Ardalich v Police - [2007] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ARDALICH v POLICE
[2007] SASC 196
Judgment of The Honourable Justice Gray
25 May 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION
Appeal against conviction - appellant convicted by Chief Magistrate of assault - appellant was without legal representation for part of the trial - whether the Chief Magistrate erred in commencing the trial when the appellant was unrepresented - whether a miscarriage of justice occurred by the Chief Magistrate allowing evidence to be called without allowing immediate cross-examination, but adjourning and allowing cross-examination of the witnesses later - whether an ex parte judgment entered by the Chief Magistrate as a consequence of the appellant's failure to attend trial created a miscarriage of justice - whether the appellant had adequate notice of a new witness - whether a miscarriage of justice occurred by procedures not being put in place to enable the appellant to obtain discovery or to order the issue of subpoenas - whether the Chief Magistrate erred in not allowing the appellant a reasonable opportunity to find alternative counsel once his original counsel did not attend the trial - whether the Chief Magistrate's judgment was made against the weight of the evidence - Held: appeal dismissed - appellant was fit to stand trial and in no different position to any other unrepresented litigant in court - appellant had ample opportunity to cross-examine all prosecution witnesses - ex parte finding was unreservedly discarded and not relied upon in any way by the Chief Magistrate - appellant had adequate notice of new witness - appellant had adequate time to prepare his case, institute pre-trial enquiries and issue requests for disclosure and subpoenas - the Chief Magistrate made factual findings that were clearly open on the evidence.
Driscoll v R (1977) 137 CLR 517; Jago v District Court of New South Wales (1989) 168 CLR 23; Dietrich v R (1992) 177 CLR 292; MacPherson v The Queen (1981) 147 CLR 512; R v White; R v Piggin (2003) 7 VR 442; R v Gidley [1984] 3 NSWLR 168; Cooling v Steele (1971) 2 SASR 249; Moore-McQuillan v Police (1998) 196 LSJS 488; Hittmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297; Pezos v Police [2005] SASC 500, considered.

ARDALICH v POLICE
[2007] SASC 196
Magistrates Appeal
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Alexander Ardalich, was charged with assault. The particulars of the complaint were that on 8 March 2003 at North Adelaide he assaulted Antonio Pasquale Perrina.
The trial, before the Chief Magistrate, commenced on 7 October 2004. Submissions concluded on 5 July 2006. Judgment was delivered on 28 August 2006. The Chief Magistrate found that the offence of assault had been proved beyond a reasonable doubt.
On appeal complaint was made about procedures followed and an alleged lack of procedural fairness. It was also said that the verdict was against the weight of evidence. In the circumstances, it is convenient to first summarise the evidence led at the trial.
The Respective Cases
The prosecution case was that on 8 March 2003, at or about mid-morning, Mr Perrina was at a café at North Adelaide. He was there with a friend, Fortunato Saccoia. The appellant entered the café.
Mr Perrina provided the following account of the incident:
Q.Was there some conversation between yourself and [the appellant] on this occasion.
A.Yes, I just said ‘Where’s my money?’ And he turned around ‘I don’t owe you nothing’, started mouthing off or something, calling me a few names, and picked up that thing, the coffee cup, went in and smashed me in the face.
Q.Could you describe how he picked up the cup and smashed you in the face.
A.I can’t remember exactly everything, whether my mate had left his cappuccino cup finished or something, he was standing there next to the newspaper, picked it up and took a swing at me and got me in the face.
Q.Did you retaliate in any way.
A.Well, I was going to but then I just didn’t. I just sort of – sort of hesitant and didn’t continue. It wasn’t worth it.
Q.What result, if any, did the strike from the coffee cup on your face produce.
A.Probably just a bit of a fat lip, probably cut inside and a bit of a jar to the neck.
Q.Was there pain associated with that blow.
A.A little bit. I get sore necks every now and then.
Q.No, what I meant was the moment that you were struck with the coffee cup did that cause pain.
A.Yes, I was a bit stunned. I was stunned a little bit.
Q.Was there any cut produced.
