Delopez v Barry
[2014] WASC 370
•6 OCTOBER 2014
DELOPEZ -v- BARRY [2014] WASC 370
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 370 | |
| 06/10/2014 | |||
| Case No: | SJA:1047/2014 | 26 SEPTEMBER 2014 | |
| Coram: | PRITCHARD J | 26/09/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | TAMARA DELOPEZ ZACHARY PATRICK BARRY |
Catchwords: | Criminal law and procedure Application for adjournment sent by letter before first mention date of charge Application refused Whether discretion miscarried Whether substantial miscarriage of justice occurred |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Criminal Procedure Regulations 2005 (WA) Liquor Control Act 1988 (WA) Road Traffic Act 1974 (WA) |
Case References: | Eley v Town of Victoria Park [2014] WASC 103 Grover v Scott [2010] WASCA 164 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lasscock v Seidner [2013] WASC 94 Saad v Baron [2012] WASC 507 Sharma v Hodgson [2012] WASC 433 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ZACHARY PATRICK BARRY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 76478 of 2014
Catchwords:
Criminal law and procedure - Application for adjournment sent by letter before first mention date of charge - Application refused - Whether discretion miscarried - Whether substantial miscarriage of justice occurred
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Liquor Control Act 1988 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Mr N T L John
Solicitors:
Appellant : Abigail Rogers Barristers & Solicitors
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Eley v Town of Victoria Park [2014] WASC 103
Grover v Scott [2010] WASCA 164
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lasscock v Seidner [2013] WASC 94
Saad v Baron [2012] WASC 507
Sharma v Hodgson [2012] WASC 433
- PRITCHARD J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
1 On 15 May 2014, Ms Delopez was convicted in the Perth Magistrates Court of an offence under s 77 of the Road Traffic Act 1974 (WA), namely, that while the holder of an extraordinary driver's licence which was the subject of conditions endorsed on that licence, she drove a motor vehicle on a road and failed to comply with the endorsed conditions of the licence by driving with a blood alcohol content exceeding 0.02% (the charge).
2 Upon her conviction, Ms Delopez was fined $600, ordered to pay costs and her extraordinary driver's licence was cancelled. Ms Delopez seeks to appeal against her conviction. On 13 August 2014, Corboy J ordered that Ms Delopez's application for leave to appeal pursuant to s 9(1) of the Criminal Appeals Act 2004 (WA) (CA Act) should be heard at the same time as the appeal itself.
3 For the reasons which follow, leave to appeal should be granted, the appeal allowed and the conviction set aside.
4 In these reasons for decision I deal with the following matters:
(1) the background facts;
(2) the ground of appeal;
(3) applications for an adjournment of a charge;
(4) principles in relation to the discretion to grant an adjournment;
(5) why the learned Magistrate erred in her exercise of discretion to refuse the adjournment;
(6) why it is not appropriate to dismiss the appeal pursuant to s 14(2) of the CA Act; and
(7) conclusion and orders.
(1) The background facts
5 The charge was listed for a first mention in the Magistrates Court on 15 May 2014. On that date, when the matter was called on, the learned Magistrate's judicial support officer referred to a letter which had been received from the counsel then engaged by Ms Delopez. (In these reasons I will call that person the 'first counsel'.) A copy of the letter was provided to this Court. The letter was dated 14 May 2014 and requested an adjournment of the charge until 6 August 2014, that is, for just under three months. The letter advised that the first counsel was 'unable to attend to court tomorrow [that is, on 15 May 2014] … as he is engaged in a District Court trial'. The fact that the three-month sought adjournment was a very lengthy adjournment was not lost on the first counsel. In the letter, he said: '[w]e understand this is a lengthy adjournment however, [the first counsel] is unavailable (due to a lengthy District Court trial) until this date'.
