Bennett v Councillor - [2001] WASCA 342

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BENNETT -v- COUNCILLOR [2001] WASCA 342

CORAM: HASLUCK J

HEARD: 16 OCTOBER 2001

DELIVERED : 6 NOVEMBER 2001

FILE NO/S: SJA 1086 of 2001

BETWEEN: LYNDSAY MacGREGOR BENNETT
Appellant
AND
MAITLAND FRANCES COUNCILLOR
Respondent

Catchwords:

Criminal law - Justices Act - Application for an adjournment by prosecution - Unavailability of trained prosecutor and certain witnesses held to be not sufficient grounds for an adjournment - Charges dismissed following refusal of an adjournment - Magistrate found to be in error in the exercise of his discretion - Appeal allowed

Legislation:

Criminal Code, s 317(1)

Justices Act 1902, s 79, s 196, s 199

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms M Wells
Respondent: Mr C L J Miocevich

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Aboriginal Legal Service

Case(s) referred to in judgment(s):

Lowndes v The Queen (1997) 195 CLR 665
Myers v Myers [1969] WAR 19
Rowlands v Caporn [2001] WASCA 66
Vick v Drysdale [1981] WAR 321
Weary v Stok (1986) 3 MVR 411

Case(s) also cited:

Thompson v The Queen (1992) 8 WAR 387
Weng Keong Chan (1989) 38 A Crim R 337

HASLUCK J: This is an appeal against the dismissal of a complaint in circumstances where the prosecution was not in a position to present its case. The question is whether the learned Magistrate erred in the exercise of his discretion in refusing to allow an adjournment.
The appellant, Lyndsay MacGregor Bennett, being a police officer, was the complainant in respect of two charges brought against the respondent, Maitland Frances Councillor, which came on for hearing before his Worship, Mr A Bloemen SM, at the Court of Petty Sessions at Derby on 16 May 2001.
In each case, the charge was that the respondent, on 15 July 2000, at Derby unlawfully assaulted Desmond James Weir and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code.
The charges arose out of an incident that is alleged to have occurred on Saturday, 15 July 2000. The respondent is said to have attended the car park of Derby town oval with his sons. During the course of an altercation at about 6.30 pm on that day, it is alleged that the respondent struck Desmond James Weir.
The second charge related to another incident that is alleged to have taken place an hour or so later on the same day in Loch Street, Derby. The respondent is said to have assaulted Desmond James Weir at that location in a manner occasioning bodily harm.
The evidentiary materials brought before the court on the hearing of the appeal suggested that there was some delay in laying the charges arising out of the incidents just mentioned as it was necessary to obtain medical reports bearing upon the extent of the injuries experienced by Mr Weir. The nature of the charges might be influenced by the contents of the medical reports. In addition, statements had to be obtained from various witnesses.
In any event, it is apparent from the court records that the complaint under the Justices Act 1902 was not issued until 16 February 2001, being more than six months after the date on which the alleged assaults occurred.
It appears from the relevant complaint forms that the respondent was initially required to attend at the Court of Petty Sessions at Derby on 18 April 2001. On that occasion, the respondent was, upon his plea of not guilty, remanded for hearing on 16 May 2001.
The evidentiary materials at the hearing of the appeal before me included an affidavit sworn by Craig Donaldson. He is a senior sergeant in the police force and was the officer appointed to prosecute the charges brought against the respondent. I note in passing that by s 196 of the Justices Act the court is at liberty to receive further evidence on appeal, especially with a view to establishing the circumstances in the court below: Rowlands v Caporn [2001] WASCA 66. The Donaldson affidavit was received without objection.
Senior Sergeant Donaldson says in his affidavit that between seven to 10 days prior to the hearing date of 16 May 2001, be contacted Mr Cannon of the Derby office of the Aboriginal Legal Service and advised him that the prosecution was unable to proceed with a hearing on the appointed date, as there was no trained police prosecutor available to attend the court. He advised Mr Cannon that he would be seeking an adjournment to a future date to ensure that the matter was properly prosecuted. Mr Cannon stated that there would not be an objection to the request for an adjournment.
Senior Sergeant Donaldson said further that after making these arrangements with Mr Cannon, he instructed the arresting officer not to summon the relevant witnesses. The prosecution's principal witness, Desmond James Weir, and witnesses Brad McCumstie, Scott Whykes, Don Robert Dunbar and Damon Eaton had already been served with witness summonses. These witnesses were advised not to attend the Derby court, in to the expectation that an adjournment would be granted.
It is apparent from the transcript of the hearing before the learned Magistrate that Senior Sergeant Donaldson requested an adjournment, referring initially to the seriousness of the charges and the need for the matter to be prosecuted by an officer with proper training in that regard.
When Mr Cannon was called upon to indicate his stance, he responded: "Given it's the first remand, sir, it's all I can say. I note that we were advised, but unfortunately Mr Councillor has been out on the barge but he came back in today, sir."
The Magistrate then indicated that he would not grant the request for an adjournment and called upon Senior Sergeant Donaldson to proceed, or the matter would be dismissed on the grounds that the absence of a prosecutor was not a sufficient reason for an adjournment. The matter was then stood over for a short period.
