Bridgland v Police No. Scgrg-98-347 Judgment No. S6661

[1998] SASC 6661

BRIDGLAND  v  POLICE

Magistrates Appeal
Mullighan J   (ex tempore)

This is an appeal against both conviction and sentence.

The appellant was charged that on 5 June 1997 at Murray Bridge he assaulted another man, contrary to s39(1) of the Criminal Law Consolidation Act 1935. He was charged on complaint and the offence was regarded as a summary offence. At the time of the alleged assault both the appellant and the alleged victim were in custody at the Mobilong Prison and shared the same wing of the prison but occupied different cells which were some distance apart.

It was alleged that the appellant entered the cell of the alleged victim and assaulted him quite severely both with his fists and with a television set.  The appellant was first brought before the Magistrates Court sitting at Murray Bridge on 4 August 1997 whereupon he entered a plea of not guilty.  He was granted bail but was unable to take advantage of that bail at the time because he was still under sentence.  The date for the trial was fixed at 1 October 1997 and for 2 days.  The appellant was  represented by counsel on that occasion. 

On 1 October the appellant and his counsel attended at the Murray Bridge Courthouse for the trial but medical evidence thought to be essential in the prosecution case was not available and so the trial was adjourned to 20 January 1998, even though the appellant was ready to proceed with his defence.  I should mention that on 4 August 1997, when the appellant was granted bail, he abused the Magistrate because a cash component of the bail had been imposed and used strong and offensive language.

On 20 January 1998 the Magistrate was available to proceed with the trial at the Courthouse at Murray Bridge.  The prosecution was ready to proceed and the alleged victim was in attendance to give evidence.  The appellant did not attend.  When the matter was called on neither he nor his counsel were present.  A little earlier the appellant's counsel had telephoned the Court and left a message that he had arranged to meet the appellant at a particular location so that he could bring him to Court, as the appellant had no other means of transport, but the appellant had not arrived at the appointed time.  The Magistrate was informed that the counsel had told someone at the Court that he was not hopeful of the appellant meeting him as planned, but it does not appear that any other information about the non-attendance of the appellant was placed before the learned Magistrate.  The matter was stood over until 11.30 am  and was called on at that time but neither the appellant nor his counsel were present.  The court staff contacted the counsel who informed the staff that the appellant had not kept his appointment and that he, counsel, said that he would not be attending court.   Regrettably the learned Magistrate was not given the courtesy of an explanation by the counsel concerned and so he had no other information apart from that conveyed in this secondhand way through court staff. 

The appellant's name was called within the precincts of the court, non-attendance was proved and the learned Magistrate granted the application for the prosecutor to proceed to hear the matter ex parte.  He did so.  Evidence was called from the alleged victim and medical reports were tendered.  The learned Magistrate gave brief ex tempore reasons for finding the charge proved.  At that time he did not enter a conviction and made an order that a warrant issue for the apprehension of the appellant.  I'm informed that the warrant was issued and executed on the same day, and the appellant was taken into custody and has remained in custody ever since.

The matter came on for hearing again on 9 February, 1998.  On this occasion the appellant was represented by different counsel, Mr Hall, who appears for the appellant on this appeal.  An application was made to the learned Magistrate to set aside “the conviction” but as no conviction had been entered the power to make such an order pursuant to s76A of the Summary Procedure Act 1921 could not be exercised.  At all events the learned Magistrate declined to re-open the matters and set aside his finding that the charge had been proved.  After hearing submissions he proceeded to convict the appellant and sentenced him to imprisonment for a period of four months.

The learned Magistrate reduced the sentence that he would otherwise have imposed in view of the time which the appellant had already spent in custody since 20th January.

There are various grounds of the appeal against the conviction but, in essence, they boil down to a complaint that the learned Magistrate should not have proceeded to hear the matter ex parte and, having done so, should not have proceeded to a conviction without the appellant having had the opportunity of presenting his defence. 

In his affidavit filed on this appeal it is clear that his defence is that he did not assault the alleged victim.   The evidence before the learned Magistrate, including photographic evidence, is capable of proving that the alleged victim was assaulted.  The issue, had there been a trial, would have been as to who was the assailant.  The explanation for not attending Court on the day fixed for the trial is that he mistakenly believed the trial was to be held a few days later on the following Thursday.  At all times he intended to contest the charge.

This is, strictly speaking, not an appeal against the refusal of a Magistrate to exercise a discretion under s76(a) of the Summary Procedure Act but is an appeal against a conviction on the ground that there has been a miscarriage of justice due to the inability of the appellant to present a defence. 

Because of the view that I have taken about this matter, it is essential that I give my decision immediately as the appellant is serving the sentence of imprisonment imposed by the learned Magistrate.

My brief perusal of the cases that have been cited in argument suggest that some Judges have taken the view that in a case such as this where the failure to attend Court is due to carelessness in the form of a misunderstanding as to the date of the trial, this Court will not intervene on appeal and set aside a conviction unless exceptional circumstances are established and there is clearly a defence available to the charge.

Had the matter not been urgent, it may have been appropriate to review those decisions and consider them in the light of modern authority but I think the approach taken by Cox J in Maider v Dancis (1985) 39 SASR 136, at p142, is the test that should be applied on an appeal of this nature. There he was considering an appeal against the exercise of a discretion under s76A of the Summary Procedure Act, but nonetheless his observations, in my view, are appropriate on this appeal. What he said was:

“Certainly, convictions and orders are not to be set aside on grounds that are unmeritorious or otherwise inadequate.   The rights and interests of the respondent are to be considered, not only those of the applicant.  There will be times when it will be appropriate to have regard to the substantial merits of a proposed defence, and times when it will not.  There may be other useful ways of probing the merits of an application.  But in the end, as it seems to me, it will be a matter of doing what the justice of the case in hand requires.”

What is clearly established in this case is that the appellant engaged counsel for the purpose of making a defence to this charge.  On an earlier occasion at the appropriate time he attended Court and pleaded not guilty.  A trial date was fixed.  His counsel was instructed to attend on that day for the purpose of the trial. 

Thus far it may be seen that the appellant intended to proceed with his defence.  He says that he did not attend on the day in question because he mistook the date of the trial.  Mistakes of this nature can happen.

It is unfortunate that his then legal adviser provided information to the Court without instructions and without having sought any explanation from the appellant.  In consequence, there was not a satisfactory disclosure, in my view, to the learned Magistrate at the time.  It is clear that there was an intention to defend, which is evidenced by the arrangement that the appellant's counsel meet with him and take him to the court for that purpose.   This case is to be distinguished from those cases where extreme carelessness has resulted in the matter being overlooked altogether. 

The abusive outburst of the appellant to the Magistrate, of course, does him no credit.  Behaviour like that may result in a misunderstanding as to the true attitude of the person who was abusive but I do not think in this case it is appropriate to regard that outburst as a disregard of the Court or the system and therefore to draw the inference that the appellant did not attend court for that reason.

I think the appellant should have the opportunity of presenting his defence.  In all the circumstances he has established that the justice of the case demands that the conviction be set aside and that the matter be remitted to the Magistrates Court for trial.

It follows that the sentence should be quashed.  I have nothing to say about the appropriateness of that sentence.   Should the matter proceed and the appellant again be convicted, then it will be for the Magistrate to decide what is the appropriate sentence in all the circumstances.

I allow the appeal, quash the conviction, and set aside the sentence.  I order that the complaint be remitted to the Magistrates Court for determination according to law.