Magistrate Admonished for Observing Superior Court Judges Never “Met with Reality on the Ground”

In Elwood v Director of Public Prosecutions [2023] NSWSC 772 (14 July 2023) Davies J set aside a decision of His Honour Magistrate Prowse, of the Local Court at Dubbo, NSW, in relation to committal of the appellant for trial.  In so doing, Davies J was critical of the Magistrate for his remarks concerning the decisions of Supreme Court judges in the particular sphere.  His Honour, Magistrate Prowse, was described in a subsequent article in “The Australian” newspaper, on 19 July 2023, as “a distinguished Magistrate and the President of the Association of Australian Magistrates who was … “known for his at times harsh criticism of parties”.  This was reported as including remarking to a domestic violence defendant Glenn Dirix that if he had “a choice of speaking with Mr Dirix or picking up dog excreta I would go for the dog excreta really because it’s less odious”.

Davies J wrote:

1. The plaintiff seeks leave to appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal relates to the plaintiffs having been committed for trial on three offences on 26 October 2022 by Magistrate Prowse in the Local Court at Cobar. It also concerns two related summary matters dealt with on that day.
2. An appeal pursuant to s 53(3)(a) requires grounds that involve a question of law alone, and the Court must in any event grant leave. The plaintiff seeks, in the alternative, an order in the nature of certiorari, in respect of the Magistrate’s decision if the questions raised do not involve a question of law alone.
3. The defendant does not dispute that some of the questions, reformulated in an amended summons, involve questions of law alone, and does not dispute that error is shown in respect of some of the determinations of the Magistrate. Notwithstanding the defendant’s concessions the Court needs to be satisfied that a question of law alone is involved and that error is shown.
4. For the reasons which follow, I am satisfied that some of the questions raised in the amended summons involves questions of law alone, that the Magistrate has erred, and that leave should be given to bring the appeal. It is not necessary, therefore, to embark upon consideration of the interesting, but more difficult question about whether the new provisions in Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) (“CPA”) are subject to the decision of the Full Court of the Supreme Court in Exp Cousens; Re Blacket (1946) 47 SR (NSW) 145; and see Sankey v Whitlam (1978) 142 CLR 1 at 22 and Wentworth v Rogers [1984] 2 NSWLR 422 at 434.

….

19. A chronology was then handed up, and reference made to s 76 of the CPA.

…

HIS HONOUR: Yes Mr Crown? Yes Ms Melhuish?

MELHUISH: Yes your Honour in furtherance of the application for an adjournment in these matters I seek to read onto the record an affidavit under my own hand if I can tender that.

AFFIDAVIT OF MS MELHUISH TENDERED

HIS HONOUR: Sure. Any objection?

DOOHAN: No I’ve seen the affidavit and read it your Honour, there’s no objection.

HIS HONOUR: Well I’ve read that.

DOOHAN: Your Honour I’ll try and be a little bit helpful, I’ve reduced some short submissions to writing. If I could hand them up, they’re only a page and a half. I’ve given a copy to my friend.

MELHUISH: There’s no objection, I’ve seen those.

HIS HONOUR: All those cases you rattled off I thought I brought in but they must still be out on the – can you see the three cases sit on the desk in chambers please? I thought I brought them back in. Anyway moving along.

DOOHAN; Your Honour I referred to the old case of President Kirby when Kirby J of the High Court was President of the Court of Appeal. I’ve got the remarks that I refer to in handwriting if you want me to read them out but.

HIS HONOUR: No not really.

DOOHAN: It was just the…

HIS HONOUR: See I don’t think Kirby J or Yehia J or Basten J has ever been met with reality on the ground in relation to these sorts of matters.

DOOHAN: Yes your Honour.

HIS HONOUR: I fully accept what their Honours have said, I must say I intellectually fundamentally disagree with Basten J in the matter that was delivered yesterday or the day before. And I’m sure his Honour will probably lose not a wink of sleep over that and I accept that his Honour as his Honour usually has and probably will continue until they not let him come through the door any longer, deliver well thought out intellectually based judgments of high quality.

It seems to me as a lay – not a lay observer, but somebody being involved in the situation for a long period of time at this lower level that the whole of the EAGP scheme was as contended for by the appellant but unsuccessfully. But I’m bound by what Mr Basten J, Basten JA has now said and consequently I am, but I don’t think it makes a bit of difference to this sort of situation. Yes that’s them, thanks very much.

So the one that I was just referring to is Landrey. And I accept as I say what Mr Basten J in that reflects the view of the Court of Appeal and bound by it as I am I will follow it, but it is as far as I can see irrelevant to these proceedings. Except to apply what is said at the case note. I suppose I can find the actual – there we go 31, just read 31 out. Paragraph 31, and I suspect it’s Mr Basten J because he delivered the judgment on behalf of the Court. “It is readily apparent from this synopsis of chapter 3 part 2 that the purpose of a committal proceeding is to ensure’’.

…

HIS HONOUR: Righto. So back to the quote.

“That the purpose of a committal proceeding is to ensure proper case administration (as said) of the criminal process, with the dual intention that cases are not listed for trial unless the possibilities of guilty pleas have been explored and so far as possible exhausted. Again to the extent possible, challenges to the evidence of prosecution witnesses have been explored, so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire.”

