Flavel v Van Reesema - [2005] SASC 418

Supreme Court of South Australia
(Full Court)
FLAVEL v VAN REESEMA
Judgment of The Full Court
(The Honourable Acting Chief Justice Perry, The Honourable Justice Duggan and The Honourable Justice Anderson)
9 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Respondent found guilty of 12 breaches of Companies (South Australia) Code 1981, s 227 and sentenced by magistrate to 24 months imprisonment with non-parole period of 12 months - respondent appealed against sentence and was granted bail pending outcome of appeal - appeal allowed and matter remitted to Magistrates Court for re-sentencing - respondent absconded overseas - magistrate proceeded to sentence the respondent in his absence - upon his return to Australia the respondent applied for the setting aside of the convictions and sentence pursuant to Summary Procedure Act, 1921, s 76A - the applications were dismissed by the Chief Magistrate - respondent appealed to a single judge - single judge allowed the appeal, set aside the sentence of imprisonment and remitted matter to the Magistrates Court for re-hearing - appeal to Full Court - whether single judge erred in finding that the magistrate sentenced the respondent for offences for which he had not been convicted - sentencing remarks of magistrate transcribed after appeal to single judge - indicate respondent sentenced for correct offences - whether transcribed sentencing remarks constituted fresh evidence - appeal allowed and orders made by judge appealed from set aside.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED
Respondent filed a notice of alternative contention raising question whether magistrate entitled to sentence him in his absence - held magistrate entitled to proceed where respondent had voluntarily absented himself from proceedings.
Companies (South Australia) Code 1981 s 555, s 227(1), s 227(2); Summary Procedure Act 1921 s 62C, s 76A, s 57A; Supreme Court Rules R96C.05, referred to.
R v Jones (No. 2) [1972] 2 All ER 731; R v Rigney (1988) 48 SASR 72; R v Jones (1998) 72 SASR 281, applied.

FLAVEL v VAN REESEMA
[2005] SASC 418
Full Court: Perry A/CJ, Duggan and Anderson JJ

PERRY ACJ. I agree with the order proposed by Duggan J and with his reasons.
DUGGAN J. The history of this matter in so far as it is relevant to the present appeal goes back to 8 February 1988 when, as a result of being convicted of offences against s 555 of the Companies (South Australia) Code 1981 (“the Code”), the respondent was prohibited from being the director of a corporation without leave of the court for a period of five years.
On 8 May 1991 the respondent was found guilty of 12 breaches of s 227(2) of the Code. The charges were laid on separate summonses and alleged that the respondent had acted as a director of certain companies within a period of five years after his conviction for the offences against s 555 of the Code. He was found guilty of the charges and sentenced by a magistrate to a total period of imprisonment for 24 months. A non-parole period of imprisonment for 12 months was imposed.
The respondent appealed against sentence and was granted bail. The appeal was heard on 11 June 1992. The respondent was not present at the hearing of the appeal, but was represented by counsel. The appeal was allowed on a ground which arose out of a disputed facts hearing before the magistrate. The sentence was set aside and the matter remitted to another magistrate for re-sentencing.
The matter was listed for hearing before the Magistrates Court on 22 July 1992. The respondent did not attend then or on subsequent occasions when the matter was listed. The history of the matter during this period will be set out in more detail later in these reasons.
It is sufficient for present purposes to record that, on 4 September 1992, the magistrate proceeded to sentence in the absence of the respondent. The respondent was sentenced to a total period of imprisonment for 11 months.
Following the sentencing, a warrant for committal was issued on 21 September 1992. The warrant referred to 12 offences against the Code and gave details of the periods over which each offence was committed. There was also a reference to the Magistrates Court file number in each case. There was no description of the nature of the offences, but it was recorded in the document that the sentences were imposed in relation to contraventions of s 227(1) of the Code. The warrant was signed by the magistrate.
There was also a reference to s 227(1) of the Code on a notice to the respondent which was posted to him by an officer of the court on 20 August 1992. The notice, issued pursuant to s 62C of the Summary Procedure Act 1921 (“the Act”), advised the time and place of the hearing to enable submissions to be made on the question of penalty.
