Crowther v Police - [2008] SASC 302

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CROWTHER v POLICE
[2008] SASC 302
Judgment of The Honourable Justice David
7 November 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GROUNDS FOR GRANTING OR REFUSING - OTHER MATTERS
Appeal against conviction - mother convicted by magistrate of assault upon seven year old daughter - victim and her father gave evidence for prosecution - allegations of assualt arose in context of matrimonial and child residence dispute - victim cross-examined about prior inconsistent statement contained in report in Federal Magistrates Court proceedings - during trial appellant discovered report subject to restrictive order - appellant applied for adjournment to obtain permission of Federal Magistrates Court to refer to and tender victim's prior inconsistent statement contained in report - magistrate struck out cross-exmaination, refused adjournment and proceeded to find appellant guilty of assault - whether magistrate reversed onus of proof - whether conduct which magistrate found proved amounted to assault - whether magistrate erred in refusing appellant's application for adjournment.
Held: Appeal allowed - magistrate applied correct onus of proof - conduct which magistrate found proved amounted to assault - magistrate erred in refusing appellant's application for adjournment - matter remitted to Magistrates Court for retrial before another magistrate.
Criminal Law Consolidation Act 1935 (SA) s 20; Evidence Act 1929 (SA) s 28; Magistrates Court Rules 1992 (SA) r 8, r 26, referred to.
Alexandroaia (1995) 81 A Crim R 286; House v King (1936) 55 CLR 499, applied.

CROWTHER v POLICE
[2008] SASC 302
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against conviction.
The appellant was charged on an Information with two counts of having assaulted her seven year old daughter (whom I will refer to as “C”), an offence pursuant to s 20 of the Criminal Law Consolidation Act 1935 (SA). The first count was alleged to have been committed on 3 October 2006 and the second count on 17 November 2006.
Background
A trial in respect of the charges commenced in the Elizabeth Magistrates Court on 12 May 2008. At the close of the prosecution case on 13 May 2008, the appellant sought a Prasad direction, while preserving her right to call evidence. The magistrate refused the application and adjourned the matter to 16 May 2008. When the trial resumed, the appellant gave evidence and then closed her case. The magistrate convicted the appellant in relation to the first count and dismissed the second count.
The Evidence of C
C gave evidence by affirmation at the trial, after the magistrate had conducted an inquiry, pursuant to s 21 of the Evidence Act 1929 (SA), as to her willingness to do so. At the time of the trial, she was aged nine years.
In relation to the first count, C said she was at home with her mother and brother on a Saturday. She said that her brother spoke to her father on the phone and then passed the phone to her so that she could also speak to him. She said she spoke to her father for a few minutes about wanting to move to a school in the area where he lived, because she was being bullied at the school she then attended. C said was sitting at the kitchen table and her mother was sitting on a nearby couch. She said that when she finished speaking to her father, her mother grabbed her by both wrists and took her to her room, while saying, “You’re not moving schools”. C said her mother then “strangled” her, by grabbing her around the neck with two hands for a couple of minutes. C said that during this time she was crying. Her mother then slammed the door; damaging it to the extent that C could not open it from inside. Her mother went next door and brought their neighbour back to C’s room. Together they pushed C’s door open, but neither of them spoke about what had happened. C could recall that the neighbour had asked her to make up her stepsister’s bed. C said they bought a new door handle and repaired the door a couple of days later. She said she had bruises on her neck and wrists, and she told her father, stepmother and cousin what had happened the next day, but did not see a doctor about the bruising.
When giving evidence in relation to the second count, C could not remember what this incident was about without some coaxing. She agreed that police had taken photographs of a bruise on the left side of her face, on the cheekbone near her eye. She said her mother had hit her with a wooden spoon when she was playing in her room. She said that it had occurred on a day her father was coming to collect her and her brother from their mother’s place. C said that apart from telling her to stand up and face her, her mother did not say anything before she hit her. C could not give any more detail, and there were a number of inconsistencies between her previous statements and evidence at trial.
