Defended hearings

[4-000] Introduction

Last reviewed: November 2023

The following discussion provides a brief overview of a magistrate’s role in a defended hearing in the Local Court. The general procedural principles and provisions are derived from the common law and the Criminal Procedure Act 1986, especially Ch 4. Unless otherwise stated, the section numbers below refer to the provisions of the Criminal Procedure Act .

The Local Court’s overriding duty in a defended summary hearing is to ensure a fair trial and to determine a case on its merits in accordance with the law. A magistrate’s role in adversarial proceedings is to act as an independent judicial officer affording procedural fairness to both parties and making impartial, transparent decisions. For a decision to be transparent, a magistrate must provide reasons to explain how they came to their decision. The scope and extent of reasons varies according to the circumstances, including a consideration of the pressures under which magistrates are placed by the volume of cases coming before them.

These foundational principles are discussed in DPP v Wililo [2012] NSWSC 713 at [41], [52], [55]–[57], [150] together with the relevant authorities. The principles concerning a magistrate’s role in a defended hearing and the relevant authorities are further discussed below.

[4-020] Summary procedure

Last reviewed: November 2023

Procedural requirements are not mere formalities, they often mark points in proceedings where issues arise for the magistrate to determine. For example, as discussed in [16-020] Dismissal and authorities such as DPP v Merhi [2019] NSWSC 1068 at [41], a two-stage process applies after the formal closing of the prosecution case. First, the magistrate considers whether a prima facie case has been established. If so, the accused person has an opportunity to give evidence, call witnesses, or submit that the court should not be satisfied of their guilt beyond reasonable doubt. The magistrate then considers whether the matter is established beyond reasonable doubt.

In DPP v Wililo, above, a “rushed decision-making process” and failure to draw the “line in the procedural sand”, resulted in the dismissal of the matter prior to the formal closing of the prosecution’s case and the magistrate applying an incorrect test as to a prima facie case: at [101]–[103], [122]–[124]. In DPP v Merhi, above, the magistrate moved immediately from finding a prima facie case, to give further very short reasons dismissing the matter. This denied the prosecutor an opportunity to make submissions regarding whether the evidence established the matter beyond reasonable doubt: at [40], [43].

[4-040] Procedural fairness

Last reviewed: November 2023

A fundamental requirement of procedural fairness is that both parties are given the opportunity to be heard. An aspect of procedural fairness in criminal matters is that an accused person knows the case against them. This is reinforced by case management provisions including the requirement, subject to s 187, for the prosecutor to serve a brief of evidence where the accused person pleads not guilty to an offence: ss 183–186. Procedural fairness also requires the magistrate to act impartially.

A court’s procedural fairness obligations will depend upon the circumstances. For example, under ss 36 and 37, an accused person may conduct their own case, and the court may need to provide them with information about court procedure to ensure fairness: Hanna v O’Shane [2003] NSWSC 1055 at [10]–[11]. Care must be taken to balance any assistance provided to an accused person with the magistrate’s obligation to remain impartial and not appear to be biased: see Criminal Trials Courts Bench Book, Self-represented accused at [1-800].

There are limited exceptions permitting proceedings to occur in the absence of the parties: s 182 (written pleas), s 190(3), (4) (with reasonable notice to the accused of the first return date), ss 196–200 (ex parte proceedings), s 201 (both parties not present); see also [16-080] Offences dealt with in the absence of the accused person. Generally, however, procedural fairness will not be afforded to a party when they are absent. In DPP v Peckham [2022] NSWSC 713, after adjourning following a busy list and with the police prosecutor in her office nearby, the magistrate heard and “finalised” a domestic violence offence allegedly committed earlier that day: at [22], [26]. This occurred without the court having the relevant papers (including the facts and criminal history), an explicit plea of guilty, or the magistrate providing reasons for disposing of the matter under s 10A of the Crimes (Sentencing Procedure) Act 1999: at [2]. In DPP v Gatu [2014] NSWSC 192, the magistrate erred by dismissing a matter “in chambers”, after the court had adjourned for the day and in the absence of the prosecutor: at [9], [26]. This also breached the open court requirement in s 191.

A court is to ensure each party has a reasonable opportunity to present their case. In DPP v Yeo [2008] NSWSC 953, at the first return following a plea of guilty, the magistrate formed the view the statement of facts did not disclose a prima facie case and dismissed the matter. The magistrate denied the prosecutor procedural fairness by refusing an adjournment to enable witnesses to be called and submissions made: at [52], [56]. Also, if the magistrate did not accept the applicant’s plea (which was unclear), the matter should have been set down for hearing: ss 193–195, 202. In Transport for NSW v Chapoterera [2022] NSWSC 976, during a busy list, the magistrate dismissed a matter after accepting an unsworn explanation from the accused person. The magistrate refused the prosecution’s request to hold a hearing because it was not justified and would waste the court’s time. Justice Walton held the magistrate denied the prosecutor procedural fairness, and failed to comply with requirements to conduct a hearing (s 194(1)), give the parties the opportunity to present evidence, and to examine or cross-examine any witnesses (s 195): at [15]–[19].

