GDJC v Police No. Scciv-02-528

GDJC v POLICE
[2002] SASC 191
Magistrates Appeal

Gray J This is an appeal against a sentence imposed by the Youth Court.
Background
GDJC, the appellant, was charged on complaint with five driving offences. It was alleged that he drove a motor vehicle whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control over the vehicle[1], drove whilst there was a prescribed concentration of alcohol in his blood (0.0132 g per 100 ml of blood),[2] drove whilst disqualified from holding or obtaining a drivers licence[3] and drove whilst the vehicle was unregistered[4] and uninsured.[5] Count 2 was withdrawn and the appellant entered pleas of guilty to the other charges. The appellant was aged 17 years and 11 months.
The circumstances of the offending were outlined by the police prosecutor:
“[A]t about 1.00am on the 1^st of September, 2001 police observed a vehicle travelling east on Anderson Walk, Smithfield with no lights to the rear. Police followed the vehicle east along Anderson Walk, also as it turned right to travel south along Adulana Road and then turn left to travel east along Parachilna Court, Smithfield. Police stopped the vehicle in Parachilna Court and approached the driver’s side of the vehicle. Police observed the accused climbing over the front seat passenger and force his way out of the passenger side and make to run off. Police observed accused unable to walk without assistance. Police had a conversation with the accused during which time police formed the opinion the accused was DUI. Police observed the accused had to lean on the boot of the vehicle to steady himself. Accused also had a very strong smell of liquor about his person, his eyes were bloodshot and his speech was slurred. Accused was also crying at the time. Police conveyed accused to the Elizabeth Police Station where he submitted to a breath analysis test and recorded a reading of 0.132 grams in a hundred millilitres of blood. Police checks conducted on accused’s drivers licence revealed he was currently on a court disqualification from the 13^th of June 2001 to the 12^th June 2002. Further checks conducted in relation to the vehicles registration revealed the registration had expired on the 3^rd of July, 2001. The accused stated he had only had four beers prior to driving, he was ware he was disqualified and that the vehicle was unregistered and uninsured.”
[1] Contrary to section 47 of the Road Traffic Act 1961 (SA)
[2] As defined in section 47b of the Road Traffic Act 1961 (SA)
[3] Contrary to section 91 of the Motor Vehicles Ac, 1959 (SA)
[4] Contrary to section 9 of the Motor Vehicles Act 1959 (SA)
[5] Contrary to section 102 of the Motor Vehicles Act 1959 (SA)
The Proceedings Before the Magistrate
Magistrates have been encouraged to exercise their discretion to allow audience to Practical Legal Training (“PLT”) students in matters appropriate for PLT representation. Usually students complete their law degree at university and subsequently undertake the PLT course however some students may simultaneously be completing their studies and their PLT requirements. In any event, a PLT student is inexperienced, has had minimal exposure to the court environment and does not have the knowledge, skills, competence or standing of an admitted practitioner.
The appellant was initially assisted before the learned magistrate (“the magistrate”) by a student undertaking her PLT.
The PLT student sought leave to appear before the magistrate to represent the appellant, on instructions from the appellant’s solicitor, for the limited purpose of seeking an adjournment. The adjournment was sought on the basis that the appellant had not been able to arrange legal representation and needed more time to do so. The magistrate was not prepared to grant an adjournment, but stood the matter down to enable the PLT student to seek instructions. He granted her leave to withdraw as no funding had been secured.[6] The appellant was permitted to speak with his mother for a few minutes. The magistrate then informed the appellant that he was “on his own” and was not being represented.
[6] Counsel informed me on the hearing of the appeal that this was because the appellant had failed to provide the necessary application forms to the Legal Services Commission.
The prosecutor tendered a copy of the appellant’s criminal antecedents. In April 2000 he was convicted of driving a vehicle unregistered and uninsured and driving without licence in April 2000. In September of 2000 he was convicted of driving without consent and driving without a licence. In October 2000, he was again convicted of driving unregistered and uninsured as well as driving without a licence and at night without effective lights. On 13 June 2001 he was convicted of driving a vehicle without consent, without a licence, whilst disqualified and unregistered. The convictions for driving disqualified and unregistered, resulted in a sentence of 28 days detention.
In his sentencing remarks the magistrate said:
“This youth has appeared with his mother and Ms P has assisted the court for these matters as the youth has another matter in another court for aggravated serious criminal trespass. [The solicitor for GDJC] and Ms P do not have any legal aid for the matters before this court. I have told GDJC that he needs to get his representation in order. I find that today that matters are still not in order as [the solicitor] has received legal aid for some matters but not for matters before the Youth Court.”
