HARWOOD v POLICE - [2019] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARWOOD v POLICE
[2019] SASC 129
Judgment of The Honourable Justice Lovell
26 July 2019
CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION
EVIDENCE - WITNESSES - CROSS-EXAMINATION - WHEN PERMITTED AND IN GENERAL - BY WHOM
The appellant was convicted of three counts of contravening a term of an intervention order contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). His ex-partner was the protected person under the order. The appellant was self-represented at trial. He appeals on the ground that the trial court failed to properly and fully advise him of his right to obtain the assistance of counsel for the purpose of cross-examining his ex-partner.
Cross-examination when party is self-represented – cross-examination of victim only allowed through counsel - whether the trial judge had informed the appellant of his right to legal assistance for purpose of cross-examination
Held, allowing the appeal:
1. The trial miscarried because the trial court failed to properly and fully advise the appellant of his right to obtain the assistance of counsel for the purpose of cross-examination.
2. Appeal allowed. The conviction imposed by the Magistrate is set aside and the matter is remitted to the Magistrates Court for a retrial before a different Magistrate.
3. Respondent is to pay the appellant's costs of the appeal in the amount of $500.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Evidence Act 1929 (SA) s 13B; Criminal Law (Legal Representation) Act 2001 (SA) s 6(1a), referred to.
Cooling v Steel (1971) 2 SASR 249, considered.

HARWOOD v POLICE
[2019] SASC 129
LOVELL J:
Overview

At his trial in the Magistrates Court, the appellant was convicted of three counts of contravening a term of an intervention order, contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant’s ex-partner, Ms Bryant, was the protected person under the intervention order.
It was common ground that on three separate nights in August 2017, the appellant attended the home of his former father-in-law where, it was submitted by the prosecution, Ms Bryant and the couple’s daughter had been residing since April 2017. The appellant left letters addressed to Ms Bryant’s father as well as old family photographs. The appellant contested that Ms Bryant was living at her father’s house and said he genuinely believed she was still residing at a different rental property.
The appellant did not have legal representation at the trial. The Magistrate rejected the appellant’s evidence and found that on each of the three occasions, the appellant was aware that Ms Bryant and their daughter were residing at the property. Accordingly, the Magistrate found the charges proved beyond reasonable doubt and convicted the appellant. He was sentenced to one month imprisonment which was suspended on the condition he enter into a good behaviour bond for 18 months. In addition to the bond, the appellant was ordered to pay court costs, the prosecution fee and the victims of crime levy. The appellant appeals against that conviction and sentence.
Grounds of Appeal
The appellant did not have legal representation at the appeal. The Notice of Appeal outlined 20 grounds of appeal. It was not an easy document to follow. The evening before the appeal commenced, the respondent’s counsel, Mr Soetratma, notified the Court and the appellant of a problem that had come to his attention. He considered that the problem detected may affect the outcome of the appeal. After hearing submissions at the appeal, the appellant was given leave to amend the grounds of appeal to include the following ground:
The trial miscarried because the trial court failed to properly and fully advise the applicant he had a right to obtain the assistance of counsel for the purpose of cross-examining Ms Bryant.
The respondent conceded the appeal on the basis of the amended ground of appeal. I allowed the appeal; my reasons follow.
Background
The appellant and Ms Bryant were previously partners. Their relationship began in the early 2000s and in April 2008 they had a daughter, Bailey. The relationship broke down and the couple separated in May 2013. The appellant was bound by an intervention order made final on 29 January 2014 in which Ms Bryant was the protected person. The order included the following clause:
The defendant must not enter or remain in the vicinity of the protected person(s) place of residence, place of employment or any other place at which the protected person(s) is staying or working.
A breach of an intervention order under section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is an offence of strict liability meaning, in this case, the offence would be made out if it was proven that Ms Bryant was residing at her father’s house at the time of the offending and the appellant attended the house on each of those occasions. A finding of guilt does not require that the appellant knew Ms Bryant was residing there at the time of offending.
It was the prosecution case that on three different nights in August 2017 the appellant attended the home of his former father-in-law, where they submitted Ms Bryant and Bailey had been residing since April 2017, and left letters addressed to Ms Bryant’s father as well as old family photographs. The prosecution alleged that on each of these occasions, the appellant was aware that Ms Bryant and Bailey were residing at the property.
The defendant admitted to attending Mr Bryant’s house on each of the above occasions but asserted he believed Ms Bryant and Bailey were living at a different rental property (“Epstein Drive property”) and indicated he wanted to contest Ms Bryant’s evidence that she was in fact residing at her father’s home.
At trial, Ms Bryant gave evidence that she had been living at her father’s house with Bailey since April 2017. She testified that at the time of the offending she was still paying rent for the Epstein Drive property and that it was still classed as her address. Despite this, she maintained that it was not her place of residence and that she was living at her father’s house at the time of the offending.
The main issue at the trial was where Ms Bryant resided at the time of the offending; her evidence was crucial.
Cross-examination of alleged victim
Section 13B of the Evidence Act 1929 (SA) deals with the cross-examination of certain witnesses. By virtue of section 13B(1)(a) of the Act, at trial the appellant (defendant) was not allowed to cross-examine Ms Bryant, the alleged victim of the contraventions of the intervention order, unless the cross-examination was done by counsel.