6 It is apparent that from the outset the learned Magistrate was concerned about the delay involved in the requested adjournment and about the basis for the adjournment application. She made some inquiries as to whether the first counsel was, in fact, involved in another trial. The transcript indicates that, as a result of inquiries at the court, information was provided to the learned Magistrate which indicated that the first counsel was involved in an eight week trial which had just commenced. Coincidentally, the prosecutor advised the court that he had spoken with the first counsel and discovered that the first counsel was, in fact, ill (that is, on 15 May 2014). It is apparent that the learned Magistrate did not focus on this consideration. Her concern was not with the fact that the first counsel was unwell and could not appear on 15 May 2014, but rather, with the bona fides of his application for a three-month adjournment and with the absence of an explanation for why Ms Delopez could not attend the court personally.1
7 Having ascertained that the first counsel was, in fact, involved in another trial, the learned Magistrate then proceeded to deal with the adjournment application. She indicated that she was not satisfied that the first counsel's involvement in another trial was a good reason for the adjournment that was requested.2 The learned Magistrate refused to grant an adjournment.
8 The learned Magistrate then indicated that she would hear and determine the charge under s 55(2) of the Criminal Procedure Act 2004 (WA) (CP Act). The effect of that decision was that it was not necessary for the prosecution to prove the charge in the usual way. Amongst other things, s 55(4) enables the court to take as proved any allegation in a prosecution notice containing the charge that was served on the accused, and to convict the accused on that basis. The learned Magistrate found the charge proved, and proceeded to sentence Ms Delopez immediately and cancelled her extraordinary driver's licence in the course of doing so.
9 On 26 May 2014, Ms Delopez made an application to the Magistrates Court pursuant to s 71 of the CP Act for an order that her conviction be set aside and that the charge be dealt with again (the s 71 application). An affidavit filed in support of that application indicated that Ms Delopez had instructed the first counsel to represent her on 15 May 2014 and to seek an adjournment of the charge to enable her to receive legal advice and to properly consider her proposed plea, and that Ms Delopez was unaware that her attendance was required at the court given that she had engaged counsel.
10 The s 71 application was heard on 4 June 2014. The presiding Magistrate concluded that he had no jurisdiction to deal with the application because what was complained of in that application was, in fact, the decision by the learned Magistrate to refuse the adjournment.
(2) The ground of appeal
11 According to a 'Ground of Appeal' document dated 21 June 2014 filed on Ms Delopez's behalf, the sole ground of appeal is that:
the learned magistrate erred in law by failing to properly exercise her discretion according to law in refusing the applicant's application to adjourn the first appearance hearing, entering a conviction in the applicant's absence and cancelling the applicant's extraordinary driver's licence when there was real prejudice to the applicant and the prosecution did not rely on any prejudice to the prosecution if the charge was adjourned.
(3) Applications for an adjournment of a charge
12 The Magistrates Court has express power to grant an adjournment of a charge pursuant to s 75(2) and s 75(3) of the CP Act which provide:
(2) A court has a general power to adjourn a charge at any time and may do so whether or not -
(a) the prosecutor or the accused is present; or
(b) the accused has pleaded to the charge; or
(c) any evidence has been given.
(3) Without limiting subsection (2), a court may adjourn a charge for any good reason including for the purpose of allowing -
(a) the accused to consider the prosecution notice or seek legal advice;
(b) the services of an interpreter to be obtained.
14 In this case, as counsel for the respondent pointed out, the application for the adjournment was not made in a prescribed form. It was made simply by a letter, apparently sent by facsimile to the Magistrates Court. It was not supported by an affidavit. Neither the first counsel, nor Ms Delopez, attended at the Magistrates Court to make an oral application or to make any submissions in support of the application for an adjournment of the charge.
15 Ms Rogers, who appeared for Ms Delopez in the appeal, submitted that in cases where an adjournment is sought before a first hearing date in the Magistrates Court, it is not uncommon for the application for an adjournment to be made by a letter. She submitted that the prescribed form for such applications would be rejected by the court as the papers relating to the prosecution notice would not commonly be held by the court until immediately prior to the listed hearing date. Counsel for the respondent disputed that it was appropriate or common to proceed to make an application for an adjournment by letter as had occurred in this case.
16 Given that factual dispute, and because this Court is not aware of the circumstances surrounding the decision by the first counsel to send a letter to the Magistrates Court requesting an adjournment, I do not intend to make any specific observations about the appropriateness of that decision. However, it is appropriate that I make some general observations about such matters.
17 The Magistrates Court has a heavy workload and its magistrates are very busy judicial officers. In those circumstances, it is essential that the court has the assistance of the practitioners who appear in that jurisdiction to deal with matters as efficiently as possible, whilst always observing the fundamental imperative that an accused person must receive a fair trial.