When the matter was called on again, the prosecutor explained that the principal witness was not in Derby. One witness was in Fitzroy and another in Perth. The prosecutor renewed his request for an adjournment upon the basis that a trained prosecutor was necessary to present the case in the correct manner. Further exchanges then took place, during the course of which Mr Cannon drew attention to the date of "these particular matters", that is to say, the events the subject of the charges, and "when the actual charges were made".
The learned Magistrate then called upon the prosecutor to proceed. The prosecutor endeavoured to explain that there had been some delay in gathering evidence. The Magistrate then affirmed again that the request for an adjournment would be refused and concluded the hearing in this manner:
"Mr COUNCILLOR, the matter will be dismissed as the Prosecution cannot offer evidence. It doesn't mean that there is guilt and not guilty plea or a guilty plea, just mainly technical point. The Prosecution has not been able to offer evidence today. I refused the application; my main reason was the matter was listed on the 15th of July, of the alleged offence of the 15th of July. There was a summons issued on the 18th of April. Now you've clearly heard what the Prosecution said, there was serious injuries, but I've no doubt that my inference to justice also, the summonses could have been issued much earlier, or for that matter a summonses issued and there could have been an arrest, and that's my reason why... is refused. Both charges are dismissed. Thank you."
It is apparent from these observations that both charges were dismissed.
It is against this background that the appellant obtained leave to appeal upon the following grounds:
"(a)In refusing the Crown application for an adjournment of the matter, and thereby dismissing the charges against the Respondent:
(i)the learned Magistrate erred in law by failing to properly exercise his discretion according to law;
(ii)the learned Magistrate erred in law by failing to apply the discretionary test required of him by s79(1) Justices Act 1902 (as amended);
PARTICULARS
Pursuant to s79(1) Justices Act 1902 (as amended), a Magistrate may adjourn a hearing to another date if from the absence of witnesses, or from any other reasonable cause it becomes necessary or advisable to defer the hearing of the case.
(iii)The learned Magistrate misdirected himself as to the correct date of issue of the complaint and thereby attributed unnecessary weight to the delay in charging the Respondent;
PARTICULARS
The learned Magistrate incorrectly stated on two occasions that the complaints were issued on 18 April 2001 when the correct date of issue was in fact 16 February 2001.
(iv)In any case, the learned Magistrate attributed unnecessary weight to the delay in charging the Respondent while attributing insufficient weight to the interests of the prosecution and the public interest in the administration of justice."
Before turning to these grounds of appeal, it will be useful to look briefly at a number of legal principles bearing upon the matters in issue.
By s 196 of the Justices Act 1902 shall determine the appeal on the material before the court below. By s 199, the court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for rehearing.
It is not sufficient that an appellate court may have taken a different view of the issue before the court. It must be shown that the court at first instance has failed to properly exercise its discretion by acting on a wrong principle, or in misunderstanding, or in wrongly assessing some salient feature of the material before it. Lowndes v The Queen (1997) 195 CLR 665 at 672.
To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. Myers v Myers [1969] WAR 19 at 21; Vick v Drysdale [1981] WAR 321 at 328.
Where a complaint in Petty Sessions relates to a "minor charge", it is proper to take into account both the public interest and the inconvenience to the defendant and court system. If the grounds of the application are based on inefficiency or indolence on the part of the complainant, and the result of the adjournment would cause wasted time and consequent delays to other litigants in the court system, combined with significant inconvenience to the defendant, then the public interest would require that the matter be not adjourned. Weary v Stok (1986) 3 MVR 411 at 413.
The seriousness of the charge and the strength of the prosecution case are relevant factors when determining whether to grant an adjournment.
One must also take account of s 79 of the Justices Act which provides that, if, from the absence of witnesses, or from any reasonable cause, it becomes necessary or advisable to defer the hearing of the case, justices before whom the defendant appears, or is brought, may adjourn such hearing to the same or some other place. It follows from this provision that the power to adjourn is a discretionary power.
Let me now return to the grounds of appeal in the present case. The first ground raises the question of whether the learned Magistrate erred in law by failing to properly exercise his discretion according to law.
Counsel for the appellant argued forcefully that the learned Magistrate gave an undue emphasis to a period of supposed delay between the happening of the events the subject of the charges and the laying of the charges. The correct inquiry was to ascertain whether there had been any undue delay in bringing the matter on for hearing and as to whether any delay occasioned by the proposed adjournment would be unduly prejudicial as far as the respondent was concerned.