I find it appropriate that I deal with the youth in the following manner. In accordance with s.3 of the Young Offenders Act 1993, it is appropriate that I find that count 3 is contumacious behaviour by the defendant, driving contrary to an order of the court, having recently been clearly warned and sentenced on 13 June. I record convictions on all counts but focussing on count 3, the defendant will be sentenced forthwith to a period of two months detention that I direct be served at a youth training centre. I have resolved, given the youth’s prior record that it is inappropriate to suspend that period of detention.
With respect to count 1 I impose the minimum fine there of $700. I impose a further period of licence disqualification of 12 months. With respect to counts 4 and 5, conviction without further penalty.”
After the completion of the ex tempore remarks, the appellant asked that the magistrate not impose an immediate period of detention as he was awaiting the imminent birth of his child. He also stated that he no longer had a car. The appellant then asked to be granted home detention. The magistrate asked the appellant’s mother if she had anything to say in her son’s defence. She stated that she had told the appellant not to do those things and that she had warned him that one day he would get caught and get into trouble.
The magistrate concluded:
“With respect to GCJC’s position, I make it crystal clear that I am taking into account what GDJC has also put to me but I must make it known that apart from the fact that there are presently no anklets and although one will be available and there are six reports, in his case he has made it inevitable that he must serve this period of detention forthwith.
I take into account what he has told me about his personal circumstances but he has put himself in this position and that I am unable to resile from the fact that he has put it out of my reach to give him a suspended detention by his recent prior offending where he has not learnt the seriousness of his inappropriate behaviour. That is the order of the court. GDJC will be able to apply for early release if he behaves himself in custody.”
The Appeal
On appeal, counsel for the appellant complained that the magistrate failed to have regard to the principles of procedural fairness by not allowing an adjournment for the purposes of obtaining legal advice. It was further complained that the magistrate had not drawn the appellant’s attention to the possibility that he might be sentenced to a period of detention. It was submitted that although the magistrate gave the appellant an opportunity to speak with his mother, he did not inform the appellant that he was considering imposing a term of detention. The complaints were limited to the sentence of detention imposed on the offence of driving whilst disqualified (count 3).
The obligation on magistrates to inform unrepresented litigants of the nature of their predicament and their options is now well established. As Wells J said in Cooling v Steel:[7]
“It is imperative, therefore, that courts of summary jurisdiction should follow practices that will avoid the possibility that a party or a witness should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him.
Difficulties arise at a number of stages in the proceedings. I refer more particularly to the typical case of the defendant who attends unrepresented and pleads guilty. It seems to me that the court should give careful attention to the following matters of practice and procedure.
When the defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise…Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation…If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed…
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
[7] (1971) 2 SASR 249 at 250-251
In McGlynn v SA Police[8] Perry J reiterated the importance of giving an accused the opportunity to obtain legal representation. He said:
“[A] failure to afford to a defendant an opportunity to obtain legal representation when there is a possibility of imprisonment being imposed will generally result in a miscarriage of justice”.
[8] (1993-1994) 61 SASR 277 at 278
These principles have been accorded statutory recognition through section 30 of the Young Offenders Act 1993 (SA) (“the Act”) which provides:
(1)A court before which criminal proceedings are brought against a youth must satisfy itself that the youth understands the nature of those proceedings.
(2)If the youth is not represented by counsel or solicitor, the court –
a. Must explain to the youth in simple language the elements of the offence charged, the nature of the allegations against the youth and the legal implications of those allegations; and
b. Must provide the youth with a written statement in the prescribed form of the youth’s rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation or assistance.
(3)If a youth is sentence to a fine of ordered to make any other payment of money, the court must give the youth a notice in simple labguage the amount the youth must pay and the time and place at which payment is to be, or may be, made.
(4)Non-compliance with this section does not invalidate a judgment or order of the court.
The transcript of the hearing before the magistrate was not available, however, it was common ground that the requirements of section 30 of the Act were not addressed by the magistrate.
The appellant should have been given the opportunity to obtain legal advice from an admitted practitioner prior to his pleas of guilty, particularly as there was at least a real possibility that an immediate detention order would be imposed given his antecedents. Although the magistrate allowed the appellant to speak with his mother, his decision to plead guilty was a decision for him alone. The appellant should have received a written statement from the court pursuant to section 30(2)(b) of the Act explaining his right to legal representation.
