9.1 We are concerned in this chapter with a number of disparate proposals for procedural, changes in Courts of Petty Sessions. Some of the proposals have been made to us by magistrates and officers of the Public Solicitor and of the Solicitor for Public Prosecutions. They have not been made in any official capacity and they do not necessarily reflect any official view. Other proposals emanate from the Criminal Law Review Division of the Department of the Attorney General and of justice, and from this Commission. They are all put forward as a basis for discussion.

9.2 In due course, as part of our long-term goals, we are likely to propose a consolidation of rules of procedure applied in Courts of Petty Sessions. For the present, we are concerned with a number of distinct areas within which it may be possible, in the short term to take steps to reduce delays, eliminate anomalies and generally facilitate the work of these courts. We hope that others concerned in this work will draw our attention to other proposals directed towards these ends.

9.3 We acknowledge that some of the proposals made in this chapter are at such a level of simple practicality as to approach the trivial Indeed, it may be argued that they have no place in an Issues Paper. But, in matters of practice and procedure, the simplest of rules can have far-reaching consequences. In dealing with matters of this kind, we often make tentative suggestions rather than raising issues, and we do not always make detailed comments.

9.4 The matters we raise relate to:

• the service of process;
• representation;
• pre-trial procedures;
• aspects of section 476 of the Crimes Act, 1900 not previously considered;
• forms of summons and listing arrangements;
• pleas;
• prosecutors and court officers;
• the mentally ill defendant;
• witnesses;
• costs;
• contempt;
• the functus officio rule;
• the civil liability of justices;
• breaches of recognizances;
• rules of court.

Any of the matters listed above give rise to problems in the superior criminal courts as well as in Courts of Petty Sessions. We will consider the problems of the superior courts when we consider the work of those courts. Also, we will consider procedural aspects of “appeals” and “sentences” in later Issues Papers.

II. THE SERVICE OF PROCESS

9.5 The Justices Act, 1902, contains provisions relating to service. Section 28 provides, for example, that summonses in respect of indictable offences shall be served by a constable upon e person to whom it is directed “by delivering it to him personally, or if he cannot conveniently be met with then by leaving it with some other person for him at his last or most usual place of abode”. Section 63 allows service of summonses in respect of summary fences by “a member of the police force or other person” and allows service by post in the case of summonses based on information laid by a member of the police force or other public officer.

6 It appears to us that these provisions as to the persons by and upon whom and the place which service is to be effected may be unduly restrictive and sometimes lead to Convenience and delay. We raise the following issues:

• Whether the service of summonses in indictable matters should remain the responsibility of the police alone, and, if not, what alternative should be permitted;
• Whether there ought to be a provision permitting service upon a solicitor authorised to accept service on behalf of a defendant; and
• Whether there ought to be a provision permitting service by leaving a copy at the defendants place of employment or business as an alternative to his place of residence (as is permitted in Victoria, South Australia and Queensland).

There is at present no provision touching the age of the person with whom a summons may be left in the absence of the person to whom it is addressed, and except in the case of service by post, there is no provision requiring any minimum period of notice. It appears to us reasonable that there be provisions covering each of these matters. It may also be appropriate ) provide that where a summons is to be served on a person under some specified age, service may be effected upon a parent or guardian of the defendant with whom the latter resides.

9.8 One way of proving the service of a summons is by the affidavit of the person who served it. Affidavits are usually made before a justice of the peace, and each year thousands of affidavits of service are made by officials such as police and, sheriff s officers. In 1980, police officers served 16,494 traffic summonses. ¹ The making of each affidavit of service must have involved some inconvenience to, and loss of time by, a police officer and a justice. We suggest that it would be appropriate to prove service of a summons by a police or sheriff s officer by an endorsement on the summons signed by the officer, setting forth the day, place, and mode of service. The signature on the endorsement could be made prima facie evidence that the endorsement was signed by the person whose signature it purports to be, and the penalty for making a false statement could be the same as the penalty for making a false affidavit. Procedures of this kind are now in force in Western Australia. ²

III. REPRESENTATION

1. Non-Legal Representation and the “McKenzie Friend Procedure”

9.9 Magistrates have a discretionary power to allow any person to represent any informant. In practice, police prosecutors who are not legally qualified usually represent police informants. The practice is of long standing and we doubt that it would be practicable to discontinue it at the present time. Nonetheless it raises a question of principle. Should persons who are not legally qualified be permitted to represent parties to criminal proceedings in Courts of Petty Sessions? Incidental questions arise out of what has become known as “the McKenzie friend procedure”. In 1970, the Court of Appeal in England held, in McKenzie v. McKenzie, ³ that every party to proceedings has the right to have a friend present in court beside him to assist by prompting, taking notes, and quietly giving advice. In 1981, in speaking of the McKenzie friend procedure, the President of the Court of Appeal in New South Wales, said:

“This is a device which was adapted from a decision in England in a civil case considered to be exceptional and applied here as a technique in criminal cases usually on the trial of hardened criminals where the accused would appear to defend himself with the advantages of that course, but have a person with legal experience, who may or may not be admitted to practice, ‘briefed’ or employed by some group, body or person, to ‘appear’ and conduct the case in some way by being in court and progressively give directions or advice for its conduct. The McKenzie friend, being behind the scenes, would bear no responsibility for any impropriety in the conduct of the case and his or her part would not be apparent and subject to control or criticism. This procedure was initially permitted by some judges, but came to be seen as what it appears to be, namely an abuse of the court’s procedures and was stopped.” ⁴

We understand that the “McKenzie friend procedure” is used infrequently in Courts of Petty Sessions now that legal aid is generally available, but no precise statistical information is available. If sought to be used, is it generally seen by magistrates, and others, to be an abuse of the procedures of those courts? What safeguards, if any, might be prescribed for preventing abuse?