Attendance for trial on 25 September 2018
The trial was scheduled to commence on 25 September 2018. The appellant did not have legal representation. The trial commenced but it quickly became clear that the prosecution had changed the way it intended to present its case. The Magistrate discussed the issue with both parties and it became apparent that the major issue was where Ms Bryant was living at the relevant time. The appellant applied to adjourn the case to obtain legal advice. The Magistrate informed the appellant that he, the appellant, could not ask questions directly of Ms Bryant. While the appellant understood that to be the position, he thought he could submit a list of questions to the Magistrate to enable the Magistrate to cross-examine Ms Bryant. At that stage, the Magistrate did not correct the appellant’s misunderstanding. Indeed, the Magistrate considered that he was able to ask questions on behalf of the appellant.
The Magistrate however did advise the appellant that he should consider obtaining legal advice and perhaps obtain the assistance of legal counsel to cross-examine Ms Bryant.
As the appellant was self-represented at trial, section 13B(3) of the Evidence Act 1929 (SA) was of importance as Ms Bryant was a witness to which the section refers. It relevantly states:
If a defendant is not legally represented in a criminal trial that will involve the taking of evidence from any such witness, the court must ensure that the defendant—
(a)has been warned of the limitation on the right of cross-examination imposed by this section; and
(b)has been informed—
(i)that he or she may be entitled to legal assistance under the Legal Services Commission Act 1977;
(ii)in any case—of his or her rights under the Criminal Law (Legal Representation) Act 2001 to obtain the assistance of counsel for the purpose of cross-examining the witness; and
(c)has had a reasonable opportunity to obtain the assistance of counsel before the evidence is taken.
(Underlining added)
The Magistrate advised the appellant that he had a right to apply for legal aid. The appellant informed the Magistrate that he was working “casual at the moment”. The Magistrate responded by saying he, the appellant, “probably would not get legal aid” but he had “to be advised of his right to apply”. The appellant asked for time to seek legal advice and the trial was adjourned until a later date.
Unfortunately, the Magistrate did not refer to the appellant’s rights under section 13B(b)(ii) of the Evidence Act 1929 (SA). That right includes a reference to the Criminal Law (Legal Representation) Act 2001 (SA). Relevantly section 6(1a) of that Act states:
If a defendant who is not legally represented in a trial applies to the Commission for legal assistance for the cross-examination of a section 13B witness in the trial, the Commission must (subject to the qualifications that appear below) grant such legal assistance.
(Underlining added)
The Magistrate did not advise the appellant that legal assistance must be granted to a defendant subject to certain qualifications (terms). Indeed, he had informed the appellant that he probably would not qualify for legal assistance.
When the matter adjourned the appellant considered that the Magistrate could ask questions on his behalf and further that it was unlikely he would qualify for legal assistance as he had casual employment. Both assumptions were incorrect.
Attendance for trial on 15 November 2018
Upon the resumption of the trial, the Magistrate informed the appellant that he had been in error on the previous occasion and that cross-examination could only occur through counsel, not by way of questions submitted to him. The appellant informed the Magistrate that although he had seen a lawyer for the purpose of obtaining a quote for legal assistance for the trial, he had not sought legal assistance from the Legal Services Commission. He believed he would not qualify for assistance.
Thus, the appellant was advised that he could not submit a list of questions to the Magistrate to be asked of Ms Bryant; he also was still under the mistaken belief that he would not qualify for legal assistance. The Magistrate did not advise him of the provisions of section 6 of the Criminal Law (Legal Representation) Act 2001 (SA). Despite those problems the Magistrate proceeded with the trial and the appellant was unable, in any way, to test the evidence of Ms Bryant. The Magistrate accepted her evidence and convicted the appellant.
The obligation to assist unrepresented defendants
There is an obligation on a trial judge or magistrate to ensure that an accused person, representing themselves, has all the information they require in order to have a fair trial. Courts must conduct themselves in a way 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.[1]
[1] Cooling v Steel (1971) 2 SASR 249 at 250.
Although not an advocate for the accused, the trial judge or magistrate must ensure that the accused person understands the rights they possess and that they have the necessary information so that they can make informed choices about their case. In this case, it was the rights of the accused provided for by section 13B of the Evidence Act 1929 (SA) and, by extension, section 6(1a) of the Criminal Law (Legal Representation) Act 2001 (SA) that the accused needed to be aware of and fully understand to ensure he received a fair trial.
The Magistrate had an obligation to ensure that at trial the appellant fully understood that cross-examination of Ms Bryant could only occur if he employed counsel to do so on his behalf, and that if he applied to the Commission for legal assistance they were bound by law to provide it, subject to any conditions they saw fit.
The Magistrate spent some considerable time discussing with the appellant the issues involved in his case. He made the prosecutor open the case and then explained to the appellant the issues in the case. Unfortunately, despite clearly attempting to comply with his obligations to an unrepresented accused, errors in the Magistrate’s advice led to the accused being deprived of the opportunity to have Ms Bryant’s evidence challenged.
The appellant was deprived of a fundamental right and the appeal must be allowed. The concession by the respondent was appropriate on the facts of the case.
I do not need to consider the other grounds of appeal.
Order
I grant leave to the appellant to amend his Notice of Appeal to include the ground that the trial miscarried because the trial court failed to properly and fully advise him as to his right to obtain the assistance of counsel for the purpose of cross-examining Ms Bryant.
The appeal is allowed. The conviction imposed should be set aside. I remit the matter for retrial before a different Magistrate. The respondent is to pay the appellant’s costs of the appeal in the amount of $500.