18 If a charge is unable to proceed on the listed date and an adjournment is sought, it is incumbent upon either the accused or his or her legal representative to make a written application, or an oral application, and to provide the court with a proper basis for that application. It should never be assumed by any counsel that an adjournment will be granted as of right. It is an indulgence which may be granted by the court on proper grounds being shown to exist, having regard to any relevant considerations. These will include the prejudice to the applicant if the adjournment is not granted, the prejudice to the prosecution if it is granted and, if appropriate, case management considerations, including the effect of an adjournment on court resources and competing claims to those resources by other litigants. (In the criminal context, the latter considerations will always be subordinated to the importance of a fair trial for an accused person.3)
19 Leaving to one side the question whether it was appropriate in the present case to make an application for an adjournment by letter, it suffices to observe that to proceed in that way gave rise to a number of risks. First, because the application was not supported by an affidavit, there existed the risk that the basis on which the adjournment was sought might be doubted.
20 Secondly, as the first counsel clearly appreciated, the adjournment sought was a lengthy one. It was also one which was sought before Ms Delopez had entered a plea to the charge. It was, therefore, an application which one might expect, and which counsel clearly did expect, would not necessarily immediately attract a favourable reaction from a magistrate.
21 Thirdly, merely sending a letter to the Court without attending in person, or ensuring that Ms Delopez herself attended, ran the risk that if the Court was not persuaded to grant the application for the adjournment, there would be no-one present to advocate an alternative course of action, such as an adjournment for a shorter period.
22 Sometimes unexpected circumstances arise (such as illness) where it is not possible to comply with the formalities required for an application. And it is no doubt the case that practitioners who appear in the Magistrates Court on a regular basis are often dealing with a number of matters at any one time. However, neither unexpected circumstances, nor work pressures, excuse practitioners, as officers of the court, from treating the Magistrates Court with anything less than the utmost respect. A hearing date for a charge before the court is not to be equated with a casual social occasion, the time for which can be changed informally and without question merely on request.
23 The preferable course for the first counsel may have been to have advised Ms Delopez to attend at the Magistrates Court to make an adjournment application herself or at least to be present while the first counsel's application by letter was dealt with so that she could deal with any questions the learned Magistrate might have had about that application. An alternative course may have been to seek Ms Delopez's agreement to arrange for another counsel to attend and to make the adjournment application orally. Alternatively, the first counsel could have advised Ms Delopez that she should engage another counsel to represent her in the matter generally.
24 Leaving those observations to one side, the question for present purposes is whether Ms Delopez's conviction should be set aside on the basis that the learned Magistrate erred in refusing the adjournment which was sought.
(4) Principles in relation to the discretion to grant an adjournment
25 The decision to grant an adjournment is a discretionary one. (I note for completeness that the decision to proceed and to hear and determine a charge in the absence of an accused under s 55(2) of the CP Act is also a discretionary decision. The court may, alternatively, adjourn the matter in the accused's absence in that case.)
26 In Eley v Town of Victoria Park Edelman J set out six well-recognised principles in relation to the discretion to grant an adjournment:4
(i) Whether an adjournment should be granted is a matter of discretion and it must be shown that the magistrate has erred in exercising discretion. This invites consideration of the usual principles relevant to the exercise of discretion.
(ii) Appeals brought against a refusal of an adjournment by a magistrate have failed in circumstances where the appellant was unable to establish that the refusal gave rise to an injustice.
(iii) Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party.
(iv) It is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence.
(v) The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a miscarriage of justice. The question must be whether it was fair to proceed in the circumstances.
(vi) Adjournments are not available for the asking. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily. (Footnotes omitted.)
27 The 'usual principles' in relation to an appeal against the exercise of discretion to which his Honour referred were set out by Dixon, Evatt and McTiernan JJ in House v The King:5
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order but if, upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
(5) Why the learned Magistrate erred in her exercise of discretion to refuse the adjournment
28 Counsel for Ms Delopez submitted that the learned Magistrate erred in refusing the adjournment when to do so would result in a serious injustice to Ms Delopez (namely that the charge could then be dealt with in her absence pursuant to s 55 of the CP Act) in circumstances where there was no suggestion that there would be any injustice to the prosecution if the adjournment were granted. I note that the learned Magistrate did not make any inquiry of the prosecutor as to whether he opposed the adjournment which was sought, or any shorter adjournment.