2. Notices of Appearance

9.10 Magistrates tell us that Clerks of Petty Sessions are often asked, for good reasons, to supply the name of the solicitor who is appearing for an informant or a defendant. But this information is seldom available before the matter is first mentioned in court. Even then, the court papers may merely say” Mr. Smith appeared for the informant and Ms. Brown for the defendant’. In many instances, this description will not enable these persons to be readily identified. We suggest that there are good reasons why a solicitor, when first announcing his or her appearance, should be required to hand to the Clerk of the Court a short notice of appearance in which is listed his or her surname, name of firm (if any), address, telephone and DX number. Forms of notice of appearance could be placed on the Bar table in each court.

3. Leave to Cease Acting as Solicitor

9.11 Magistrates also tell us that adjournments of proceedings are often reluctantly granted them where on a day specially fixed for a hearing, a solicitor, or his or her client tells the court that the solicitor has withdrawn from the case and is no longer acting. In this event, considerations of fairness to the client usually require that the case be adjourned. Sometimes .another case can be substituted at short notice but sometimes this cannot be done, and the time set aside for the first case is lost. Should a solicitor who has filed a notice of appearance be permitted to withdraw from the proceedings without the leave of the court? If the court refused leave, the proceedings would continue at the appointed time and an adjournment, and consequent delays, would be avoided.

4. Corporations

9.12 Some sections of the Crimes Act 1900, make special provisions for corporations as distinct from natural persons. Section 360A, for example, is concerned with corporations which are charged with indictable offences. Section 360A(2) provides, amongst other things, that a representative of a corporation may consent to an indictable offence being dealt with summarily if the representative is duly appointed by one of the persons having the management of the affairs of the corporation. On the other hand, no provision appears to enable, for example, a representative of a corporation to enter a plea of guilty under section 51A of the Justices Act, 1902. If duly authorised by the directors of the corporation in .accordance with its articles of association a representative of the corporation may have this power. We suggest, for the purpose of the criminal law, that a person having the management of the affairs of a corporation should be enabled to appoint a representative of the corporation for the purpose of having the representative do on behalf of the corporation anything that a natural person may do on his or her own behalf.

IV. PRE-TRIAL PROCEDURES

1. Introduction

9.13 We believe that it is essential to consider the desirability of establishing a system of pre-trial procedures for summary trials. By “pre-trial procedures”, we mean steps taken before the hearing, either between the parties without the intervention of the court, or where necessary, by order of the court. Their purpose would be to identify, limit, or resolve some of the issues that are to be determined at the hearing. By “issue”, we mean questions which the magistrate will have to decide in order to decide whether the guilt of the defendant has been established.

9.14 The very nature of some summary matters makes a true “summary” procedure appropriate. Where the issues are simple and clear-cut there is neither need nor room for pre-trial procedures. In such cases, for example, a simple charge of common assault under section 493 of the Crimes Act, 1900, pre-trial procedures could be counter-productive, generating avoidable delays and unnecessary costs.

9.15 On the other hand, in more complex summary matters, pre-trial procedures of the type that we have in mind could be beneficial. The benefits can be stated in terms of fairness to the person charged, easier preparation and presentation of the case by both parties, and a saving of time for all concerned, including the court, the parties and witnesses.

9.16 Suppose, for the purpose of illustration, that Ms. Green is charged under section 166 of the Crimes Act 1900, with misappropriating a particular security, valued at less than $l,000, entrusted to her as an agent, that Ms. Green has pleaded “not guilty”, and that the charge is to be disposed of summarily under section 476 of the Act The essential elements of the offence are:

• that a person named in the charge entrusted to Ms. Green;
• as his or her agent;
• the valuable security;
• for safe custody or for any other special purpose;
• without authority to sell negotiate, transfer or pledge the valuable security; and
• Ms. Green misappropriated it or its proceeds.

Suppose further that the only ground of defence available to Ms. Green arises out of the last mentioned element. In this instance, one purpose of pre-trial procedures would be to establish that the trial itself need concentrate only on the issue of misappropriation.

9.17 We shall illustrate the way in which these benefits might be obtained, and also refer to some difficulties which might be involved in the adoption of such a scheme, as we deal in detail with the various types of pre- trial procedure. We propose to consider them under three headings:

• Advance Disclosure of Prosecution Case;
• Limiting the Issues; and
• Resolving Certain Issues.

2. Advance Disclosure of Prosecution Case General

9.18 It is obviously desirable in every case that the evidence and the arguments be limited, if possible, to matters relevant to the questions that the magistrate has to decide. The first step towards achieving this goal is to be informed of the matters which the prosecution alleges.

9.19 If defendants are to have fair opportunities to prepare their cases they must know what the prosecution alleges against them. If they wrongly anticipate allegations that are not made, they can waste time and money on unnecessary witnesses and evidence; if they fail to anticipate allegations that are made, they can be seriously at risk, and either fail to produce available relevant evidence or have to seek an adjournment These difficulties can be overcome by advance disclosure of the prosecution case.

