a “tragic and dysfunctional childhood”. Per Simpson J. at page 13, line 69:
“…I am not prepared to accept that an offenderwho has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”
In Company: Regina v KB, JL, RJB [2011] NSWCCA 190
Analysis of “in company” and whether it is always an aggravating feature – and at p. 57 per Bathurst CJ “The fact that the offence was in company does not seem to me to be a matter of grave significance in this case.”
Disputed Facts – Discount for Guilty Plea: R v AB [2011) NSWCCA 229
Guilty plea in the Local Court to Drive Manner Dangerous Cause GBH – facts disputed in DC, victim gave evidence and Judge preferred that evidence to the offender’s.
“The utilitarian value flowing from a guilty plea is not a fixed element, and can be eroded because of the manner in which the sentencing hearing is conducted…This acknowledges the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to the offender …” (per Johnson J. at 33).
Bail:
Conditions: Lawson v Dunleavy [2012] NSWSC 48
Decision of Justice Garling – analysis of what Bail conditions can and can’t be – here the requirement was “to submit to a breath test when requested to by a Police Officer”. The Court found that such a condition did not comply with legislative purpose:
the condition did not ensure the offender attended court;
it did not promote effective law enforcement;
deterring a breach of bail does not fulfil the purpose of protection and welfare of the community or of a specially affected person;
the term “breath test” was vague and meaningless;
and was more onerous than required.
Offences:
Trespass: DPP v Strang [2011] NSWSC 259
Retail premises open to the public in a commercial shopping complex fall within the definition of “inclosed lands” as set out in S. 3(1) of the Inclosed Lands Protection Act.
Recklessly Cause GBH, S.35(2) CA: Lawton v R [2012]
NSWCCA 16
Appellant pleaded guilty based on legal advice contrary to Blackwell v R [2011] NSWCCA 93: Foresight of possible GBH is required) – foresight of “some physical harm” is insufficient.
BUT:
Crimes Amendment(Reckless Infliction of Harm) Act 2012
Overturns the decision in Blackwell v R [2011] NSWCCA 93

Only now need to have foresight of actual harm as opposed to foresight of actual bodily harm.

Amendments operate as of 21 June 2012

Driving Offences:
Disqualification Periods: RTA v Tamara O’Sullivan and others [2011] NSWSC 1258
Decision in favour of RTA – a period of disqualification can only be ordered by a Magistrate to run from the date of sentence. If a Magistrate wishes to take into account the period of licence suspension a defendant has had, then the Magistrate mustspecify that in their sentence that the period of suspension will form part of the disqualification period, otherwise the RTA will date the full period of disqualification from the Court date.
PCA & HPCA Offences: HPCA Guideline Judgement.
A reminder of how important this decision isin a large number of Local Court matters.

Evidence & Procedure:
Compellability: LS v DPP & Anor [2011] NSWSC 1016
Considered ss18 & 19 Evidence Act and relationship to s279 CPA. Decision supports the submission that s19 EA refers only to domestic violence offences committed by a spouse, as opposed to domestic violence offences in general.
Expert Evidence – Body Mapping: Morgan v R [2011]
NSWCCA 257
Judge erroneously admitted expert evidence that the appellant’s appearance was similar to that of one of the offenders: …”stripped of technical jargon the observations by Dr Hennerby regarding the images of the offender were simplistic.” Beware who is produced as an expert and for what.
Expert Evidence – Lack of Impartiality by Expert: Wood v R [2012] NSWCCA 21
Due to A/Prof Cross’ partiality in the case, his credibility was diminished and his opinion on any controversial matter had minimal, if any, weight.
Breach of Prosecutor’s Duties: Wood v R, supra
Prosecutor’s conduct reversed onus of proof; impermissibly suggested accused failed to give evidence because guilty of the offence.
Arrest Without Warrant – Requirements and Effect of False Arrest: Williams v DPP [2011] NSWSC 1085
Held that Police not acting in the execution of their duty when conducting an arrest in breach of s. 99(3) of LEPRA.
Admissions – Covertly Recorded: ARS v R [2011] NSWCCA 266
The complainant covertly recorded a conversation with the accused where he made admissions of sexual abuse. There was no error in allowing this evidence to be adduced as a general admission.

Juvenile Admissions – to Support Person: JB v R [2012] NSWCCA 12
Admissions were made by JB to a support person – these were admissible, and the support person’s relationship with the juvenile is not a protected relationship. The admission of the evidence was not unfair within s.90 EA.
Juvenile Admissions – Not Recorded: CL v DPP [2011]
NSWSC 943
CL charged with Aggravated BE&Sand prosecution relied on admissions recorded in a Police notebook. The Magistrate erred in admitting evidence of the admissions when they did not comply with s281 of the CPA – this section requires that admissions be tape recorded for indictable offences “other than an indictable offence that can be dealt with summarily without the consent” of the accused.
The Magistrate erred in holding that s281 only applied to offences dealt with on indictment.

The Judiciary:
Judicial Decisions – Hearings: the need to give adequate reasons:
DPP v Abouali [2011] NSWSC 110
Failure to give adequate reasons for its findings constitutes an error of law.
Red light case – Magistrate did not identify which of the “essential elements” was missing. Insufficient attention given to the construction of r.56 of the Road Rules.
DPP v Elskaf [2012] NSWSC 21
Red light case – Magistrate found no Prima Facie case – found that her finding that Witness evidence is unreliable without analysis does not discharge judicial obligation to give reasons.
DPP v Wililo and Anor [2012] NSWSC 713
In dismissing the charge of assault the Magistratefailed to:
To distinguish between prima facie case and whether, as a question of fact, the charge had been proven;
Make any (or coherent) findings of fact; and
Set out any legal principles including the elements of the offence charged, or to apply those principles to the facts of the case.
Magistrates Decisions: compliance with the Doctrine of Precedent: DPP v Wililo & Anor, supra:
Johnson J reiterated this principle when delivering his decision to justify remitting this matter for hearing in the Local Court to a different Magistrate from that who first heard the matter:
“It is a fundamental principle of the law that, where the Supreme Court decides a point of law on an appeal from a Magistrate, that decision is binding on all inferior courts in the State, with judges of a court inferior in the hierarchy not being at liberty to regard themselves as not bound by the decision of the higher court. “ (at 157).
Judicial Questions during a Trial:
FB v R [2011] NSWCCA 217:
Whealy J stated at [97]: "...the circumstances in which a trial judge may legitimately intervene in a criminal trial conducted without a jury will be wider [than one with a jury]. They will, depending on the circumstances, be many and varied. It is impossible, indeed undesirable, to mark out the outer limits of appropriate questioning. Much will depend on the manner in which it is done, the timing with which it occurs and the opportunities that are given to the parties to deal with answers that may be given by a particular witness. In my opinion, it would be quite inappropriate to restrict the capacity of a trial judge sitting without a jury to clarify matters, within legitimate or proper limits, where that clarification is relevant to the resolution of the issues before the court."
Thus Magistrates by implication also have a very wide discretion to ask questions of witnesses – but there are limits.
There was no indication in the judge's questions of an intention to assist the prosecution. A judge sitting alone may, in the course of clarifying the evidence, involuntarily or inevitably assist either the prosecution or the defence. There is no principle requiring a judge in this situation to stay mute, especially where a lack of clarification will hinder the fact finding process [at 109].