BUKVIC v POLICE - [2004] SASC 282

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUKVIC v POLICE
Judgment of The Honourable Justice Nyland
16 September 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - REPRESENTATION OF ACCUSED
Appeal against conviction - appellant appeared unrepresented at commencement of trial in Magistrates Court - numerous past adjournments for legal advice - application by solicitor for further adjournment - appellant indicated desire to proceed without representation - whether appellant misled by comments made by magistrate - no error - appeal dismissed.
Criminal Law Consolidation Act 1935, s 39(1), referred to.

BUKVIC v POLICE
[2004] SASC 282
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against conviction. The appellant was charged on complaint that on 22 February 2003 at Manningham, he assaulted Kara Ann Bradbrook, contrary to the provisions of s 39(1) of the Criminal Law Consolidation Act 1935. It was alleged that the appellant spat at Ms Bradbrook while she was seated as a passenger in a car being driven by her partner, Steven Engel.
The appellant pleaded not guilty to the charge and the trial proceeded before a stipendiary magistrate in the criminal jurisdiction of the Holden Hill Magistrates Court on 2 June 2004. The appellant was unrepresented at the trial. The complainant’s case consisted of the evidence of the alleged victim, Ms Bradbrook and her partner Mr Engel. Each of them was cross-examined by the appellant. The appellant then gave evidence in support of his defence.
The learned magistrate delivered written reasons at the end of the trial. He described Ms Bradbrook as a very credible witness and also accepted Mr Engel as a witness of truth. He disbelieved the appellant as a witness of credit and found the charge against him proved beyond reasonable doubt. The sole ground of appeal against the conviction is a complaint that the learned magistrate erred in failing to adjourn the trial to give the appellant the opportunity to have legal representation.
The learned magistrate, in his reasons for judgment, mentioned the issue of the appellant’s representation. He said:
“The defendant was unrepresented at the outset of the trial, although it became clear half way through the first witness that a practitioner whose name the defendant could not give had been instructed regarding the defendant’s affairs generally. A phone call to the practitioner’s office indicated that the practitioner could not be contacted for clarification, and the trial proceeded with the defendant’s consent. I might add the defendant had clearly demonstrated that he was articulate and intelligent, and at ease in the court room. He had also indicated that he was well able to promote his account with the witness he cross-examined. In the late morning a practitioner arrived, and the matter was stood down for the practitioner to confer with his client. The Court reconvened shortly before lunch, and an application was made to further adjourn the matter. It appeared the practitioner’s firm had not been adequately instructed in every sense of the word. The firm was the third to be instructed inadequately in relation to the present matter, and apparently, in relation to other matters elsewhere. Unfortunately, the state of affairs is common these days in Magistrate’s Courts, and I was reluctant to adjourn the trial to the next available trial day, which was in mid November this year. A perusal of the file cover demonstrates that the situation had occurred previously. The incident occurred a year and three months ago. The prosecution witnesses would be required to return to court upon another occasion, making the time elapsed a further 6 months away, and one and three quarter years since the incident. Fortunately, the defendant indicated continuously in the presence of his counsel a desire to continue the hearing unrepresented. Counsel withdrew with the indication the defendant would see counsel about other matters I was told the defendant faced in the present jurisdiction as well as elsewhere.
After a luncheon adjournment, the second and final witness gave evidence and was cross-examined by the defendant. The defendant’s cross-examination matched the skill level of his earlier cross-examination. He was not overawed by the proceedings in any way whatsoever.”
On the hearing of the appeal, the appellant filed an affidavit as to the course of proceedings before the learned magistrate. His version of what occurred is as follows:
“2.At the time this matter was listed for trial in the Holden Hill Magistrates Court, I was represented by Mr Longson for this and other matters. However, I subsequently lost confidence in Mr Longson and sought permission from the Legal Services Commission to change solicitors. I spoke to Mr Dixon on 20 May 2004 regarding this and other matters, and he told me that he had another trial listed on 2 June 2004, but would arrange for Mr Devolle to attend to make application to adjourn this matter.
3.When I attended at court, my matter was called on before my legal representative was present. I agreed to the trial proceeding at that time, because I thought that the trial would be straight forward and would be over quickly. I thought it was simply a matter of us all telling our versions, and the Magistrate making a decision.
