Kyriacou v Police

[2007] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

KYRIACOU v POLICE

[2007] SASC 341

Judgment of The Honourable Justice Gray

27 September 2007

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - EX PARTE PROCEEDINGS

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

EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - AFFIDAVITS - USE OF AFFIDAVITS - WHEN MAY BE USED IN GENERAL

Appeal against conviction - appellant charged with assault - no battery alleged - appellant represented at pre-trial conferences - appellant unable to afford representation at trial - appellant sought adjournment to obtain representation - trial before Magistrate - appellant appeared unrepresented - pre-trial discussions between Magistrate and appellant - appellant not warned about right to silence - Magistrate suggested that appellant plead guilty with no conviction and bond - appellant withdrew from trial - matter proceeded ex parte - section 62BA of the Summary Procedure Act 1921 (SA) provides for ex parte proceedings where an appellant neither appears nor pleads guilty - witness affidavits tendered - affidavits were not served on appellant - no oral evidence given - section 62A(1)(b) of the Summary Procedure Act provides that the court, if satisfied that the appellant has properly been served with the complaint and summons, may regard any allegation in the summons or complaint as sufficient evidence of matter alleged - Rule 35 of the Magistrates Court Rules 1992 (SA) provides that any matter may be proved without calling oral evidence unless the other party objects - appellant found guilty and convicted by Magistrate - whether the Magistrate erred in refusing adjournment - whether the Magistrate erred in proceeding ex parte - whether the Magistrate's pre-trial discussions with the appellant led to an appearance of bias - whether the Magistrate erred in receiving affidavits into evidence.

Held: Appeal allowed - conviction set aside - matter remitted for re-hearing - pre-trial discussion lead to an appearance of bias - Magistrate should have desisted from hearing trial - no material placed before Court to suggest that the unrepresented appellant could not receive a fair trial - the power to proceed ex parte is discretionary - no material placed before Court to justify adjournment - it was appropriate for trial to proceed ex parte - Court has power to dispense with rules of evidence if matter is not genuinely in dispute and compliance might involve unreasonable expense or delay - appellant's guilt was a genuine matter in dispute - reasons of Magistrate do not demonstrate concern for delay - not in the interest of justice to proceed by affidavit evidence.

Criminal Law Consolidation Act 1935 (SA) s 31; Summary Procedure Act 1921 (SA) s 62, s 62BA; Evidence Act 1929 (SA) 59J; Justices Act 1921-1925 (SA) s 62ba; Magistrates Court Rules 1992 (SA) r 35, r 40, referred to.
Cavaiuolo & Anor v Tinlins Wines Pty Ltd [2007] SASC 204; Antoun v The Queen (2006) 224 ALR 51; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Galea v Galea (1990) 19 NSWLR 263; Vakauta v Kelly (1989) 167 CLR 568; Friedrichs v Police [2007] SASC 6; Ardalich v Police [2007] SASC 196; Holt v Wynter (2000) 49 NSWLR 128; Driscoll v R (1977) 137 CLR 517; Jago v District Court of New South Wales (1989) 168 CLR 23; Dietrich v R (1992) 177 CLR 292; Walker v Eves (1976) 13 SASR 249; Ralph v Police [2006] SASC 296; Hird v Keech (1979) 21 SASR 237; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334; Van Ryswyck v Hicks (1974) 8 SASR 376; Maider v Dancis (1985) 39 SASR 136; Leuschel v Police (1999) 75 SASR 231; Hillier v Lucas (2000) 81 SASR 451, considered.

KYRIACOU v POLICE
[2007] SASC 341

Magistrates Appeal

GRAY J.

1. This is an appeal against conviction.

2. The appeal gives rise to the need to consider a number of issues concerning procedural fairness and due process.  Questions of judicial bias, the right to legal representation, the court’s power to proceed ex parte in the absence of a defendant and the admissibility of evidence arise. 

   Background

3. Jack Kyriacou, the defendant and appellant, was charged with two counts of assault. The first count, as amended, alleged that on 27 November 2005 the appellant assaulted Hope Cooke contrary to section 31(1) of the Criminal Law Consolidation Act 1935 (SA). The second count alleged that on 27 November 2005, the appellant assaulted Catherine Sheean contrary to the same subsection of that Act. At the commencement of the trial the first count was withdrawn and the prosecution proceeded only on the second count.

4. The second count arose out of an incident on 27 November 2005 at St Basil’s Nursing Home at St Peters.  The appellant attended the Home to visit his mother, a resident at the Home.  Ms Sheean, an employee at the Home, was present at work on that day.  The prosecution’s evidence at trial was that the appellant verbally abused Ms Sheean, raised his right arm and with a clenched fist lunged forward toward Ms Sheean causing her, and intending to cause her, to believe that she was going to be struck.  No battery was alleged as constituting the assault.

