Gould v Police - [2005] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOULD v POLICE
Judgment of The Honourable Justice White
9 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
Appeal against conviction and sentence imposed by Magistrate - appellant self-represented at trial - plea of not guilty - item of evidence not provided to appellant in accordance with direction of the Court - application for charge to be dismissed - appellant requested adjournment to obtain legal advice - adjournment refused by Magistrate - appellant excused himself from courtroom and absent for remainder of trial - appellant convicted in his absence - sentence of imprisonment imposed - whether Magistrate provided unrepresented accused with adequate directions about his rights and duties in the trial - Magistrate erred in refusing appellant's request for adjournment to obtain legal advice and/or representation following late provision by prosecution of an important item of evidence - Magistrate erred in imposing sentence of imprisonment without adjourning to give appellant an opportunity to make submissions concerning penalty and without hearing from the prosecution - appeal allowed - retrial ordered before new Magistrate.
Summary Procedure Act 1921 s 27C, s 62A, s 62C, s 64, s 99I , referred to.
Cooling v Steel (1971) 2 SASR 249 at 251; McGlynn v Police (1993) 61 SASR 277 , applied.

GOULD v POLICE
[2005] SASC 297
Magistrates Appeal

WHITE J: This is an appeal against conviction and sentence. On 1 June 2005 the appellant was convicted in the Magistrates Court of the offence of contravening a restraining order issued by the Magistrates Court sitting at Naracoorte on 25 November 2003. Immediately following the recording of the conviction, the Magistrate imposed a sentence of imprisonment for three months. He declined to suspend that sentence. In addition, the Magistrate ordered the appellant to pay prosecution costs, witness fees and other associated fees.
Each of the grounds of appeal has its basis in the manner in which the trial was conducted. In particular the appellant complains of the lack of assistance provided to him as an unrepresented litigant and the failure of the Court to allow an adjournment following the late delivery to him of an important item of prosecution evidence, resulting in him not receiving the item before the resumption of the trial.
Background Circumstances
There are two children of the appellant’s former marriage. The first, whom I will call “J”, was born in 1999. The second, whom I will call “E”, was born in 2001. Pursuant to an order of the Family Court made on 19 August 2003, the appellant’s former wife has the custody of the two children and the responsibility for their day-to-day care, welfare and development. However, the appellant is entitled to have contact with the children at specified times.
There were, apparently, difficulties experienced in the taking of the contact by the appellant of his children. This led to proceedings in the Magistrates Court at Naracoorte in November 2003. On 25 November 2003, that Court issued restraining orders, the substance of which were as follows:
(1) That the defendant is restrained for a period of [sic] until further order;
(2)From contacting or communicating directly or indirectly, whether in person, by telephone, in writing or otherwise with [a number of persons are named] other than for the purpose of access changeover of [J and E].
(3)From assaulting, harassing, threatening, abusing or intimidating physically or verbally, Leanne Evelyne Thomson, Mary Francis Mellaney, Meredith Anne Hack, Brian O’Leary, Caroline Lorraine Slade and anyone employed by Anglican Care Community Care Inc.”
The appellant was to have contact with the children on Thursday, 22 January 2004. The handover was to take place at the premises of the Community Care Church in Naracoorte. Police were present at the time of the proposed handover. It is not necessary to attempt any description of the events which occurred at the time of the proposed handover. It is sufficient to note that as a result of those circumstances, the appellant was charged with the offence of contravening the restraint order issued on 25 November 2003 contrary to s 99I(1) of the Summary Procedure Act 1921. That is a serious offence, as the maximum penalty of two years imprisonment, reveals.
The appellant was arrested on 22 January 2004 and appeared in court on the following day. He was then granted bail.
There then followed a series of directions hearings and a pre-trial conference. The appellant was represented by counsel at the two directions hearings but on the occasion of the pre-trial conference on 13 July 2004 his then solicitor was granted leave to withdraw from the file. The appellant remained unrepresented thereafter.
Initially the matter was listed for trial on 17 November 2004 but the matter did not proceed on that day. The matter was then listed for trial on 30 March 2005 in the Magistrates Court sitting at Mount Gambier.
