Tuesday, 24 April 2012

More musings about the Magistrates Court

I wrote recently HERE about an prosecutorial bungle that wasted nearly 12 months of the Court's time, and plenty of mine. It also raises a few issues that new solicitors should think about.

The first issue is Costs. If you look at the Rules closely, you can see that a Magistrate has the ability to Order costs in favor of the successful party at the end of the matter, but that applications for costs for a Pre-Trial conference should be made AT that pre-trial conference. So, if you are appearing and no progress has been made on the file, perhaps think about asking for costs.

The solicitor who appeared in the matter directly before mine had a very aggressive approach to seeking costs which clearly put the magistrate offside. She strongly criticised the prosecutor individually, although the circumstances of the matter were such that the Magistrate really had no option but to Order costs. You could tell, however, that he didn't want to do so, simply because of the manner of her presentation.

A better outline is to refrain from cricitising the prosecutor directly; the Magistrate will see what you mean.
Outline your case simply and clearly.
  • What happened on the last occasion, and what was Ordered to happen.
  • What has happened since.
  • Why hasn't happened since.
  • Why it hasn't happened.
Finally, highlight the waste of COURT's time, not your own, before you ask for costs. "Your Honour, since nothing has happened since the last occasion, this Pre-Trial conference is essentially a waste of the Court's time. I would make an application for costs thrown away." or something similar.

Another issue raised by last week's appearance is the niceties involved in Court-work. When do you object? When CAN you object? 

Last week I objected to the prosecutor reading out the apprehension report and making submissions. Clearly, in that case, it was a failure on behalf of the prosecutor, however there are other grounds too.

In another matter for another client, he was charged with obstruction of a public transport system, which carries a maximum penalty of $16,000. The matter was so minor as to be nearly trivial; he was sitting on the platform with his legs over the line. 

The only material that was provided was an affidavit of a public transport officer, who boarded the train at the request of the train driver some 2 stations later, and spoke to my client and his girlfriend. His affidavit set out the facts of the matter, and even said that it was a silly and stupid thing to do. (I could not disagree that my client was both silly AND stupid!). 

The prosecutor started reading out his submissions, and made some claims that were completely unsupported by the statement of the public transport officer. He made comments to the effect that my client saw the train coming, but waited until the last second to move away, causing significant distress. Upon the affidavit of the PTO and my client, that was absolutely not the case. I COULD have objected to that, but instead waited until it was time to make submissions in mitigation before I responded.

When I did so, pointing out that that allegation was a) not supported by the affidavit and b) not part of the allegations, I was stuck because the allegation was already before the court. The prosecutor couldn't withdraw it, because they had no clear instructions to do so. The prosecutor was in fact just reading from a sheet prepared by someone else! That was eventually resolved with a do not admit, do not oppose argument.

A senior solicitor once told me a story about an unusual objection. I can't remember the details, but in essence it was as follows.

The client had been charged with a regulatory offence under the Air Traffic Act or some such. It appeared on the surface a clear breach of the act, but the solicitor who was appearing walked into the trial absolutely gung-ho, and ready to go. From the very first minute, it was clear that he wasn't going to let this be easy.

The prosecutor got up, and said "Your Honour, I appear on behalf of the Crown," and the solicitor immediately said "I object!" 

It turned out that the solicitor had an argument to the effect that the prosecutor was not authorised under the act to appear to prosecute this type of offence, and indeed the Magistrate had to send that question upstairs before it was resolved. The moral of the story is that it is NEVER a bad time to object!

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