GREY v Police

[2004] SASC 213

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

GREY v POLICE

Judgment of The Honourable Justice White (ex tempore)

19 July 2004

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL

OTHER CASES - RIGHT OF DEFENDANT TO ADDRESS AT CLOSE OF DEFENCE CASE

Appellant unrepresented at trial - whether lack of legal representation led to unfairness - whether appellant's ill-health led to unfairness - evidence unclear - Magistrate did not allow appellant or prosecution to make closing addresses - appeal allowed.

Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 39, s 269, s 288B; Summary Procedure Act 1921 s 68, s 69, s99I, referred to.
W v Police [2003] SASC 362; Stead v SGIC (1986) 161 CLR 141; Allen v Gittos (1995) 13 WAR 560, applied.

GREY v POLICE
[2004] SASC 213

Magistrates Court

1. WHITE J: This is an appeal pursuant to s 42 of the Magistrates Court Act 1991. The appellant appeals both conviction and sentence.

2. On 25 October 2000, the appellant was charged, on complaint, with one count of common assault on a person other than a family member, in contravention of s 39(1) of the Criminal Law Consolidation Act 1935, and one count of breaching a restraining order, in contravention of s 99I(1) of the Summary Procedure Act 1921.

3. Both charges arose out of one incident which is alleged to have occurred on 18 August 2000.

4. On that day, both the appellant and his alleged victim (“the victim”) were on the footpath on the northern side of Grote Street at its junction with Pitt Street in the City of Adelaide.  The appellant was walking in a westerly direction across Pitt Street.  The victim was on the western side of Pitt Street.  The victim alleged that the appellant deliberately bumped into him with his right shoulder.  The Magistrate found that this did occur and that it constituted an assault.

5. A restraining order had been made against the appellant by the Adelaide Magistrates Court on 27 July 2000 (approximately three weeks before the subject incident).  Relevantly, that order restrained the appellant for a period of 12 months from “approaching, contacting (directly or indirectly), molesting, assaulting, threatening, abusing or otherwise interfering with the peace and comfort” of the victim of the assault.  The Magistrate found that the appellant was aware of the presence of the victim when he walked across Pitt Street and thus was in breach of the restraining order by approaching him.

6. The appellant was born on 20 May 1934 and was therefore aged 69 at the time of the hearing.

7. At the trial before the Magistrate, the appellant was unrepresented.  He did, however, have the assistance of a McKenzie friend. 

8. The trial commenced before the Magistrate on 3 February 2004.  In the period between the laying of the complaint (25 October 2000) and the commencement of the hearing, the matter had been before the Magistrates Court on some 21 occasions.  A trial date of 2 February 2004, with the afternoons of the 3^rd, 4^th, 5^th and 6^th February 2004 also set aside, had been set on 21 August 2003.  The matter was listed for afternoons only to take account of the appellant’s ill health.  On 18 of the previous occasions, the appellant had been represented by a legal practitioner. 

9. It appears that many of the adjournments were at the instigation of the appellant. Some were because of his ill health. Some adjournments occurred whilst those representing him investigated whether issues arising pursuant to s 269 of the Criminal Law Consolidation Act should be pursued.

10. The matter did not proceed on 2 February 2004 because of the unavailability of a Magistrate at that time.

11. On 3 February, the trial commenced and, after some evidence was taken, the hearing was adjourned to 24 February 2004.  However, the hearing did not resume on 24 February 2004 because the appellant was hospitalised.  Further trial dates of 29 March and 19 April 2004 were set.  The hearing did not proceed on those days either, again apparently because of the ill health of the appellant.  The matter was concluded before the Magistrate on 27 April 2004.

12. On that day, the appellant asked for the hearing to be further adjourned, again because of his ill health. 

13. It is possible that at that time the appellant also referred to the fact that he had retained a legal adviser and sought an adjournment on that ground as well.  The evidence as to that is unclear.

14. In any event, the Magistrate declined the request for adjournment.  The matter proceeded with the appellant still unrepresented. 

15. On 27 April 2004, the Magistrate heard the balance of the prosecution evidence and evidence from the appellant.  It is unnecessary to recount the evidence in detail.  It is sufficient to note that, in his evidence, the appellant denied that when he crossed Pitt Street he was aware of the presence of the victim on the opposite side and stated that it was the victim who bumped into him rather than vice versa.

16. The Magistrate gave an ex tempore decision but without hearing addresses from either party.  On the topic of final submissions, the Magistrate said:

    “In the circumstances, I do not need addresses from either party and I will keep my ex tempore reasons for judgment brief.”

