Court Observation at Parramatta Local Court - 14/09/2022
The last time that I took my students to the court for observation was in July 2019. I haven’t been able to take my students to the court in the last 3 years because the courts had been closed to the public due to COVID-related restrictions. In early July 2022, the Local Court announced that all restrictions had been lifted, so I quickly sent an email to the students in my Legal Interpreting tutorial last semester inviting them to come to the court with me to observe the court in action.
I’ve had to control the size of the group as social distancing is still very much on the minds of magistrates. There were 10 people in today’s group, 11 including myself; any more people would have been really pushing it. Though it’s been three years since the last group, it felt as though I was only there with the last cohort of my students yesterday!
It wasn’t just that I hadn’t brought any students to the court for three years, it seemed that magistrates had also not seen any students and members of the public there in their courtrooms for three years. So I’m pleased to say that two of the magistrates today took the time to greet us, they warmly welcomed us. One of the magistrates asked which university we were from, I said to the magistrate that we weren’t law students, that we were in fact Legal Interpreting students. The magistrate said in reply, “Ah, interpreters! Interpreters are very important, they’re sometimes not very easy to find. We really need interpreters to help keep the courts running!”
It is my practice that every time I take students to do court observations, I would go home and write up a digest of the matters that we observed in court that day. I’d write it up and send it to the students to help them review and make the most out of the visit, and I’d also post it on my Zhihu account. Here is the summary of the matters that we observed today:
In Courtroom 1.1 at Parramatta Local Court, the first matter we heard was an appearance for case management. The prosecutor sought an 7-week adjournment, during which time the prosecution would file a “charge certificate” with the court and would serve that charge certificate to the accused. Charge Certification is a process where the prosecution formally advises both the court and the accused what charges would be levelled against them. Once the defence solicitor receives the charge certificate, they would conference with the prosecution to discuss how they would plead to each of the charges, i.e. pleading Guilty or Not Guilty.
The solicitor said to the magistrate that his client was on remand, and that on the last occasion the magistrate advised that his client would not be required either in person or via AVL (audio-visual linkup), that’s why the accused was not in court.
Charge Certification as far as I know is unique to NSW. If you’re interested in knowing more about it, click here: Changes to Committal Proceedings (NSW)
The second matter was quite interesting. The female lawyer announced her appearance as being surnamed “Sant” (This will be relevant later). Her client was charged with one sequence of High Range PCA (PCA stands for Prescribed Concentration of Alcohol), this is a Driving While Under the Influence charge (colloquially known as DUI), as well as one sequence of Negligent Driving.
One day, the defendant drank one litre of whiskey and drove home. He had a minor collision on the way home, the traffic incident was very minor, no one was injured, and no property was damaged. Because of the fact that he had driven while intoxicated, AND that he had caused a collision, he was charged with both charges, not just for drink-driving.
The solicitor in asking for leniency for her client made the following submissions to the magistrate:
- Firstly, she said to the magistrate that the client had completed the Traffic Offenders’ Program yesterday. Although they hadn’t received the formal certificate of completion, she was in possession of a preliminary written proof of it. She showed it to the prosecutor, who had no objection to it being tendered; the written documentation was thus tendered to the magistrate for consideration.
- The defendant did not flee the scene of the incident. Rather he waited patiently for the police to arrive, and as soon as the police arrived, he made full admission to the police that he had consumed one litre of whiskey. He was cooperative with the police, he complied and did the breathalyser test as directed by the police.
- Whilst a collision did occur, it was very very minor, causing no injury or damage. Had he crashed his car causing significant injuries to a person or extensive damage to property, that would have been a different matter all together; however, the circumstances were that no such harm resulted.
- The defendant was charged with both drink-driving and negligent driving. Given that both charges resulted from the same incident, the magistrate was asked to take that fact into account in sentencing the defendant, having regard to the totality of the offending despite there being two sequences.
- The defendant was aware that High Range PCA was a serious offence that could land him in prison. Having attended the Traffic Offenders’ Program also instilled in him the sense of seriousness as well as causing him to show genuine contrition.
