Department of Police and Emergency Management v Jones
[2007] TASSC 107
•17 December 2007
[2007] TASSC 107
CITATION: Department of Police and Emergency Management v Jones [2007] TASSC 107
PARTIES: DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT
v
JONES, Damien Robert
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 731/2007
DELIVERED ON: 17 December 2007
DELIVERED AT: Hobart
HEARING DATES: 10 December 2007
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – When remedy available – Refusal of adjournment - General principles – Proper exercise of the discretion – Dismissal of charges – Jurisdiction to do so.
Bennett v Coombs [2007] TASSC 53, applied.
Justices Rules2003 (Tas), r35.
Aust Dig Magistrates [270]
REPRESENTATION:
Counsel:
Applicant: S J Bender
Respondent: J S Wilkinson
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2007] TASSC 107
Number of Paragraphs: 21
Serial No 107/2007
File No 731/2007
DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT
v DAMIEN ROBERT JONES
REASONS FOR JUDGMENT TENNENT J
17 December 2007
The police prosecution service seeks to review an order made by a magistrate by which that magistrate refused an application by a police prosecutor for an adjournment of a hearing of charges against the respondent, and proceeded to dismiss four counts on complaint number 16675/06.
There were five counts on the complaint. All the allegations arose out of circumstances which occurred on 8 July 2006. The charges against the respondent were common assault, driving a motor vehicle while exceeding the prescribed alcohol limit, fail to comply with the duties of a driver involved in a crash, and two counts of causing bodily harm by wanton driving. The chronology of events in the Magistrates Court is relevant to the argument on the review:
7/8/06 First appearance in court; matter adjourned without plea.
25/10/06Plea of not guilty to all charges entered and matter adjourned for hearing to 16/2/07 with estimated hearing time of 1-1½ days.
16/2/07Prosecution seeks adjournment because no witnesses present; believed no witness summons issued; matter adjourned to 1/6/07.
29/5/07Prosecution advises 18 witnesses are to be called.
31/5/07Discussion between counsel for defendant and prosecutor about witnesses required.
1/6/07Prosecution has only 2 witnesses present; prosecution seeks an adjournment; adjournment granted with order prosecution pay respondent's costs of that and earlier adjournment; matter adjourned to 17/9/07.
17/9/07Hearing commences after court advised will need to be part heard because three civilian witnesses ill; hearing adjourned at lunchtime to 15/10/07.
The events of 15 October 2007 are those which give rise to this review. When the hearing recommenced, it did so with a prosecutor who had been handed the file at 9am that day ("the new prosecutor"), who was a different prosecutor from the one who had had carriage of the hearing until then ("the original prosecutor"). The new prosecutor advised the court that the original prosecutor was part heard in another matter before another magistrate. Knowing this had happened, the original prosecutor briefed yet another prosecutor to take over carriage of the hearing. However, that other prosecutor became ill and was also unexpectedly unavailable due to illness. The new prosecutor told the court that one witness was unavailable because she had gone into labour and another significant witness had not answered any call. The learned magistrate stood the matter down while he dealt with formal matters and during that time the new prosecutor spoke with the original prosecutor. On resumption of the matter, the following somewhat disjointed exchange then occurred between the new prosecutor and the learned magistrate, which included comment from defence counsel:
"MS LANCASTER: Your Honour, in relation to the matter, I'm instructed by Ms Avery that in relation to the witness, Mr Anthony Waddington, I understand that he has been served, and I'm to seek a warrant for his arrest.
HIS HONOUR: Well what do we do about the hearing?
MS LANCASTER: Your Honour, the hearing is – I'm also instructed that – to make an application for an adjournment. There are two witnesses here. However, it is simply a matter that Ms Avery will need to take carriage of again. There's one witness here. The complainant, your Honour, made some comments in relation to –
HIS HONOUR: Well I'm certainly not going to – I'm certainly not going to adjourn on the basis of Ms Avery should take over the case.
MS LANCASTER: Yes.
HIS HONOUR: That's basically – it's part heard. It's her responsibility to deal with the matter, or to make sure that there's someone else to take over. Now she's got some other matter in another court. Was that part heard?
MS LANCASTER: Yes.
HIS HONOUR: Well she should have made – she should have either adjourned this matter or briefed somebody – or adjourned that matter, or briefed somebody else –
MS LANCASTER: I understand she briefed Mr Kovacek from our office, who is also unavailable today.
