Misplaced and Inappropriate – Magistrate Roger Prowse Slammed by Supreme Court (again)

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David Heilpern

Magistrate Roger Prowse was severely criticised by the Supreme Court last week in the case of Elwood v Director of Public Prosecutions [2023] NSWSC 772.

Reading the excerpts of the transcripts from the Local Court is wincingly painful. 

At one point, the Magistrate is referred by counsel to judgments by three Justices of the Supreme Court. 

Magistrate Prowse commented: 

“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”.

On that point, Davies J in Elwood found at [72 – 75]: 

“It may be observed from the portions of the transcript reproduced earlier, that the Magistrate made a number of highly inappropriate remarks which had the tendency to disparage judges of this Court. He also expressed his own personal views about the EAPG system which Parliament enacted.

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”. The doctrine of stare decisis requires that judicial officers in lower courts accept the decision of higher courts. Further, to say of judges of this Court that he does not think that they have “ever been met with reality on the ground in relation to these sort of matters”, particularly when their decisions had been cited to him, is to bring this Court and the system of justice into disrepute.

These remarks are not made from any personal sensitivity for the judges of this Court, or for those who enacted the amendments to the CPA in regard to committal proceedings. The community, and those who come before the criminal justice system, must have confidence in the courts and in the way criminal justice operates.

For that reason, the proceedings will be remitted to the Local Court to be dealt with by a different Magistrate”.

Magistrate Prowse is not a stranger in reports of appeals to the Supreme Court. For example, in Dpp v Rugeri 2016 NSWSC 630, Wilson J found [at 62]:

“The Magistrate formed a view about the actions of the police officers who had arrested the first defendant based upon an understanding of the law that was entirely wrong and, without giving proper, or even any, consideration to the submissions of the parties to proceedings. On the basis of that erroneous view, he refused a legitimate and apparently proper application for an adjournment, again without having regard to the submissions of the parties (and, particularly, the consent of the first defendant to the adjournment), and without considering the merits of the application. In so doing, he not only fell into error, he undermined the proper administration of justice and diminished the Court over which he presided”.

In DPP v Wallman [2017] NSWSC 40, Fagan J at 33 described orders made by Prowse as “manifest and fundamental errors”.  Other errors were identified in DPP v Mustow [2016] NSWSC 1538, NSW Commissioner of Policy v EyKamp [2017] NSW SC 1723, Commonwealth Director of Public Prosecutions v Seymour [2009] NSWSC 555, and Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492.

It is important to remember that in each of these cases there are real defendants, alleged victims and lawyers who bear the burden of time, stress. money and the waste of resources inherent when Magistrates get it wrong. 

Other newspaper reports illustrate comments that did not make it to the Supreme Court including a declaration that sentencing laws are “pathetic”, and concerning an order he made that the Attorney Generals department pay costs for delays when Tamworth Court was not provided with sufficient staff. 

The purpose of this article is not to rake over these errors, or even to discuss transcripts that could fill a cringeworthy book of analysis.

The drive is to explore the misguided critique of these three Justices of the Supreme Court by suggesting that they somehow are above the coal face by “never having been met with reality on the ground”. I know from personal experience that judicial officers cannot defend themselves in the public arena, and so it is incumbent upon others to set the record straight. 

 I first knew Justice John Basten when he taught me law at UNSW, and was a practicing barrister at the time. He was a founding member of the Redfern Legal Centre, sitting on its management committee from its inception in March 1977 until 1983. I became a groupie, attending at court when he appeared for disadvantaged and marginalised people in courts including matters in the Court of Petty Sessions. He regularly appeared pro bono, and represented Timothy Anderson in the Coroners Court. He became a leading barrister in the land rights movement. He was for many years the Chair of the Prisoners Legal Service Advisory Committee and a Law Reform Commissioner. To suggest that with that background and commitment Justice Basten is somehow loftily remote from the realities of the work of a Magistrate ignores and insults history. 

Justice Yehia worked for the Western Aboriginal Legal Service from 1989 to 1996 and appeared primarily in the Local Courts in towns such as Bourke, Brewarrina, Wilcannia and Broken Hill. I have no doubt, ironically, that she would have appeared in the very courts where Magistrate Prowse erred. Most of this work would have left Justice Yehia particularly concerned with procedural issues in the Local Court. She then worked as a Solicitor Advocate with the Legal Aid Commission, and was then Deputy Senior Public Defender. She appeared as lead counsel in Bugmy and Honeysett. As a District Court Judge she presided over trials in many regional areas, and was the Chairperson of the Walma Court Working Group. To contend that a judicial officer with that biography is somehow removed from reality on the ground is patently ridiculous. 

I first met Justice Kirby when he wrote the forward to my book on sexual assault of prisoners. He also came to speak to a small group of Magistrates graduating in our orientation program in 1999. This was not a high-profile gig, but showed the commitment of Justice Kirby to educating and supporting the Local Court. Perhaps Magistrate Prowse has not read an essay by Justice Kirby titled “The Case That Changed Me” readily available on the Law Society of NSW website. It describes acting for an Aboriginal man, Owen Westcott charged with police offences in 1965 in Walgett Court of Petty Sessions. Aboriginal people were not permitted upstairs in the town cinema, and Owen bought a ticket for the upper circle – police were called when he demanded entry. This was just one of many cases where Justice Kirby acted pro bono when referred by the Council of Civil Liberties, many in the lower courts. Magistrate Prowse’s commentary besmirches a lawyer who was prepared to get his hands dirty dealing with just the type of case where Magistrate Prowse erred. 

Aspiring to do justice by slighting those who are leaders of our profession is not just a breach of stare decisis, it brings the Local Court into disrepute. Folksy colourful familiarly is not a shield for disparaging pontificating commentary.

On leaving the Scone circuit Magistrate Prowse was interviewed and reportedly stated:

“I would have made an appalling teacher, because I think my legendary patience would have deserted me very shortly after I started,”

Say no more.


Endnote: Two confessionals – I have known Magistrate Prowse and each of the Justices he derides for decades. Further, I had (at least) two appeals upheld over 22 years regarding my own erroneous decisions in the Supreme Court, but fortunately I was corrected with kindness.

Image Credit: Photo of David Heilpern by Jeff Dawson at the Byron Shire Echo

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David Heilpern

David Heilpern

Former New South Wales Magistrate David Heilpern is the Dean of Law and Chair of Discipline Faculty of Business, Law and Arts at Southern Cross University.

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