9.20 There are different forms of disclosure. These include:

• a statement of the facts alleged;
• an explanation of the way in which it is alleged that those facts constitute the offence charged;
• a list of witnesses;
• statements of witnesses;
• inspection of exhibits.

9.21 It is only in summary trials before magistrates that there is not disclosure of this kind as matter of course. In trials on indictment there are generally the depositions of the witnesses at the committal proceedings, and in summary trials in the Supreme Court there are special Provisions to which reference is made below.

The Present Position

9.22 Unlike the accused at a trial on indictment the defendant in a summary trial before a magistrate does not have the benefit of depositions or, generally, pre-trial access to witnesses’ statements. And, unlike the defendant in a matter dealt with under the Supreme Court (Summary Jurisdiction), Act, 1967, the defendant in a summary trial before a magistrate does not have the benefit of statutory provisions designed to ensure adequate disclosure of the prosecution case.

9.23 In Supreme Court summary proceedings, a rule of court permits a judge, of his or her own motion or on the application of a party, to make orders or give directions in relation to the .Knowing matters (references to “the plaintiff” are references to the prosecuting authority): ⁵

• the giving by the plaintiff to the defendant of particulars or further and better particulars;
• the giving by the plaintiff to the defendant of a list of persons who it is expected will be called to give evidence at the trial or, if the judge thinks fit who have made statements in writing but who it is expected will not be so called;
• the giving by the plaintiff to the defendant of a copy of any statement made in writing by any person whose evidence it is expected will be given at the trial or, if that person has not made a statement in writing or if the judge thinks fit of a summary of the evidence which it is expected will be given at the trial;
• the giving by the plaintiff to the defendant of a list of documents or things which it is expected will be tendered in evidence at the trial;
• the giving by the plaintiff to the defendant of copies of documents;
• inspection by the defendant of documents or of property;
• evidence, including evidence under section 14CE of the Evidence Act, 1898;
• any admission or consent of the defendant under section 404 of the Crimes Act 1900; and
• any alibi.

The rule also provides:

“The procedures prescribed by this rule are completed when the judge certifies that in his opinion the pre-trial procedures prescribed by this rule have been completed.” ⁶

9.24 The Justices Act, 1902, says, in effect that the description of an offence in the words of the Act or other document creating it is sufficient in law. In the case of proceedings by way of summons, the Act requires that the summons shall “state shortly the matter of the information or complaint”. In practice, the operative word is “shortly”. ⁷ In most instances, few particulars of an offence are given in a summons.

9.25 Many principles can be extracted from the case law relating to particulars. The basic principles are, first, that a magistrate may order that particulars, or further and better particulars, be furnished, and secondly, that the magistrate has a general discretion to make or refuse such an order. If an order is made and not complied with, the ultimate sanctions are the magistrate’s power to adjourn the proceedings until they are furnished, and his or her inherent power to dismiss the information or complaint. ⁸

9.26 In many cases where the emphasis is on “particulars”, both sides behave like old common law pleaders. They seek to keep open as many options as possible whilst disclosing as little as possible. The need for the co-operation of practitioners, if the courts are to deal effectively with the problems of delay, was recently referred to by the Chief Justice of the High Court of Australia, Sir Harry Gibbs. Speaking of the efforts made by courts to expedite the hearing and determination of cases, he said:

“One problem that tends to frustrate these efforts is that cases, both civil and criminal seem to be taking longer and longer to hear ... This phenomenon is not due solely to the increasing complexity of modern life. The profession must take much responsibility for it. It seems easier to deny every allegation than to refine the issues so that only those really in dispute are contested, and easier to put before the Court every scrap of available evidence than to decide what is relevant and what is not...” ⁹

Proposals

9.27 Proposals for the introduction of a system of pre-trial procedures for summary trials in Magistrates’ Courts are not nove. In England, for example, the Report of the Interdepartmental Committee on the Distribution of Criminal Business between the Crown Court and Magistrates’ Courts (“the James Committee”) made recommendations in 1975 relating to the advance disclosure of the prosecution case. In summary form, the recommendations were:

(i) before giving his consent to summary trial or at any time before the opening of the prosecution case, a person charged with an offence in the intermediate category [an offence which may be tried either by the magistrates) or by a judge and jury, the magistrates) may try the case only if the defendant agrees] should have a statutory right to receive, on request, copies of the statements of the witnesses on whose evidence the prosecution proposes to rely;

(ii) if the prosecution calls as a witness a person whose statement has not been served, the defendant should be offered an adjournment to enable it to be served;

(iii) if the prosecution considers that it would be against the interests of justice to provide copies of the statements, it should be able to apply to a magistrate for a direction that they should not be served; and

(iv) where witness statements have not been prepared or where a magistrate directs that statements should not be served, a summary of the facts upon which the prosecution intends to rely should, on request, be supplied to the defence instead.” ¹⁰

9.28 The extent to which and the manner in which the prosecution case can and should be disclosed will vary from case to case. If there is agreement between the parties, there seems to us to be no reason why the court should be involved. On the other hand, if agreement cannot be reached, then it seems that some type of pre-trial conference should be provided for, in order that the magistrate might rule and make all necessary orders. In all but the simplest of cases the magistrate may wish to have advance knowledge of what is in dispute, and what is involved in the hearing, in order that he or she may organise the court calendar on a more realistic basis.