In cross-examination, C agreed that her parents had separated before the two alleged assaults had taken place. She said she preferred her father’s place which was on the Fleurieu Peninsula to her mother’s place which was north of Adelaide for a number of reasons. One of those reasons was that her mother was a bit stricter than her father, and would sometimes tell her off and give her a smack on the back of her leg, on her arm or bottom. She said her mother used a plastic spoon called “Mr Smack”. She said that she was worried that the “Family Court” (the Federal Magistrates Court) might send her back to live with her mother. She said her father had told her that if something went wrong and it did not “work out properly in court”, she and her brother might have to live with their mother. C said that she had spoken to her father a number of times about both of the alleged assault charges and about finishing her evidence in court.
C gave evidence that she had spoken to a psychologist about the allegations. She had drawn some pictures and written some letters about the incidents, which she gave to her father when she finished. Parts of the psychologist’s report were put to C as follows:
Q.She says “As she looked at [the pictures and letters she had drawn and written] she said ‘Dad told me’” and she’s got here “Dad told me to write them”. Did you tell her that.
A.No. I told her Dad did not tell me to write these because I told Dad I’m going to write a letter to the police about what Mum did to me and I wrote it to the police and the police got it and that was the last time I seen it.
Q.When you wrote the letters did you feel good about it.
A.Yes, I felt good about it, like and that’s how I felt what my feelings felt like.
Q.Because [the psychologist] has written in her report “She said she did not feel good about writing them”.
A.I felt good about writing them.
Q.You did feel good about it.
A.Yes.
Q.So what happened when you spoke to [the psychologist]. Did you tell her that you didn’t feel good.
A.I told her I did feel good.
Q.You told her you did feel good.
A.Yes.
Q.So is she not telling the truth.
A.I’m not sure. I did tell her, I did.
Q.So you think she must have made a mistake.
A.I don’t know. I didn’t get to see the letters after or anything.
Q.Sorry.
A.I didn’t get to see anything when I’d writ the thing.
…
A.I only got to see it at [the psychologist’s] spot at her little office and that’s when she showed me the little letters and I got to read them, and I remember them, and she said “Did you write this and did anybody tell you?” and I said “No” because I sat down and Dad said “What are you doing?” and I said I was writing a letter, and Dad said “Why are you writing a letter?” and I said “Because I’m writing a letter to the police because I want to tell them what my feelings were like and everything”.
Q.Did you think that when you wrote these letters that might help you to stay living with your Dad. You did.
A.Yes, because he helps me out a lot.
Q.Because you really don’t want to go back to [the suburb where her mother lives], do you.
A.No.
C was also cross-examined in relation the alleged bruising to her wrists and neck:
Q.You said before lunch that you got some bruises.
A.Yes.
Q.When your Mum grabbed your wrists and also when she grabbed you by the neck, is that right.
A.Yes.
…
Q.Did you ever see those bruises yourself in this mirror.
A.Yes. I saw them at [my cousin’s].
Q.Because before lunch I’m quite sure you said you didn’t get to see the bruises. What do you say about that. Have you changed your mind.
A.No.
Q.Are you sure -
A.Yes.
Q.- that you haven’t been told to say that.
A.I haven’t been told anything.
Q.You haven’t been told by your Dad or by [his partner].
A.No.
Despite there being a gap of some six weeks between the incidents, C also said that she had bruises as a result of both of the alleged assaults at the same time. She said the bruises were each the size of a 20 cent coin, were clear and purple and that her father, stepmother and cousin were the first to notice them.
C said that at the time of the alleged assaults, she and her brother were living with their mother and spending weekends with their father. She said that she and her father had spoken about the possibility of her moving to a school near where he lived on the Fleurieu Peninsula before the incidents occurred. After the second incident, her mother waited two weeks and had to obtain a court order before the children were returned. It was on that occasion, after a week and a half, that her father had taken C to the police to be photographed. After a period of shared residence, C and her brother went to live with their father permanently.
The Evidence of C’s Father
The prosecution called C’s father (whom I will refer to as “P”) to give evidence. P said that the appellant is his ex‑wife and they have two children, one of whom is C. He said that he and the appellant separated in approximately May 2006. P said that the children initially stayed with the appellant, but because of the assault allegations, they were then removed and placed with him and his partner. Any contact between the children and the appellant had subsequently been put on hold, pending proceedings in the Federal Magistrates Court.