A.On the inside of my lip I think, yes.
Q.Did the glass shatter.
A.No.
Q.How did the incident resolve, what happened.
A.My mate stood up and sort of put his left arm up for me not to retaliate and I sort of kept my cool and he got asked to leave by the owner of the coffee shop.
Mr Perrina consulted Dr Utten, his general practitioner, several weeks later complaining of jaw injury, neck pain and insomnia. Dr Utten’s examination revealed tenderness to Mr Perrina’s left chin and cheek, with some restriction to neck movement. Dr Utten gave the following evidence of his examination:
A.[Mr Perrina] reported that he had been assaulted. He’d been hit with a glass cappuccino cup, resulting in a jaw injury, neck pain and subsequent insomnia.
...
Q.You mentioned that when you examined Mr Perrina you saw an injury which you considered to be consistent with having been caused by the mechanism described to you by Mr Perrina. The further treatment which you undertook with Mr Perrina, did that change your opinion at all. Did you firm it up or lose it or just remain about the same.
A.No, that’s consistent with soft tissue injury of the neck. But again from a number of different causes.
Q.But assuming that the injury did occur as he said, its continuance could relate to the one single incident.
A.Certainly, yes, that’s certainly possible.
Mr Saccoia gave evidence generally confirming Mr Perrina’s account.
Mr Dean, an employee of the café, was working that morning. He described the incident in his evidence in the following terms:
Q. How did the incident progress, you said there was an argument.
A.It was very quick, there was discussion, an argument a heated interchange then the next thing I saw was [Mr Perinna] got hit across the face, across the side of the head.
Q.Who hit him.
A.[The appellant].
Q.Can you describe in as best detail as you can how that blow was delivered.
A.It was so quick, all I remember that he swang and hit him across the head.
Q.Were you able to see whether it was delivered with a particular type of strike, for example an open hand or closed fist.
A.I don’t know, I know there was certainly a loud bang when it hit, not a bang it was a really thud when he hit.
Q.Do you recall any blows being delivered or any attempts being made by [Mr Perrina] to deliver a blow back.
A.No.
Q.What about after the blow was struck by [the appellant] on [Mr Perrina] did [Mr Perrina] respond physically.
A.He stumbled back a little bit and I remember simply I was surprised he didn’t do anything he just stood a step back.
Q.When this happened roughly how far were you from the group of three.
A.The bar’s 9 metres, so I’d say I’d be about 6 metres, 5 metres away.
Q.Was there anything that obstructed your field of view in relation to each of these three people.
A.No.
The remaining prosecution witness was Constable Stuart Rees. He spoke of Mr Perrina’s complaint to the police and the follow up enquiries. Constable Rees gave the following account of his conversation with the appellant:
A.Yes. I basically said to [the appellant] that I had a complaint of assault by Mr Perrina. He had alleged that at about 1 p.m. on 8 March 2003 at [the café in North Adelaide], that he had been assaulted by him by being hit to the face with a glass mug. I asked [the appellant] if he understood that.
Q.Did he respond.
A.His response was ‘That scumbag. I’ll tell you what happened. He hit me and I complained to the manager and I got thrown out. You know that he’s assaulted me about a dozen times in the past and you people have done nothing. It’s absolute rubbish and I have nothing further to say’.
Q.Did the conversation proceed further.
A.It did. I then clarified with him whether he wanted to ask any further questions in regards to the allegation – or whether he did not want to answer any further questions, I’ll correct that – and he said to me ‘That’s correct. He stalked me and assaulted me. He’s a drug dealer and an ex-client of mine and I have nothing further to say’, and I advised [the appellant] that the facts would be reported.
The appellant gave evidence. He denied the prosecution allegations and in particular, denied having committed any assault. His account was that he had been assaulted by Mr Perrina. His evidence was consistent with the account given in his statement to the police. He alleged that the prosecution case was nothing more than a concoction.
The appellant called one further witness, Warren Pearce. Mr Pearce’s recollection of the incident was limited. In the course of evidence he said:
Q. What did you observe in the altercation.
A.There were two men sitting at the end of the counter and the one on the furthest side lent over and gave [the appellant] a back hander or a push, so to speak.