29 Counsel for Ms Delopez also submitted that even if an adjournment for three months was not considered appropriate, a shorter adjournment should have been granted. That would have given Ms Delopez the opportunity to be represented when she had clearly indicated that she wished to have legal representation in relation to the charge. Counsel for Ms Delopez also submitted that the decision to refuse the adjournment was 'unreasonable or plainly unjust'.6
30 In my respectful view, having regard to all of the facts, the decision by the learned Magistrate to refuse the adjournment sought, or any adjournment, was 'unreasonable or plainly unjust' so as to permit the inference that there was a failure to properly exercise her discretion. The letter from the first counsel indicated that Ms Delopez had engaged a counsel and clearly wished to deal with the charge, even though her intended plea was not then known. Even if the requested adjournment were considered too lengthy, it is difficult to see why the learned Magistrate did not see fit to grant an adjournment for a short period to enable Ms Delopez to be heard in respect of the charge, either personally or through a counsel. If necessary, a summons could have been issued to ensure Ms Delopez was made aware of the date to which the hearing had been adjourned and to require her attendance. No inquiry was made of the prosecutor to see if he opposed an adjournment or if he claimed that any prejudice would arise from such a course. In addition, in my respectful view, the unreasonableness of the decision to refuse an adjournment in this case is also manifest from the fact that the learned Magistrate proceeded to deal immediately with the charge pursuant to s 55 of the CP Act in circumstances where Ms Delopez had indicated, by her actions in engaging a counsel, that she wished to be heard in relation to the charge. While I do not suggest that there was any error by the learned Magistrate in refusing an adjournment of three months, in my respectful view, in all of the circumstances it was unreasonable or plainly unjust not to adjourn the charge for a shorter period so as to enable Ms Delopez to attend and be heard in respect of it.
31 Counsel for the respondent submitted that the decision to refuse the adjournment did not manifest error for three reasons. First, he submitted that there was no express error in the reasoning of the learned Magistrate. He submitted it was inconceivable that the learned Magistrate had failed to take into account the ramifications for Ms Delopez if an adjournment was refused. It is not necessary to dwell on this aspect of counsel's submissions because, in my view, the error in the exercise of discretion was not an express error but was one which can be inferred from the unreasonableness of the decision in all of the circumstances.
32 The second submission made by counsel for the respondent was that there was no error in the exercise of discretion because there was no injustice to Ms Delopez in the sense that she was denied the opportunity to enter a plea to the charge. He submitted that Ms Delopez could have attended on 15 May 2014, could have submitted a written plea prior to that date, or that her lawyer could have indicated her plea in his letter and, in those circumstances, there would have been no denial of the opportunity for Ms Delopez to plead not guilty to the charge. I do not accept that submission. It is apparent from the material before this Court that Ms Delopez did not attend on 15 May 2014 because she had engaged a counsel to appear on her behalf and to seek an adjournment and did not understand that she should also attend. As I have explained, a better course may have been for the first counsel to have arranged for Ms Delopez to attend at the court to make the adjournment application herself if no other counsel was able to attend on her behalf.
33 The third submission made by counsel for the respondent was that it would not be an injustice for Ms Delopez to be convicted without entering a plea in circumstances where s 55 of the CP Act permitted that to occur. It is convenient to deal with this latter point in conjunction with the question whether this is a case where the appeal should nevertheless be dismissed pursuant to s 14(2) of the CA Act because no substantial miscarriage of justice has occurred.
(6) Why it is not appropriate to dismiss the appeal pursuant to s 14(2) of the Criminal Appeals Act
34 Section 14(2) of the CA Act provides that even if a ground of appeal might be decided in favour of an appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
35 Counsel for the respondent submitted that there was no miscarriage of justice in this case when Ms Delopez was not denied any opportunity to plead not guilty because she could have done so either by attending on 15 May 2014 or by indicating her plea in the course of the s 71 application. He also submitted that no miscarriage of justice has resulted because Ms Delopez has not shown that she has a defence to the charge as she has given no indication of her defence at any stage. He placed reliance on two cases in particular: Grover v Scott7and Sharma v Hodgson.8
36 I do not accept that that is an appropriate assessment of whether a miscarriage of justice has resulted in this case. In my view, this case is capable of some analogy with the decision of Beech J in Saad v Baron, where his Honour stated:9
[28] Generally, where an accused unsuccessfully applies for the adjournment of a trial, and later appeals against the conviction on grounds of the wrongful refusal of the adjournment, the question of whether there is a substantial miscarriage of justice requires consideration of the evidence at trial: see for example, Lewis v The State of Western Australia [No 2] [[2008] WASCA 155; (2008) 37 WAR 683] [47] - [54].