    The Magistrate found the appellant guilty on both counts.  He then heard submissions as to penalty.  He recorded convictions against the appellant on both counts but having regard to the appellant’s age and health, discharged him without further penalty.  The appellant was ordered to pay court fees of $84.50, the criminal injuries compensation levy of $50 and prosecution costs in the sum of $120.

17. The failure of the Magistrate to give the parties an opportunity to make final submissions was an error.  Section 68(3) of the Summary Procedure Act 1921 provides:

    “The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.” (emphasis added)

18. Section 69 of the Summary Procedure Act provides:

    “When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require:  Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.” (emphasis added)

19. The practice of the Supreme Court with respect to final addresses in a criminal trial is governed by s 288B of the Criminal Law Consolidation Act.  It provides:

    “(1)At the conclusion of the evidence, the prosecutor and the defendant are entitled to address the court on the evidence.

    (2)The address for the prosecution is to be made before any address for the defence.”

20. Thus, by a combination of the provisions of the Summary Procedure Act quoted and s 288B of the Criminal Law Consolidation Act, each of the prosecutor and the defendant was entitled to make final submissions. 

21. The Magistrate was in error in failing to give effect to that entitlement.

22. The absence of protest by the defendant at the time of being denied his entitlement is immaterial.  The Magistrate should have informed him of his entitlement and provided him (and the prosecution) with the opportunity to make final submissions:  W v Police [2003] SASC 362 at [32] – [33]. The failure of the Magistrate to provide the appellant with an opportunity to make oral submissions was not only in non-compliance with s 68 and s 69 of the Summary Procedure Act, it was also a denial of natural justice to the appellant:  Stead v SGIC (1986) 161 CLR 141; Allen v Gittos (1995) 13 WAR 560.

23. In the circumstances of this case where much depended on the Magistrate’s assessment of the reliability of the respective witnesses, and therefore whether particular evidence might be acted on, it may be accepted that the denial of natural justice deprived the appellant of the possibility of a successful outcome:  Stead v SGIC at 147.

24. For this reason alone, it is appropriate to allow the appeal and to remit the matter to the Magistrate’s Court for rehearing.  I note that the respondent accepts that this is an appropriate outcome.

25. The appellant also advances other complaints about the fairness of proceedings before the Magistrate.  He complains that the hearing proceeded on 3 February 2004 and 27 April 2004 whilst he was unrepresented.  He complains that the hearing proceeded at a time when his medical condition was such that his ability to conduct the trial was impaired. 

26. Absence of legal representation may, in some circumstances, render a trial unfair but an absence of legal representation does not per se have that effect.  The appellant has not provided any evidence explaining why he was unrepresented on 3 February 2004.  This is particularly striking given that, as already noted, he had been represented on some 18 previous occasions, and given that the trial dates in February had been set on 21 August 2003.

27. Mr Mancini, who now acts for the appellant, was first instructed on 15 March 2004.  It seems that he was instructed in relation to a number of matters involving the appellant.  Although the terms of the retainer extended to this matter, no specific instructions were given by the appellant to Mr Mancini in relation to this matter.  Mr Mancini was unaware of the resumption of the hearing on 27 April 2004 and did not attend himself nor make arrangements for anyone else to attend on his behalf.  There is some evidence that the Magistrate was informed of Mr Mancini having been retained but the precise detail which was communicated to the Magistrate on that topic is unclear.

28. Had the Magistrate been aware that Mr Mancini was retained in this matter, it seems likely that he would, at the least, have made some arrangements for Mr Mancini to be contacted before proceeding with the hearing.

29. Given the conclusion I have reached with respect to the failure of the Magistrate to afford either party an opportunity to make final submissions it is unnecessary for me to consider that aspect of the matter further.

30. For the purposes of the appeal, I have received an affidavit of Mr Mancini sworn 19 July 2004, which has annexed to it two medical reports and one medical certificate.  That material is consistent with the proposition that the appellant suffered from a medical condition in February and April 2004 which may have affected his ability to participate adequately in the trial.  However, it is in some respects, non-specific.  If that had been the only matter relied upon by the appellant on this appeal, it would have been necessary to consider the sufficiency of that material

31. However, bearing in mind the non-compliance with s 68 and s 69 of the Summary Procedure Act and the denial of natural justice to the appellant, it is unnecessary for me to consider that further.

32. In saying that, I do not overlook the concession of the Crown to the effect that there was medical evidence confirming the existence of various medical conditions which may have affected the appellant’s ability to conduct the trial unrepresented.

33. The order of the Court is:

    1.          Appeal allowed.

    2.The convictions entered by the Magistrate on 27 April 2004 are quashed.

    3.The orders of the Magistrate with respect to court fees, levy and prosecution costs are set aside.

    4.The proceedings are remitted to the Magistrate’s Court for rehearing before another Magistrate.