P said he had kept a diary of his communications with the appellant, and that he telephoned his children every night to speak to them. He said that each time he telephoned them he also spoke to the appellant. On 3 October 2006, he and the appellant had an argument on the telephone. P said he next spoke to C on 5 October 2006, after the appellant had indicated via an SMS message that she would get the children to call him. On 6 October 2006, P received a telephone call from the appellant’s neighbour, whose backyard was connected to the appellant’s backyard via a purpose-built gate. On Saturday, 7 October 2006 P picked up the children, and as they left, C told him her mother had strangled her. P said that upon inspection, he could see faint bruising on C’s neck. He said the bruising was too faint to report the incident to the police. P also said that C had not seen the bruising in a mirror while she was at his niece’s place.
On Saturday, 8 November 2006, the appellant informed P that he should pick up the children from the home of one of C’s friends. P said the friend’s mother told him she was taking care of the children because the appellant had been stressed. When C alighted from the car after they arrived back at his place, he noticed a mark on the left side of her face. When he asked C what had happened, she told him that the appellant had hit her with a spoon the night before. He then took C to the police station to report both of the incidents.
In cross-examination, P said that he resided with his niece from the time of his separation from the appellant until he moved to the Fleurieu Peninsula in October or November 2006. He said he would have discussed the possibility of the children attending school on the Fleurieu Peninsula with the appellant before the first alleged assault, because the appellant had asked him whether he wanted to take the children. The Federal Magistrates Court became involved when P kept C and her brother for two weeks following the second alleged assault. He said that after a period of shared residence, he was awarded sole residence. He said, however, that another trial was soon to commence in relation to the children’s residence. He said he spoke to C about the assault allegations, but did not influence her to make false allegations or write negative comments about the appellant in relation to the proceedings in the Federal Magistrates Court.
The Evidence of the Appellant
The appellant gave evidence on 16 May 2008. She said that after she and P separated in May 2006, the children lived with her during the week and stayed with P on weekends by mutual agreement. She said that on 18 November 2006, she had told P to pick up C and her brother from C’s friend’s home. P subsequently failed to return the children to the appellant as agreed, and the appellant then had to initiate proceedings in the Federal Magistrates Court. In early 2007, P was awarded residence of the children and, from about November 2007, he had denied the appellant any access to the children whatsoever.
In relation to the first count, the appellant gave evidence that on one occasion she overheard C saying to her father on the telephone “When can I tell mum we are moving?” She said she did not overhear anything about moving schools. She said she did not agree to the children being moved and had not asked P whether he wanted to take the children. The appellant denied grabbing C around the wrists or on the neck, saying, “You’re not moving schools”. She said the handle on C’s bedroom door had not broken, but the door used to stick when C closed it. In cross‑examination, the appellant said that her children from a previous relationship, who were aged 16 and 18, had been visiting her place for the weekend and had left to return home on Monday, 2 October 2006. She also said that on Tuesday 3 October 2006 her niece and nephew visited her place.
In relation to the second count, the appellant denied hitting C across the face with a spoon and said she had never noticed a bruise on the side of C’s face. She said she did use kitchen spoons in order to discipline the children and any such spoon used was called “Mr Smack”. She said she gave the children a warning and, if they did not respond, she then gave them a “light tap on the bum”. She said this rarely happened. She said she had a close relationship with C before P failed to return them on the weekend of 18 November 2006.
The appellant was cross‑examined as to her record of interview as follows:
Q.In the record of interview you mentioned that [C] had told you that her father’s been sitting her down at the table and “- making her say allegations against me so that she doesn’t have to stay with me”. Can you tell the court about that?
A.I said that was what [C] said.
Q.I’ll just read it out.
A.That’s what [C] said to me.
Q.Did she give any details of that at all?
A.No.
The appellant also said that C was not always happy about going with her father.
Appeal
The grounds of appeal are:
1.The learned Auxiliary Magistrate erred in refusing an application by the Appellant for an adjournment of the trial to enable the appellant to apply to the Federal Magistrates Court for permission to make reference to and to tender during the course of the trial, a psychological report that had been prepared for the purposes of proceedings in the Federal Magistrates Court.
2.The learned Auxiliary Magistrate erred by incorrectly applying the burden of proof.
3.The learned Auxiliary Magistrate erred by finding that the behaviour he found proved, constituted a criminal assault.