In developing these submissions, counsel drew attention to the fact that the respondent first appeared before the Derby Court of Petty Sessions on 18 April 2001 and pleaded not guilty. The matter was set for hearing on 16 May 2001. It followed that there had not been any unnecessary adjournments of the complaints prior to the set hearing date. An adjournment of three weeks would not have unduly prejudiced or inconvenienced the respondent and no submission was made to that effect by his counsel.
The alleged offences arose out of an incident, involving a number of assailants and victims, in the nature of a public brawl. It was clearly in the public interest that the legal process should be properly applied to all those involved in the incident. This made it necessary to obtain medical reports and exercise care in laying the appropriate charges. These factors were a sufficient explanation for the delay in bringing the charges.
Counsel for the appellant submitted further that if the learned Magistrate had correctly addressed the question of whether the adjournment was likely to be unduly prejudicial, a number of questions would have been asked of counsel appearing before him. It would have then emerged that there had been various exchanges between the representatives of the respective parties prior to the hearing date, which had led to the prosecutor releasing his witnesses in the belief that an adjournment was likely to be granted. The fact that counsel for the defendant had said he would not object to the application for an adjournment could be taken as an indication that the defendant would not be prejudiced if an adjournment were allowed. This was a factor which had a bearing upon the way in which the learned Magistrate exercised his discretion.
Counsel submitted further that the unavailability of a trained prosecutor was a "reasonable cause" to defer the hearing pursuant to s 79(1) of the Justices Act. The prosecution should be entitled to present its case as competently as possible. This was particularly so in the case of an alleged altercation where the accounts of what happened given by the relevant witnesses were likely to differ.
Further, even though the police prosecutor appeared willing to present the case, if required, he was unable to do so, as two of the witnesses were not available. The learned Magistrate failed to give any, or any sufficient, weight to the unavailability of the prosecution witnesses and failed to ask the questions which would have brought into view the circumstances in which the witnesses in question had been released.
Against this background, counsel for the appellant argued, the decision to refuse the prosecution application for an adjournment was so plainly unjust and unreasonable that the Supreme Court on the hearing of the appeal should infer that the learned Magistrate had failed to exercise his discretion properly as to whether to grant an adjournment.
Counsel for the respondent contended that the reference to a trained prosecutor was an insufficient reason for obtaining an adjournment in circumstances where no explanation was given as to why the prosecutor, Senior Sergeant Donaldson, could not present a case which, on the facts, appeared straightforward. No explanation was provided as to what attempts, if any, had been made to obtain a trained prosecutor.
Counsel for the respondent submitted that in declining the adjournment, the learned Magistrate knew by the nature of the charges that they were serious offences and accepted that there were serious injuries. He placed weight on the delay in summonsing the accused and clearly did not accept the unavailability of a trained prosecutor as an excuse for adjourning the matter. It might be that an appeal court would conclude that an adjournment should have been granted, but an appeal court had to exercise care in substituting its view for the view of the Magistrate conducting the proceedings.
I consider that the submissions of counsel for the appellant are persuasive and that the appeal should be allowed. It is apparent from the transcript that the learned Magistrate gave undue weight to a supposed period of delay between the events the subject of the charges and the laying of the charges. He did not, in fact, ascertain whether there was some explanation for the supposed delay and it is by no means apparent, having regard to the need to obtain medical reports, that the prosecution had acted in an indolent or less than expeditious manner. If the Magistrate had explored the question of whether the accused would experience a degree of prejudice if the adjournment were granted, he would almost inevitably have discovered that there was no real prejudice to the defendant's position and there were reasons why the prosecutor was not in a position to present his witnesses. Those reasons were related to the arrangements made with counsel for the respondent. On the other hand, the prosecution would clearly be prejudiced, as it was, if it was called upon to present a case in the absence of its principal witnesses.
Accordingly, for these reasons, I consider that in relation to the first and broadly expressed ground of appeal the error complained of has been made out. The learned Magistrate took into account extraneous considerations and failed to ascertain and give proper weight to factors that should have had a bearing on his decision. The remaining grounds of appeal are essentially subsumed in and disposed of in the appellant's favour by this conclusion, save to say that, in my view, as to grounds (iii) and (iv), the learned Magistrate erred in attributing unnecessary weight to the delay in charging the respondent. Upon these more specific grounds also, the decision below should be quashed.
The determinations of the learned Magistrate that the charges be dismissed will be quashed and the matter will be remitted to the Court of Petty Sessions at Derby so that the charges can be relisted for hearing on a date to be fixed. I will hear from the parties as to whether any further orders are required.