A magistrate must be impartial, taking no part in the contest. The parties frame the charges and select the witnesses, with the magistrate having a limited capacity to intervene during the hearing and only to the extent they preserve their neutrality: Crampton v The Queen (2000) 206 CLR 161 at [19]; DPP v Wililo [2012] NSWSC 713 at [41]–[47]. A magistrate is not prohibited from undertaking appropriate case management, questioning witnesses to clarify matters, or expressing tentative views during the proceedings: FB v R [2011] NSWCCA 217 at [90]–[97], [100], [102]; Duncan v Ipp [2013] NSWCA 189 at [151]. However, excessive intervention may result in an unfair trial. In DPP v Wililo, the magistrate was found to effectively take control of the hearing, refusing to allow the prosecutor to call material witnesses and tender relevant evidence, denying the prosecutor a fair trial and breaching requirements in s 194(2) to hear both parties and their evidence: at [84], [90].

In addition to both the prosecution and the accused person having a fair chance to present their case and make submissions, they must also have a fair chance to rebut each other’s arguments. Further, parties should be afforded an opportunity to make submissions on matters unlikely to be foreshadowed. For example, in Lutz v JK [2016] ACTSC 200, the magistrate did not indicate at the sentencing proceedings that they were contemplating not recording a conviction for an offence of negligent driving causing death. This was an exceptional outcome and the failure to invite submissions amounted to a denial of procedural fairness: at [25].

[4-060] Reasons for decision

Last reviewed: November 2023

Providing reasons for a decision is an “essential incident of the judicial function”: Wainohu v NSW (2011) 243 CLR 181 at [58]. The Hon A M Gleeson AC in “The role of a judge in a representative democracy” (2008) 9 TJR 19, cited in DPP v Wililo [2012] NSWSC 713 at [62], elaborated on the significance of reasons:

Reasons serve a number of purposes. They promote good decision-making by requiring a decision-maker to explain and justify an outcome. They inform a losing party of the reason for failure. They allow an appellate court to identify possible error and correct possible injustice. They inform the public of the way judicial power is exercised. The adequacy of a statement of reasons for a decision is judged by reference to these purposes.

In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442, Meagher JA also noted providing reasons may guard “against the birth of an unconsidered or impulsive decision”.

The scope and extent of the duty to give reasons depends on the circumstances of the case, including the practical realities of giving ex tempore reasons in a busy court. Reasons should not be picked over, with appropriate allowance given to the pressures on magistrates due to their heavy case load: DPP v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 at [15].

A magistrate’s reasons may not be long, but must include findings of fact on critical issues and the legal principles applied to those facts. In DPP v Tilley [2016] NSWSC 984, the magistrate’s reasons to dismiss a matter indicated a failure to engage with and properly determine issues arising at the summary hearing: at [50]. In particular, the magistrate did not identify the offence’s elements including specifying the elements about which they were not satisfied beyond reasonable doubt: at [48]–[49]. The magistrate only made passing references to some witnesses and evidence, without indicating factual findings, and made no reference at all to either party’s submissions: at [49]–[50]; see also DPP v Merhi [2019] NSWSC 106 at [33], [37].

Where self-defence is raised, particular care must be taken to make clear factual findings and provide adequate reasons. In DPP v Evans [2017] NSWSC 33, the magistrate dismissed assault and resist police charges without making findings about the critical issue as to whether the accused person punched the officer: at [42]. The magistrate said that even if the officer’s evidence was accepted, self-defence would be made out, however, until the magistrate made precise factual findings about what occurred, they were not in a position to consider self-defence, particularly as it involved the question of what constituted a reasonable response by the accused: DPP v Evans at [36], [42]. The failure to make a finding on the central factual issue was so fundamental it undermined the whole process: DPP v Evans at [42].

In DPP v Tiller [2023] NSWSC 187, the accused was a teacher who struck a seven-year-old student claiming it was necessary to protect another student. The magistrate erred by dismissing the assault proceedings without resolving key factual conflicts about what the accused observed the victim doing near the other student and whether she had asked the victim to “stop” either before or during the assault: at [51], [56]–[58].

In Darlington v DPP [2023] NSWSC 1139, the magistrate erred in failing to apply the correct test for self-defence and to give adequate reasons, making no real attempt to deal with the accused’s arguments as to why the prosecution had not proved its case: at [29], [56], [60]; see also Criminal Trial Courts Bench Book [6-450] Self-defence.

For clarity and certainty, a magistrate’s reasons must not be buried in exchanges between the bench and counsel during submissions: DPP v Illawarra Cashmart Pty Ltd, above, at [18]–[19]. Also, reasons that set out all of the evidence and submissions with little consideration or analysis may fail “to distil the issues in a way that is helpful”: Garay v R (No 3) [2023] ACTCA 2 at [34], [150]. The language used when delivering reasons also matters. In DPP v Tiller, above, the court commented that while the pressures faced by magistrates “with their heavy caseload and the parade of human difficulties which they face day in and day out” should not be underestimated, it was regrettable the magistrate delivered his reasons using emotive language and personalised examples: at [64].

While this discussion has focused on a magistrate’s determination of whether an offence is proven, the obligation to provide reasons may also apply to other decisions and is, at times, mandated by legislation. In Downes v DPP [2000] NSWSC 1054, the accused person sought to have evidence of their admissions excluded under ss 85 and 90 Evidence Act 1995 on the basis they were induced and unreliable. The magistrate’s reasons for allowing the evidence, after a voir dire, failed to include a “finding on the critical conflict in the evidence as to whether any promise or inducement was made”: at [17].