I will deal with the second and third grounds first.
Burden of Proof
The appellant argues that the magistrate incorrectly applied the burden of proof. In his reasons the magistrate said:[1]
I have considered the defendant’s evidence.
She gave her evidence well. Her demeanour was satisfactory. It consisted largely of denials of knowledge of either of the alleged incidents. I am left with the stark contrast between her evidence and that of [C].
I bear in mind that [C] is a child and I have regard to the submissions as to the ease with which a child’s will may be overborne. Whilst her evidence as to time and dates is not reliable and whilst I accept that there are other inconsistencies within her evidence and with that of her father and what she said to the police at the end of the day the core of her evidence remained consistent and is to be contrasted with her mother’s denial that anything happened at all. If so, this is a sustained maintenance by a child witness of an untrue version. Having observed [C] carefully and having regard to the nature of her evidence I do not accept and I reject as a reasonable hypothesis that her evidence has been invented by her or instilled in her by her father.
The appellant now argues those reasons indicate that after considering that the appellant gave her evidence well and her demeanour was satisfactory, despite the fact that her evidence was in stark contrast to the evidence of C, the magistrate then reversed the onus when reasoning he did not accept C’s evidence had “been invented by her or instilled in her by her father”. The appellant now argues that the magistrate should have made very clear that where there was a conflict in the evidence, it was for the prosecution to prove C was truthful and accurate, and that the appellant’s evidence was not truthful or accurate, beyond reasonable doubt.
[1] Reasons for Decision, Police v Crowther (Unreported, Magistrates Court of South Australia, Auxiliary Magistrate Hiskey, 16 May 2008) [23]-[25].
Taken in isolation, there is merit in the appellant’s argument. However, from the whole of his reasons, it is clear the magistrate applied the correct onus.[2]
[2] Ibid [3], [8], [18]‑[20].
I reject that ground of appeal.
Criminal Assault
The appellant argues that the magistrate has incorrectly categorised the behaviour, which he found to have taken place, as an assault. In his reasons, the magistrate stated:[3]
I am satisfied that in the bedroom the defendant did grab [C] around the throat. I find that she was angry at the time. That is not surprising given that [C] had just said to her in effect that she wanted to move schools which also meant going to live with her father. It is not an offence for a parent to become angry. There could have been an expression of that anger involving physical contact which would not cross the boundary between what can be accepted as an incident of family life as distinct from an incident that crosses the invisible line distinguishing criminal conduct from non-criminal conduct. If, for example, [C’s] mother had put her hands on [C’s] shoulders and turned her around and spoken to her sternly or even angrily towards her, that would not cross the invisible line.
[C’s] evidence and her demonstration in the witness box of how she was grabbed showed her mother seizing her under the chin with both hands on either side of her neck was convincing … At the outset of her evidence she used the word ‘strangled’ … The act cannot be described as ‘strangling’. But it is properly described as an angry and intentional act whereby physical force was applied to a vulnerable part of her body. As such it is outside the norms acceptable … and constitutes a criminal assault.
[3] Ibid [27]-[28].

Although the magistrate found that the appellant placed her hands around C’s throat in an angry manner, he refused to categorise it as “strangling”. In her evidence, the appellant denied that anything of that nature occurred at all. The appellant now argues that the magistrate’s categorising of the behaviour as angrily grabbing C around the throat, as distinct from strangling C, does not amount to an offence pursuant to s 20 of the Criminal Law Consolidation Act. In my view, this argument should be rejected. It is not necessary for the behaviour to go as far as an actual strangling to make out an offence of assault. If found proved, the behaviour described by the magistrate clearly makes out the charge.
Application for Adjournment
According to an affidavit filed on appeal, counsel for the appellant at trial attended the Adelaide Registry of the Federal Magistrates Court on 9 May 2008 in order to examine the court file in relation to proceedings between the appellant and P in that court. Those proceedings related to a dispute about the residence of C and her brother. During the course of examining the file, the appellant’s counsel came across and copied a psychological report, written by a psychologist from Families SA and dated 4 December 2007. The report contained information suggesting P had told C to write certain letters which were exhibits to an affidavit in that court. The letters contained allegations against and negative comments about the appellant. On 12 May 2008, the appellant’s counsel cross‑examined C about the letters and the contents of the report. C denied that her father had told her to write the letters. The appellant’s counsel tendered the letters and intended to also tender the psychological report by consent, as proof (without more) of a prior inconsistent statement. On 12 May 2008, the appellant’s counsel received a telephone call from a solicitor acting as the child representative in the Federal Magistrates Court proceedings, who advised that the psychological report was privileged and that the appellant’s counsel ought not have used it in the trial without having first obtained the permission of the Federal Magistrates Court.