4.I soon became aware that I was required to do more than tell my version. At the end of the first witness’ Evidence in Chief, I was asked to cross examine that witness. It was then that I began to feel somewhat out of my depth.
5.Eventually, Mr Devolle appeared. He requested an adjournment on my behalf. The Magistrate told Mr Devolle that I had done a competent job, I had handled cross examination remarkably well, and that I was articulate and intelligent. I formed the view from what the Magistrate said that he was thinking in my favour. In the circumstances, I thought it best that the trial proceed with that Magistrate.
6.I gave my evidence. At the conclusion of my evidence, the prosecutor was asked to address the Magistrate. At that time, I had no idea what to do and I told the Magistrate that I did not know how to summarise. He told me that I should try to point out any inconsistencies with the evidence, and any facts which were not supported. However, by that time I was finding it very hard to concentrate, and realised how difficult it was to remember and point out each area of difference between the witnesses. Further, I had no knowledge of the law and could not answer the legal points which had been raised.
7.I regret proceeding with the trial unrepresented. Had I known what was involved in conducting a trial, I would not have agreed to commence the trial unrepresented. When Mr Devolle attended on my behalf and made application for an adjournment, I would have agreed to take that course had it not been for the comments of the Magistrate which made [me] think he was favouring my case.”
I also was provided with an affidavit of David Bronzi, who prosecuted the appellant. He said that when the matter was listed for trial, the listing magistrate made it clear that no further adjournments would be given in the light of numerous past adjournments for the purposes of obtaining legal advice. Mr Bronzi said he contacted the appellant approximately one month prior to the trial to ask whether he had organised representation and reminded him that the matter would be proceeding on 2 June 2004.
Mr Bronzi also said that when the appellant attended court on 2 June 2004, he indicated that he wanted to have the matter dealt with that day. When the matter was called on the learned magistrate asked the appellant whether he was represented. Mr Bronzi said the appellant replied that he was but he did not know the name of the practitioner, following which enquiries were made by court staff which suggested that Mr Devolle was representing him. Mr Bronzi said that the appellant was nevertheless insistent that he wanted to proceed unrepresented whereupon the learned magistrate indicated that the trial would commence but if at any time the appellant wanted a solicitor he could apply for an adjournment to get advice about the running of the trial. In the meantime, the court notified Mr Devolle, who eventually appeared and made an application for an adjournment. Once again the appellant insisted on proceeding that day and indicated he was happy to proceed unrepresented.
The thrust of the submission made on behalf of the appellant on the hearing of the appeal was that the magistrate had fallen into error by reason of the comments he made to Mr Devolle when discussing the application to adjourn. It was submitted that, by reason of commending the appellant’s conduct of the trial in the court after hearing Mr Devolle’s application to adjourn, the magistrate had influenced the appellant to proceed unrepresented in the belief that the learned magistrate was favourably disposed towards him.
In my opinion, there is no merit at all in this submission. The appellant was given ample opportunity to obtain legal representation prior to the date of the trial. There had been a number of adjournments prior to the matter finally coming on for hearing on 2 June 2004, which was then more than a year after the commission of the offence. The appellant was reminded one month prior to the trial date that no further adjournment would be permitted. There is no dispute that the learned magistrate indicated to the appellant that, at any time, the appellant could apply for an adjournment to get advice about the running of the trial. The appellant acknowledges that after the solicitor attended on his behalf to request an adjournment, he elected to proceed unrepresented, apparently in the belief that he would get a favourable result from the learned magistrate. The appellant does not appear to have made any further application to adjourn or raised any other difficulties with the magistrate.
The appellant cross-examined the witnesses for the prosecution and gave evidence on his own behalf. A reading of the transcript supports the comments made by the learned magistrate that the appellant was articulate and at ease and able to promote his own account.
In my opinion, the decision to proceed unrepresented was not the result of anything the learned magistrate said but rather the subjective perception of the appellant that he would obtain a successful result. No error has been shown on the part of the magistrate in proceeding as he did. There has been no miscarriage of justice. The appeal should be dismissed.