Events at the Hearing
The trial was due to commence at 10.30 am on 30 March 2005. The prosecution then had seven witnesses to be called. The appellant was not present when the matter was called on. His non-appearance was proved at 10.40 am. The Magistrate determined, pursuant to s 62A of the Summary Procedure Act 1921, to proceed with the hearing ex parte. However, after the prosecution had opened, and called the first witness, the appellant arrived (at 10.50 am). The Magistrate gave the appellant a brief summary of what had occurred in his absence and asked that the first prosecution witness be re-called for the purposes of cross-examination. Although he did not say so expressly, it is apparent that the Magistrate then decided to proceed pursuant to s 64 of the Summary Procedure Act. The police prosecutor gave an abbreviated version of his opening and included the names of the witnesses whom he intended calling. He also said that he intended tendering an audio tape of the “incident” on 22 January 2004 and a transcription of that tape.
The appellant then informed the Magistrate that he had not been provided with a copy of the audio tape which the prosecution proposed to tender. He accepted that he had been provided with a transcription prepared by the prosecution but indicated that he did not accept that that transcription was an accurate account of what was recorded on the audio tape. The applicant submitted that the charge should be dismissed because he had not been provided with all the evidence upon which the prosecution sought to rely. The Magistrate refused that application at that time without providing any reasons. Arrangements were then made for the appellant to listen to the audio tape. A number of difficulties were experienced in obtaining a clear replaying of the tape. When the matter resumed at 12.15 pm that day, the appellant renewed his application for dismissal of the complaint on the basis that much of the conversation on the tape had not been transcribed. The Magistrate declined to dismiss the charge at that stage, saying that he was not in a position to rule on the application until he had heard the evidence. He also ruled that he would admit the audio tape into evidence de bene esse. The Magistrate explained to the appellant his reasons for proceeding in that way but it is apparent from the transcript that the appellant may not have understood them fully and was dissatisfied with the Magistrate’s rulings.
The appellant was then invited to cross-examine the first witness (who was his former wife). He did so without hearing the oral evidence which she had given in-chief. To some extent the disadvantage to which he was then subjected was mitigated by the fact that almost the whole of her evidence-in-chief was contained in a written statement which the prosecution had been permitted to tender, and which was, of course, available for the consideration of the appellant.
At the conclusion of the hearing on 30 March 2005, the matter was adjourned to 1 June 2005. On that date, the appellant was again unrepresented. He again applied for dismissal of the complaint on the basis that he had still not been provided with a copy of the audio tape which the prosecution proposed to tender. He submitted to the Magistrate that he was unable to cross-examine the witnesses without first hearing the tape. He sought an adjournment of the trial for the purpose of considering the tape’s contents, for the purpose of obtaining legal advice with respect to the tape and possibly to seek legal representation for the remainder of the trial. The Magistrate indicated that the complaint would not be dismissed and that the trial would not be adjourned. The appellant renewed his applications several times during the course of the morning. On each occasion the Magistrate indicated that his ruling was the same. The appellant was dissatisfied with these rulings. He expressed himself forcibly to the Magistrate. The transcript of the proceedings before the Magistrate reveals rudeness on the part of the appellant in the manner in which he addressed the Court. In addition, from time to time, he expressed himself in language quite inappropriate for a courtroom.
The appellant declined to cross-examine the witness then in the witness box any further until he had received an audio tape in proper format and had had an adjournment in order to be able to consider and obtain instructions. The Magistrate required him to proceed with his cross-examination. When he declined to do so, still requesting an adjournment, the Magistrate noted that there was no further cross-examination and invited the police prosecutor to re-examine the witness. There being no re-examination, that witness was released. When the witness withdrew, the appellant said: “Well I may as well go too, I’m sick of this. Because if you’re not going to act within the law Your Honour, why the hell should I?”. The appellant then left the Courtroom and took no further part in the trial. In his absence, the prosecution called the remaining witnesses. The Magistrate then gave an ex tempore decision in which he found the charge proved. Without any adjournment and without hearing any submissions from the prosecutor, the Magistrate imposed the sentence of imprisonment to which I referred at the outset of these reasons.
An Unrepresented Accused
The approach to be adopted by magistrates where an accused is unrepresented at his trial is well established. It was summarised by Wells J in Cooling v Steel:[1]
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.
[1] (1971) 2 SASR 249 at 251.