Mid-way through the further cross‑examination of C on 13 May 2008, the appellant’s counsel applied for an adjournment in order to have other counsel appointed because of a perceived conflict of interest. After having seen both counsel in chambers, the magistrate refused the application, giving brief reasons. I set out what happened in open court:
MR KOEHN:      I think I need to speak to my manager about the way I proceed in this matter. I am just wanting a bit more advice and I am wondering if your Honour will allow me a brief adjournment to have a discussion. It is a little bit of an unusual sort of request.
HIS HONOUR:    It is an unusual request but I am sure it is made in good faith and I will grant it.
ADJOURNED      10.55 A.M.
RESUMING 11.25 A.M.
MR KOEHN:      I do have an application for an adjournment in order to have another lawyer appointed because of a perceived conflict of interest situation
HIS HONOUR:    I will record that at the request of counsel and the prosecutor I have seen both in my chambers.
The background to this application has been explained to me. I will not delay the proceedings by giving any detailed reasons now but I indicate that I am not satisfied that it is necessary or appropriate that I adjourn this matter to enable alternative counsel to be engaged. The matter should proceed and I direct that it does proceed. I further do so upon the understanding that a statement that is said to be inconsistent with the evidence of the witness will be able to be tendered by consent. I will deal with this matter in more detail at a later date.
Later on 13 May 2008, mid‑way through the evidence of P, the appellant’s counsel again applied for an adjournment because the inconsistent statement was subject to a restrictive order of the Federal Magistrates Court.
Though somewhat lengthy, it is best that I set out exactly what transpired before the magistrate, which is the subject of the present ground of appeal:
MR KOEHN:      I do apologise for these constant interruptions to the proceedings but I’ve had to take some further advice in relation to the difficulties I had this morning. A further complication has arisen and that’s in relation to the report that I have made reference to, and indeed cross-examined [C] about, and I’m advised now that the report was prepared upon order of the Federal Magistrates Court and the court ordered that it should not be released except to a very restricted list of parties or persons. I don’t know the exact wording of the order but I understand it’s along the lines that the report must not be disclosed to persons other than the lawyers of the parties and the parties themselves unless the court – that is the Federal Magistrates Court – orders otherwise. I think when the order refers to “lawyers” it’s a reference to lawyers in relation to the Federal Magistrates Court proceedings.
HIS HONOUR:    I would think that’s right.
MR KOEHN:      I may be a lawyer in those proceedings because I’ve filed a notice for address for service in that but I don’t know –
HIS HONOUR:    On whose behalf?
MR KOEHN:      On behalf of my client.
HIS HONOUR:    The defendant, this defendant.
MR KOEHN:      Yes, this defendant, which I was required to do in order to be able to even look at the file. I did that late last week and, unfortunately, I think I’m in a bit of a difficult situation here. It seems that any disclosure in relation to that report is in breach of a [F]amily [L]aw rule, rule 15(3)(5) of the [F]amily [L]aw [R]ules. The problem, it seems, may be overcome if I make an application to the Federal Magistrates Court for permission to use the report in the course of these proceedings. I don’t think there’s any problem of conflict in that respect because I would then brief private counsel to make the application and I’d attempt to do that urgently – maybe I could do it before Friday – but I do want to use it in the course of cross‑examining the current witness, [P].
…
HIS HONOUR:    … applying the ruling of the Federal Magistrates Court literally, it is at least arguable – indeed, it would seem to me to be probable at the moment but not certain – that she was prohibited, I’ll withdraw the ‘probable’ and go back to its ‘at least arguable’ that she ought not to have disclosed that report to you. I don’t suggest, by the way, that any disclosure was otherwise than innocent. I would think it’s quite understandable that she would have disclosed such a document to you in these proceedings. I suppose there’s a further complication in applying that direction of the Federal Magistrates Court literally, it’s at least arguable that you’re prohibited from disclosing it to the prosecutor.
