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‘One of the most bizarre judgments I have ever read’

In the words of the presiding Supreme Court judge, “the transcript must be seen to be believed”.

user iconJerome Doraisamy 06 June 2022 The Bar
Dubbo Court
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On 10 February 2022, a man named Faiva Peckham breached an apprehended domestic violence order and was arrested. Later that day, he appeared in the Dubbo Local Court, before Local Court Magistrate GR Wilson, who had finished the “generally busy” Dubbo list at 2:20pm.

Supreme Court Justice Peter Hamill said: “Several remarkable things happened in the Dubbo Local Court that day. The proceedings were a travesty.”

The proceedings


During the proceedings, Hamill J noted, the following occurred:

  • “There was no Prosecutor present, either in the courtroom or via a video link, at any stage of the proceedings,” meaning that the prosecution had no opportunity to be heard;
  • It was “not explicitly stated” that Mr Peckham was entering a plea of guilty;
  • The ALS solicitor, “to whom no criticism is directed and who had commenced practice just a few weeks earlier”, was barely given the opportunity to be heard;
  • LCM Wilson had no Court Attendance Notice or Facts Sheet, and did not have access to Mr Peckham’s criminal history;
  • The Magistrate gave no reasons for disposing of the case under s10A of the Crimes (Sentencing Procedure) Act;
  • The Police Prosecutor and the ALS solicitor only became aware that the matter had been finalised upon receiving an email from the “Court Process Officer” indicating that Mr Peckham was “ready to be released”, and the ALS solicitor only realised that the matter had been finalised when she received an email from the prosecutor later in the afternoon.
The Director of Public Prosecutions appealed against the sentence and, in the alternative, sought judicial review of the decision, arguing that the Prosecutor was denied procedural fairness and that the Magistrate failed to give reasons.

The transcript of the Local Court proceedings, Hamill J said, “makes it readily understandable why the Director felt the need to bring this matter to the Supreme Court and why this Court must intervene”.

“The transcript must be seen to be believed,” His Honour stated.

Mr Peckham’s solicitor had raised the absence of the prosecutor at the outset. “It was the first thing she said,” Hamill J said, to which Wilson LCM said, “We need the prosecutor”.

However, the magistrate “immediately reversed his position: ‘We don’t really’,” His Honour noted.

Moreover, at no stage in the transcript does it appear that the Court papers arrived.

In her affidavit, the ALS solicitor said: “It happened very quickly, and I had trouble keeping up with what was being said between Magistrate Wilson and Mr Peckham. I did not interject in what was happening because I did not want to disrespect the Magistrate and because I was nervous.”

Her affidavit also indicates that she was 22 years old at the time, Hamill J outlined, and had only been practising for a few weeks.

“There is some irony in the fact that a 22-year-old solicitor did not intervene because she did not want to disrespect the Magistrate’s office, while the senior holder of the office seemed prepared to disrespect the entire, if ephemeral, process,” His Honour said.

With regards to denial of procedural fairness, Hamill J said that a “fundamental requirement” of it is that parties to litigation are given the opportunity to be heard”.

“No authorities need be cited for this proposition. The requirement of procedural fairness applies to criminal proceedings and applies equally to all parties to such proceedings.”

With regard to failure to provide reasons, Hamill J reflected that there are many Local Court cases that are resolved where “brief, even scanty” reasons will suffice.

“The adequacy of such reasons will vary from case to case. It would be wrong to attempt to be prescriptive. The sometimes-absurd workload of the magistracy must be acknowledged.”

Hamill J: “It might be inferred that Magistrate Wilson reached his decision because he accepted that Mr Peckham did not understand his obligations under the ADVO, or because he considered the breach to be a relatively benign one in which the complainant was somehow complicit. It may also be that his Honour was impressed that Mr Peckham had found a job and appeared to be genuinely contrite. While there was no evidence of some of those matters, a Magistrate can often accept such factual matters when submissions are made based on instructions.”

However, His Honour deduced, “the preceding paragraph is speculation. In the present case, no reasons were provided”.

As such, Hamill J removed the record of the Local Court proceedings, quashed the order made and remitted the proceedings back to the Dubbo Local Court.


Azadi Lawyers principal Shirin Mirzaee Razi told Lawyers Weekly that this was “one of the most bizarre judgments I have ever read”.

It is unfortunate, Ms Mirzaee Razi mused, that a matter “seemingly so small” had to go all the way to the state’s Supreme Court, only to get remitted back to the Local Court where it started.

It is “very concerning”, Jackson John Defence Lawyers partner Yashvi Shah added, how much time and effort was used in remitting this matter back to the Local Court for determination because of the Magistrate's judicial errors.

“Had the Magistrate waited for the Prosecutor to appear in Court and allowed the Defence to properly enter a plea of Guilty before proceeding to sentence, or adjourned this plea, this appeal would have been prevented and avoidable,” she remarked.

Solicitors appearing on both ends of the Bar table in the Local Court, she detailed, understand the stress that Magistrates deal with when they are overworked.

“However, the major slip-ups and direct disregard of criminal procedures in Court such as the example in Peckham is not expected nor acceptable from any judicial officer, albeit how busy rural Courts may be,” she surmised.

The Local Court is an incredibly busy jurisdiction, J Sutton Associates director Andrew Tiedt surmised, where magistrates will often deal with over 100 matters in any one day.

“There is a difficult balance for magistrates to strike between, on one hand, strict adherence to procedure and the need to provide full and proper reasons for decisions, and on the other hand, dealing with the extraordinary number of matters that need to be dealt with on that day,” he said.

“But there can be no doubt that the Court failed to strike that balance in this matter, in particular, because of the decision to sentence the offender even without waiting for the prosecutor to arrive.”

Potential solutions

For Ms Mirzaee Razi, this case raises the question of whether remittance is the most appropriate course, “or [if there] should there be another channel for matters like this to be reviewed, such as an internal review in chambers, or otherwise in the Local Court”.

“The resources, time, cost, energy and stress involved in this matter being appealed is astounding, and would not always be possible for private or self-representing parties,” she deduced.

“Whilst it is understood by all how busy the Court lists are, this is an excellent example of an area of our justice system that needs attention.”

“Perhaps finer delegation of matters, implementation of alternate review processes, appointment of more magistrates and support staff would prevent this from reoccurring in the future.”

Ms Shah agreed, noting that criminal lawyers are empathetic to the fact that a Magistrate's workload – especially in the metropolitan Courts of NSW – is one which is “often chaotic and unmanageable”.

“Local Court Magistrates sitting in the criminal jurisdiction find themselves with a list so hectic that one court cannot simply hear all the matters on the day, and some proceedings are not reached by 4:00pm that day unless they are allocated to other Courtrooms at the Courthouse if other Magistrates are available to hear them,” she detailed.

“The Court registries and our justice system must ease some workload or appoint more Magistrates, to take the burden off our sitting Magistrates who are human after all.”

“As being human makes them no more or less immune from fair criticism from higher Appellate Courts, when they do not practice procedural fairness in the Courthouses,” Ms Shah concluded.

The citation for this case is Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713.