That proposition holds good in any trial, but it is particularly important in a trial for an offence, where proof of guilt may result in a sentence of imprisonment.
In the present case, the appellant complains that in a number of respects the Magistrate fell short of the duty stated by Wells J.
First, it was submitted that the appellant was not informed of the seriousness of the charge and of the penalty which might be imposed on a finding of guilt. It was submitted that had the appellant been so informed he may not have decided to proceed to trial without legal representation. Counsel for the respondent concedes that the appellant was not warned formally prior to the commencement of trial as to the nature of the charge, nor its seriousness, nor of the penalties that might be imposed upon a finding of guilt. Further, there is no record of any such warning having been given prior to 30 March 2005. In particular, there is no record of any such warning having been given at the time of the pre-trial conference. The respondent did not contest the appellant’s claim that no such warning had been given. It is possible that the appellant had been given advice of this type at the time when he had been represented but that should not have been assumed by the Magistrate.
The appellant next submitted that the Magistrate had admitted into evidence at trial written statements of each witness called by the prosecution without first having informed the appellant that it was open to him to object to that procedure and to request that each witness give their evidence in its entirety orally. No explanation was given to the appellant of the possible consequences of the tender of the witnesses’ statements nor as to how they might ultimately be used. Where the ultimate issue may depend upon the Court’s assessment of the credit of witnesses it can be important for the Court to receive the whole of the evidence orally. This is not a significant matter in the present case, as the tender of the witness statements occurred only at the times in which the trial was proceeding in the appellant’s absence.
The appellant also complained that he was not provided with assistance by the Magistrate during the course of his cross-examination. When refusing one of the appellant’s applications for adjournment, the Magistrate described the appellant as “very competent and capable self represented litigant”. In my opinion, whilst the transcript of the proceedings suggests that the appellant has some familiarity with court proceedings, it does not bear out the Magistrate’s assessment of the appellant in that respect. Whilst it was not incumbent upon the Magistrate to shape the appellant’s questions for him, let alone to assume the role of advocate, it was desirable that the Magistrate point out to the appellant the need for him to put to each of the prosecution witnesses any alternative version of the incident on 22 January 2004 upon which he proposed to rely. It would also have been desirable for the Magistrate to give at least some limited assistance to the appellant in the framing of questions, perhaps by making suggestions as to how a particular topic or matter could be put to a witness. In this respect, it is my opinion that the Magistrate fell short of the duty required of him.
Next the appellant submitted that the Magistrate had erred in refusing the oral application for dismissal of the charge on the basis that he had not been provided, in advance of the trial, with a copy of the audio tape upon which the police proposed to rely. As already noted, the Magistrate refused that application without giving any reasons. In my opinion, it would have been preferable for the Magistrate to have given at least very short oral reasons at the time of refusing the application and perhaps to have reserved to himself the right later to publish more complete reasons. In this way, an appearance that the application had been refused peremptorily would have been avoided without causing any significant disruption to the trial.
Next, the appellant complained that he had been given inadequate assistance by the Magistrate in understanding the basic procedures which were to occur at the trial. In one exchange, the appellant made a statement which appeared to indicate a belief on his part that he would be able to have witnesses recalled later during the trial for the purposes of further cross-examination. Although it is clear that the Magistrate intended to make the true position clear to the appellant, the words he used did not give effect to that attempt and it is apparent from the ensuing pages of the transcript that the appellant was left confused on the topic of whether witnesses would be attending to give evidence on more than one occasion.
Finally, the appellant submitted that the Magistrate had not made clear to him the potential consequence for him in leaving the courtroom and taking no further part in the trial. Whilst in the circumstances which had developed, I suspect that the appellant had reached a state of mind in which he was indifferent to whatever outcome was reached in his absence, it was nevertheless desirable that the Magistrate inform him of the way in which he intended to proceed if he was absent, and of the potential consequences for him in that event.