MR KOEHN:      Yes.
HIS HONOUR:    Which would then make it very difficult for the proceedings to even agree as a fact that that is what [C] said to the psychologist.
MR KOEHN:      Even if we don’t tender the report, yes, it would be difficult for her to agree as a fact, that’s right.
HIS HONOUR:    The alternative might be that in light of the ruling of the Federal Magistrates Court that that part of your cross-examination that raises that issue should be struck out of the evidence as a matter that ought not to have been put in light of the report of the Family Court and I could therefore strike it out of the evidence and obviously simultaneously strike it out of my mind in terms of assessing credit. As I talk it through, and I think this is being transcribed, it seems to me that that probably is the position: that the questions you ask, albeit I believe innocently and in good faith, are rested upon a false assumption and that was a false assumption that you were at liberty to refer to and identify that portion of the report. It turns out, you say, and I accept your assurance, that that is not the case. In those circumstances, why ought I not at this stage prior to your having any authority simply strike out that portion of the evidence.
MR KOEHN:      I don’t think I would have any basis for opposing that.
HIS HONOUR:    I doubt that the prosecution would oppose that course because it removes – I mean, it’s not harmful to the prosecution that I strike that out.
APP LEHMANN: That’s right.
HIS HONOUR:    It is true that the course that I have in mind to adopt is convenient and assists in allowing this matter to be dealt with and finalised but that isn’t the test, and I must remind myself of that. The test is: what, as a matter of principle, is the situation? Without repeating the process of reasoning that has arisen in the course of my exchanges with Mr Koehn, I indicate for those reasons that the evidence of the child arising as a result of questions put to her about what she had said or allegedly said to a psychologist is evidence which is inadmissible and cannot therefore be used to attack her credit. It would be open to defence counsel to seek an adjournment to enable counsel to seek the permission of the Federal Magistrates Court to use the report in the way suggested but I foreclose any application of that nature by saying that any such application would require an adjournment and at this stage of this trial, and given the nature and significance of the trial, I do not believe it would be appropriate to grant an adjournment to enable something to be done that perhaps with the advantage of hindsight something could have been at a different point of time in any event. Accordingly, the matter will proceed with that part of the evidence excluded. We can proceed. …
In his reasons, the magistrate said:[4]
Counsel for the defendant has pointed to a number of inconsistencies within [C’s] evidence. There are internal inconsistencies within her Evidence-in-Chief and other inconsistencies between that evidence and her evidence in cross-examination, and it is also the case that there are inconsistencies between her evidence and the statement she made to police.
It is also said that her evidence is inconsistent with a statement made by her to a child psychologist. During the course of the hearing and after argument I heard and rejected an application by defence counsel for an adjournment to enable alternative counsel to be briefed in light of what he perceived to be a conflict of interest. In light of further information subsequently provided to the effect that the report of the psychologist concerned was a report ordered by the FMC with a proviso that the report could be used only for a restricted purpose I directed and ruled that the cross-examination of [C] based upon that report should be excluded from evidence. In light of that finding it is not necessary for me to say anything about Exhibit D1.
…
One possibility in assessing this evidence is the possibility either that [C] has invented these two incidents, or that she has been coached or coaxed by her father into giving this evidence.
In relation to the latter, I am satisfied that [C’s] father has not sought to use [C] in this manner. It is apparent that [C’s] father received advice at an early stage as is apparent from his maintenance of a diary. It was inevitable that there be some conversation between himself and [C] and neither has sought to deny that. But any suggestion that [C’s] father has put her up to giving a false account is a suggestion which I reject.
[4]    Judgment, Police v Crowther (Magistrates Court of SA, Auxiliary Magistrate Hiskey, 16 May 2008) [12]-[13], [18]-[19].
I now set out the legislation and rules relevant to the magistrate’s decision. Section 17 of the Magistrates Court Act 1991 (SA) provides:
17—Adjournment from time to time and place to place
The Court may—
(a)adjourn proceedings from time to time and from place to place; or
(b)adjourn proceedings to a time and place to be fixed; or
(c)order the transfer of proceedings from place to place.