[29] In this case, there was no trial, and no evidence. That is because the Magistrates Court proceeded under s 55 of the CPA. By s 55(4) and s 55(5) of the CPA, when the court proceeds under s 55 it may take as proved any allegation in the prosecution notice and, in the absence of evidence to the contrary, must take as proved the material facts stated by the prosecutor.
[30] The respondent submits that the position on this appeal is analogous to that which arises when an application is made under s 71(2) of the CPA; it is for the appellant to demonstrate that there has been a miscarriage of justice. In that context, the question of whether the applicant under s 71 has a good defence is among the factors to be considered. See, for example, Grover v Scott [2010] WASCA 164 [95]. The respondent also relied on my recent decision in Sharma v Hodgson [2012] WASC 433. In that case, the appellant applied unsuccessfully under s 71 of the CPA to set aside a conviction that had been entered in his absence under s 55. The absence of a defence was not relevant to whether the rejection of the s 71 application meant that there was a miscarriage of justice occasioned by the conviction.
[31] In my view, these cases do not provide a helpful analogy with the present case. In those cases, the procedure in s 55 had been regularly invoked. In this case, s 55 was invoked only following, and because of, the magistrate's wrongful decision to refuse the adjournment. The defendant intended to appear at his trial, and sought an adjournment to enable that to occur. In those circumstances, in my opinion, it is not for the appellant to demonstrate a defence, or even an arguable defence, to the charges, or face dismissal of the appeal under the proviso. The prosecution has not had to prove its case. The only reason that the prosecution did not need to prove the case was the wrongful refusal of the adjournment. The result of the wrongful refusal of the adjournment was to permit the prosecution to invoke the provisions of s 55(4) and avoid the need to lead evidence, when the prosecution ought not have been so permitted. In my opinion that, in itself, is a miscarriage of justice.
37 In my view, the conclusion reached by his Honour is entirely apt in this case. Counsel for the respondent accepted that if an error were found to exist in relation to the exercise of discretion to refuse the adjournment, then s 55(2) of the CP Act could not be considered to have been regularly invoked in this case. Accordingly, this is not a case where the appeal should be dismissed, despite the error made by the learned Magistrate, on the ground that no substantial miscarriage of justice has occurred.
(7) Conclusion and orders
38 I turn, finally, to deal with one further issue which arose in the appeal, namely an application by counsel for Ms Delopez to rely upon an affidavit sworn by Ms Delopez dated 24 September 2014. One of the annexures to that affidavit indicated that the Department of Western Australia's Racing, Gaming and Liquor branch has become aware of Ms Delopez's conviction of the charge and is considering whether action should be taken in respect of Ms Delopez's Approved Manager Status under the Liquor Control Act 1988 (WA) arising from her failure to report her conviction to the Department. Counsel for the respondent submitted that the content of the affidavit was irrelevant and that the potential for consequences of the kind contemplated arose squarely from the fact of the conviction itself and did not give rise to a separate miscarriage of justice.
39 In the circumstances, I have not found it necessary to rely upon the affidavit for the purposes of dealing with the appeal and, consequently, it is not necessary to make any determination in relation to the use of the affidavit.
40 For all the reasons I have given, leave to appeal should be granted and the appeal should be allowed.
1 ts 8 (15 May 2014).
2 ts 10 - 11 (15 May 2014).
3 See Lasscock v Seidner [2013] WASC 94 [23] (Hall J).
4Eley v Town of Victoria Park [2014] WASC 103 [24].
5House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
6House v The King [1936] HCA 40; (1936) 55 CLR 499.
7Grover v Scott [2010] WASCA 164.
8Sharma v Hodgson [2012] WASC 433.
9Saad v Baron [2012] WASC 507 [28] - [31].
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