By Paul Gregoire and Ugur Nedim
NSW Magistrate Roger Prowse entered not guilty pleas beside five charges laid against Tray Elwood at Cobar Local Court on 26 October last year, committing the defendant to stand trial in the NSW District Court in relation to three of the criminal offences, while two were to be dealt with summarily.
The reason this outcome was the subject of consternation in the NSW Supreme Court common law division this month is that Elwood had not entered any pleas in regard to what was a fresh charge certificate presented the day before the proceedings that had indicated 24 charges had been removed.
The issue Magistrate Prowse had was Elwood was first charged with 29 criminal offences on 12 October 2021, and by the following May the matter had appeared six times, with the case first coming before him last September, which was when he determined the next adjournment would be the last.
So, despite the NSW Director of Public Prosecutions agreeing with the criminal defence lawyer from the Aboriginal Legal Service in that another adjournment was warranted so Elwood could consider how to plead to the remaining charges, the Magistrate decided to enter not guilty pleas against all those left. This left Elwood deprived of the 25% discount on sentencing, to which he would have otherwise been entitled, had some time been allowed for him to consider pleading guilty to the charges.
The highly unusual act by the Magistrate was appealed this month to the Supreme Court, as section 53 of the Crimes (Appeal and Review) Act 2001 (NSW) allows for an appeal over a committal hearing only when it involves a ground that is “a question of law alone”, which this case does.
A question of law
Magistrate Prowse put to the court last October that the ongoing adjournments hadn’t just affected the defendant, who’d been remanded for over 12 months, but they also related to the Evans whose house he’d allegedly broken into and Stacey Palin, whom he is said to have robbed whilst armed.
His Honour reflected on the ALS lawyer having taken over in June, and that over those four months, she’d successfully negotiated for 24 charges to be withdrawn, and he added that with such legal skill shown, he couldn’t understand why a decision on the final charges couldn’t be made that day.
This “meets the test of being an unreasonable failure by the legal representative of the accused person to complete a case conference certificate”, said the Magistrate, adding that due to this error, he was entering not guilty pleas beside the three offences and committing them to trial.
Magistrate takes aim at legal process and superior judges
Magistrate Prowse then proceeded to take aim at both the early appropriate guilty plea (EAGP) scheme – whereby the discount given for a guilty plea depends on the stage of proceedings at which the plea was entered – as well as at highly-respected justices of superior courts.
In relation to the former, his Honour remarked:
“No, no, I’m not asking you for your personal views, that’s my analysis of the policy underlining the marketing name Early Appropriate Pleas of Guilty. The word early is produced devoid of meaning, taken out the back and pillaged, yet nevertheless it is part of the marketing guff that they go on with….”.
In relation to the latter, and in response to the DPP solicitor raising a case dealt with by justices of the Supreme Court, his Honour stated:
“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”, adding:
“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…”.
Supreme Court appeal
On appeal, NSW Supreme Court Justice David Davies pointed out that the DPP challenged whether most of the grounds of appeal were actually “questions of law alone”, as it had countered that all such grounds, other than three, did not meet the specific law only requirement.
The grounds that the director agreed did meet appeal standards were whether a magistrate can consider not adjourning prior to proceedings, while the other two involved the case conference certificate obligations set out in section 76 of the Criminal Procedure Act 1986 (NSW) (the CPA).
After a DPP issues a charge certificate outlining offences to be acted on, a case conference must then occur between the defence and the prosecution, which allows discussions to be had about an accused’s pleas, and after such a meeting a case conference certificate should be signed by all.
Points of law grounds
Justice Davies found that regarding whether the magistrate had the authority to enter pleas on behalf of the accused that Magistrate Prowse had first indicated he would do so in September, while the DPP had agreed to a new adjournment in October, so he had no right to intervene.
This ground was made out as the Magistrate had no power to have made the pleas on behalf of Elwood, in this question of law only matter.
And in terms of whether the Magistrate had considered “the interests of justice” correctly when exercising the power within section 76 of the CPA, on three matters regarding the failure to correctly comply with case conference considerations, his Honour found two grounds stood up.
Justice Davies outlined that despite both sides having failed to present a completed case conference certificate, only the defence was penalised, as Elwood was made to enter pleas without having decided to, and the Magistrate gave no reasons for entering not guilty pleas, rather than discharges. Justice Davies further found that this was contrary to the purposes of a committal proceedings, where there was evidence before the court that the negotiations between prosecution and defence were active and ongoing.
Further, in entering pleas, the Magistrate failed to consider how this would affect the guilty plea sentencing discount system in section 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW), although he did note the protocol, remarking that he wasn’t sure what would happen with it. This forced the defendant to lose the 25% discount, which he might have otherwise been entitled to had he been given more time to consider his plea before being committed.
And with these two grounds regarding section 76 of the CPA made out, along with the one pertaining to the magistrate’s preconceived decision-making process, the appeal was made out.
Remitted to the lower court
“The magistrate made a number of highly inappropriate remarks which had the tendency to disparage judges of this court,” said Justice Davies, on making his determination, adding that Prowse had “also expressed his own personal views about” about the early appropriate guilty plea system.
“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’,” his Honour added. “The doctrine of stare decisis requires that judicial officers in lower courts accept the decision of higher courts.”
Justice Davis also took great umbrage at the magistrate having implied that NSW Supreme Court justices have never “been met with reality on the ground in relation to these sort of matters”, especially as such points were raised at proceedings, as it brought the court into “disrepute”.
And his Honour added that the issue with the magistrate having made these sorts of remarks was not due to the sensitivities of judicial officers or the parliamentarians who wrote the laws, but what is at issue is that the community needs to continue to hold confidence in the criminal justice system.
So, Justice Davies upheld the appeal, revoked the guilty pleas that had been added to the charge certificate filed against Elwood, and the case was remitted to the Dubbo Local Court to be heard by a magistrate other than his Honour Prowse.