5. The trial of the appellant was listed before the Magistrates Court in Adelaide on 20 April 2007.  The appellant did not have legal representation.  A short time after the commencement of the hearing, the appellant withdrew and the Magistrate proceeded ex parte.  At the end of the hearing the Magistrate delivered ex tempore reasons finding the appellant guilty.

6. On appeal, it was the appellant’s primary complaint that the Magistrate erred in refusing his application for the trial to be adjourned so as to enable him to obtain legal representation.  It was further complained that the Magistrate erred in granting leave to the prosecution to proceed with the trial ex parte in circumstances where the appellant had advised the Court that he could not participate in the trial.  Orders were sought setting aside the conviction and remitting the matter for re-trial.

7. As the appeal proceeded further complaints were advanced.  Counsel for the appellant pointed out that the Magistrate had engaged in pre-trial discussion with the appellant, which, it was further submitted, was of such a nature as to give rise to an appearance of bias.  Counsel also contended that the Magistrate admitted inadmissible evidence.  It was said that inadmissible material was tendered by the prosecution and acted on by the Magistrate in finding the charge proved.  Counsel further complained that the ex parte hearing was conducted in a manner that gave rise to the risk of a miscarriage of justice.  It is not possible to address these issues without recounting in some detail the background to the matter and the circumstances occurring at trial. 

   Events Pre-Trial

8. The matter first came before the Magistrates Court on 27 July 2006.  The appellant was present and was legally represented.  No plea was entered and the matter was adjourned to allow negotiations to take place.  On 29 August 2006, the matter was called on.  The appellant did not attend but was legally represented.  The matter was set down for a pre-trial conference on 27 September 2006.  A note was made that an issue of credibility arose.

9. On 27 September 2006, a pre-trial conference was conducted by a magistrate.  Again, the appellant did not attend but was legally represented.  The matter was adjourned to 1 November 2006 for a further pre-trial conference and to enable defence counsel to take instructions on the witness statements.

10. On 5 October 2006, the Legal Services Commission advised the appellant’s solicitors that funding had been refused.  The appellant was advised of his right to appeal.  His application for review was subsequently refused.

11. On 1 November 2006, a further pre-trial conference was held.  The appellant was present and legally represented.  The matter was stood over to 6 December 2006. 

12. On 6 December 2006, a pre-trial conference was conducted before a magistrate.  The appellant was not present but was legally represented.  The matter was adjourned to 10 April 2007 for a status conference and a trial was listed for 20 April 2007. 

13. On 8 December 2006, the appellant’s solicitors wrote to the appellant advising that they would be unable to continue to represent him unless he was able to provide funding.

14. On 10 April 2007, a status conference was held.  The appellant was not present but was legally represented.  The trial date for 20 April 2007 was confirmed and the Court was advised that the appellant would appear at trial and would represent himself.

15. A letter written by the appellant on or about 11 April 2007 was placed on the Court file and was in the following terms:

    I Jack Kyriacou … hereby apply for stay/adjournment of proceedings against me of which a trial date has been sent for 20/4/07.

    legal Aid will not represent me coz of my financial circumstances.  I do not work but am on a disability Pension of 20 yrs.  Also I have no funds, apparently I am assest rich.  What little Pension I receive goes on medication and living expenses.  I have a mental condition of which I am being seen by a Dr K Lepage.  I need to organise funds to represent me which will be quite expensive as I also need to hire an investigator to interview people the police have not intervied for whatever reasons.  I will not be appearing on Trial date 20/4/07 as I cannot adequately represent myself finanicially, emotionally and mentally

    I ask for a new date be set so I can be finacially prepared as well as mentally to obtain a lawyer and follow my instructions.

    Thank you.

    [spelling and grammar as in original]

16. According to the appellant’s letter seeking an adjournment, the appellant was unable to afford representation.  On appeal there was no suggestion that, notwithstanding the advice from his solicitors in December 2006, the appellant took any further steps to obtain legal representation for the trial.

    An Attempt to Resolve the Proceedings

17. On 20 April 2007, the date set for trial, the appellant appeared unrepresented.  The matter was called on at 10.00am.  A lengthy discussion ensued between the Magistrate, the appellant and the prosecutor.

18. At the outset the appellant explained his position to the Magistrate in the following terms:

    What happened your Worship was, I lodged papers with legal aid.  I have used [the solicitor] in the past so he was representing me while we were waiting for funding.  Funding was refused.  I don’t know why.  I am on a Disability Support Pension.  I have been on a pension for 20 years.  I don’t know if you have a letter in your file which I left with the clerk last week.

    The Magistrate indicated that he had received the letter.

