Ali v Bray

[2011] QDC 372

DISTRICT COURT OF QUEENSLAND

CITATION:

Ali  v Bray  [2011] QDC 372

PARTIES:

RASHID ALI

(Appellant)

v

RICHARD GREGORY BRAY
(DEPARTMENT OF EMPLOYMENT, ECONOMIC

DEVELOPMENT AND INNOVATION)

(Respondent)

FILE NO/S:

No D82 of 2011

DIVISION:

Appellate  

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Beenleigh Magistrates Court

DELIVERED ON:

22/11/2011

DELIVERED AT:

Beenleigh

HEARING DATE:

23/06/2011

JUDGE:

Dearden DCJ

ORDER:

1)   Appeal refused

2)   The appellant pay the respondent’s costs, fixed at $1,800.

CATCHWORDS:

Appeal against conviction –  where refusal to grant adjournment at trial for witness availability – where no information provided to assist magistrate – where no failure of natural justice – whether an interlocutory issue or appellable under Justices Act (Qld) s.222

Costs – awarded per Justices Regulation 2004

LEGISLATION:

Justices Act (Qld), s.222

Justices Regulation 2004 (Qld)

CASES:

Sullivan v. Department of Transport [1978] 20 ALR 323, 343

COUNSEL:

Mr T Williamson for the appellant

Ms B White (solicitor) for the respondent

SOLICITORS:

Ian Bartels and Associates for the appellant

Department of Employment, Economic Development and Innovation for the respondent

1.HIS HONOUR: This is an appeal pursuant to Justices Act s.222 against conviction in respect of a number of offences on which the appellant was convicted after trial in the Beenleigh Magistrates Court on 23 June 2011. On that date the appellant was convicted of six out of the seven charges on which he proceeded to trial and was fined a sum of $14,000, ordered to pay costs and convictions were recorded.

2.The sole ground of appeal is that the learned magistrate did not allow an adjournment to enable the appellant to call witnesses who were in Fiji and who were not available to come to court on the day of the hearing. 

3.The proceedings on the day that the matter went to trial proceeded in two steps.  The first step was that the matter came before Magistrate Morgan and at that stage Mr Ali (the appellant in these proceedings) made an application to adjourn the trial on the basis that a number of witnesses were unavailable, having gone overseas.  I note for the record that Mr Williamson, who appears on this appeal, indicates that the appellant is Fijian Indian by origin and it appears that these potential witnesses had, some time prior to the trial, travelled back to Fiji. 

4.During the course of the exchange between Magistrate Morgan and the appellant (who appeared unrepresented) this occurred:-

"BENCH:  Now, how are these people relevant to your case?
DEFENDANT:  They were my witness, my Honour [sic].
BENCH:  And what might they say if they were called to give evidence today?
DEFENDANT:  They said, 'Whatever we have to say, we'll tell the Judge what we know about this matter.'
BENCH:  And what do you think they know?
DEFENDANT:  I don't know, sir. 
BENCH:  You don't know?
DEFENDANT:  No.
BENCH:  All right.  I'm not satisfied that you've made any sufficient attempts to prepare for today's trial and I refuse the adjournment." 

5.The matter then proceeded before learned Acting Magistrate Kucks where a number of witnesses were called for the prosecution.  In particular, however, there was no further request for an adjournment by the appellant in these proceedings.

6.The sole ground for the appeal, as I've indicated, was the refusal to grant the adjournment.  It is clear that there is, for any defendant in criminal or quasi criminal proceedings, a duty on the court or tribunal to afford natural justice, and the refusal to grant an adjournment may well be a refusal which amounts to a refusal to grant natural justice in the circumstances.  However, what's clear in this case is that the appellant was unable to advise Magistrate Morgan (and did not in fact take up with Acting Magistrate Kucks) either the full details of the witnesses, but more importantly, how (if at all) any one or more of the potential witnesses were going to be able to present relevant and admissible evidence in respect of his case.  In those circumstances then, the request for an adjournment, effectively to try and find out whether the witnesses might be relevant, if so who they were and what they might say, was simply "a bridge too far" to ask of the magistrate.

7.

Ms White, who appears for the respondent, relies on the decision of Sullivan v. Department of Transport [1978] 20 ALR 323, 343 where Deane J (as he then was) put the matter quite succinctly:

"The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment [citation deleted] ...
In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case.  Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." 

8.The learned Magistrate Morgan in these circumstances was in my view entitled to refuse the application for an adjournment, because he was quite simply given no information from which he could draw any conclusion as to the relevance or admissibility of any of the evidence which the unnamed and substantially unspecified elusive witnesses would be able to provide in respect of the trial which was listed to take place.  There had been no attempt prior to the trial to seek an adjournment, a matter which is frankly conceded by Mr Williamson, who appears for the appellant.

9.It is argued by Ms White for the respondent that this was in any event an interlocutory matter and therefore not susceptible to appeal pursuant to s.222 of the Justices Act. However, in my view, in a practical sense it's not interlocutory, because it goes to the heart of whether or not there was a fair trial for the appellant. In my view, the inability of the appellant to raise any matter of substance whatsoever, which could or might or may possibly have fallen from the unnamed absent witnesses, makes it absolutely clear that there has not been a failure of natural justice and in fact the appellant, within the constraints of a system which is designed to operate so that judicial time can be allocated fairly and appropriately and without unnecessary delay, had been given every opportunity of putting together the case that he wished to make in respect of the matter. Magistrate Morgan cannot be said to have fallen into error in refusing the application for an adjournment. That may well have been a completely different matter, of course, had Mr Ali been in a position to advise either Magistrate Morgan or Acting Magistrate Kucks of the names of the witnesses and the evidence that it was anticipated that would be called from them. That was not the situation. Mr Ali was not denied natural justice. It is therefore inevitable that the appeal must fail.

10.The order is appeal refused. 

11.I'll hear the parties on costs. 

. . .

12.HIS HONOUR: The successful respondent in these proceedings seeks an order for costs. Ordinarily costs follow the event, although, as Mr Williamson has just outlined, it may well be that the appellant is impecunious. That, of course, is the risk that he takes in bringing the appeal. In any event, the costs which can be awarded on appeal are regulated by the provisions of Schedule II Part I Regulation IV and Schedule II Part II of the Justices Regulation 2004 to a maximum of $1,800. In the circumstances, I order that the appellant pay the respondent's costs fixed at $1,800.

13.I'll mark that schedule of costs as Exhibit 3 on the appeal so that can be placed on the file. 

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