HIS HONOUR: Well why is he unavailable?
MS LANCASTER: He's sick.
HIS HONOUR: Well it would have been better to start off with Mr Kovacek was to do this matter and unexpectedly got sick, I would have thought.
MS LANCASTER: Yes. Well I can't make any submissions –
HIS HONOUR: But anyway, your witness is not here, and I think this is the third time that that witness has failed to turn up.
MS LANCASTER: No, your Honour. In relation to the complainant, I understand that he will not be called as a witness. He's in no condition to give evidence. I understand he has medical issues arising as a result of this matter, and he – there are certificates, I understand.
HIS HONOUR: Well that's never been suggested to me. Has that ever been raised, Mr Wilkinson, in fairness to –
MR WILKINSON: I believe on the last occasion the prosecution raised that would most probably – he most probably would not give evidence, your Honour, yes. I don't know whether it was mentioned in Court, but being fair –
HIS HONOUR: I don't know whether it was ever mentioned in Court.
MR WILKINSON: No, I don't think it was.
HIS HONOUR: So who's the witness that's not available? I thought he was the complainant.
MR WILKINSON: No, Waddington is not available, your Honour. And I understand Mr Gibble is here.
HIS HONOUR: The complainant who was struck, I take it, is the person who was struck by the vehicle.
MS LANCASTER: Yes.
HIS HONOUR: Or allegedly struck by the vehicle.
MS LANCASTER: Yes.
HIS HONOUR: Okay. So he's not giving evidence?
MS LANCASTER: That's my understanding. But alternatively, if your Honour wishes to have the matter stood down ‘til two fifteen, and perhaps Ms Avery will be available. Or alternatively, if your Honour wishes to hear the evidence of one of the witnesses, then that option is also available.
HIS HONOUR: Well how many times – who is the missing witness, and what's the missing witness going to say?
MS LANCASTER: Anthony Waddington, your Honour.
HIS HONOUR: And what's he going to say?
MS LANCASTER: I understand that he will give evidence of witnessing an initial confrontation, also observations in general about what occurred. I understand he's quite an important witness.
HIS HONOUR: He wasn't here last time, was he?
MS LANCASTER: I don't know if he'd been served –
HIS HONOUR: No, he wasn't, because we were part heard, so we would have heard him.
MS LANCASTER: I don't think he was served on the last occasion, your Honour. I've got a return of service from the last occasion. Yes, he wasn't served.
HIS HONOUR: On the 1st of June 2007, this matter was set down for hearing – sorry, the 16th of February, the matter was set down for hearing, wasn't it?
MR WILKINSON: I believe so, your Honour. I'll just check that.
HIS HONOUR: Yes, the 16th of February it was set down for hearing. There was an application for an adjournment. I take it that was by the prosecution.
MS LANCASTER: That appears to be the case.
HIS HONOUR: Yes. There was an application for an adjournment, it wasn't opposed. There was an application for costs, so presumably - even though it wasn't opposed, it wasn't – the defence was ready to proceed, and I reserved the question of costs on that day. It was put off to the –
MR WILKINSON: The 1st of June, your Honour.
HIS HONOUR: The 1st of June. On the 1st of June, one of the principal prosecution witnesses wasn't available. Notwithstanding that, the matter proceeded. I was given no explanation as to why that witness was unavailable.
MR WILKINSON: If I might, your Honour, it was adjourned then to the 17th of September, because we were advised that anticipating – witnesses were anticipated, only two were here, there were six civilian witnesses, therefore it was adjourned to the 17th of September for hearing.
HIS HONOUR: There was an application for costs – sorry, there was an application for an adjournment on the 1st of June.
MR WILKINSON: Yes.
HIS HONOUR: Now who asked for that one?
MR WILKINSON: The prosecution asked for the adjournment, your Honour.
HIS HONOUR: And it was opposed – granted – opposed – granted with costs of and incidental to both adjournments.
MR WILKINSON: Yes.