- The defendant drank heavily because something was bothering him, he became depressed and anxious over it; depression and anxiety was the root-cause of him consuming 1 litre of whiskey. Prior to this incident, he had not had any record of drink-driving or dangerous driving. In that sense, the “use of a mobile phone while driving” record notwithstanding, he should be recorded as a first-time offender for drink-driving. The solicitor also tendered a letter from the defendant’s family doctor showing that he has been actively seeking treatment for depression and anxiety since the incident. The defendant had also promised to continue with his treatment regime. (The magistrate was very pleased about him seeking professional help to deal with his depression and anxiety issues)
- The defendant was an owner of two businesses, being two seafood markets (a fishmonger). Since the incidence in May this year when his driver’s licence was confiscated by the police on the spot, he had been asking his friends to drive him to the fish market at 4AM every morning to buy stock for his shops. This inconvenience has also served as a form of punishment for the defendant, the solicitor asked that the magistrate took that into account in sentencing.
- By law, once the defendant gets his licence back following a High Range PCA conviction, he would need to have an interlock device fitted on his car for 2 years. The inconvenience and the significant cost of fitting an interlock device would also be a form of punishment.
In view of these circumstances, the solicitor asked the magistrate to make a Community Corrections Order instead of handing down a full-time custodial sentence, and that she requested the magistrate to exercise his discretion to alter the automatic disqualification period from 3 years to a shorter period of time, since he needs his driver’s licence for work.
Having heard the solicitor’s submissions, the magistrate turned to the defendant to give him a serious reprimand, but in the end the magistrate decided not to send him to prison because (1) he had pleaded guilty immediately and had shown remorse; (2) he had no prior drink-driving record; (3) the collision did not cause any actual harm or damage. The magistrate however noted that it was important to send a message to the community to show that drink-driving, particularly High Range PCA, was no small matter! His Honour therefore handed down a fine of $1,800 and a licence disqualification period of 9 months for the first sequence. As for the second sequence of Negligent Driving, the magistrate found the offence proven, and that a conviction was to be recorded. But since the same set of facts applied, no additional penalty was handed down for the second sequence.
The next matter was of a self-represented client. He had been out on bail, and one of his bail conditions was a curfew: he was to be home during the hours of 9AM and 6AM of the following day. He was found loitering on the street by police at 11:55PM one night, and so he was appearing today for have breached his bail condition (the curfew).
The excuse he gave the magistrate was that he had parked his car on a nearby street, he was concerned that there was something wrong with his car, and that maybe he wouldn’t be able to drive to work the following morning, so he decided to walk over to check on his car.
The magistrate rejected his excuse as not valid at all. But since loitering outside during the curfew caused no actual harm, the breach was considered minor in nature, the magistrate decided on this occasion that he would cut the defendant some slack and still let him remain out on bail. The magistrate however warned that he would clearly write on the defendant's file: “Any further breach will result in bail being revoked!”.
The next matter was a Chinese gentleman, Mr Law. This man was a business owner, he had a shop at the local shopping center. Mr Law said to the magistrate right away in his Cantonese accented English “It’s my fault!”.
After reading the fact sheet, the magistrate began talking to Mr Law about what had happened on the day of the incident. And it was this conversation that allowed us observing the proceeding in the public gallery to get a glimpse of what had happened. When a Mr X was exiting the defendant’s shop, the defendant saw a bulge in Mr X’s pocket. He being the shop owner decided to stop Mr X and asked to inspect the bag. Mr X refused to have his bag inspected, so the defendant called the shopping centre security to the shop. He waited for a while, the security guard did not show up, and Mr X tried to leave the shop, so in that heat of the moment, the defendant pushed Mr X, who fell and knocked over a shelf as he fell. When the security guards and the police finally arrive, it turned out that the defendant was mistaken, that Mr X had in fact not stolen anything.
The magistrate mentioned that the police in the fact sheet noted that as soon as they arrived, Mr Law the defendant was “extremely apologetic”. He made an open, full and frank admission of his own wrongdoing, and he reiterated that Mr X was not to blame. The magistrate said Mr Law should have left things to the security guards, that’s what they were there for. Whatever happened, the defendant should not have assaulted Mr X. However, the magistrate also pointed out that since it was a condition of entry to the shop that all bags be presented for inspection when asked, Mr X refused to have his bag inspected, so he was also not doing the right thing either.
The magistrate took into account the fact that Mr Law the defendant was extremely remorseful right from the beginning, the fact that Mr X was also not doing the right thing, and finally that Mr X sustained no injury as a result of the assault. In the end, the magistrate exercised the discretion granted to him by virtue of Section 10(1)(a) of the Crimes (Sentencing Procedure) Act of 1999 and dismissed the charge. Mr Law was free to go home, no conviction was recorded. A wonderful outcome indeed!
