Clark v Kacir

[2023] TASSC 24

[2023] TASSC 24

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Clark v Kacir [2023] TASSC 24
PARTIES:	CLARK, Natalie
v
KACIR, Ambrose Steven
FILE NO:	2278/2022
DELIVERED ON:	19 July 2023
DELIVERED AT:	Hobart
HEARING DATE:	30 January 2023
JUDGMENT OF:	Brett J
CATCHWORDS:

Magistrates – Appeal and Review – Tasmania – Motion to review – Powers of court – Whether Magistrate erred in law by refusing to grant an adjournment sought by the prosecutor due to a key witness' unavailability - Where no evidence could be tendered and charge dismissed as a result –Held that Magistrate's decision was appropriate and lawful - Motion dismissed.

Police Offences Act 1935 (Tas), s 13(1)(D).
Hamilton v Littlejohn [2006] TASSC 109, discussed.

Aust Dig Magistrates [1347]

REPRESENTATION:

Counsel:

Applicant:	A Hogan
Respondent:	In person

Solicitors:

Applicant:  Director of Public Prosecutions

Judgment Number:	[2023] TASSC 24
Number of paragraphs:	15

Serial No 24/2023 File No 2278/2022

NATALIE CLARK v AMBROSE STEVEN KACIR

REASONS FOR JUDGMENT BRETT J
19 July 2023

1 This motion concerns Magistrate Cure's refusal of a prosecution application for the adjournment of a hearing of a complaint brought against the respondent. The respondent was charged with one count annoying another person contrary to s 13(1)(D) of the Police Offences Act 1935. The charge was listed for hearing on 5 August 2022. The prosecution applied for an adjournment because an essential prosecution witness, the person against whom the offence was alleged to have been committed, was not able to attend court on that day. She was, in fact, overseas at the time. As a result of her Honour's refusal of the adjournment, the prosecution was unable to present any evidence at the hearing and, accordingly, the charge was dismissed.

2             There are two grounds of review, firstly that the magistrate erred in fact and/or law by refusing to grant the adjournment and, secondly, that the magistrate erred by dismissing the complaint when she had no power to do so. Both grounds depend upon the argument that the magistrate erred by not granting the adjournment.

3             The procedural history of the case is as follows. The offence was alleged to have been committed on 12 August 2020 at Whitemark on Flinders Island. The alleged facts were stated by the prosecutor during the adjournment application. It was alleged that the complainant had been exempted from a requirement to remain in hotel quarantine as a COVID-19 measure. She was permitted to undertake quarantine at her home address in Whitemark instead. After she had completed the fourteen day isolation period, she was in town when the defendant approached her and said he was unhappy that she had been granted the exemption and considered that "she had wroughted the system". He approached her again in an aggressive manner and there was a heated exchange between them. At the conclusion of this exchange, he told the complainant to "get out of town". Both the complainant and the respondent were living on Flinders Island at the time.

4             The complaint was sworn on 11 January 2021 and served shortly after that. The respondent appeared on the first return date, 7 May 2021. The matter was adjourned because the respondent was in lockdown in Victoria at the time.

5             On 9 September 2021, the matter came before Magistrate Stanton. His Honour was sitting in the Launceston Magistrates Court and the respondent, who was still in lockdown in Victoria, appeared by videolink. The charge was read and the respondent pleaded not guilty. There was an exchange between the magistrate and the respondent concerning a hearing date. The respondent was unclear when he would be able to return to Tasmania and requested that the hearing take place in Launceston. The magistrate indicated that it would have to occur in Whitemark because the witnesses were resident there. The matter was adjourned to 16 December 2021 for further mention, in particular to consider the setting of a hearing date.

6             The complaint came before Magistrate Cure on that date. During the course of discussion about a hearing date, the respondent pointed out that he had a number of health conditions, including a serious lung condition and difficulties with his hearing. He queried whether the hearing had to be conducted at Whitemark because he no longer resided on Flinders Island. The prosecutor informed the Court that "the majority of the witnesses reside in Whitemark". In the end, the magistrate listed the complaint for hearing in Whitemark on 5 August 2022. The magistrate said "it should be there because that is where the other witnesses are".

7             When the complaint came before the magistrate on 5 August 2022, the magistrate was sitting in Launceston and the respondent appeared by video link from Hobart. It is not clear from the transcript why the magistrate was not sitting in Whitemark, as had been previously arranged, but I infer that it was because the Court had been advised that the prosecution would not be ready to proceed on that day, and the venue was changed as a matter of convenience. The prosecutor applied for an adjournment of the

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hearing on the basis that the primary prosecution witness, the person against whom the offence was
alleged to have been committed, was "currently in the UK". The prosecutor informed the magistrate:

"The application is based on - the complainant in this matter is currently in the UK. She apparently did tell police when she was served with that summons· that she was going to be out of the country. That information was not passed onto our office, nor did the complainant contact our office to let us know that. So we had assumed that the hearing was going to go as scheduled. When I contacted her last week or whenever it was, it was ascertained that she was out of the country, hence why I contacted Mr Ambrose to let him know not to fly to the island, because he had booked flights and didn't want to - for him to have that added cost, but I do understand he had booked flights. I have contacted her. She is persistent in pursing the matter to a hearing, that it's not something that can resolve. However, I do note that it is a relatively minor matter and I understand from talking to Mr - sorry, Kacir - Mr Kacir that that application is opposed".

