Fotheringham v Spaulding; Fotheringham v Reid

[1991] TASSC 59

Serial No 34/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Fotheringham v Spaulding; Fotheringham v Reid [1991] TASSC 59; A34/1991

PARTIES:  FOTHERINGHAM, Sharon
  v

SPAULDING, Susan Maree

FOTHERINGHAM, Sharon
  v
  REID, Eugene Leonard

FILE NO/S:  LCA 50/1991

LCA 54/1991

DELIVERED ON:  20 May 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  A34/1991
Number of paragraphs:  9

Serial No 34/1991
List "A"
File No LCA 50/1991

LCA 54/1991

SHARON FOTHERINGHAM v SUSAN MAREE SPAULDING
SHARON FOTHERINGHAM v EUGENE LEONARD REID

REASONS FOR JUDGMENT  ZEEMAN J

20 May 1991

1. The respondent Spaulding was charged on complaint with a breach of reg6(3) of the Traffic (General and Local) Regulations 1956. The respondent Reid was charged on complaint with a breach of reg7(2)(b) of the Traffic (General and Local) Regulations 1956. The respondent Spaulding appeared before a magistrate in the Court of Petty Sessions at Gagebrook on 22 January 1991 and entered a plea of not guilty. The proceedings were then adjourned for hearing on 14 May 1991. Subsequently, a Clerk of Petty Sessions adjourned the proceedings from the Gagebrook Court of Petty Sessions for hearing in the Hobart Court of Petty Sessions on 18 April 1991. That adjournment was effected pursuant to a memorandum satisfying the requirements of s50(B)(2) of the Justices Act 1959 ("the Act"). The respondent Reid utilized the provisions of r27 of the Justices Rules 1976 to plead not guilty to the charge against him. 8 January 1991 was subsequently fixed as the date for the hearing of that complaint. On that date the respondent successfully obtained an adjournment to 18 April 1991.

1. On 18 April 1991 the complaints, together with other complaints, were listed for hearing in the Court of Petty Sessions at Hobart before a magistrate. It appears that when the learned magistrate commenced sitting on that day, and before any matter had been called on, he made a statement from the bench in the following terms:

"The efficient and safe running of all courts in this State is dependent at all times on the provision of adequate security within the court building inside each courtroom. That security is not just to ensure the safety of the magistrate whose decisions, or sometimes very presence, can upset persons in the court and occasionally move them to violence, it must also be present to ensure the safety of the magistrate's clerk who must deal with the public directly both before and after the magistrate's presence on the bench, the safety of other court staff, the safety of defendants and witnesses and also the general public who are permitted access to the courts because of their open nature. Various suggestions have been made in recent times to remove police officers from court security. It is the considered opinion of magistrates, which opinion has been advised in recent times to the appropriate authorities, that a magistrate's court cannot function with any less security and police authority than that which has been present prior to today. Not only are police officers required for security in the event of a disturbance but they must also be available to immediately take into charge any defendant whom a magistrate orders to be in custody pursuant to a sentence, pending a sentence or on a charge of contempt of court. Any perceived risk that the security of the court is threatened will mean the court will adjourn and not resume until it is satisfied such a threat is covered by the resumption of security. Such a view is not to be taken as any condonation or acquiescence by the magistrates with the industrial action currently being undertaken by the Tasmania Police – that's their concern alone. My concern is to run a court efficiently and safely, having regard to my oath of office. Provided I have a sufficient armed police presence in my court – I repeat, I am not requesting them to do door duties in breach of their industrial action, but merely to show a presence, knowing that they would act in pursuance of their oath of office should an emergency arise – I will then run my court in the usual manner. Any absence of sufficient police presence will leave me in the position to reluctantly tell the parties and the public that my perceived concern for safety in my court leaves me no alternative but to adjourn. Now, I am very sorry that the public have been brought along today in this situation where nothing can go on. I am prepared to adjourn for a few minutes in the hope that a police officer may change his mind and be prepared to sit in the court and allow this court to proceed. I want to work today, but I can only work if there is safety to all concerned. So I will adjourn for a few moments and I ask, request the police be asked to reconsider their position."

1. The views expressed by the learned magistrate do not require consideration in the context of the present appeals. However, an absence of a comment upon those views ought not to be taken as signifying agreement with the apparent view of the learned magistrate that it was inappropriate for him, in the then prevailing circumstances, to sit to hear and determine the matters listed before him, which, at least in so far as the complaints in respect of which the orders sought to be reviewed were made, related to relatively minor breaches of the traffic regulations. The degree of security required in any court at any particular time may depend upon many factors, including the subject matter of the proceedings before the court. The de facto security provided may depend upon factors such as the presence of police officers in the capacity of witnesses.

1. Having made that statement, the learned magistrate retired for some time. Upon resuming, he had a discussion with the applicant, a police officer apparently appearing as prosecutor in the matters listed before the learned magistrate that day. I observe that although the applicant was not the complainant in either of the matters the subject of the present appeals, counsel for the respondents did not take any point that she was not a person aggrieved within the meaning of s107(1) of the Act. Support for the proposition that she can be regarded as being a person aggrieved is to be found in the judgments of the members of the Full Court in Elliott v Taylor [1947] St R Qd 210. The appeals were argued upon the basis of an acceptance that the applicant was a person aggrieved and I proceed upon that basis. The exchanges between the learned magistrate and the applicant proceeded as follows:

"MAGISTRATE: No change?

PROSECUTOR (Fotheringham): Sir, I can only tell, tell Your Worship that there are several officers that would have done it personally for you, but because of their undertaking to the Association they will not do it.