19. Following this exchange the Magistrate entered into further discussion with the appellant and the prosecutor, with a view to seeking a possible resolution of the matter.  Various alternative courses of action were outlined.  At times in the course of this discussion, the Magistrate made it clear that he had not heard evidence and was only expressing tentative views and proposals. 

20. The Magistrate stated on numerous occasions that the most important and overriding consideration for the appellant was the maintenance of proper care for his mother at the Home.  The Magistrate put to the appellant that going through the “unpleasantness” of a trial, regardless of the outcome, would not be in the best interests of his mother.  The Magistrate explained his reasoning to the appellant in the following way:

    HIS HONOUR:    … I am concerned that unless we can find a way of resolving this matter calmly and sensibly, it is not from now on, going to help your relationship with people at the Home and therefore the quality of the care of your mother to have people, staff of the Home to come to court to be cross-examined in the course of a trial.  I don’t see, although it might have a purpose otherwise, one thing I don’t think it will possibly have is that it wont help the level and quality of the care that is offered to your mother.

    [APPELLANT]:    I agree.

    HIS HONOUR:    Say we have the trial, witnesses come along, you cross-examine them, or [your solicitor] cross-examines them and it is a he did, I didn’t, he did, I didn’t, you said this, you did that thing, one of those things.  Let us assume that at the end of that I am no satisfied that the charge is proved and I dismiss it.  Well, from one point of view that is a satisfactory result, but from the point of view of the level and quality of the care of your mother, that process is entirely unfortunate. 

21. The Magistrate then suggested to the appellant that if it was most likely that his behaviour towards Ms Sheean caused her to believe, albeit mistakenly, that the appellant might use force against her, the appellant’s mother’s level of care at the Home would properly be best preserved if the appellant pleaded guilty to the charge.  The Magistrate said that if he pleaded guilty and agreed to enter into a bond to behave in a peaceful manner at and toward the staff of the Home for a period of twelve months he would not record a conviction against him.  The Magistrate explained to the appellant the advantages of this course of action in this way:

    The advantage of that is, one, you are not agreeing to do anything other than you should be doing anyway, and two, it saves the staff members the unpleasantness of going through a trial, three it saves you the unpleasantness of going through a trial, and four, most importantly, it preserves the priority of your mother’s care.

22. During the course of this discussion, nothing was said to the appellant about his right to silence.  The Magistrate questioned the appellant about the circumstances that had occurred giving rise to the charge and, in particular, elicited the appellant’s account and denial of the charge.  At the end of the discussion the following was said:

    HIS HONOUR:    All that I am hearing now is about you and not about your mother.  The resolution that I propose puts the care of your mother at the top of the list.

    [APPELLANT]:     That’s what I have been trying to get out.  Because I have made several complaints, they don’t do that with my mother.  My mother has been there seven years, if you speak to any staff there this is the first incident.  They all love me because I am there every day volunteering.  [Ms Sheean] and several others, because I have made several complaints about them, are just basically ganging up and looking for a reason to have me barred and that is exactly what has happened now.

    HIS HONOUR:    This resolution doesn’t contribute to that objective.  Mr Kyriacou, think about it, think about what we have discussed.  Think about what is important and what is not.  Think about what we can achieve and what we can’t.  Think of what we can control and what we can’t.  Think of setting an example for the behaviour of others and think, if you can, and discover, because I don’t think I will or you will, a better result than the one I have proposed.  On thinking about all those things quietly to yourself, are you willing to participate in that resolution.

    [APPELLANT]:    Probably not your Worship, because –

    HIS HONOUR:     Let’s get on with the trial then.

    [APPELLANT]:    Okay.

    HIS HONOUR:    If you end up convicted and imprisoned, don’t blame me, because that offer is now withdrawn.  That is a very foolish decision, a very poor decision and one that is not in the best interests in the care of your mother.

    [emphasis added]

23. At that end of the discussion the Magistrate concluded by saying:

    That’s right, however, it doesn’t mean – I understand your point, Mr Kyriacou, but it doesn’t mean that we are likely to find here today a resolution more appropriate or more favourable to you than that.  I understand your concern about a further such application, but I tell you that in my view and it is a considered view and I don’t say it lightly.  I do not say it lightly.  In my view you are not likely to find here today a resolution more appropriate or more favourable to you than that.  You are not and I suggest to you that you participate in that resolution.

    [emphasis added]

24. The appellant indicated that he was not prepared to accept the suggested resolution.  The Magistrate then requested that the prosecution call its first witness.  Shortly thereafter the appellant asked to leave the hearing, and the following interchange then took place:

    [APPELLANT]:    I can’t be excused?

    HIS HONOUR:     No.  You can choose to leave.

    [APPELLANT]:    Okay.

    HIS HONOUR:     You can choose to leave.  I have no control over that.