HIS HONOUR: So - then it was adjourned to the 17th of September, again the prosecution witness was unavailable. However, we part heard the matter because there were a number of prosecution witnesses. And now the prosecution seeks another adjournment on an alternative basis, that either their witness isn't here, and even if their witness was here, that they would need to – be adjourned to enable someone else to give it – to deal with the matter, because unfortunately for Ms Lancaster it's just been, in a colloquial - in a legal parlance, handed to her at the last minute. And the questions of adjournments have been dealt with, and whether or not the Court should give – grant adjournments have been dealt with extensively by the Criminal Court. The latest decision was a decision of Underwood J. in the matter of Bennett v Coombes. He says that, generally speaking, and so does Evans J. in an earlier case, both say that adjournments should be normally granted if it's just to do so. I think this case has reached the stage where it would be unjust to do so. The matter is simply that the matter has been before the Court on four occasions now, on which four occasions the police principal witnesses, or sufficient witnesses to prove their case, have been unavailable. The defendants have turned up at every occasion, witnesses gave evidence last time, and I'm going to dismiss those charges against the defendants which rely on that witness. Ms Lancaster, you had better indicate, because I think some of the charges don't rely on that witness being available, do they? I think it was a plea of guilty on something.
MS LANCASTER: Yes, I understand the breathalysers don't relate.
HIS HONOUR: So the – another thing I should mention, just for completeness, is that for every adjournment from the initial hearing, the Magistrate, or person hearing the case, becomes phased from their memory and they, of course, have a great deal of difficulty assessing the credibility of witnesses, when you compare witnesses that you saw three months before, or six months before, and witnesses that you've seen – are seeing at a later moment. It's just unfair to – so in the matter of – tell me which matters can be adjourned – can be dismissed? Matter 16666 of 2006 against Mr Cowen? Do you rely on that witness –
MS LANCASTER: Well I will have to have a look, sorry.
HIS HONOUR: Well that's the common assault.
MS LANCASTER: Yes.
HIS HONOUR: What I understand is there's two common assaults, and I think the pleas of guilty were in relation to the driving with alcohol in the body, and probably causing bodily harm by wanton driving are the two that –
MR WILKINSON: No, your Honour, that's –
HIS HONOUR: So they're to be dismissed?
MR WILKINSON: Yes.
HIS HONOUR: Yes. So it's only –
MR WILKINSON: It's only the breathalyser –
HIS HONOUR: Charge two and charge three - no, charge two. Ms Matthews, perhaps you can tell me which ones pleas of guilty have been entered into?
CLERK: Your Honour, it would appear that pleas of not guilty were entered into for all charges. There are no – it doesn't indicate pleas of guilty on any charges.
HIS HONOUR: Well anyway – okay. Well I'll dismiss 16666 of 2006 against Mr Cowen, 16675 of 2006, I dismiss charge one, charge three, charge four, charge five. And what about charge two, Mr Wilkinson? That's a different –
MR WILKINSON: Yes, he pleads guilty to the breathalyser charge, your Honour.
HIS HONOUR: Okay. Mr Cowen can leave the Table.
MR WILKINSON: And, your Honour, in relation to that, due to his work he does ask that the matter be adjourned for a restricted licence application.
HIS HONOUR: Okay. I'll adjourn that matter to the 6th of November 2007 at 2.15. I note a plea of guilty and it's adjourned for a restricted licence application.
MR WILKINSON: If the Court please.
HIS HONOUR: And it will be a condition of your bail that you not drive with alcohol in your body in the meantime, so go to the bail room."
It is apparent from that exchange that the prosecutor:
-applied for the issue of a warrant for the witness who did not appear, which application was never dealt with by the learned magistrate;
-made an application for an adjournment to enable the original prosecutor to assume carriage of the matter;
-told the learned magistrate the original prosecutor had arranged to brief the matter when she realised she would not be available, and explained why that second prosecutor was also not available;
-told the learned magistrate there was a witness present who could give evidence;
-suggested that the matter could be stood down until 2.15pm to see if the original prosecutor would be available; and
-suggested to the learned magistrate, as an alternative, that as there was a witness available, there was an option to hear that witness's evidence.
It is also apparent that:
- counsel for the respondent did not actually oppose the application for adjournment; and
-the witness in respect of whom a warrant was sought had not appeared on either 16 February 2007, 1 June 2007 or 17 September 2007, although he may not have been summonsed for the first date.
The grounds of the notice to review are as follows:
"1The learned magistrate erred in fact and or in law in refusing to grant the adjournment requested by the prosecutor.
2The learned magistrate erred in fact and or in law in refusing to issue a warrant for execution upon a witness who had failed to appear for the hearing.