In the next matter, the solicitor announced his appearance as “Sant”. The magistrate said “I just had a Ms Sant appearing before me this morning. Was that your wife?” Mr Sant said, “Yes, Your Honour!”. Haha what an incredible morning, within in short period or less than an hour, we got to witness a husband-and-wife solicitor team in action this morning!
The male solicitor Mr Sant’s defendant was a serial offender of Driving while licence suspended. He was appearing in count today facing two charges of driving while suspended, he had driven on two separate days and was caught by the police on both days, thus two charges. It turned out that when he was pulled over for the driving offence, he had been on a Conditional Release Order for a previous conviction of driving while suspended!! Now, he was facing two fresh charges, as well as the old charge being brought before the magistrate again for re-sentencing!
His solicitor Mr Sant asked for some more time so he could familiarise himself with the charge from the last occasion. He was granted some additional time for it.
The last matter we heard was a chronic alcoholic assaulting a wheelchair-bound man. The female Legal Aid solicitor representing this man did a pretty good job. It was clear that the defendant was guilty, and being an unemployed alcoholic who had assaulted a wheelchair-bound man, not much could be said on his behalf, and the magistrate was probably not going to be sympathetic towards him. Nevertheless, this solicitor from Legal Aid still managed to say something positive for her client! She made the following submissions:
- The defendant was dead drunk, he had no memory of the assault. However, having watched the CCTV produced by the prosecution, he admitted that it was him, and he pleaded Guilty to the charge. He also expressed his apology to the magistrate, noting that he felt embarrassed by his action.
- The CCTV footage only captured the beginning of the scuffle, but clearly he was the one who initiated it. The solicitor acknowledged there was no defence available to the defendant (it wasn’t self-defence or anything like that).
- The defendant admitted that he was a chronic alcoholic. He had been sober for 5 days as of this morning. The only period of time that he had stayed sober was 7.5 years, but sadly he fell off the wagon, and he’d been on and off like that for many years, unable to shake off the vice for good. The solicitor said that despite being a chronic alcoholic, prior to this incident, he had never allowed his drinking to become a problem for anyone else; intoxication had always been a bad habit of his, but he had never acted violently towards anyone else before when he was drunk. (Interestingly, the magistrate called the man who was assaulted “the co-accused”, that suggested to me that this so-called victim was not quite the victim as one might believe).
- The defendant was unemployed and he was a government benefit recipient, receiving $420 a week. The solicitor therefore asked that the magistrate take into account his limited financial means if a fine was being contemplated.
In handing down his sentence, the magistrate said, (1) while the charge he was facing was Common Assault (the lowest level of assault charges, this charge means the victim sustained no injury), the fact that he punched a person in the face rather than some other part of the body meant that its objective level of seriousness was at the higher end of Common Assault; (2) his criminal record didn’t help him. His criminal record wasn’t lengthy, particularly when consideration was given to violent offences, there was only an assault in 2006 and another assault in 2015. (3) Although he was a chronic alcoholic, he had not been in trouble with the law for 6 years since his last offending in 2015, therefore the magistrate felt that the Section 5 threshold had not been crossed, it was not necessary to send him to prison. The sentence handed down in the end was an 18-month Community Corrections Order with supervision, and a $500 fine. (It looks like that solicitor’s submissions were quite effective and were very well received by the magistrate!)
We finished on a civil matter. The plaintiff engaged a barrister, and the defendant had only engaged a solicitor. The barrister appeared via audiovisual linkup possibly because he was a close contact or he himself was recovering from COVID-19. He was however prepared to conduct the hearing via AVL. The defendant however, through his solicitor, handed up a medical certificate to say that he was suffering from an infection of the upper respiratory tract, and that he was on his way to get a PCR test for COVID-19, therefore he could not appear in court today. In light of the medical evidence produced, the magistrate had no choice but to adjourn the matter.
We heard in court today many terms and expression that we covered in class: High Range PCA, Negligent Driving, fact sheet, a minor collision, Traffic Offenders’ Program, tender documents, bail conditions, breach of bail, curfew, threshold, disqualification, good behaviour bond, CRO (Conditional Release Order), CCO (Community Corrections Order), plead “Guilty” at the first available opportunity, remorseful, to seek an adjournment, co-accused, in terms of the objective seriousness of the offence.
What a fun day it’s been for me! I hope the students also found the experience a valuable one, and my recap of the matters today in two languages helpful.
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University
Click here to read this post in Chinese: 2022年9月14日 Parramatta 法院旁听案情回顾（中英对照）
No comments:
Post a Comment