Q.To what area of his body.
A.The upper part. Head or shoulders sort of thing.
Q.What effect did that have.
A.[The appellant] erupted into anger at that point.
Q.Go on from there.
A.It became quite vocal and one of the staff members of the café came up and basically asked him to leave at that point. [The appellant] was protesting this guy had assaulted him at that point but it was falling on deaf ears.
Following the conclusion of the evidence detailed submissions were put by both the prosecutor and by the appellant. The Chief Magistrate reserved judgment.
As earlier observed, the Chief Magistrate found the charge proved beyond a reasonable doubt. He accepted the evidence of Mr Perrina, Mr Saccoia and Mr Dean as to the circumstances of the incident. He accepted the evidence of Dr Utten. The Chief Magistrate rejected the evidence of the appellant and Mr Pearce. The Chief Magistrate concluded:
Mr Perrina and Mr Saccoia were seated when the [the appellant] entered the café. Mr Perrina spoke to the [the appellant]. The [the appellant] immediately lost his temper and grasped the latte glass close to Mr Perrina and struck him on the side of the face, causing initial pain. I find that Mr Dean intervened and required the defendant to leave the café.
The Course of the Proceedings
On appeal, the appellant, who appeared in person, raised a number of complaints. As earlier observed, most complaints involved issues of procedure or procedural fairness. To understand these complaints, it is necessary to make some observation about the course of the proceedings.
The incident, the subject of the charge, occurred in March 2003. The complaint was laid in August 2003. In May 2004, during the course of a pre-trial hearing, a trial date was set for 7 October 2004 with two days set aside.
On 7 October 2004 the hearing of the trial commenced after an unsuccessful application by the appellant to vacate the trial date. The trial proceeded. The appellant was present but unrepresented as his counsel was unavailable. The trial proceeded on the understanding that the prosecution witnesses would be recalled at a later time to be cross-examined. Evidence was led by the prosecution from Mr Perrina, Mr Saccoia, Dr Utten and Constable Rees.
On 3 December 2004, the trial resumed. The appellant was legally represented. Mr Dean gave evidence and was cross-examined. On that occasion, the witnesses who had been presented in October 2004 were not available for cross-examination.
Following the December 2004 hearing, the matter was the subject of extensive interlocutory hearings. On most occasions the appellant was legally represented. There were adjournments due to the unavailability of counsel. There was a change of counsel. On 25 January 2006, a date was set for the resumption in July 2006 with two weeks set aside for the hearing.
The trial resumed on 3 July 2006. On this occasion, defence counsel did not appear and the appellant was unrepresented. The Chief Magistrate rejected an application to further adjourn the matter. The evidence was concluded and final submissions were made. Each of the witnesses who had earlier given evidence in chief were presented for cross-examination. The appellant elected not to cross-examine.
The Chief Magistrate in his reasons described the course of the trial in the following terms:
The matter came before me on 7 October 2004 for trial. The [the appellant] entered a plea of ‘not guilty’.
The case proceeded before me with many interruptions as a result of issues between [the appellant] and his legal representatives. The evidence concluded on 7 July 2006.
I have had the benefit of the transcript of the evidence and I have read and re-read the transcript and I have also had the advantage of referring to the extensive notes which I made as the trial progressed. My notes include my impressions of various witnesses and my conclusions about their evidence made contemporaneously with their evidence.
I have, from time to time, given rulings about the progress of the trial and issues of representation for the [the appellant]. They are contained in the transcript and I need not repeat them.
Risk of Miscarriage of Justice
The ultimate question to be considered on this appeal is whether, having regard to the history of the proceedings, the circumstances of the appellant and the conduct of the trial itself, there is a risk that there has been a miscarriage of justice.
