Right of appearance

[66-000] Introduction

The right of appearance for a party and the right of a party to conduct a case are contained in:

  • ss 36A, 37 Criminal Procedure Act 1986 for indictable/summary matters

  • ss 57, 58 Local Court Act 2007 for application proceedings.

Both sets of provisions are in similar terms. The following observations are made:

1. 

An individual responsible for initiating proceedings (eg, court attendance notice), or who has conduct of proceedings (eg, DPP) will have the right to appear and conduct a case personally or by his/her lawyer.

2. 

A police prosecutor has a statutory right of appearance when representing another police officer and may conduct the case without seeking leave of the court.

3. 

A police prosecutor also has a statutory right of appearance when representing a prosecutor in proceedings for an offence for which a penalty notice was issued.

4. 

A police prosecutor must seek leave to appear for and conduct a case on behalf of a public officer who is not a police officer such as the RTA in licence appeals.

5. 

The court retains a discretion at common law to grant leave to persons such as police prosecutors in 4 above and to other persons who otherwise do not have a statutory right of appearance.

[66-020] Criminal Procedure Act provisions

Section 36 provides:

Representation and appearance

1. 

A prosecutor or accused person may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to appear for the prosecutor or accused person.

2. 

A prosecutor who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor.

The term “prosecutor” has a wide definition covering the majority of criminal matters where the investigating police officer institutes proceedings by issuing and filing a court attendance notice: s 3 provides:

prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject matter or context allows or requires) an Australian legal practitioner representing the prosecutor.

The term “accused person” is defined in s 3 as:

accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject matter or context allows or requires), a barrister or solicitor representing an accused person.

Section 36A provides:

Representation and appearance in penalty notice matters

(1) 

In any criminal proceedings relating to an offence for which a penalty notice was issued under this or any other Act, the prosecutor of the offence may be represented and appear by a police prosecutor.

(2) 

Nothing in this section:

(a) 

requires a police prosecutor to represent or appear for any person, or

(b) 

prevents any person from appearing personally, or being represented and appearing by an Australian legal practitioner or other person empowered by an Act or other law to appear for the person, in any proceedings.

This provision was inserted by the Fines Amendment Act 2008 with effect from 25 June 2008 in order to remove the court’s discretion to refuse leave for police prosecutors to appear in such proceedings. The parliamentary intention was to “recognise the longstanding practice of the State Debt Recovery Office of using the services of police prosecutors in the Local Court when prosecuting matters that have been the subject of a penalty notice”.

Section 37 provides:

Conduct of case

(1) 

the prosecutor’s case may be conducted by the prosecutor or by the prosecutor’s Australian legal practitioner or any other person permitted to appear for the prosecutor (whether under this or any other Act).

(2) 

the accused person’s case may be conducted by the accused person or by the accused person’s Australian legal practitioner or any other person permitted to appear for the accused person (whether under this or any other Act).

The effect of the above sections is that a police prosecutor may conduct a case under s 37 without leave where he/she is representing a police officer or prosecutor who has issued a penalty notice, because, to use the words of s 37(1), the police prosecutor is a person permitted to appear for the prosecutor under this Act by virtue of s 36(2) or s 36A(1).

[66-040] Residual discretion to grant leave

The Local Court has an implied power to grant leave to persons not otherwise having a right of appearance, such as an unadmitted police prosecutor or in the case of a defendant, permitting a McKenzie friend to assist. It would be rare to refuse leave to a police prosecutor to appear for an informant: see generally Connor v Petelo [2005] NSWSC 1025.