9.29 The proposition that defendants should know the nature of the allegations they are to meet seems unanswerable but, as with any proposed rule of procedure, there are other factors to be put into the balance. It has been suggested that a great burden would be imposed on prosecuting authorities, that too much time could be consumed, and that there is danger in enabling defendants to know the identity of witnesses and the evidence it is believed they will give.

9.30 We invite comment on the proposal that there be a more general requirement for disclosure of the prosecution case in summary trials before magistrates, and in particular on the difficulties that such requirement might produce.

9.31 We also invite comment upon the manner in which the requirement might be expressed. Is there benefit in getting away from technical terms such as “particulars” and “discovery”? Might the requirement be that the prosecution should state the alleged facts upon which it relies, in terms fully identifying them, and, where necessary, the way in which it is asserted that those facts constitute the offence charged. And (to the extent that the prosecution volunteers the information or the court orders it) should the prosecution state the evidence upon which it proposes to rely in order to establish those facts?

3. Limiting the Issues

General

9.32 Once the prosecution has disclosed the nature of its allegations, in order to know what questions have to be decided by the magistrate, it is necessary to know which of the prosecution allegations are admitted and which are denied by the defence, and what additional facts the defence asserts by way of defence. When we speak of limiting the issues, we have in mind limiting the questions to be decided by the magistrate to those which are really in dispute, with a consequent limitation in the evidence required.

9.33 If, for example, Ms. White is charged under section 179 of the Crimes Act, 1900, with obtaining property by false pretences, the prosecution case would necessarily include allegations:

• that she made a representation of fact;
• that the representation was false;
• that she knew that it was false; and
• she made it with the requisite intent.

It would be rare indeed for all those matters to be in issue in respect of one charge, yet customarily a plea of not guilty means that all have to be proved. Proof of the falsity of the representation and that the defendant knew it to be false may involve a great deal of evidence and many documents, all of which ought to be totally unnecessary if Ms. White’s answer to the charge really is “Of course if I had said that it would have been false and I would have known it to have been false. But I deny having said it.”

9.34 The avoidance of these problems necessarily involves some disclosure of the defence case. In considering procedures which involve, or may involve, disclosure, we stress that we are not necessarily envisaging that the defence would be required to make disclosure.

The Present Position

9.35 We have referred earlier to the right to silence. One consequence of that principle, namely, that a person charged with a criminal offence is not required to make any answer to the charge, is that traditionally defendants in criminal cases have not made advance disclosure of their defence. This has prevented a limiting of issues of the type now under consideration, in any cases massive volumes of exhibits and much time of a number of people are wasted in “proving” something which is not really in dispute.

9.36 There is, however, already one provision in the Crimes Act, 1900, which may be seen as an encroachment upon the right to silence. By virtue of section 405A, an accused person in a trial on indictment cannot without the leave of the court, adduce evidence in support of an alibi unless he or she has given notice of particulars of the alibi within a prescribed time.

9.37 The issues to be determined in a trial may now be limited by the use of section 404 of the Crimes Act, 1900. Shortly stated, the section provides that an accused person may, if so advised by his or her counsel make admissions as to matters of fact The section is based on section 470 of the Criminal Law Amendment Act of 1883. Before the enactment of the latter section, persons on trial in cases of felony could make no admission however beneficial it might have been for them to do so.

9.38 The “matters of fact” referred to in section 404 include matters of fact which are not within the personal knowledge of the accused and conclusions as to matters of fact Thus, for example, an accused may admit that a named person sustained injuries in an accident whilst a passenger in a particular vehicle, from which he died on a specified date. This admission may be made even though it is a conclusion from the evidence, not all of which is within the personal knowledge of the accused. ¹¹

9.39 Admissions made under section 404 make it unnecessary for the prosecution to call evidence to prove the matters admitted and, accordingly, there may be circumstances in which the prosecution ought not to call such evidence if it would be likely to prejudice the accused, unless such evidence goes not only to prove the matters admitted but also to prove other matters in issue. ¹²

9.40 In practice, the admission is reduced to writing and handed to the magistrate who asks the defendant “Do you on the advice of your counsel admit.....” According to our inquiries, section 404 is little used in Courts of Petty Sessions.

Proposals

9.41 It seems to us that there are many advantages, mainly related to the avoidance of unnecessary delay and costs, to be derived from disclosure of the defence case. Although traditional attitudes may make further requirements in this regard unacceptable, we suggest that extension of the alibi defence provision to summary matters ought to be considered, and that consideration ought also to be given to whether there are other categories of defence evidence which should be subject to similar provisions.

9.42 In the case of an alibi defence, the requirement of notice would be prompted by the need to avoid adjournments for the purpose of investigating whether the alibi can be confirmed or rebutted. Similar considerations apply to other defences such as those which depend on medical evidence or expert forensic scientific evidence which the prosecution needs an opportunity to evaluate or in respect of which it may wish to call its own expert witnesses.

9.43 Are there reasons why, in a pre-trial procedure such as a pre-trial conference, a magistrate should not actively pursue the possibility of a defence being raised which may necessitate an adjournment of the trial. If such a possibility is raised, are there reasons why the magistrate should not direct that particulars of the defence be given to the prosecutions Particulars are only intended to make clear the case of the party who furnishes them. They do not require disclosure of the evidence upon which the case of that party depends. If the prosecution should be required to make advance disclosure of its case, this limited advance disclosure of the defence case may well be considered to be an appropriate response.

