Callo v Avins - [2001] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CALLO -v- AVINS [2001] WASCA 234

CORAM: WHITE AUJ

HEARD: 26 JULY 2001

DELIVERED : 26 JULY 2001

FILE NO/S: SJA 1007 of 2001

BETWEEN: CARLO CALLO
Appellant
AND
RONALD JOHN AVINS
Respondent

Catchwords:

Procedure - Refusal of application for an adjournment by defendant, appearing in person, who wished to call witnesses and who was given two days' notice of the hearing - Magistrate's discretion under s 86 of the Justices Act 1902 to adjourn - Generally desirable to grant adjournment if the refusal thereof would result in serious injustice to the applicant, unless this would in turn mean a serious injustice to the other party - Turns on own facts

Legislation:

Justices Act 1902, s 86

Result:

Appeal allowed in respect of two of the three counts and retrial ordered
Appeal dismissed in relation to the third count

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms K E McDonald

Solicitors:

Appellant: In person
Respondent: State Crown Solicitor

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

Eason v Bintley, unreported; SCt of WA (Ipp J); Library No 930061; 8 February 1993
Kent v Ross, unreported; SCt of WA (Pidgeon J); Library No 6840; 24 July 1987
Myers v Myers [1969] WAR 19
Weary v Stok (1986) 3 MVR 411

Case(s) also cited:

Rankin v Palmer [1999] WASCA 201

WHITE AUJ: This is an appeal against the decision of his Worship Mr R.H. Burton SM given in respect of complaint numbers 7568, 7569 and 7627 of 2000 whereby the appellant was convicted on each count and fined. It is only one ground of appeal; namely, that the appellant was not given a reasonable time before trial to prepare his defence to the complaints.
The relevant background has been fairly set out in the respondent's very helpful outline of submissions from which I now read:
"On 25 June 2000 the appellant received two traffic infringements:
(a)failing to give right of way [which is complaint number 7627 of 2000]
(b)driving a vehicle when the use of such vehicle was prohibited [complaint number 7568 of 2000]."
On 27 June 2000 the appellant received a further infringement notice for driving a vehicle on a footpath. That is complaint number 7569 of 2000.
On 12 August 2000 the appellant elected to have the matters dealt with by a court. Subsequently, the appellant was sent notification by letter dated 22 August 2000 from Mr R Moormann, Inspector, Support Operations, WA Police Service, that a summons notifying the appellant of the Court proceedings would be forwarded in due course.
The appellant endorsed the summons for each complaint "not guilty" on 15 November 2000. Complaint number 7627 of 2000 was listed for first mention on 6 December 2000 and the remaining two complaints were listed for first mention on 29 November 2000.
It was noted on the summons provided to the appellant that if the appellant endorsed the summons with a plea of not guilty, the matter would not proceed on the date set out in the summons and it would not be necessary for him to attend at the Court. A time and date would be appointed by the Court for determination of the matter and he would receive reasonable notice in writing of the date of hearing.
On 29 November 2000 complaints numbered 7568 and 7569 of 2000 were listed before the Midland Court of Petty Sessions. The appellant did not appear and the complaints were remanded to a callover on 20 December 2000.
On 30 November 2000 the appellant signed a trial preparation certificate which was received by the Midland Court of Petty Sessions on 5 December 2000 stating, among other things, the name of the appellant's lawyer, the fact that he wished to call three witnesses and his request that complaint number 7627 of 2000 be heard with the remaining two complaints.
On 5 December 2000 the Court received a letter from the appellant dated 4 December 2000 requesting that the charges be dealt with at the same time and also requesting particulars of the charges. On 6 December 2000, complaint number 7627 of 2000 was listed for mention and remanded to a callover on 20 December 2000 with the remaining two complaints. Notification of the callover date was sent to the appellant's residential address on 29 November 2000 and 6 December 2000.
On 20 December 2000 the appellant did not appear. The complaints were listed for hearing 2 days later on 22 December 2000. The notations on complaint number 7568 of 2000 indicated that the prosecutor sought an early hearing as a police witness had resigned and was leaving. The learned Magistrate noted that the police were to hand-deliver notice to the defendant. It appears that that was done.
On 22 December 2000 the appellant attended Court and advised the Court that he was not aware that there was to be a trial. The appellant advised that he had witnesses that he had intended to call. In submissions, he stated:
"Because when I filled out the form and it said on the forms - it said, 'If you plead not guilty, you do not have to attend Court and just hand the forms in,' so that's what I did and 2 days later or 2 days prior to this hearing, I've been told I've got to come to Court. I didn't know what matter. The officers didn't tell me what it was regarding, just that the Judge wanted to see me in Court."
The police prosecutor opposed the adjournment stating:
"On no occasion has Mr Callo been to Court to put his views forward, or whatever, and a notice to attend for hearing was served to him on Wednesday."
The learned Magistrate held that as the matter had been previously ordered to go ahead on that day, he was going to hear it and following conviction on all three charges, the learned Magistrate stated:
"If I thought that by bringing you [sic] another witness, you would have had a chance to get off it, I wouldn't have done what I did. Right?"
This appears at the transcript page 24.
Throughout the course of the trial the appellant indicated his lack of preparedness for the trial. I accept the respondent's submissions as to the relevant legal principles applicable to this appeal. Counsel for the respondent submitted that the learned Magistrate has a discretion under s 86 of the Justices Act 1902 Western Australia to adjourn the hearing of the matter. It will generally be appropriate to exercise a discretion in favour of the person applying for an adjournment if the refusal of an adjournment would result in serious injustice to that person unless this would in turn mean a serious injustice to the other party. Reference is made to the decision in Myers v Myers [1969] WAR 19 per Jackson J at 21:
"However, an appellate court ought not to interfere with the exercise of such a discretion unless it is satisfied that the decision was clearly wrong in the sense that there is strong reason for believing that an injustice has resulted."
This appears at 21 of the decision in Myers.
"In exercising its discretion the court should take into account the inconvenience to the appellant balanced with the inconvenience to the court system with its consequential delays to other litigants."
Reference is made to Weary v Stok (1986) 3 MVR 411 at 413.
"The unavailability of a witness may justify the granting of an adjournment. The nature of the charge and the seriousness are also relevant to the question of whether the public interest would require the matter to be adjourned."
Further reference is made to Weary v Stok and to Eason v Bintley, unreported; SCt of WA (Ipp J); Library No 930061; 8 February 1993, at 6 ‑ 7, and to Kent v Ross, unreported; SCt of WA (Pidgeon J); Library No 6840; 24 July 1987.
The respondent conceded, rightly in my opinion, that the learned Magistrate erred in law and in fact in exercising his discretion to refuse an adjournment. In the circumstance two days' prior notice of trial was clearly insufficient. The appellant had been informed by the endorsed summons that an appearance in Court was not required if the plea was not guilty and that reasonable notice of the hearing date would be provided in writing. It is clear that he wanted to call witnesses.
In that circumstance it is necessary to consider whether the learned Magistrate's decision led to a substantial miscarriage of justice. It is a matter of balancing the interests of the public in the expeditious resolution of proceedings in the courts on the one hand and the interests of the defendant in being afforded a proper opportunity to present his defence on the other hand. In a case where such inadequate notice was given of the trial hearing, it seems to me that an adjournment was clearly called for.
In Myers, above, Jackson J held that if the refusal or an adjournment involved a serious injustice to the appellant, the appeal should be upheld and that decision has been followed in subsequent decisions of this Court, see, for example, Eason v Bintley supra, Weary v Stok supra.
In relation to the three charges, the circumstances differ. Charge number 7627 of 2000, a charge of failing to give way, is the first of those that I now deal with. Whether the appellant had sufficient time to safely turn in front of oncoming traffic or the precise incident which gave rise to the charge has been put in issue and it cannot be ruled out that the calling of witnesses, which the appellant wished to do, may have resulted in a different finding by the learned Magistrate, depending on the evidence of those witnesses.
In regard to charge number 7568 of 2000, driving when the use of vehicle is prohibited, it appears clear from the admissions made by the appellant that he did receive a prohibition order and did drive the vehicle thereafter. Accordingly it seems to me that no witnesses would be able to take the matter any further and that no miscarriage of justice was occasioned by the refusal to grant an adjournment in respect of this charge.
In regard to charge 7569 of 2000, driving on the footpath, it appears that there is some possibility or even probability, I should say, of dispute as to whether the appellant did drive on a footpath and whether there was a footpath there. There are references in the transcript in the evidence of the witness Marriott at page 14 of the transcript where he says, "Why are you driving on the footpath?" and he reported that the appellant said, "I only drove a little way," and there's a statement by the appellant at page 22 of the transcript where he says:
"In my view it could have endangered some other people, other public to chase me over my lights, and when they did that I was going to Savage Suzuki and I often take that route through the licensing because it's easier then you don't have to go to the intersection and I park on the verge, on the footpath and the road, and so that's how it all came about."
Those might indicate that there was in fact a footpath that was driven on, but it seems to me that further evidence should have thrown a greater degree of light upon it.
Accordingly the appellant has not pointed to any substantial miscarriage of justice in relation to charge 7568 of 2000 and in respect of that charge the appeal must be dismissed.
In relation, however, to charges 7569 of 2000 and 7627 of 2000, on the other hand, I am satisfied that the refusal to grant an adjournment did result in a miscarriage of justice. The appeal in relation to those charges must be upheld and the convictions and penalties set aside. To that extent the appeal succeeds. The formal orders I make are:
1.the appeal in relation to charges numbers 7627 and 7569 of 2000 be allowed;
2.the convictions, sentences and cross-orders imposed by the learned Magistrate on those charges be set aside;
3.the appeal against conviction in relation to charge number 7568 of 2000 be dismissed, and
4.the charges numbers 7627 and 7569 of 2000 be remitted for retrial before a different Magistrate.