It would appear that the respondent was residing overseas throughout the period of the proceedings in the Magistrates Court which followed the successful appeal. He returned to Australia in about December 2000 and the warrant for committal was executed on 16 June 2004. He was granted bail in relation to the present proceedings. He has served all but 33 days of the sentence imposed on 4 September 1992.
Following the execution of the warrant for commitment, the respondent filed two applications in the Magistrates Court for the setting aside of the convictions and sentence. The applications were made pursuant to s 76A of the Act which provides as follows:
(1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.
(2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.
(3)The Court may set aside a conviction or order under this section if satisfied –
(a)     that the parties consent to have it set aside; or
(b)     that the conviction or order was made in error; or
(c)     that it is in the interests of justice to set aside the conviction or order.
(4)Where the Court sets aside a conviction or order under this section it may, without further formality –
(a)     proceed to re-hear the proceedings in which the conviction or order was made; or
(b)     adjourn the proceedings for subsequent re-hearing.
The applications were dismissed by the Chief Magistrate. The respondent appealed against that decision and the appeal was heard by a single judge of this court.
When the proceedings came before the single judge, leave was granted to amend the notice of appeal so as to include an appeal against the convictions and sentence imposed by the magistrate on 4 September 1992.
The amended notice of appeal raised three grounds which were summarised by the single judge as follows:
1that [the respondent] was convicted and sentenced in August and September 1992 for offences contrary to s 227(1) of the Companies (South Australia) Code whereas he had been charged with offences contrary to s 227(2) of that Code;
2that the procedure adopted by the Magistrate in proceeding to sentence [the respondent] in his absence was not a procedure authorised by Division 3 of Part 4 of the Summary Procedure Act;
3that the sentences of imprisonment were manifestly excessive.
The single judge reached the conclusion that the sentence was not manifestly excessive. However, he concluded that the magistrate wrongly sentenced the respondent for breaches of s 227(1) of the Code instead of breaches of s 227(2). In reaching this conclusion he relied upon the wording of the notice issued pursuant to s 62C of the Act and, more particularly, on the warrant for commitment. His Honour said:
58Whilst the reference to s 227(1) in this letter [the notice pursuant to s 62C] could possibly be regarded as an administrative slip, of more significance is the Warrant of Commitment. That details the offences for which the appellant was sentenced to imprisonment as offences contrary to s 227(1) of the Code. The Warrant of Commitment is signed by the Magistrate himself. A Warrant of Commitment is an important document. It is the authority to the police to apprehend the offender. It is the authority to the Executive Director of the Department of Correctional Services to detain the offender in custody. The Magistrate’s signature on the Warrant confirms the accuracy of the details shown in the Warrant. In this case, by his signature, the Magistrate certified that the offences for which he had sentenced the appellant were breaches of s 227(1) of the Code. In those circumstances, the reference to s 227(1) cannot be regarded as a mere administrative slip. Both documents indicate that the Magistrate believed he was sentencing for breaches of s 227(1) of the Code.
59That has a number of consequences in the present context. It means that the appellant has not been sentenced for the 12 offences contrary to s 227(2) of the Code for which he was convicted on 16 May 1991 and which were remitted to the Magistrates Court for sentence by the Supreme Court order on 11 June 1992. It means that the appellant has been sentenced for offences with which he has not been charged, let alone convicted. It means that the appellant is presently being held in custody pursuant to a Warrant of Commitment issued in respect of sentences imposed for offences with which he has not been charged. In short, in my opinion, it means that a miscarriage of justice of a substantial kind has occurred in this case.
His Honour thereupon allowed the appeal, set aside the sentence of imprisonment imposed on 4 September 1992 and remitted the matter to the Magistrates Court for re-hearing as to penalty. He stated that his decision on the appeal against the sentences rendered it unnecessary for him to consider further the appeal against the refusal of the Chief Magistrate to set aside the sentences.