9.44 Consideration might also be given to a relaxation of the provisions of section 404 of the Crimes Act 1900. As noted above, admissions as to matters of fact may be made only “on the advice of counsel”. Yet an unrepresented defendant may admit all the facts constituting an offence by a plea of guilty. And, by that plea, a represented defendant may do the same thing without any requirement that it be done on the advice of his or her counsel.

9.45 just as the prosecution should be encouraged, or required, to tell the defence the facts upon which it proposes to rely and to seek to prove, so too the defence should be encouraged, and assisted, to indicate which of those facts it disputes, which it admits, and, in the case of disputed facts, for which alternative version it contends. We invite general suggestions as to the means which might be used to achieve these goals.

4. Resolving Certain Issues

General

9.46 A decision on a question of law will often determine the outcome of a tria. If answered in favour of the defence, it may mean that the prosecution fails. If answered in favour of the prosecution it may lead to a plea of not guilty being changed to a plea of guilty. Likewise, there can be a question as to the admissibility of particular evidence. If resolved against the party wishing to call it, the attendance of a number of witnesses may become unnecessary. In short, pre-trial procedures which led to the resolution of issues of law or the admissibility of evidence would contribute greatly to the quicker and cheaper disposal of cases, with consequent benefits to everyone involved in the trial process.

The Present Position

9.47 Questions of law are now generally decided at the end of the hearing. At that time, all the evidence has been adduced and, in consequence of the decision it may cease to have any relevance whatsoever. Questions as to the admissibility of evidence are generally argued, and decided, during the hearing. If, to take a common example, objection is taken to the admissibility of an alleged confession on the ground that it was not made voluntarily, the disposal of the objection can amount to “a trial within a trial”. ¹³ Many of the people involved in the major trial may be seriously inconvenienced by the delays involved in resolving the minor trial. This is a most serious concern in trials on indictment but it is also a matter of concern in summary trials.

Proposals

9.48 We suggest that steps need to be taken to ensure that the existence of questions of the kind we are now considering is made known to all parties in advance of the hearing. Awareness of these questions could flow from information volunteered by the parties, or obtained from them in a pre-trial conference. The conference itself could be ordered by the court of its own motion or on application made by one or more of the parties. Where convenient, the relevant questions could be dealt with separately and before witnesses are called.

9.49 In paragraph 9.56, we speak of new listing arrangements which might be introduced into Courts of Petty Sessions. If introduced, these arrangements would provide one basis upon which some pre-trial procedures could be built.

9.50 The success of any pre-trial procedure will depend in large measure upon the co- operation of the parties to the proceedings, and in particular upon the co-operation of those members of the legal profession who act for defendants. This last comment is especially important in the context of disclosure by the defence. We believe, however, that we ought to proceed with our work in this area on the basis that this co-operation will be forthcoming.

V. SECTION 476 OF THE CRIMES ACT, 1900

9.51 As noted already, section 476 enables some indictable offences to be disposed of summarily. One of the conditions of the operation of the section is that it must appear to the magistrate that the case may properly be disposed of summarily. Two questions arise out of this condition First, by reference to what criteria should a magistrate make this determination and, secondly, at what stage of the proceedings should the determination be made?

9.52 In England, the criteria are prescribed by statute. ¹⁴ They are the nature of the case, whether the circumstances make the offence one of a serious character, whether the punishment which a magistrate’s court would have power to inflict for it would be adequate, and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other. Are criteria of this kind sufficiently precise for adoption here? What other criteria could be used? It has been suggested, for example, that a defendants criminal record is a relevant criterion but is it right that a record should be disclosed before there is any finding of guilt in the particular case?

9.53 As to the time the determination should be made, there seems to be some uncertainty. The procedure in general use is that if a defendant states that he or she intends to plead “not guilty” to a charge, the evidence called by the prosecution is heard. Then, if it appears to the magistrate that the case may properly be disposed of summarily, the defendants consent to this course is sought. On the other hand, the Court of Appeal has said that “it is appropriate that the magistrate first make due inquiry and forms a deliberate view before he embarks upon the matter, that the case can be properly disposed of summarily”. ¹⁵

9.54 From the respective view points of magistrates, prosecutors and defenders, when ought the decision to deal with a case summarily be made? Should it be at the outset of the case by way of some preliminary inquiry, or after the evidence of the prosecution has been heard? Should section 476 be amended for the purpose of clarifying the issue?

VI. FORMS OF SUMMONS AND LISTING ARRANGEMENTS

9.55 The form of summons now used “commands” the defendant “in Her Majesty’s name, to be and to appear on [a specified date] at ten of the clock in the forenoon at [a specified court] ...to answer to the said information and to be further dealt with according to law”.Quiteapart from its language and tone, the document is misleading in the case of a defendant who appears and pleads not guilty. There is little likelihood that the matter will be disposed of on the date specified. We suggest that all documents issued by courts should be accurate in what they say. If it be the case that on that day the matter will be disposed of if, and only if, there is a plea of guilty, but in other circumstances, a date will be fixed for a hearing, the summons should say so. If it be the case that appearance by solicitor is sufficient and that personal appearance by the defendant is not required, the summons should also say so. Perhaps it should also refer to the availability of legal aid. And, it may be appropriate to indicate on the summons that certain specified pre-trial procedures may be taken oil the return day.

