By Paul Gregoire and Ugur Nedim
“Several remarkable things happened in the Dubbo Local Court that day”, said NSW Supreme Court Justice Peter Hamill at the outset of his 1 June final findings in regard to the 11 February 2022 NSW Local Court case R versus Faiva Peckham.
His Honour last week described the three-minute-long case presided over by NSW Local Court Magistrate Gary Wilson as a “travesty” due to a long list of “remarkable aspects” of what transpired over the proceedings that commenced at 2.44 pm on a Friday afternoon.
These abnormalities that saw the proceedings finalised by 2.47 pm, included no prosecution being present in the court, no guilty plea having been entered, the defence being barely able to speak, while no court papers appeared, and no reasons were given by the magistrate as to the outcome.
The police prosecutor at the court on the day was not even aware that the matter had to be dealt with until 3.06 pm, when she received an email from the court process officer, advising her that the defendant was to be released as the case was over.
Due to the lack of prosecution in the courtroom, the new-to-the-job Aboriginal Legal Service solicitor representing the defendant was left confused as to whether the case had been finalised. And what had happened only became clear to her, after the prosecutor emailed her later that day.
Breaching an apprehended violence order
The “remarkable” proceedings involved Faiva Peckham having breached his apprehended domestic violence order (ADVO) on the morning of 10 February this year, as he attended the premises of his ex-girlfriend, who was the “person in need of protection” under the order.
NSW police attended the address to inquire about Peckham’s breach only to be told by his former partner that he wasn’t present. But the officers saw him in the premises and arrested him at 10.50 am, taking him to Dubbo Police Station, where bail was denied.
Peckham then attended Dubbo Local Court via video link at 2.44 pm that afternoon.
The defendant was facing one count of contravening an apprehended violence order, contrary to section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This offence carries up to 2 years imprisonment and/or a fine of $5,500.
The three-minute proceedings
The 11 February transcript opens with Magistrate Wilson in the courtroom with the ALS solicitor. And prior to Peckham appearing on the video link, the solicitor points out that the prosecution is missing, while his Honour complains that he doesn’t have the court papers.
“We going to finalise this?”, the magistrate then asks the solicitor, to which she responds in the affirmative and then confirmed that the defence was seeking a “fine only punishment”. His Honour asks if there was any violence during the incident and the lawyer advises that there wasn’t any.
Just before the defendant appeared via video link, the magistrate remarked, “We need the prosecutor. We don’t really.”
Then Peckham appears on the screen, and the magistrate has a familiar conversation with him about how he should know better, that he has to comply with the conditions of the ADVO, and he then quizzes the defendant about his job prospects.
“All right. Well, I’ll tell you what I’m going to do. Give you a break. Record a conviction and send you on your way,” Magistrate Wilson said, as he invoked the power contained within section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides for such an outcome.
And after handing down the sentence, there were a few more exchanges between the magistrate, the defendant and the defence solicitor and then the proceedings were over.
A lack of procedural fairness
The NSW Director of Public Prosecutions filed to appeal the outcome of the case on 26 April, under section 56 of the Crimes (Appeal and Review) Act 2001 (NSW), which permits the prosecutor to appeal a decision based on a number of grounds, and for the appeals court to redetermine a case.
The NSWDPP appealed the decision on four grounds, two of which basically sum up the essence of the challenge. The first was a failure of procedural fairness due to the lack of a prosecution, and the fourth was “failing to give adequate reasons for the sentence imposed”.
In terms of the lack of prosecution during the Local Court case, both the ALS solicitor and the magistrate queried where the prosecutor was. His Honour asked, “Has anyone telephoned, Amy?”, in reference to police prosecutor Amy Jenner being absent from the room.
“A fundamental requirement of procedural fairness is that the parties to litigation are given the opportunity to be heard. No authorities need be cited for this proposition,” outlined Justice Hamill, prior to stating that the ground was established.
The Supreme Court justice further set out that during the proceedings Magistrate Wilson gave no reasons for his decision to record a conviction against Peckham’s name without any punishment issued in relation to it.
The fourth ground was upheld too, as Justice Hamill explained that while there are many cases going through the rushed NSW Local Court environment and reasons are often “brief, even scanty”, in Peckham’s case, the judicial officer simply made no attempt to explain his decision.
Remitted to the lower court
Justice Hamill further outlined that he’d originally thought to proceed with the appeal under section 56 of the Crimes (Appeal and Review) Act, in terms of resentencing the defendant himself. But that was prior to the lawyers heading up the appeal on both sides suggesting an alternative.
Crown prosecutor David Kell SC and ALS senior solicitor advocate Jeremy Styles both suggested the magistrate proceed pursuant to section 69 of the Supreme Court Act 1970 (NSW).
This section permits the higher court, on review of a lower court decision, to quash the original determination and remit the case to the lower court to be ruled on again in accordance with the law.
Kell submitted that the matter should be dealt with in this way, so it’s on the record that the original outcome had to be quashed, while Styles added that remitting the case to the lower court would ensure that Peckham could still appeal the outcome in the usual way.
So, on 1 June, Justice Hamill ordered that the record of the case be removed and that the order given by Magistrate Wilson be quashed. And he then ordered that the matter be sent back to the NSW Local Court to be judged again.