The appellant has argued before this court that the single judge erred in finding that the magistrate sentenced the respondent for offences contrary to s 227(1) of the Code instead of the offences for which he was convicted contrary to s 227(2).
In the judgment which led to the matter being remitted to the Magistrates Court for re-sentencing on the first occasion (Van Reesema v Flavel (1992) 57 SASR 590) it was stated that the sentence had been imposed in respect of offences contrary to s 227(2) of the Code. As I have said, s 227(2) created the offence of acting as a director of a corporation without the leave of the court within a period of five years after conviction for an offence against s 555 of the Code. Section 227(1) provided for an offence of acting as a director of a company whilst insolvent.
It is difficult to see how, in these circumstances, the magistrate who sentenced the respondent could have made such a fundamental error as to sentence for the wrong offences. I accept the appellant’s argument that the fact that reference had been made to s 227(1) in the two documents referred to was not sufficient to support the conclusion that the magistrate had sentenced on an incorrect basis.
Nevertheless, the discrepancies invited further enquiry. The endorsements on the Magistrates Court file do not assist. However, counsel advised the single judge that there were two court reporter’s “rolls” in the file which had not been transcribed. In the course of argument before the single judge, the judge commented that neither counsel appeared to be asking for the rolls to be transcribed. Counsel for the Commonwealth Director of Public Prosecutions told the judge that there was some difficulty in transcribing the rolls, but that a version could be provided. However, the judge expressed the view that he did not think it was for him to take steps to have the rolls transcribed. According to the solicitor acting for the respondent, he was told at an earlier stage that the rolls could not be transcribed.
In the result, no transcript was prepared from the rolls prior to the judge delivering his decision. However, on the day judgment was delivered, counsel for the DPP wrote to the Magistrates Court requesting that the reporter’s rolls be transcribed. A transcription was provided to the Director of Public Prosecutions on 1 February 2005.
The transcribed material comprises the sentencing remarks of Mr Kelly SM who sentenced the respondent on 4 September 2002. He is now retired, but he settled the transcribed remarks. It is clear from these remarks that the magistrate sentenced the respondent for offences of acting as a director of a corporation contrary to s 227(2) of the Code.
Ms Powell QC, for the respondent, submitted that the transcribed sentencing remarks were akin to fresh evidence and should not be taken into account by this court. In my view, this submission must be rejected. An appeal court is entitled to have regard to material on the Magistrates Court file such as the complaint or information, the published findings of the magistrate and any sentencing remarks. Rule 96C.05 of the Supreme Court Rules provides that, upon receipt of a notice of appeal, the Magistrates Court shall transmit to the Registrar of the Supreme Court the transcript of evidence, a copy of the judgment to which the appeal relates and any other documents or exhibits relevant to the proceedings. If any of these records are contained in an electronic file the Supreme Court is to be given access to that file. There is no requirement to tender these documents as evidence on the hearing of an appeal; they are part of the record of the court below.
Ms Powell also referred to what she submitted are mistakes in the recitation of circumstances relevant to the sentencing which appear from the remarks. She pointed out that the remarks were settled approximately 15 years after they were made and that we should not have regard to the remarks because of these inaccuracies.
The inaccuracies referred to by Ms Powell do not detract from what clearly emerges from the remarks, namely, that the magistrate sentenced for the correct offences.
In my view, it would have been appropriate for the judge appealed from to direct that he be supplied with a transcription of the sentencing remarks. However, the fact that the material was not before him does not prevent this court from having regard to it and acting upon it.
The respondent was sentenced for the correct offences and, in the light of the facts as they are now known, the sentence should not have been set aside for the reasons given by the single judge.
The respondent has filed a notice of alternative contention whereby he contends that the judgment of the judge appealed from should be upheld on the ground that Mr Kelly SM was not entitled to sentence the respondent in his absence on 4 September 1992.
