Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 (29 June 2012)

CRIMINAL LAW – assault – summary hearing in Local Court – charge dismissed – prosecution appeal against dismissal – Magistrate did not permit prosecutor to call certain witnesses – whether denial of procedural fairness – whether error of law in Magistrate’s approach to dismissal of charge – whether Magistrate failed to give reasons required by law – duties of Magistrate at defended criminal hearing – error of law and denial of procedural fairness established – matter remitted to Local Court for hearing before a different Magistrate

40. Of course, the progress of a hearing will depend upon the issues arising for determination during the trial, including the question as to whether, as a matter of law, there is no prima facie case at the close of the prosecution case. This involves application of well-recognised principles: Director of Prosecutions v Elskaf [2012] NSWSC 21 at [47]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the tribunal of fact in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left for decision by the tribunal of fact. A verdict of not guilty may be entered at the conclusion of the prosecution case only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215. The principle remains the same whether application is made for an acquittal at the end of the prosecution case where trial is proceeding before Judge and jury, or where trial is proceeding before a Judge or Magistrate sitting alone.

41. The duty of a trial Judge, whether sitting with a jury or sitting alone, has been repeatedly stated and is well understood. In Crompton v The Queen [2000] HCA 60; 206 CLR 161, Gleeson CJ said at 173 [19]:

“Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.”

42. A criminal trial is not an inquisition. It is for the parties to act as protagonists in the trial with the judge to “take no part in that contest, having his [or her] own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law”: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517 (Barwick CJ).

43. These principles have been stated repeatedly in decisions such as Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362 at 369 [28].

44. In Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82, the Court said at 95-96 [58]:

“Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [138]- [140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty.”

45. If the defence objects to the prosecution calling a particular witness or witnesses or adducing certain evidence from a witness or objects to the tender of physical evidence, then the Judge or Magistrate should ascertain the basis of the objection for the purpose of ruling whether the evidence ought be allowed. If necessary and appropriate for the purpose of ruling on the objection, evidence may be given on the voir dire even if proceedings are without a jury: s.189 Evidence Act 1995 ; Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 at [107]- [112].

46. The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20] (Gleeson CJ and Hayne J).

47. There is no obligation on a trial judge to reject evidence under s.137 Evidence Act 1995 to which no objection has been taken: R v FDP [2008] NSWCCA 317 at 651-653 [23]- [30]. This reflects the role of the judge in adversarial proceedings. A statutory exception to this general principle is s.41 Evidence Act 1995 which requires a judge to reject an improper question whether or not objection has been taken: R v FDP at 652 [28]-[30] (concerning s.275A Criminal Procedure Act 1986 which is now to be found in s.41 Evidence Act 1995 ).

48. A prosecutor at a criminal trial (including a police prosecutor) is under a duty to lead the whole of the evidence to which the accused is required to make answer: Dhanhoa v The Queen at 9 [20]. The duty of the prosecutor with respect to the calling of witnesses is well known: R v Kneebone [1999] NSWCCA 450; 47 NSWLR 450 at 457-462 [39]-[56].