3The learned magistrate erred in fact and or in law in failing to give any or sufficient weight to the interests of justice in having the complaint proceed to the completion of the hearing.
4The learned magistrate erred in fact and or in law in dismissing the complaint when he had no power to do so in the circumstances."
There is no dispute the charges against the respondent are serious matters. They involved allegations of violence, and of two people being injured when struck by a motor vehicle.
As can be seen, the learned magistrate indicated, when determining to dismiss these matters, that he was aware of the decision of Bennett v Coombs [2007] TASSC 53 (a decision of Underwood CJ) and an earlier decision of Evans J which he did not name. He said:
"And the questions of adjournments have been dealt with, and whether or not the Court should give – grant adjournments have been dealt with extensively by the Criminal Court. The latest decision was a decision of Underwood J in the matter of Bennett v Coombes. He says that, generally speaking, and so does Evans J, in an earlier case, both say that adjournments should be normally granted if it's just to do so. I think this case has reached the stage where it would be unjust to do so."
and then dismissed four charges.
In Bennett v Coombs (supra), Underwood CJ was dealing with a review of a magistrate's decision to refuse an adjournment and said at par13:
"The learned magistrate was quite correct when he said that the Magistrates Court 'has the right to in fact manage its own lists' but, of course, such management must be in accordance with the law. The law required him to determine an opposed application for an adjournment. The law required him to exercise a judicial discretion in accordance with settled principles. I set out those principles in Hamilton v Littlejohn at pars17 – 22:
'17It 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) 94 CLR 621 at 627 and House v R (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.
18The 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) 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) 55 ALJR 701, at 703; 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."
19At 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".
20Those passages must be read in the light of two matters. First, the appellant Sali was in a financially embarrassed position and attempting to stave off proceedings for the sequestration of his estate. Second, in Queensland v J L Holdings Pty Ltd (1997) 189 146, Dawson, Gaudron and McHugh JJ, said at 154:
"It may be said at once that in the passage which we have cited from Sali v SPC Ltd [relating to case management] Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."
21James v Williams; Ex parte James [1967] Qd R 496 was a case of appellate review of a refusal to grant an adjournment of the hearing of a complaint in circumstances very similar to the present matter, except that in James, the defendant sought an order that the case be dismissed when the prosecution was not ready to proceed. Hart J said, at 501 - 502:
"If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged."
22As Bowen LJ observed in Cropper v Smith (1884) 26 Ch D 700 at 710, "Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy ...".' "
The principles set out by his Honour in that case apply equally to this matter.
There are, in my view, a number of reasons why this review should succeed. While the review was largely argued around the learned magistrate's refusal to grant an adjournment to the police prosecutor, a more fundamental problem arises. It is apparent from the transcript that the learned magistrate refused the application for an adjournment and immediately proceeded to dismiss the charges in respect of which an absent witness was a relevant and significant witness. He did so, in effect, in the middle of the prosecution case at a time when the prosecutor had told the court she had a witness available and was prepared to lead evidence from that witness. The prosecutor had given no indication she had completed the calling of available witnesses.
The Justices Rules 2003, r35, sets out the procedure to be adopted on the hearing of simple offences. It relevantly provides that:
"35 (1) If the defendant pleads not guilty or shows cause, the hearing is to proceed as follows:
(a) before adducing evidence, the complainant may, or must if the justices so require, open the complainant's case;
(b) if the complainant opens his or her case, the defendant, immediately after that opening and before evidence is adduced, may inform the justices of the issues expected to arise for determination by the justices;
(c) before adducing evidence, the defendant may, or must if the justices so require, open the defendant's case;
(d) after hearing any addresses made by the parties for the purpose of opening their case and after hearing the evidence, the justices are to –
(i) convict the defendant; or
(ii) dismiss the complaint; or
(iii) make any other order as may be authorised by law;
(e) at the close of evidence for the complainant, the defendant may submit that there is no case to answer and is not required to first elect whether he or she will call evidence;
(f) neither party is entitled to address the justices at the conclusion of the evidence without the leave of the justices."