As already noted, on several occasions the appellant sought an adjournment in which to consider and if necessary, obtain legal advice in relation to the audio tape of the incident on 22 January 2004, which prior to 1 June 2005 had not been disclosed to him. The Magistrate refused each such application. The tape was capable of providing important evidence, particularly in the context of a dispute as to what had been said in the course of the incident on 22 January 2004. On 30 March 2005, the Magistrate had directed the prosecution to post a copy of the tape to the appellant but it seems that the tape was not posted until 24 May 2005, ie, only eight days prior to the resumption of the trial. As the tape was being sent from a regional centre in one State (Mt Gambier) to a regional centre in another State (Mildura), it was to be expected that several days would elapse before it was received by the appellant. No explanation was provided to the Magistrate for the delay in posting the tape to the appellant. As it happened, the appellant had not received the tape as at 1 June 2005, let alone had an opportunity to consider its contents.
The principal considerations which led the Magistrate to refuse the adjournment were the inconvenience to the witnesses who had attended that day for the hearing and the wastage of Court time and resources which would follow. It is quite understandable that the Magistrate should be concerned about both matters. However, the problem arose because of the delay until 24 May 2005 by the prosecution in complying with the direction made by the Magistrate on 30 March 2005 to provide the appellant with a copy of the audio tape. That delay created the risk that the appellant would not have received the tape at all by 1 June 2005, or not have sufficient time to consider it, and if necessary, obtain legal advice prior to the resumption of the trial. The problem was not attributable to fault on the appellant’s part. The respondent conceded that the Magistrate’s decisions in refusing the adjournment in respect of the previously undisclosed audio tape constituted error on his part. In my opinion, that concession was quite appropriate. This ground considered by itself warrants the appeal being upheld.
The respondent conceded that in all the circumstances the trial of the appellant did not have the appearance of being procedurally fair. The respondent accepted that the errors may have led to a miscarriage of justice which made it appropriate that the appeal be allowed. In my opinion, the concession of the respondent in this respect was also correct.
Absence of Opportunity for Sentencing Submissions
Section 62C(1) of the Summary Procedure Act provides as follows:
(1)Where a defendant fails to appear in obedience to a summons and is convicted (whether upon a plea of guilty under section 57A of this Act or after an ex parte hearing) the court shall not impose upon the defendant—
(a) any disqualification from holding or obtaining a licence to drive a motor vehicle; or
(b) any sentence of imprisonment,
unless the court has first adjourned the hearing of the complaint to a time and place appointed and stated by the court in order to enable the defendant to appear for the purpose of making submissions on the question of penalty.

Both counsel submitted that in proceeding to sentence the appellant immediately after his finding of guilt, the Magistrate acted in breach of s 62C. It is not necessary for me to rule on that submission. It may be arguable that the circumstances in which the Magistrate was proceeding on 1 June 2005, after the withdrawal by the appellant, did not attract the operation of s 62C.
Whether or not s 62C required the Magistrate to adjourn the matter and to afford the appellant the opportunity to make submissions with respect to sentence, I am satisfied that he was nevertheless in error in proceeding to sentence the appellant immediately after his finding of the appellant’s guilt. The Magistrate gave ex tempore reasons for finding the appellant guilty. Without hearing any further submissions at all, including from the prosecutor, the Magistrate proceeded to impose the sentence of imprisonment to which I have referred. It is clear enough that it is the policy of the law that a person who may be subjected to a sentence of imprisonment should be given an opportunity, after a finding of guilt, to appear for the purpose of making submissions on the question of penalty. That policy is evident in ss 62C and s 27C(3) of the Summary Procedure Act. The attention of the appellant should have been drawn to the possibility that he might be sent to prison, and he should have been afforded an opportunity to obtain legal representation on the question of penalty.[2] By proceeding in the way in which he did, the Magistrate determined the penalty with very little of the information required before an appropriate penalty could be determined. Even had the conviction been appropriately entered, the Magistrate was therefore in error, in my opinion, in proceeding to sentence the appellant in the way that he did.
[2] McGlynn v Police (1993) 61 SASR 277 at 278, per Perry J.
Conclusion
For reasons which I have given, I am satisfied that the appeal against conviction and sentence should succeed. The orders of the Court are therefore:
1. The appeal is allowed.
2. The conviction entered by the Magistrate is set aside.
3.The sentence of imprisonment imposed by the Magistrate is set aside.
4.The matter is remitted for further hearing in the Magistrates Court before another Magistrate.
5.Unless excused by the Magistrates Court from doing so the appellant is to appear in the Magistrates Court at Mount Gambier at a date and time fixed by that Court.
I will hear the parties as to any further orders.