Rule 8 of the Magistrates Court Rules 1992 (SA) provides:
8.00CASEFLOW MANAGEMENT
8.01These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat the determination of litigation according to the merits of the case of litigants who are genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.
8.02With the object of -
(a)promoting the just determination of litigation;
(b)disposing efficiently of the business of the Court;
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business at a cost affordable by the parties;
proceedings in the Court will be managed and supervised in accordance with a system of positive caseflow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.
8.03The practice, procedure and processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for the identification of the factual and legal issues bona fide in dispute between the parties and the preparation of the case for trial or other disposition.
8.04To these ends -
(a)Parties to proceedings are required to be ready to proceed to trial by the date of the hearing at which a trial date is set.
(b)Parties must fully comply with Rule 26.
(c)A trial date which has been fixed will not be postponed unless the justice of the case, assessed having regard to the obligations of the parties pursuant to paragraph (a) hereof, so requires.
8.05In the event that any application is made at trial to amend the complaint, information, application, particulars or other process the Court may, if the amendment would cause the postponement or adjournment of the trial, refuse such application, if it sees fit, in order to protect the integrity of the caseflow management system and to implement the Court's requirement that trials proceed at the time appointed for trial, notwithstanding that any injustice to the opposing party might have been avoided by an order for costs adjournment or otherwise.
…
Rule 26 of the Magistrates Court Rules 1992 provides:
26.00PRE-TRIAL PREPARATION
26.01Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law so as to:
(a)fully explore the possibility of disposing of the charge other than by way of trial;
(b)enable the duration of the hearing to be estimated as accurately as possible,
(c)determine what evidence if any may be proved by affidavit;
(d)facilitate the course of the trial,
and shall inform the Court as to each of the above.
26.02To the extent necessary to comply with this Rule the parties must confer fully and frankly.
…
The parties referred me to the decision of the New South Wales Court of Criminal Appeal in Alexandroaia,[5] in which that court considered the test, if any, to be applied to the merits of an application for an adjournment. Although the court found that it was not possible to formulate any hard and fast rule for every case, it held that the appropriate test in that case was whether there was a reasonable possibility that material of substantial assistance would be obtained if the trial were delayed. In my view, that is an appropriate test in this case. That court also considered the bases, outlined in House v The King,[6] upon which the discretionary decision to refuse an adjournment, a decision with which appeal courts are particularly loathe to interfere, might be found to have been erroneous.
[5] Alexandroaia (1995) 81 A Crim R 286.
[6] House v King (1936) 55 CLR 499, 504-505; [1936] HCA 40.
In my view, the magistrate’s refusal to grant any adjournment to enable the appellant to seek permission to use the contents of the report amounts to a miscarriage of justice. Although the magistrate refers generally to inconsistencies in C’s evidence, in his reasons he nevertheless accepts what she says on the salient issues. By refusing to grant an adjournment, he has denied the appellant the opportunity of using the report to present the specific inconsistency the report could establish to the finder of fact. It is to be borne in mind that there was very little middle ground in this case between the evidence of the appellant and the evidence of C. There were suggestions put to C in cross-examination that her allegations were prompted by the family dispute and her father’s coaxing.
I have already set out the passage where C was cross-examined about the contents of the psychological report, where it was put to her that she told the psychologist her father had told her to write some letters and draw some pictures concerning the allegations. In cross-examination, C not only denied what the psychologist said in her report about that conversation, but asserted to the contrary, namely that her father did not tell her what to write; she rather told him what she was going to write. In light of C’s denials in cross-examination, an adjournment was sought to obtain permission to present the report to the court. It was the duty of defence counsel to present the report, pursuant to s 28 of the Evidence Act 1929 (SA). Having been denied the opportunity by the magistrate’s refusal of an adjournment, that inconsistency could not be established.
In my view, the appellant was denied the benefit of an important piece of evidence, which in the context of this case, could not be underestimated. Material of substantial assistance could have been obtained if the trial had been delayed. In my view, an adjournment should have been granted for the purpose sought. Not to do so, amounted to a miscarriage of justice and an unfair trial.
Conclusion
I allow the appeal. The conviction will be set aside and I remit the matter to the Magistrates Court to be tried before another magistrate.