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 36, 36A, 37 Criminal Procedure Act 1986 for indictable/summary matters
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ss 57, 58 Local Court Act 2007 for application proceedings.
Both sets of provisions are in similar terms.
Generally:
- 1.
-
An individual responsible for initiating proceedings (eg, a court attendance notice), or who has conduct of proceedings (eg, the Director of Public Prosecutions) will have the right to appear and conduct a case personally or by their 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.
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A police prosecutor has a statutory right of appearance when representing a prosecutor in proceedings for an offence for which a penalty notice was issued.
- 4.
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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 RSPCA or a Local Council in their respective prosecutions.
- 5.
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The court retains a discretion at common law to grant leave to persons such as police prosecutors in point 4 above and to other persons who otherwise do not have a statutory right of appearance.
See below for further detail.
[66-020] Criminal Procedure Act provisions
Section 36 provides:
- (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.
Section 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.
“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), an Australian legal practitioner representing an accused person.
Section 36A provides:
- (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.
Section 37 provides:
- (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).
A police prosecutor may conduct a case under s 37 without leave where they are representing a police officer or prosecutor who has issued a penalty notice, because 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): s 37(1).
- Note:
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The court has the power to remove counsel and to refrain from hearing them in certain circumstances: Bell v Norton (unrep, NSWSC, Lee J, 10/8/1983) citing Ex parte Cory (1864) 3 SCR (NSW) 304. Care should be taken in this regard: see, for example, Heywood v Local Court of NSW [2024] NSWSC 1047.
[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” or amicus curiae (friend of the court) to assist. It would be rare to refuse leave to a police prosecutor to appear for an informant: Connor v Petelo [2005] NSWSC 1025 at [6]–[9]; see also McCarthy (Blacktown City Council) v Prasad [2007] NSWSC 997 at [14]–[16]; Damjanovic v Maley (2002) 55 NSWLR 149 at [79]–[81].