An appellate court must review the proceedings and evidence in its entirety to determine whether a miscarriage of justice has been occasioned, and in turn, whether the remedy of a retrial is required. The occurrence of a procedural irregularity in a trial does not, of itself, amount to a miscarriage of justice. As was observed by Barwick CJ in Driscoll:[1]
[I]f there is error in the trial, whether of law or of procedure, or of emphasis or presentation of fact, a new trial is not a necessary result. It remains, in my opinion, for the court on its own review of the evidence to be satisfied that a miscarriage has occurred. Although I have stated that condition positively, it must rest upon the appellant in the first instance to raise in the mind of the Court of Criminal Appeal a reasonable doubt as to whether in all the circumstances a miscarriage may not have occurred. It then must rest upon the Crown, if an order for a new trial is not to be made, to remove any such doubt from the mind of the court so that it is not satisfied that a miscarriage has occurred.
[1] Driscoll v R (1977) 137 CLR 517 at 526.
The right to a fair trial ultimately requires that a person not be tried and convicted unfairly. The right of an accused at common law to receive a fair trial does not entail a right to a “perfect” or “flawless” trial. In Jago v District Court of New South Wales,[2] Deane J observed:[3]
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused’s “right to a fair trial”. I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable “right” since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default of impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.
[2] Jago v District Court of New South Wales (1989) 168 CLR 23.
[3] Jago v District Court of New South Wales (1989) 168 CLR 23 at 56-57.
These observations were reinforced in Dietrich,[4] where Gaudron J observed:[5]
A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all. If an accused person declines to be legally represented, then he may be taken to accept that, in the circumstances, fairness does not depend on legal representation. But that situation aside, if fairness requires legal representation there can be no trial without it.
If fairness requires representation in a particular case, in a particular class of case, or, even, in all cases, that will have consequences – probably in relation to the administration of legal aid schemes. There may also be consequences for governments in relation to the funding of those schemes. But whatever the consequences and whatever the cost, it is for the courts to decide what is or is not fair in a criminal trial. And it is the duty of the courts to ensure that only fair trials are had, either by tempering the rules and practices to accommodate the case concerned or, if that not be adequate, by staying the prosecution.
[4] Dietrich v R (1992) 177 CLR 292.
[5] Dietrich v R (1992) 177 CLR 292 at 365 (footnotes omitted).

To determine whether a miscarriage has occurred, consideration must be given to the facts of the case, the background of an accused, the circumstances in which the accused came to be unrepresented and the nature and seriousness of the charge. There are circumstances in which a criminal trial will be relevantly fair notwithstanding that an accused is unrepresented.
As Brennan J observed in Dietrich:[6]
The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair. And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt.
Deane J also observed:[7]
In determining the practical content of the requirement that a criminal trial be fair, regard must be had “to the interests of the Crown acting on behalf of the community as well as to the interests of the accused”. There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available. Another category of case in which that is so is where the accused has the financial means to engage legal representation but decides not to incur the expense. It is true that, in the context of the current level of legal fees, it is arguable that no accused should be required to devote a substantial part of his possessions to obtaining legal representation in resisting a prosecution for an alleged offence of which the law presumes him to be innocent. Nonetheless, it appears to me that it cannot be said that a trial is unfair by reason of lack of legal representation in a case where the accused possesses the means to obtain such representation but elects not to utilize them. Finally, it is arguable that there are categories of criminal proceedings where inability to obtain legal representation would not have the effect that the trial of an accused person was an unfair one. For example, there is much to be said for the view that proceedings before a magistrate or judge, without a jury, for a non-serious offence would not be rendered inherently unfair by reason of inability to obtain full legal representation. It is, however, unnecessary to pursue that question for the purposes of the present case where the trial was a jury trial of alleged offences which were, by any standards, serious. It appears to me to be manifest that, in the absence of exceptional circumstances, the inability of an indigent accused to obtain legal representation from any source will have the consequence that such a trial is unfair. At least in relation to such a trial, I would echo the conclusion of the United States Supreme Court in Gideon v Wainwright: “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”
[6] Dietrich v R (1992) 177 CLR 292 at 325 (footnotes omitted).
[7] Dietrich v R (1992) 177 CLR 292 at 335-336 (footnotes omitted).
An Unrepresented Litigant
The duty of a trial judge or a magistrate conducting a trial with a self-represented defendant has been the subject of considerable authoritative discussion.
