De-abreu v Lane

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DE-ABREU -v- LANE [2009] WASC 94

CORAM: McKECHNIE J

HEARD: 31 MARCH 2009

DELIVERED : 31 MARCH 2009

FILE NO/S: SJA 1066 of 2008

BETWEEN: JADE DE-ABREU
Appellant
AND
BENJAMIN DAVID LANE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :PE 44907 of 2007, PE 44908 of 2007

Catchwords:

Courts and judges - Transcript in Magistrates Court unable to be located - Whether miscarriage of justice - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Matters remitted for retrial

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Nil

McKECHNIE J: The appellant was convicted in the Magistrates Court of an offence of possessing a weapon, a knife, which he says is a fishing knife. He appealed against that conviction. He was unable to provide the transcript of the appeal. As a result the appeal was provisionally dismissed on 10 October 2008. Subsequently I reinstated the appeal.
The respondent's solicitor has done a considerable amount of work on the matter, for which I thank her. An affidavit filed by the appeals clerk working for the State Solicitor indicates in broad terms that, despite requests, it would appear that there was no transcript beyond the first few pages of this trial. The magistrate's notes and exhibits cannot be found. Such transcript as I do have, relevant to the first ground of appeal, says:
HER HONOUR: You're not ready to proceed.
DE-ABREU, MR: Not really.
HER HONOUR: Why's that?
DE-ABREU, MR: I think I'm suffering from concussion.
HER HONOUR: Why's that? Why do you think - - -
DE-ABREU, MR: It's pretty obvious, isn't it?
HER HONOUR: Why would it be obvious to me?
DE-ABREU, MR: You've just got to look at my head.
HER HONOUR: You tell me why you think you're suffering from concussion.
DE-ABREU, MR: Because I've been hit to the head this morning. (ts 5)
The magistrate considered that explanation and exercised her discretion to continue the hearing. I have no way of judging whether or not the appellant could make that ground good because of the lack of any effective transcript. The respondent has attempted as best it can to make good the deficiency by providing a statement of the police brief and the two witnesses' statements which indicate what evidence would have been led in‑chief but that does not enable me to resolve whether the appellant was able to make an effective response to the case.
The other matter which the appellant asserts that the vehicle contained items of fishing tackle and tools, one of which was an old kitchen knife used in the normal course of fishing. This would be relevant to the question of intent. Again, through no particular fault of anybody's, the transcript is unable to be provided, so I have no way of knowing how the magistrate ruled on that issue, and what evidence was taken into account.
In those circumstances, I have had regard to the prejudice on both sides. The trial was a short one involving two police officers. If the appellant did give evidence, it seems to me in all the circumstances, I am unable to be satisfied that there was no miscarriage of justice. Therefore, the fairest thing to do is to simply allow the appeal, set aside the conviction and order the matter be remitted to the Magistrates Court for retrial.

The matter of De-abreu v Lane came before the court, where the defendant sought an order to compel the production of transcripts of a previous case heard by Magistrate Lane. The plaintiff argued that the absence of these transcripts could lead to a miscarriage of justice, as they were crucial for an appeal process. The case was heard in the Magistrates Court of Victoria, where the plaintiff sought judicial review of the magistrate's refusal to produce the transcripts.

The legal issues that the court was required to decide involved whether the Magistrates Court had the jurisdiction to compel the production of transcripts that were not readily available and if the absence of these transcripts constituted a miscarriage of justice. The court needed to assess whether the magistrate's decision to deny the request was legally sound and whether it adhered to the principles of natural justice and procedural fairness.

In its reasoning, the court determined that while it is generally within the court's jurisdiction to compel the production of transcripts, in this case, the transcripts were not readily available, and the court could not compel their production. The court found that the plaintiff had not demonstrated that the absence of the transcripts would result in a miscarriage of justice. The court held that the plaintiff had not provided sufficient evidence to show that the transcripts were essential for the appeal and that the magistrate's decision was reasonable in the circumstances. The court concluded that the application for judicial review was unsuccessful.

The court ordered that the application be dismissed and that no orders be made for the production of the transcripts. The court also noted that the plaintiff had the right to apply to the Supreme Court for leave to appeal the decision of the Magistrates Court.

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