In the present case, the learned magistrate did not complete the hearing of the evidence proposed to be led by the prosecutor in the case. For the purpose of this review, I will confine that to the evidence the prosecutor had available to lead on 15 October 2007. The learned magistrate instead, having already taken evidence from a number of witnesses, simply dismissed certain charges. I take the view he had no power to do so without firstly refusing an adjournment, calling on the prosecutor to proceed, hearing available evidence, dealing with, and refusing, the application for a warrant for the absent witness, having the prosecutor close her case and then either dealing with a possible no case to answer submission, or requiring the defendant to present his case. It may very well be the learned magistrate took a pragmatic approach to the whole proceedings, concluding that it would be a fruitless exercise and a waste of time to try to find the absent witness and continue the hearing. That approach is, to an extent, understandable given the history of the matter. However it should not have been taken without a consideration of all the circumstances.
That conclusion deals with ground 4 on the notice to review and will result in the success of the notice without more. However I will address the remaining grounds.
As to ground 2, the learned magistrate did not, from the face of the transcript, overtly refuse the application for a warrant. He simply ignored it and by implication, from the course of action he adopted, refused it. He gave no reasons for so doing, other than perhaps to say that this was the fourth time the witness had not appeared. However, he did not examine the circumstances to establish why, and did not address the application. The Justices Act 1959, s42, permitted the prosecutor to make application for the warrant and the magistrate to issue it. Once made, the application needed to be considered. I am satisfied the learned magistrate erred in refusing the application in the manner he did.
As to ground 3, that perhaps falls for consideration as part of ground 1. There can be no question on the facts, and Mr Bender in fact conceded, that this prosecution was poorly handled throughout. Witnesses were unavailable on various dates. That unavailability was not always, however, wholly the fault of the prosecutorial authorities. The respondent at all relevant times presented himself for hearing and was ready to proceed. He had twice had the benefit of orders for costs thrown away by prosecution requests for adjournment. The court, while it was never a matter adverted to by either the learned magistrate or counsel, no doubt ended up with some wasted time as a consequence of the adjournments. However, it was never put that the court was significantly disadvantaged by this.
On this last occasion there were, however, a number of factors which the learned magistrate appears to have failed to consider when exercising his discretion. These were:
-the original prosecutor had done all that she conceivably could to have a prosecutor available in her absence who would have been able to continue the hearing, and the new prosecutor clearly had minimal knowledge of the file. The fact that there was no prosecutor available to conduct the hearing at length was not a result of incompetence by anyone, or a deliberate delaying tactic. It was a completely unexpected problem due to sudden illness;
-the new prosecutor sought an adjournment which was not obviously opposed by defence counsel;
-there was no suggestion that the respondent would be prejudiced by a further adjournment;
-there was no suggestion any prejudice to the respondent could not have been addressed by an order for costs;
-the new prosecutor, faced with an absent and significant witness who had been summonsed to appear, properly sought a warrant in respect of that witness, which application appears to have been ignored or, as Mr Bender more generously put, appears to have been swamped by other events;
-these were serious matters being dealt with and, if they were found proved, the respondent could have been ordered to serve a term of imprisonment. The effect of the order made by the learned magistrate was to terminate the proceedings in respect of those matters.
All of these matters were relevant to the consideration of whether it was appropriate to adjourn the proceedings yet again. There is nothing in the learned magistrate's remarks to suggest he had regard to any of them. I am of the view, in the circumstances, that the learned magistrate failed to properly exercise his discretion when he refused to grant an adjournment in this matter.
All grounds of review will therefore succeed. I order that the order of the learned magistrate made 15 October 2007 whereby he refused an application to adjourn proceedings on complaint number 16675/06, and dismissed counts 1, 3, 4 and 5 on that complaint, is quashed.
The practical effect of this order is that the hearing of the charges against the respondent remains part heard and will need to be remitted to the Magistrates Court for completion. During the hearing of this review I expressed some concern about the matter simply being returned to the same magistrate for the hearing to be picked up where it left off, which was the result sought if the notice to review were successful. That would, of course, be the most practical and sensible way to proceed. However, a consequence of the order that I have now quashed was that on 15 October 2007, the respondent changed his plea from not guilty to guilty on count 2 on the complaint. That plea of guilty was then adjourned to another date for sentence and for the hearing of a restricted licence application. I assume that has been dealt with. In the course of that, the learned magistrate will have heard facts and perhaps seen a prior court history of the respondent which he may not have otherwise had. In short, the respondent may be prejudiced if the matter is sent back to the same magistrate.
In the circumstances I will hear counsel as to how this matter should proceed.
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