9.56 If appearance in answer to a summons is intended to be for the purpose of ascertaining the defendant s intentions with regard to a plea, or fixing a date for a hearing, or determining what arrangements or orders should be made by way of disclosure of the prosecution case, or for other aspects of pre-trial procedures, we suggest that administrative arrangements should be made accordingly. Some Courts of Petty Sessions could, for example, set aside one day of the month, or other suitable time, on which all summonses would be returnable. A magistrate might then set aside that part of his or her time to deal with appearances and to make all necessary preliminary orders. An alternative to using magistrates for this work is to empower it to be done by other administrative officers of the courts, such as Clerks of Petty Sessions.

VII. PLEAS

9.57 Section 78 of the Justices Act, 1902, is concerned with the procedures to be followed when a defendant appears at the hearing of an offence punishable on summary conviction. According to the section, the defendant is to be asked “if he has any cause to show why he should not be convicted or why an order should not be made against him as the case may be”. Amongst other things, the section then speaks, first of what happens when the defendant “admits the information and shows no sufficient cause”, and, secondly, of what happens when the defendant “does not admit the information”. In practice, we are told that defendants are usually permitted to plead guilty or not guilty. We suggest that this practice should be given legislative recognition. In our view, a person charged with a summary offence should not be required to declare that he has “cause to show” why he or she should not be convicted.

VIII. PROSECUTORS AND COURT OFFICERS

9.58 We do not propose to consider here the major policy issue of who should prosecute persons who are alleged to have committed crimes. That issue, and issues related to it, will be considered in a later Issues Paper. Our present narrow concern is with the dress of police prosecutors, and of police officers who act from time to time as court officers.

9.59 Police prosecutors do not wear police uniform when acting as prosecutors. They used to do so but the practice was abandoned many years ago. In 1981, the Report of the Commission to Inquire into New South Wales Police Administration (“the Lusher Report”) recommended that the Prosecutor’s Branch of the Police Department be phased out as soon as possible and, in the meantime and in any event police prosecutors should wear uniform. ¹⁶ In the words of the Report,

“Members of the public who attend... Courts should be able to immediately recognize the prosecutor as a police officer and not be put in any false Position.” ¹⁷

We ask if greater harm is not done if members of the public see prosecutors in a uniform which denotes an allegiance to a service. They may see this allegiance as conflicting with the duties which an advocate owes to the court. We suggest that the balance lies in retaining the present position of no uniforms.

9.60 The Lusher Report also recommended that the use of police officers as court officers, ushers, and attendants should cease. ¹⁸ We agree that there are good reasons why this work should be done by people who are responsible only to the court. We doubt, however, that it is practicable to achieve this ideal in the immediate future. We suggest that in the meantime “court constables” should cease to be uniformed whilst engaged in this work and, if possible, that they be seconded or in some other way made responsible only to the presiding magistrate during the hours, or periods, of their service with the court In our view persons acting as court officers should not be, or be seen to be, part of the service which is responsible for the vast majority of prosecutions.

IX. THE MENTALLY ILL DEFENDANT

9.61 Under the Mental Defective (Convicted Persons) Act, 1939, a mentally defective person who is convicted and sentenced in respect of certain offences may be ordered to be detained in an institution during the Governor’s pleasure. It seems that the Act is now very rarely used.

9.62 We are more concerned, however, with some provisions of the Mental Health Act, 1958, and their application to defendants in proceedings in Courts of Petty Sessions. Section 23 of the Act makes provision for jury verdicts in the Supreme Court and the District Court to the effect that a person is “sane and capable of being tried” or is “mentally ill and incapable of being tried”, and for the consequences of such verdicts. The Act gives no indication of the procedures to be followed in Courts of Petty Sessions if like issues were to arise in those courts.

9.63 Trials of issues of fitness to plead are not to be confused with trials of defendants where the defence of mental illness is raised. In the first case, the question to be decided relates to the mental condition of the defendant at the time of the trial of the issue. In the second case, the question is whether the defendant was legally responsible, in accordance with the relevant rules (commonly called the McNaghten Rules), at the time when the offence was committed.

9.64 Is there any practical need to prescribe procedures which should be followed in Courts of Petty Sessions when a question arises as to a defendants fitness to plead?

9.65 The problems of mentally ill defendants in Courts of Petty Sessions are probably better considered in the context of the Mental Health Act, 1958, and we note that some provisions of that Act have already been reviewed by the Criminal Law Review Division of the Department of the Attorney General and of Justice, and included in legislative proposals.

X. WITNESSES

1. Summons or Subpoena

9.66 Section 26 of the Justices Act, 1902, provides, in the case of indictable offences, for the issue of a summons to secure the attendance of a witness or the production of documents. Section 61 of the Act makes like provision in the case of offences punishable on summary conviction In each instance, the section also provides for the issue of a warrant for the apprehension of the person concerned.

9.67 The Justices Act, 1902, does not make provision for the issue of subpoenas but, in practice, subpoenas are issued for the attendance of witnesses and the production of documents, apparently under assumed common law power.

9.68 We suggest that the Justices Act, 1902, be amended for the purpose of providing legislative authority for the practice of issuing subpoenas. If the Act is so amended, are there practical reasons why the summons and warrant procedures for securing the attendance of witnesses and the production of documents should be retained?