8             The respondent told the magistrate that he had only recently been informed by the prosecution that an adjournment was proposed. He noted that the hearing date had been set "last year", that he no longer lived on Flinders Island and that in anticipation of the hearing he had adjusted his "personal and family commitments that I had in Victoria and made travel and accommodation arrangements in order to attend in Whitemark on the day". He had been informed of the adjournment eight or ten days before, had made cancellations but had incurred a cancellation fee of $50. The respondent also said this:

"I feel as though I've complied with all my responsibilities regarding court appearances and so on and I've put - been put to some financial and personal inconvenience. My health is fairly poor. I'm an aged pensioner and I have advanced pulmonary fibrosis, and I regularly attend a lung clinic for my terminal illness and, quite frankly, my prognosis is not particularly good. I just feel as though seven months has been available for both the claimant and the prosecutor to ensure attendance and I don't feel that I should be held responsible for a delay caused by the non-attendance of the claimant."

9   The magistrate queried the prosecution about the question of public interest. The prosecutor

said:

"As far as the - this happened in a public street. Like, it was in the street where there were people that had - that witnessed this incident. As far as the public interest concerns, it was just directed to the complainant in this matter. There were no other people that were involved in it. It was as a result of a specific incident."

10           The magistrate was told that the complainant had been served with a summons on 27 April 2022, and had told the serving police that she would not be available, but had made no other contact with prosecution or any attempt to have the hearing put off to another date. The prosecutor had only discovered the fact that she was overseas when the prosecutor initiated contact with the witness eight to ten days before the hearing. There is no suggestion that the prosecution had made any attempt to contact the witness before this, apart from service of the summons. The prosecutor pointed out that the witness "was not very happy because she had told police that at the time she had been served with the summons that she was not going to be available however, there is attached to every summons that is served a notification to contact our office to advise us if a witness is not available". It was confirmed that the witness had not done this.

11           After receiving all of this information, the magistrate decided not to grant the adjournment. Her Honour said that she was "inclined to the view that it is not enough for a summonsed witness to say 'Well, I won't be available' without following up the requirement". She confirmed with the prosecutor again that the witness had not contacted prosecution and contact was only made when the prosecutor initiated contact.

12           The question of an adjournment was a matter of discretion for the magistrate. Counsel for the applicant relies on the comments of Underwood J in Hamilton v Littlejohn [2006] TASSC 109, and in particular his Honour's discussion of the principles applicable to appellate review of such a decision. His Honour said:

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"[17]	It is, of course, trite law that courts are reluctant to entertain appellate review of an order made in the exercise of the judicial discretion. It suffices to simply refer to Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 and House v R [1936] HCA 40; (1936) 55 CLR 499. With respect to the exercise of the discretion to grant or refuse an application for an adjournment, the New South Wales Court of Appeal expressed the view in Cucu v District Court of New South Wales (1994) 73 A Crim R 240 at 246 that, 'It is rare that a court such as this - either in appeal or in judicial review - will disturb the decision to grant or refuse an adjournment'. However, it is clear that this is such a rare case and that error infected the exercise of the learned magistrate's discretion.
[18]	The principles which should govern appellate review of the exercise of a discretion to grant or refuse an adjournment, were stated in these terms by Brennan J (as he then was), Deane and McHugh JJ, in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628 - 629:
'In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. (See, for example, Walker v Walker [1967] 1 WLR 327, at 330 ; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch [1981] HCA 56; (1981) 55 ALJR 701, at 703; [1981] HCA 56; 37 ALR 55, at 558-9). Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.
...
In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.'
[19]	At 631, their Honours added, 'It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings'".

13           The applicant's counsel argues that the interests of justice required the magistrate to grant the adjournment. It is argued that it was the first time that the matter had been listed for hearing, that the unavailability of the witness was not the fault of the prosecution, that the offence was a serious one and that the practical effect of refusal of the adjournment was the termination of the proceedings. Counsel points out that the offence provides for a maximum penalty which includes a term of imprisonment, which, it is argued, reflects Parliament's "intention that this offence not be taken as trivial".

14           Notwithstanding the outcome of the case in Hamilton v Littlejohn and the views expressed in Sali v SPC Ltd, it must still be kept in mind that this review relates to an exercise of judicial discretion by the magistrate. Although the ground alleges an error of fact, the applicant has not demonstrated a specific factual error. Accordingly, the applicant can only succeed if I am satisfied that the magistrate's discretion miscarried, on the basis that the decision was outside a reasonable exercise of discretion. I am not able to reach that conclusion in this case. The magistrate was entitled to take into account the fact that an adjournment would almost certainly prolong the proceedings for a considerable time given the need to hold the hearing on Whitemark, as well as the respondent's interest in having the matter resolved within a reasonable time. The respondent had asked that the hearing be moved to a place more convenient for him. This request had been refused and he had accordingly made arrangements to travel to Flinders Island for the hearing. There was no good reason for the failure of the complainant to be at

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the hearing. I agree with the magistrate that it was simply not adequate for the complainant to make a comment to the police serving the summons that she would not be available, and then regard the matter as closed. The summons imposed an important obligation on her to appear in court at the specified time. Further, a notice was attached to the summons which reinforced this obligation, and notified her of the need to inform prosecution of any difficulty with her availability. It was clear that she had known from the time of service in April that she would not be available but had not made contact with the prosecution at all. The magistrate was entitled, and indeed required, to balance the competing considerations, including the casual attitude of the complainant towards her legal obligation to attend court, the ongoing compliance by the respondent with his obligations in respect of the proceedings, the prejudice and impact on him of further delay, the seriousness of the offence and generally the public interest. In respect of the latter, the prosecution did not assert that the matter had affected any person other than the complainant, and was not asserting any special aspect of public interest in respect of the prosecution. On the contrary, in her initial submission, the prosecutor expressed the view that the complaint alleged "a relatively minor matter".

15          In my view, the magistrate's decision to refuse the adjournment was an appropriate and lawful exercise of her discretion. The grounds of appeal are not made out. The motion is dismissed.