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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett v Councillor

Details

AGLC: Bennett v Councillor [2001] WASCA 342
Case: [2001] WASCA 342
Decision Date: 6 NOVEMBER 2001

CaseChat Overview and Summary

Bennett was charged with an offence under the Justices Act and applied for an adjournment of the hearing due to the unavailability of a trained prosecutor and certain witnesses. The magistrate refused the application and dismissed the charges. Bennett appealed to the court, arguing that the magistrate's refusal to grant the adjournment was an error in the exercise of discretion.

The court considered whether the magistrate's decision to refuse the adjournment was erroneous. The court held that the unavailability of a trained prosecutor and certain witnesses did not constitute sufficient grounds for an adjournment. However, the court found that the magistrate had erred in the exercise of his discretion by not considering other factors that could have justified an adjournment. The court held that the magistrate's error was substantial and led to an unjust outcome for the appellant.

Accordingly, the court allowed the appeal and quashed the conviction. The charges against Bennett were dismissed, and the matter was remitted to the original court for further consideration. The court's decision highlights the importance of the proper exercise of discretion by magistrates in criminal proceedings and the need for consideration of all relevant factors when deciding on an application for an adjournment.

Orders