2. Summonses and Subpoenas

9.69 We suggest too that any procedures for securing the attendance of witnesses and the production of documents should incorporate a statement which tells the person concerned

• by whom the relevant document was issued,
• from whom he or she should seek the expenses of complying with it;
• to whom inquiries might be directed concerning the continuing need to comply with it;
• the possible consequences of non-compliance; and
• in the case of a requirement to produce documents, a statement concerning the manner in which the requirement may be complied with.

As to this last-mentioned requirement, documents the subject of a subpoena must now be produced to the court by the person to whom the subpoena is addressed, even though no evidence is to be given by that person. Under Rules of the Supreme Court and the District Court, in similar circumstances production to the Registrar of the court is sufficient compliance with a subpoena to produce documents. ¹⁹

3. Notice of Subpoena

9.70 Witnesses are often given exceedingly short notice of the fact that they are required to attend a court at a particular time on a particular date. Subject to one qualification we suggest that a subpoena or summons for a witness should be served not less than, say, 3 days before the hearing. The qualification to which we refer is that a justice should be empowered to abridge this time in special circumstances.

4. Costs Against Witnesses

9.71 Parties to proceedings can be greatly inconvenienced by the failure of a witness to answer a summons or to comply with a subpoena. The Justices Act, 1902, does not provide for the making of an order for the payment of costs against such a witness who is not a party to the proceedings. The Supreme Court Rules, on the other hand, allow the court to order a person to pay any costs occasioned by his or her refusal to comply with any order of the court. ²⁰ We suggest that a provision of this kind should be included in the Justices Act, 1902.

XI. COSTS

1. Generally

9.72 Where a conviction is recorded, or an order is made, in summary proceedings, a magistrate may order the defendant to pay such costs as seem to the magistrate to be “just and reasonable”. Where a complaint is dismissed, the complainant may also be ordered to pay the defendants costs. And, where a defendant is discharged at the committal stage of an indictable offence, the informant may be ordered to pay the defendant’s costs. In each of these instances, the magistrate usually makes an “on the spot” assessment of the costs. Some cases are long and complicated and it must often be difficult for the magistrate to make a proper assessment Is the present system for awarding and assessing costs working satisfactorily? Is there any call for the abandonment of “on the spot” assessments and for the substitution of a prescribed scale of costs or a system for having a court officer certify that a bill of costs is reasonable?

2. Costs Where a Court has no jurisdiction

9.73 The Justices Act, 1902, is silent on the question whether an order for costs can be made in cases where proceedings have been instituted in a Court of Petty Sessions and the court has held that it has no jurisdiction to determine them. Comparable legislation in Victoria, Queensland and the Australian Capital Territory allows the making of orders for costs in such circumstances. ²¹ We suggest that the justices Act, 1902, should do the same.

XII. CONTEMPT OF COURT

9.74 It is well established that the Supreme Court has jurisdiction to deal with contempt which relates to inferior courts, including Courts of Petty Sessions, and to deal with it summarily. Notwithstanding this power in the Supreme Court, section 152 of the justices Act, 1902, empowers a magistrate to punish contempt in a summary way if the contempt occurred during proceedings before a Court of Petty Sessions presided over by the magistrate, or during proceedings before justices, one of whom is the magistrate. The use of the word “during” suggests that the contempt to which the section refers is “contempt in the face or hearing of the court” as distinct from other contempts.

9.75 The Supreme Court Rules, 1970, prescribe the procedures which are to be followed in cases of contempt in the face or hearing of the court but section 152 of the Justices Act, 1902, contains no comparable provisions. We suggest that the omission should be remedied and hat the Supreme Court Rules provide an appropriate precedent. ²²

XIII. THE FUNCTUS OFFICIO RULE

9.76 It is well settled that after a court has made an order, it is functus officio and can itself make no variation of the order. Any variation which may be made must be made by a court of appellate jurisdiction. It sometimes happens that this rule creates hardship and inconvenience. A magistrate may, for example, impose a fine in excess of the maximum disqualify for a period less than a mandatory period, have regard to an incorrect criminal record, or dispose of a case in the absence of a defendant even though the defendant is waiting outside a wrong court. In cases of this kind it should not be necessary to invoke appeal procedures for the purpose of correcting the errors.

9.77 The Justices Acts of Queensland and Tasmania permit a magistrate, of his or her motion or on the application of a party, to re-open proceedings and to rectify orders where, for example, a penalty has been imposed that is contrary to law, or an order has been made that is based on, or contains, an error of fact. ²³ We suggest that similar provisions should be incorporated in the justices Act 1902 and that application for rectification should be permitted within a prescribed number of days of the making of the order. Indeed, are the reasons why the Act should not provide that the functus officio rule does not operate until the expiration of a prescribed number of sitting days after the day in question.

XIV. CIVIL LIABILITIES OF JUSTICES

9.78 Section 135 of the Justices Act, 1902, is concerned with the civil liability of justices for its done by them within their jurisdiction and section 136 is concerned with their civil .ability for acts done by them without, or in excess of jurisdiction. An act done within the jurisdiction of a justice does not attract civil liability unless it was done maliciously and without reasonable and proper cause. For an act done without, or in excess of jurisdiction a justice may be civilly liable even though it was done without malice and with reasonable and proper cause.