In McPherson,[8] the members of the High Court discussed the responsibility of a trial judge when an accused person is unrepresented. The Court recognised that a trial judge faced difficulties in those circumstances. The judge must ensure that an accused person was fully informed of his rights, and that the trial was conducted fairly. On the other hand, the judge cannot become an advocate for the accused. Gibbs CJ and Wilson J observed:[9]
There is no limited category of matters regarding which a judge must advise an unrepresented accused – the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.
Mason J similarly observed:[10]
Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end his under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. … A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.
[8] MacPherson v The Queen (1981) 147 CLR 512.
[9] MacPherson v The Queen (1981) 147 CLR 512 at 524-525.
[10] MacPherson v The Queen (1981) 147 CLR 512 at 534.
Brennan J referred to the distinction between the trial judge becoming involved as an advocate for the accused and informing the accused about “the rules of the game”. Brennan J considered that it was the duty of the trial judge to ensure that an accused was fully informed of the procedures of the court and about how to conduct his or her defence. The trial judge had a duty to ensure that an accused was not convicted on any but legal evidence, and was not to be convicted unless able to adequately present their defence to a jury.
Brennan J commented:[11]
[A]n accused who elects to defend himself forfeits none of his rights thereby. If he has not had a trial according to law, his intransigent refusal to accept legal representation is no ground for dismissing his appeal either under the proviso or otherwise. The absence of legal representation imposes a heavier burden upon the trial judge and denies an accused the assistance of an advocate who can usually present an accused’s case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial. In this connexion, with respect, I should not accept the view…that the categories of advice which a trial judge should give to an unrepresented accused are limited to his rights to challenge jurors, to give evidence, to make an unsworn statement or to remain silent. Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.
[11] MacPherson v The Queen (1981) 147 CLR 512 at 546-547.
In White,[12] Chernov JA observed:[13]
The courts have recognised…that, where the accused is unrepresented, a trial judge has considerable discretion not to apply strictly the procedural and evidentiary rules that would otherwise operate notwithstanding that strict adherence to such rules may be required of the Crown. The extent to which the trial judge may give the accused such leeway, or the extent to which the trial judge may be required to inform him or her of the legal position as to the substantive and procedural issues in the case and the degree to which the judge may properly intervene in the conduct of the trial in order to achieve its effective conduct while ensuring that it is not unfair to the accused, will obviously depend on the circumstances of the case. But the general position seems to be that there is a trend towards requiring more judicial intervention in the conduct of a criminal trial in order to achieve the twin objectives of efficiency and fairness.
[12] R v White; R v Piggin (2003) 7 VR 442.
[13] R v White; R v Piggin (2003) 7 VR 442 at [38] (footnotes omitted).
The duty of the trial judge is not to advise the unrepresented defendant how to conduct the defence case but to ensure that the defendant is fully aware of the legal position in relation to the procedural and substantive aspects of the case, thereby putting the defendant in a position in which he or she can make effective choices. This necessity arises from the judge’s duty to ensure that the trial is fair. As Hunt J observed in Gidley:[14]
The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case. Contrary to the submission of the accused in this present case, it is not part of a trial judge’s duty to advise an unrepresented accused against the tender of prejudicial material. It may be that in a particular case a trial judge will be obliged to advise an unrepresented accused of the likely prejudicial consequences of a course which he is proposing to undertake so as to enable the accused to make an effective choice as to whether or not he should persist in that course, but the choice must remain that of the accused. There is no obligation upon the trial judge to do more. He may express his own opinion as to what would best serve the interests of the unrepresented accused if he feels it is appropriate but he is not under any obligation to do so, and his omission to give such advice does not amount to an error of law.
[14] R v Gidley [1984] 3 NSWLR 168 at 181.
These principles have long been applied in this State. In Cooling v Steele,[15] Wells J observed:[16]
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[15] Cooling v Steele (1971) 2 SASR 249.
[16] Cooling v Steele (1971) 2 SASR 249 at 251.
