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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gould v Police

Details

AGLC: Gould v Police [2005] SASC 297
Case: [2005] SASC 297
Decision Date: 9 August 2005

CaseChat Overview and Summary

In the case of Gould v Police, the appellant appealed against a conviction and sentence imposed by a Magistrate in the Magistrates Court. The appellant, who was self-represented at the trial, pleaded not guilty to the charge of contravening a restraining order. The appeal centred on the procedural fairness and propriety of the trial, particularly regarding the assistance provided to an unrepresented appellant and the handling of late-provided evidence.

The central legal issues revolved around whether the Magistrate had adequately directed the appellant about his rights and duties during the trial, if the Magistrate erred in refusing the appellant's request for an adjournment after the late provision of an important item of evidence, and whether the Magistrate correctly imposed the sentence of imprisonment without allowing the appellant an opportunity to make submissions on penalty. Additionally, the court examined whether the Magistrate had erred in not adjourning the trial to allow the appellant to obtain legal advice or representation.

The court found that the Magistrate had indeed erred in several respects. Firstly, the Magistrate did not provide the unrepresented appellant with adequate directions about his rights and duties during the trial. Secondly, the Magistrate refused the appellant's request for an adjournment to obtain legal advice after the prosecution had provided a crucial piece of evidence late in the process. Furthermore, the Magistrate imposed the sentence of imprisonment without allowing the appellant an opportunity to make submissions concerning the penalty and without hearing from the prosecution. These errors constituted a miscarriage of justice. Consequently, the appeal was allowed, and the conviction and sentence were set aside. The matter was remitted for a further hearing before a different Magistrate, with the appellant required to appear before the Magistrates Court at Mount Gambier at a date and time specified by the Court.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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