Frank Jakacic v Robert John Bates No. SCGRG1991 of 1992 Judgment No. 3696 Number of Pages 2 Criminal Law and Procedure Witnesses

[1992] SASC 3696

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Criminal law and procedure - witnesses - Appeal against orders of dismissal - Witness before the lower court appeared to have been dissuaded from giving evidence for the defence - Magistrate refused an adjournment and dismissed the charges - Witness who failed to appear was not a witness to count 1 - Therefore that charge should not have been dismissed - Magistrate should have given prosecution an opportunity to determine the issue.

HRNG ADELAIDE, 13 October 1992 #DATE 13:10:1992
Counsel for appellant:     Ms J.G. Olsson
Solicitors for appellant:    Director of Public Prosecutions
   (SA)
Respondent in person.

ORDER
Appeal allowed, orders of dismissal set aside.

JUDGE1 PRIOR J Appeal against orders of dismissal made by a magistrate on 7 August 1992. The magistrate said:-
    "Simply having heard further evidence, I am now satisfied
    that a witness for the prosecution interfered with and prevented,
    or dissuaded a defence witness from attending to give evidence
    for the defendant at this trial. There has been a serious
    miscarriage of justice. The defendant has been prevented from
    presenting the full defence to the court. An adjournment is not
    the remedy". 2. Having said that, the magistrate dismissed all charges against the defendant and discharged him. 3. I do not reiterate what is contained in the notice of appeal. It is not necessary now to summarise the matter and reduce the order. I do not propose to give a formal set of reasons. I will do that if there is a request made to me within 7 days. 4. The magistrate has erred in ways that are dealt with in both the notice of appeal and the helpful outline of counsel for the respondent. The most obvious error is simply that the witness who failed to appear before the hearing was completed could not give any evidence with respect to the first of the three counts that were before the magistrate. The order of dismissal on the first count is therefore patently bad. 5. As to the evidence of that witness with respect to the second and third counts, the magistrate should have given the prosecution an opportunity to recover the unfortunate misunderstanding spelt out in the transcript and the affidavit of the prosecutor. 6. If the orders of dismissal are to be set aside and the matter remitted for hearing before another magistrate, the respondent seeks an opportunity to propose to the prosecuting authorities some alternative to the matter proceeding at all. The most obvious alternative is some form of bond to keep the peace. Whether that is to be accepted is not for me to say, but an opportunity should be given to the respondent to consider that alternative. 7. The respondent is unrepresented before me. He has said that he has made a deliberate choice not to seek legal representation, either before the magistrate, or before me. However, that's not to say that he may wish to consider seeking legal advice on what next to do. 8. Counsel for the appellant has agreed to consider assisting the respondent in conveying what he might be willing to propose to the prosecutors within 7 days of this date. 9. I allow the appeal, set aside the orders of dismissal and order that the matter be remitted for rehearing before another magistrate, but not before an opportunity is given to the respondent to consider his position. Any rehearing in the Magistrates Court is to occur after six weeks from this day. 10. I direct that a copy of the discussion with counsel and the respondent be made available to both sides and returned to the Magistrates Court with this file.