Similarly, in Moore-McQuillan,[17] Bleby J observed:[18]
[A] magistrate, despite busy lists and the need for expedition, must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.
In Cooling v Steele, … Wells J had occasion to give a warning about the need for magistrates to be vigilant in ensuring that unrepresented litigants, at the various stages of a hearing on a plea of guilty to an offence, were not ignorant of their rights and duties. I have recently had occasion to refer to and adopt the principles to which His Honour there referred (Taylor v Police, unreported judgment S6540…). The general observation of Wells J which I repeat was (ibid at 251):
“In general, the court should ensure that the defendant is appraised of his rights and duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
His Honour was there speaking of an unrepresented defendant on entering a plea of guilty. The remarks apply with equal, if not greater force, to an unrepresented litigant’s understanding of the more complex procedures involved in a contested hearing.
[17] Moore-McQuillan v Police (1998) 196 LSJS 488.
[18] Moore-McQuillan v Police (1998) 196 LSJS 488 at 496-497.
More recently, the foregoing principles have been considered and adopted in Hittmann,[19] Gould[20] and Pezos.[21]
[19] Hittmann v Police (1999) 202 LSJS 132.
[20] Gould v Police [2005] SASC 297.
[21] Pezos v Police [2005] SASC 500.
The Grounds of Appeal
The written grounds of appeal were detailed. On the hearing of the appeal many of these grounds were not specifically addressed. However, as no ground was abandoned all complaints should be addressed.
Fitness to Stand Trial
During the course of the trial and on appeal, the appellant complained of suffering from poor mental health which he contended should have been taken into account by the Chief Magistrate when deciding to proceed from time to time.
It is convenient to discuss this issue immediately. The only information placed before the Chief Magistrate relating to the appellant’s mental state was a short report from a psychiatrist, Dr Begg. Although the report was dated 28 June 2006, Dr Begg had not examined the appellant since July 2005.
Dr Begg’s report disclosed that he first came into contact with the appellant when he had been found not guilty by reason of mental impairment with respect to dishonesty offending. Dr Begg’s last consultation with the appellant was at the end of his “limiting” term in July 2005. At that time, Dr Begg reported that “[the appellant]appeared to be very well and was able to walk away from conflicts without interacting”. He was not receiving any treatment, nor was any indicated. Dr Begg was of the view that the appellant was fit to stand trial.
This report confirmed the appellant’s fitness to stand trial. He was in no different position to any other unrepresented litigant in court.
On the hearing of the appeal, the appellant tendered a pre-sentence report that had been prepared following his conviction by the Chief Magistrate. The report was prepared by a community welfare officer. A number of psychiatric reports were identified in the pre-sentence report including the report of Dr Begg. However, only the report of Dr Begg has been placed before this Court.
The conclusion to the pre-sentencing report recorded that since September 2005, the appellant had been “trialled off his medication”. It was reported that “so far he seems to have managed relatively well”. The report continued, “it is not considered that [the appellant] is in need of supervision. His illness is understood, accepted and managed”.
On appeal it was contended that the Chief Magistrate acted unfairly in commencing the trial because the appellant was unrepresented. The appellant claimed that he was unable to properly represent himself at trial due to a suggested mental illness and his lack of experience as a criminal barrister.
As earlier observed, there was no evidence that the appellant was suffering from a mental illness at the time of the alleged offence, or any mental impediment to his ability to plead, or to be able to represent himself as any other unrepresented litigant at trial.
Deferral of Cross-Examination
As earlier observed, the evidence was initially led on the basis that cross-examination of the relevant witnesses would be allowed when defence counsel was available. Indeed, this is what occurred when the trial resumed on 3 December 2004. The calling of evidence without cross-examination being conducted at that time did not result in any unfairness or prejudice to the appellant. The appellant had ample opportunity to cross-examine all prosecution witnesses. No inadmissible evidence was admitted.
Ex Parte Judgment
On appeal it was asserted that an ex parte judgment entered by the Chief Magistrate on 28 October 2004 as a consequence of the appellant’s failure to attend trial was unfair. Apart from the bare assertions of unfairness, this complaint was not further developed.
