In the recent decision of DPP (NSW) v Fungavaka [2010] NSWSC 917, the defendant entered a plea of not guilty to common assault. The prosecution did not comply with the court orders for service of the brief of evidence (this is a collection of statements from witnesses, medical reports, photographs etc), affecting F’s ability to obtain legal representation.

At the hearing, the prosecution made an application to adjourn the proceedings and to admit the evidence the prosecution relied on. This was opposed by F. Both applications were refused by the Local Court magistrate. The assault charge was dismissed.

Prerogative relief was sought by the prosecution in the Supreme Court. Hidden J quashed the magistrate’s orders.

At paragraph 20, His Honour distinguished the authority of DPP (NSW) v West [2000] NSWCA 103:

“..the course of the proceedings in the Local Court in that case [i.e. West]
was very different from the present case,and the Court of Appeal granted
relief because of an identified error of law which is not suggested here.”

The magistrate did not particularly weigh the seriousness of the assault charge and any prejudice to the prosecution and F, against the exercise of his discretion. Rather, the decision was erroneously based upon the failure of the police serving the brief in time.

The matter was remitted to the Local Court to be determined according to law.