9.79 In speaking of justices, we are speaking, for the most part, of magistrates.

9.80 The position of magistrates is to be compared with that of judges of the superior courts. The latter are absolutely immune from civil liability whether they act within their jurisdiction or not. This distinction was criticised in Sirros v. Moore ([1975] Q.B. 119) where Lord Justice Ormrod said:

“It appears to me to be impossible to find a consistent principle to explain or account for these rules, except in terms of public policy. In my judgment, these rules in their old form are not appropriate to the conditions of today. There is no ground today for drawing a distinction between judges of different status or between judges and magistrates... it is impossible to maintain double standards in so important a matter as a personal liability of judges, and that, accordingly, the old rules should be modified by giving judges of inferior courts (including magistrates) enhanced protection... With a fully developed appellate structure, supplemented by habeas corpus and the other prerogative writs, and made accessible to all or nearly all by the legal aid scheme, there is no longer any necessity to preserve, in its old form the remedy by way of personal actions against judges.”

9.81 Magistrates have asked us why they should be liable for acts done by them whether acting in a judicial or ministerial capacity, if at the time of acting they had an honest belief that they were acting within jurisdiction even though they did not have jurisdiction or had exceeded it We raise the issue for general discussion.

XV. COMPENSATION ORDERS

9.82 Sections 437(1) and 554(3) of the Crimes Act 1900, when combined with the provisions of the Criminal Injuries Compensation Act 1967, provide the means whereby some people receive compensation for injury or loss sustained by them through the commission of a crime.

9.83 The predicament of victims of crime is a much discussed subject in this State and elsewhere. The Report of the Australian Law Reform Commission, Sentencing of Federal Offenders, contains a comprehensive treatment of “Victim Compensation”. The New South Wales scheme was the subject of detailed analysis during a seminar held in September, 1980, by the Institute of Criminology within the Law School of the University of Sydney. Also this Commission’s Issues Paper on Accident Compensation (1982) described the New South Wales scheme in some detail and our report on Accident Compensation will return to the subject. For this reason, in this Paper we do not describe the scheme and we raise only a strictly limited range of issues.

9.84 No procedures have been prescribed with respect to applications made under sections 437(1) and 554(3) of the Crimes Act, 1900, and it has been suggested to us by some magistrates that there is a pressing need for such a prescription. Matters which they say should be prescribed include the following:

• by whom an application may be made;
• the time within which application must be made (at present there is no time limitation); and
• the form of the application including the specification of the injury and loss alleged to have been sustained through, or by reason of, the offence.

XVI. RECOGNIZANCES

9.85 The subject of recognizances will be considered in detail in a later Issues Paper on Sentencing. The subject involves not only complex technical issues but also important policy issues. These issues differ in their application to Courts of Petty Sessions, on the one hand, and the District Court and Supreme Court, on the other hand. In the context of Courts of Petty Sessions, we seek preliminary submissions on the present use, and utility, of the “binding over” aspect of the recognizance process.

XVII. RULES OF COURT

9.86 In concluding this chapter, we raise, in the context of the practice and procedure of Courts of Petty Sessions, the general issue whether there should be detailed rules of court applicable to proceedings in these courts. A Rule Committee could be empowered to make rules for regulating and prescribing the procedure and practice to be followed in those proceedings. In common with rules made by the Rule Committee of the Supreme Court, rules made by the Committee would be subject to disallowance by either House of Parliament. We suggest that such a Committee would be well placed to keep the practice and procedure of Courts of Petty Sessions constantly under review, and, when necessary, to implement necessary changes without delay. In short we suggest that consideration should be given to amending section 15 of the Justices Act, 1902, for the purpose of enabling detailed rules of court to be made by a Rule Committee.

FOOTNOTES

1. New South Wales Police Department Annual Report 1980 (NSW Govt Printer, Sydney 1981), p.26.

2. Justices Act, 1902-1977, s.57 (WA).

3. [1970] 3 All ER 1034.

4. Application of Bacon, November 1981, NSW Court of Appeal.

5. Supreme Court Rules, 1970, Part 75, r.11(4).

6. Id, r.11(5).

7. Ss.145A, 27(c) and 62(c).

8. See, generally, Ex parte Graham: Re Dowling and Anor (1968) 88 WN (Pt.1) (NSW), 270; (1968) 1 Petty Sessions Review 387.

9. Occasional Address at the Graduation Ceremony for Graduates in the Faculty of Law, University of NSW, 7 May 1982.

10. James Report, para.230.

11. See R. v. Longford (1970) 17 FLR 37; and R. v. Smith [1981] 1 NSWLR 193.

12. See R. v. Longford (1970) 17 FLA 37; and R. v. Smith [1981] 1 NSWLR 193.

13. See para.2.17.

14. Magistrate’s Courts Act 1980 (UK) s.19.

15. (1979) 4 Petty Sessions Review 1969.

16. Report of the Commission to Inquire Into New South Wales Police Administration (Mr. Justice E.A. Lusher, Commissioner) (NSW Govt Printer, Sydney, 1981), p.256.

17. Ibid.

18. Id., p.257.

19. Supreme Court Rules, 1970, Part 37, r.4; District Court Rules, 1973, Part 29, r.3.

20. Part 52, r.20.

21. Magistrates (Summary Proceedings) Act 1975 (Vic) s.97 Justices Act 1886-1979 (Qld) s.158(2): Court of Petty Sessions Ordinance 1930 (ACT) s.244(1).

22. Part 55, Division 2.

23. Justices Act 1959 (Tas) s.76A; Justices Act 1886-1979 (Qld) s.147A.