Whilst the certificate of record reveals that an ex parte finding of guilt was made by the Chief Magistrate on 28 October 2004, it is apparent from the conduct of subsequent hearings that this ex parte finding was unreservedly discarded and not further relied upon in any way by the Chief Magistrate.
Inadequate Notice of Witness
On the hearing of the appeal it was contended that the orders made by the Chief Magistrate on 3 December 2004 to continue the trial against the appellant were unfair and erroneous because the complainant produced a new witness, Mr Dean. The appellant complained that he was not given an opportunity to investigate or research the evidence of Mr Dean prior to the trial on 3 December 2004. He claimed he was not given documents or statements relating to this witness before the trial.
A review of the transcript reveals that some weeks’ notice was given of the intention to present Mr Dean and of the substance of the proposed evidence. Mr Dean was cross-examined by defence counsel, during which time no complaint or application was made about lack of notice or disclosure of the witness or insufficient time to make enquiries about the witness.
Discovery – Subpoenas
On appeal it was alleged that procedures were not put in place to enable the appellant to obtain discovery or to order the issue of subpoenas. It was further complained that counsel for the appellant failed to follow the appellant’s instructions in preparing papers and documents.
There were numerous and sufficient pre-trial conferences and mention or direction hearings to enable the appellant to prepare his case, obtain discovery and issue subpoenas. The issuing of subpoenas was foreshadowed by the appellant through his counsel on 29 November 2005 and the Chief Magistrate specifically adverted to the possibility of making orders for subpoenas on the occasion when the matter was set down for trial on 25 January 2006.
When the trial continued on 3 July 2006, the appellant had had more than five months in which to prepare his case generally, institute pre-trial enquiries, and issue requests for disclosure and subpoenas.
Alternative Counsel
On appeal, the appellant further complained that the Chief Magistrate erred in not allowing him a reasonable opportunity to find alternative counsel once his original counsel did not attend the trial.
When the trial continued on 3 July 2006, the appellant asserted that he had become unrepresented as of “a few weeks ago”. There is no evidentiary basis to allow the conclusion that there had been any unfairness to the appellant. He had adequate opportunity to prepare his case and secure legal representation, including the making of an application for legal aid.
The fact that the appellant was unrepresented as at 3 July 2006 did not provide any sufficient reason to further adjourn the matter. In this regard, the Chief Magistrate did not act unfairly in ruling that the trial should proceed.
The appellant was capable of representing himself as at 3 July 2006 as much as any other unrepresented litigant. He knew the prosecution witnesses were being recalled to facilitate cross-examination. He knew what had to be put to the prosecution witnesses.

The appellant gave evidence in an apparently clear and satisfactory manner, both in-chief and during cross-examination – notwithstanding his assertion that he was unable to do so – and he delivered a closing address which was structured, logical and articulate, with relevant references being made to the transcript of the evidence.
Against the Weight of Evidence
The final ground of appeal complained that the Chief Magistrate’s judgment on 28 July 2006 was made against the weight of the evidence.
The Chief Magistrate in his reasons traversed the evidence of the trial and made reference to the salient features of the evidence of the prosecution witnesses, along with those of the appellant and his witness. As he observed:
As to [the appellant], I accept that if I reached the conclusion that there was any reasonable possibility that what he had to say about the way in which the incident unfolded, and that Mr Perrina was the aggressor I would be obliged to find [the appellant] not guilty.
The Chief Magistrate recorded relevant factual findings in relation to the evidence of both the prosecution and defence witnesses, having remarked from the outset of his reasons that his trial findings were made with the assistance of extensive contemporaneous notes regarding both impressions of witnesses and conclusions about their evidence. The Chief Magistrate made factual findings that were clearly open on the evidence. His ultimate finding of guilt was supported by the evidence.
Conclusion
Having regard to the history of the proceedings, the circumstances of the appellant, the summary nature of the alleged offence, the manner in which the trial was ultimately conducted, and the particular factual findings made by the Chief Magistrate, no miscarriage of justice was occasioned to the appellant.
This appeal is dismissed.