So it goes on. So the critical words there are proper case management. But so I’ve read that, and I’ve read what Yehia J has said and I’m aware of that, in fact I think In the past I may have fallen into error in not engaging in that process, but with Yehia’s admonishment ringing in one’s ears one doesn’t propose to ever do so again. And I think Mr Button J is on the same wavelength as Yehia J.

But that doesn’t come to grips with the gravamen of this particular matter. That seems to been on a – the gravamen of this particular matter is that it is one year and eight days old and it’s clear in the circumstances that the progress spoken of by both Ms Melhuish in her affidavit and by the Crown in the Crown certificate is apparent because the charge case certificate that’s now been filed withdraws all but sequences 13, 16 and 25 which is certified for the District Court and leaves also sequences 19 and 20 for summary disposal.

With the greatest of respect to all the parties and to Mr Elwood the underlying legal principles in relation to each and everyone of those offences is crushingly simple. Unless Mr Elwood is raising a defence of that would attract the provisions that he would be declared not fit to plead and therefore can’t understand what’s going on, there is nothing complex in these matters. The only complexity arises from the involvement usually of lawyers or the only complexity arises involves the person being spoken to refusing to grasp reality, and the only complexity thereafter is seeking to perpetuate that which is relatively simple.

…

But at this stage the Crown is certifying those three matters. Seeking to have them committed for trial or committed for sentence, one or the other to the other place being the District Court. The police pursuit aspect in relation to one of the summary matters and driving whilst disqualified in relation to one of the other …(not transcribable)… matter. Again, there’s no complexity in relation to either of those two things. There is no reason advanced by either of the two parties for the matter to be continually and fruitlessly delayed.

I DO NOT PROPOSE TO GRANT THE ADJOURNMENT SOUGHT BY EITHER PARTY.

DOOHAN: Court pleases.

HIS HONOUR: So what pleas are being entered to the two summary matters 19 and 20?

MELHUISH: Not in a position to enter pleas at this stage your Honour.

HIS HONOUR: Well in that case pleas of not guilty are entered by the Court. Now a brief is in a position – how many Crown witnesses are there?

…

So Mr Elwood in relation to sequences 19 and 20 the Court has entered a plea of not guilty on your behalf, that’s clearly been marked, I better write down the date – today. Consequently the matter being returned to the Police Prosecutor for a prosecution, and being told that it’s a Bourke matter,

THE MATTER IS ADJOURNED TO 8 NOVEMBER 2022 AT BOURKE TO FIX A HEARING DATE AND BAIL NOT BEING APPLIED FOR IS REFUSED.

What pleas if any are being issued, entered I should say in relation to sequences 13 and 16 and 25?

MELHUISH: I’m not in a position to enter pleas today your Honour.

HIS HONOUR: Does anyone want to say anything further in relation to the 76 matter?

DOOHAN: To the s 76?

HIS HONOUR: Aspects, yes, apart from what you’ve already put in.

DOOHAN: No your Honour not as to 76 apart from whether your Honour wishes to give any more detailed reasons apart from what you’ve already said that’s…

HIS HONOUR: I will. I will.

…

HIS HONOUR: But this is your opportunity to put in submissions in relation to it.

DOOHAN: Thank you your Honour.

HIS HONOUR: In addition to what you put in, you don’t wish to, do you wish to say anything further in addition to what you’ve put in Ms Melhuish?

MELHUISH: No your Honour.

…

72. It may be observed from the portions of the transcript reproduced earlier, that the Magistrate made a number of highly inappropriate remarks which had the tendency to disparage judges of this Court. He also expressed his own personal views about the EAPG system which Parliament enacted.
73. It is not the place of a magistrate to say, “I intellectually fundamentally disagree with [a judge of the Court of Appeal] in the matter that was delivered yesterday”. The doctrine of stare decisis requires that judicial officers in lower courts accept the decision of higher courts. Further, to say of judges of this Court that he does not think that they have “ever been met with reality on the ground in relation to these sort of matters”, particularly when their decisions had been cited to him, is to bring this Court and the system of justice into disrepute.
74. These remarks are not made from any personal sensitivity for the judges of this Court, or for those who enacted the amendments to the CPA in regard to committal proceedings. The community, and those who come before the criminal justice system, must have confidence in the courts and in the way criminal justice operates.
75. For that reason, the proceedings will be remitted to the Local Court to be dealt with by a different Magistrate.
76. I make the following orders:

1. Grant leave to appeal.

2. Uphold grounds 1b, and 2a and 2b of the Amended Summons.

3. Set aside the decision of Magistrate Prowse of 26 October 2022 committing the plaintiff for trial in relation to sequences 13, 16 and 25.

4. Set aside the decision of Magistrate Prowse of 26 October 2022 in relation to sequences 19 and 20.

5. Remit the proceedings to the Local Court at Dubbo to be dealt with by a magistrate other than his Honour Magistrate Prowse.

6. No order for costs of the proceedings to the intent that each party should pay their own.

A link to the case can be found here.