As earlier observed, it was also submitted that the magistrate had failed to warn the appellant that detention was a possible outcome of the proceedings. Notwithstanding that he had a lengthy record of offences of a similar nature and that he may have been aware that detention was a possibility for that kind of offending, section 30(2)(a) of the Act required the court to explain to the appellant the legal implications of the charges.
The magistrate found that given the appellant’s record, it was inappropriate to suspend the period of detention:
“In accordance with s.3 of the Young Offenders Act 1993, it is appropriate that I find that count 3 is contumacious behaviour by the defendant, driving contrary to an order of the court, having recently been clearly warned and sentenced on 13 June.”
This finding was made on the basis that the appellant’s conduct was “contumacious”. The issue of contumacy can be difficult to determine.[9] It involves a close analysis of the relevant facts and a measuring of the nature of the conduct against a standard of unacceptable behaviour. Legal representation was of particular importance in this case given that the facts as outlined on their face, provided a strong case for a finding of contumacy.
[9] Police v Cadd (1997) 69 SASR 150
The magistrate was not entitled to make a finding of contumacy without affording the appellant an opportunity to obtain legal advice on that issue. The fact that a finding of contumacy strengthened the case for imposing a period of immediate detention underscored the need for that opportunity to have been afforded.
The experience and confidence PLT students gain from completing these kinds of practical tasks must not be underestimated. These practices can form an important part of a young practitioners’ professional development. It is also convenient and perhaps expedient for solicitors to engage PLT students to appear on formal matters such as attending at court to obtain an adjournment. However court appearances of this kind are only appropriate when a matter is uncontested. As soon as an application appears to be more complicated than initially expected, it is important for the judicial officer to recognise this and where possible stand the matter down. The reason is two fold - the PLT student must be relieved of their responsibilities and the defendant must be provided with an opportunity to engage a qualified legal representative.
At the very least in this case, the solicitor who instructed the PLT student should have been notified of what had transpired. Ideally the practitioner could then have attended at court as soon as practicable, preferably immediately to rectify the situation. In the absence of representation the magistrate was bound to follow the procedures laid down in section 30 of the Act.
The circumstances of this case present a very unsatisfactory state of affairs. The magistrate’s approach did not accord with proper sentencing practices, nor did it comply with the requirements of section 30 of the Act. Error has been demonstrated. The appellant was not afforded the full protection of the law to which he was entitled. There was a risk of a miscarriage of justice.
The sentence imposed on count 3 must be set aside and the appellant re-sentenced. Counsel for the appellant and the Crown both submitted that this court should perform that task. As earlier observed there was no complaint about the penalties imposed on the other counts.
Re-sentencing
Counsel for the appellant pointed out that the appellant had spent 28 days in custody following sentencing and before being released on bail pending appeal. It was said that in re-sentencing, this court should have regard to the time spent in custody and any period of detention should be suspended. Counsel for the Crown consented to this course.
In fixing a reduced term of 28 days detention I have had regard to the time already spent in custody pursuant to the original two month detention order. I have also had regard to the plea of guilty.
I set aside the order for detention made by the magistrate on count 3. I re-sentence the appellant. I order that the appellant serve a period of detention of 28 days. That order is suspended upon the appellant agreeing to enter into an obligation on the condition that he:
-be of good behaviour for a period of 12 months and comply with all of the other conditions of the obligation.
-appear before a court which may then cancel the suspension of the sentence if he disobeys any of the conditions of this obligation.
-be under the supervision of a Family and Youth Services officer.
- obey all the lawful directions of his Family and Youth Services officer.
-undergo such courses and educative programs with respect to safe driving practices and drug and alcohol abuse as may be directed by his Family and Youth Services officer.
-report within two working days of having signed this obligation, at the office of Family and Youth Services.
CITATIONS AS THEY APPEAR IN THE JUDGMENT
[1] Contrary to section 47 of the Road Traffic Act 1961 (SA)
[1] As defined in section 47b of the Road Traffic Act 1961 (SA)
[1] Contrary to section 91 of the Motor Vehicles Ac, 1959 (SA)
[1] Contrary to section 9 of the Motor Vehicles Act 1959 (SA)
[1] Contrary to section 102 of the Motor Vehicles Act 1959 (SA)
[1] Counsel informed me on the hearing of the appeal that this was because the appellant had failed to provide the necessary application forms to the Legal Services Commission.
[1] (1971) 2 SASR 249 at 250-251
[1] (1993-1994) 61 SASR 277 at 278
[1] Police v Cadd (1997) 69 SASR 150

[2002] SASC 191

21 June 2002