After the matter had been remitted to the Magistrates Court following the successful appeal by the respondent, it was listed for hearing on 22 July 1992. There was no appearance by the respondent on that occasion and he was advised by letter sent to his last known address that the matter would be listed for hearing on 5 August 1992. The respondent did not attend on this date or on 12 August, the date to which the matter was further adjourned. Mr Mellor appeared for the respondent on these two occasions and informed the court that the respondent was overseas. Mr Mellor was granted leave to withdraw from the matter on 12 August.
The magistrate adjourned the matter to 27 August 1992 and directed that a notice pursuant to s 62C of the Act be sent to the respondent. By this time, the court had been provided with an address for the respondent in The Hague. It is not clear how this address had been supplied to the court, but the s 62C notice was forwarded to that address as well as to a Myrtle Bank address at which the respondent was required to reside during the period of the bail agreement.
The respondent did not appear on 27 August 1992 and the matter was adjourned to 4 September 1992. On that occasion, the magistrate proceeded with the sentencing process in the absence of the respondent. He imposed the sentence to which reference has been made.
The appellant has conceded that the procedure under s 62C was inappropriate in the circumstances of the present case. That procedure applies where a defendant fails to appear in obedience to a summons and is convicted, either upon a plea of guilty under s 57A of the Act or after an ex parte hearing. Neither occurred here.
Section 62C is in Part 4 Division 3 of the Act which Ms Powell argued is a code dealing with the procedures to be applied in the event of non-attendance by a defendant. In my view, these provisions are not exhaustive of the power of the court to proceed in the absence of a defendant. They deal with the power of the court to proceed when there is non-attendance at the commencement of proceedings. None of them are applicable to the circumstances of the present case.
However, there is a discretion at common law to continue with proceedings when a defendant has absconded in the course of those proceedings. The bail agreement entered into by the respondent in anticipation of his appeal required him to be present at the Supreme Court on the hearing of the appeal “and to be present throughout all proceedings relating to this matter until the matter is disposed of”.
It is clear that the respondent breached the bail agreement when he failed to appear on the hearing of his appeal. It could not be said that the matter had been finally disposed of at the hearing of the appeal: it was remitted to the Magistrates Court so that the respondent could be re-sentenced. It is equally clear that, by remaining overseas, the respondent had determined that he would not be present throughout any proceedings consequent upon a successful appeal.
The position as at the time of the sentencing hearing before the magistrate on 27 August 1992 was that the respondent had been found guilty of the offences, but remained liable to be sentenced in respect of them. He had voluntarily and deliberately placed himself in a situation such that he would be absent from both the appeal and any proceedings which followed in consequence of the appeal. The bail agreement required his attendance at all proceedings until final disposal of the matter.
The general rule is that the trial and sentence of a defendant must take place in his or her presence. However, it is well established that, in the event that a defendant voluntarily waives the right to be present at the trial or sentence by absconding, the court has a discretion as to whether it will proceed with the matter in his or her absence: R v Jones(No. 2) [1972] 2 All ER 731; R v Rigney (1988) 48 SASR 72; R v Jones (1998) 72 SASR 281.
In my view, it was within the court’s discretion to proceed with sentencing in the voluntary absence of the respondent.
Furthermore, I am of the view that the decision to proceed has not resulted in a miscarriage of justice. The respondent forfeited the opportunity to put further material before the magistrate in addition to that which had been put before the court previously. The sentence eventually imposed was well within the sentencing discretion.
The respondent filed a notice of cross-appeal in this court. The only ground which remains for consideration in the cross-appeal is that which alleges that the judge appealed from should have found that the respondent provided details of his address to the Magistrates Court prior to his departure from Australia on 17 May 1992.

I have said that there is some doubt as to how the address in The Hague was provided to the court. However, even if the respondent had provided the address, this does not alter the fact that he breached his bail agreement and voluntarily absented himself from the proceedings which had been brought against him. The Magistrates Court acted out of an abundance of caution in sending the letter advising of the date of the sentencing hearing to the overseas address which it had been given.
I would allow the appeal and set aside the orders made by the judge appealed from. I would dismiss the cross-appeal to this court and the respondent’s appeal to the single judge.
ANDERSON J. I agree with the order proposed by Duggan J and with his reasons.