MAGISTRATE: Yes. Well, that's why I say I'm not prepared to direct them at all. I think it's inappropriate that I do that – I'm not going to request it. How long do you think this industrial dispute is likely to go, or I suppose it's up to the Government, is it?

PROSECUTOR: Sir, my understanding is it'll go indefinitely until some decision is made by the Government.

MAGISTRATE: As if our court lists aren't in enough disarray as it is with the problems we've got, without this as well. Well, I can just see no alternative to it – as I say, I am here, I want to work, but I can't run a risk with the public – it's as simple as that. I suppose what the appropriate thing to do is just to dismiss all the charges, is it?

PROSECUTOR: I don't know, Your Worship.

MAGISTRATE: Well, the public come here in good faith.

PROSECUTOR: Sir, we haven't received any instructions from our senior officer in relation to anything that would occur today because people were unsure as to what would occur.

MAGISTRATE: Well, so are we. I was hoping – I came here to work but unsure, too. I suppose – there is one person who is in custody, isn't there, because he's, because he's serving a sentence?

PROSECUTOR: Sir, once again, I don't have any idea how that person is going to be brought to the court.

MAGISTRATE: I think we're going to be left with a very farcical situation in this state, quite frankly, one that doesn't impress me at all. I'm making no comments at all about the police officers' unfortunate situation vis–a–vis the Government – that's purely their situation – but it's going to backfire on a lot of people, like the courts, like the public in general. Well, that's – I think the best that I can do is to say that I think I should dismiss all the charges, –

PROSECUTOR: Yes, sir.

MAGISTRATE: – frankly, for all those who've turned up. We'll see where that leaves people. Two can play this game."

1. The magistrate thereupon called the name of the first of the defendants whose case was listed before him. That defendant answered to his name, whereupon the learned magistrate said to him:

"I'm – because I can't sit, I'm prepared to – I can't proceed with the hearing at all, I'm prepared to dismiss the charge."

It does not appear as though the learned magistrate actually made an order of dismissal in relation to that defendant, but nothing turns on that for present purposes. Several more defendants were called. Upon those defendants answering to their names, the learned magistrate immediately dismissed the complaint or complaints relating to such defendants. The learned magistrate then dealt with the present respondents in the following terms:

"MAGISTRATE: Eugene Reid? I'll dismiss yours, too, Mr. Reid.

DEFENDANT REID: Thank you.

MAGISTRATE: Susan Spaulding? I'll dismiss yours, too, Miss Spaulding. You're free to leave."

It is plain that the learned magistrate gave no opportunity to the applicant (or anyone else, for that matter) to make any submissions as to what was the appropriate course after the respondents had been called. In one sense what the learned magistrate did was quite anomalous. Having earlier expressed his unwillingness to sit in the absence of what he perceived to be adequate provision for security, he nevertheless did proceed to sit and proceeded to determine a number of complaints, including those affecting the respondents, by peremptorily dismissing them. The applicant seeks to review those orders of dismissal.

1. Counsel for the respondents has submitted that the applicant ought to be taken as having indicated to the learned magistrate that she proposed offering no evidence on the complaints. He submitted that the prosecutor had three opportunities of making submissions to the learned magistrate with a view to adopting a course other than the course which he in fact adopted, and that by not availing herself of those opportunities and by, on the occasion of the third opportunity, acquiescing in the proposed course of action, she ought to be taken as having agreed to what the magistrate proposed doing, such agreement amounting to an indication that no evidence would be offered.

1. The first of those opportunities is said to have arisen when the magistrate retired after having made his preliminary statement. That was no opportunity at all. The learned magistrate had not then given any indication as to his proposed course of action, other than indicating that he might not be prepared to sit at all. The second occasion is said to have arisen when the magistrate said that he supposed that the appropriate thing to do was "to dismiss all the charges", in response to which the applicant said, "I don't know, Your Worship". Certainly it might be said that it was then open to the applicant to make a submission to the contrary, but in my view, the prosecutor's response cannot be taken as being any form of acquiescence to the complaints being dismissed. The third occasion is said to have arisen when, whilst the magistrate was expressing the view that he ought to dismiss all the charges relating to those defendants who were in attendance at the court, the applicant uttered the words, "Yes, Sir". That statement is quite equivocal, and I do not construe it as any form of acquiescence. By that time the learned magistrate had made it quite clear as to what he proposed to do. He had not then had any particular matter called on. I find myself quite unable to construe anything that occurred as amounting to an indication by the applicant, whether express or implied, that she was offering no evidence. It appears that the learned magistrate was determined to dismiss all complaints. His cryptic reference to "two can play this game" unfortunately suggests that factors other than justice between the parties to the proceedings before him affected his consideration of the matter.

1. Once it is accepted that the applicant did not in any way indicate that she was not offering evidence on the relevant complaints, it is plain that the course adopted by the learned magistrate was fundamentally wrong. Prima facie his duty was to hear and determine each complaint according to law. Undoubtedly the learned magistrate had jurisdiction to adjourn the hearings. The choice available to the learned magistrate was either to embark upon the hearing or to adjourn the hearing. It was not open to him, in effect, to punish the complainants by dismissing their complaints because extraneous circumstances made it inexpedient for the learned magistrate to proceed with the hearings on that day. There was no warrant for the learned magistrate to make the orders of dismissal. They offended all principles of justice. Those orders cannot stand.

1. In each case, I will quash the order of dismissal made by the learned magistrate, and order that the complaint be retried by a magistrate.