    [APPELLANT]:  They will just let me know when it is – I suppose I have to reappear for the sentencing.

    HIS HONOUR:   Yes.  In the event that you choose to leave and I hear evidence in your absence and on the basis of it find the charge proved, then it would be unfair to impose penalty in your absence.  If that were to happen and I haven’t heard a word of evidence yet, if that were to happen, you would be arrested and brought before the court again.

    [APPELLANT]:  I don’t mind reappearing to be sentenced.

    HIS HONOUR:   If that happens, it is a long way away.  If you choose to leave, which you can, and I hear in your absence evidence that supports the one remaining charge, and find that charge proved, it would be unfair to you then to impose a sentence in your absence and a warrant would issue for you to be apprehended and brought before the court so as to make submissions on the question of sentence.

    [APPELLANT]:  I just thought I would be notified by mail and I would just appear.

    HIS HONOUR:   No, it won’t be.  You will be notified, but not by mail.  You will be arrested in that event.

    [APPELLANT]:  Alright, thank you.

    HIS HONOUR:   So you choose to leave?

    [APPELLANT]:  Well, I can’t –

    HIS HONOUR:   Do you choose to leave?

    [APPELLANT]:  Yes.

    HIS HONOUR:   Okay, goodbye.  Thank you.

    It is against this background that the complaints raised on appeal are to be resolved.

25. The Magistrate in his ex tempore remarks made the following observations concerning the events that occurred prior to the appellant leaving the court:

    Mr Kyriacou was charged on complaint with two counts of assault.  This morning the first of those two counts was withdrawn.  Count 2 was, with leave, amended to allege that on 27 November 2005 at St Peters the [appellant] assaulted Catherine Sheean.

    The [appellant] appeared this morning unrepresented.  He complained that he had a hearing difficulty.  I had a discussion with him, involving of course the prosecutor, in the hope of finding an acceptable and fair resolution of the matter.  When that search came to an end, the [appellant] chose to leave.  I might say that it was apparent during our discussion that [the appellant] had no hearing difficulty.

    There was no application from the complainant that having regard to the matters discussed with the [appellant] that I should disqualify myself and the [appellant] having chosen to leave, I granted leave to proceed ex parte and evidence was called.

    Like any other defendant charged with an offence, [the appellant] is entitled to at least two things.  Firstly, the protection of the presumption of innocence and secondly, a fair, polite and respectful hearing.  Although it might be seen to be a somewhat self-serving assertion, I assert nevertheless that both of those entitlements were meticulously observed before the [appellant] chose to leave the court room.  The first of them will continue to be meticulously observed even in his absence.

    Witnesses for a complainant have rights too.  They have the right to a fair, polite, respectful and prompt hearing.  This allegation goes back to November 2005.  The witnesses called were here to discharge their civic duty today and that is why I granted leave to proceed ex parte.

    [emphasis added]

1. It should be noted that nothing was put before this Court about the nature of the appellant’s suggested hearing difficulties or the reason for his consulting a psychiatrist.

   The Trial

2. The prosecution called evidence from Ms Sheean.  During her brief examination-in-chief Ms Sheean identified a declaration sworn by her on 12 September 2006, which was said to recount a statement given by her to the police on 27 November 2005.  Ms Sheean gave evidence that her declaration was a true and accurate record of the events that had occurred on that day at the Home.  No evidence was given that Ms Sheean had seen the declaration prior to September 2006 and there was no attempt to have Ms Sheean refresh her memory from a contemporaneous statement or other document. 

3. In response to a question from the Magistrate, Ms Sheean stated that she had seen the appellant at Court earlier that day, and that he was the person referred to in her declaration.

4. The declaration was then tendered and admitted into evidence.  Ms Sheean withdrew shortly thereafter.  Ms Sheean did not give any oral evidence to supplement her declaration and was not cross-examined.

5. In the course of Ms Sheean’s declaration she provided the following account:

   At about 5.00 pm today, Sunday 27^th of November 2005 I was on duty at St. Basils Nursing Home when I was on my medication round.  I was opposite room 20 signing my medication book when I heard a loud crash like someone had fallen.  The noise appeared to have come from the front of the premises.  I walked up to room one (1), which is at the front of the building, and [walked] inside.  Inside the room was Theo, Martine, Peter, Nishant all of them are nurses at the home.  Also in the room was [the appellant] who was standing on the left side of his mother’s bed.  His mother’s bed is the last bed, the furthest on the left, lying long ways with the head on the northern side of the room.  There are two other beds in the room set up in the same fashion.  In the middle bed is normally Hope Cooke but I saw that she was on the floor and her walker was all over the place.  In the first bed was Helen Kybouris and her two sons Con and John.

   When I walked into the room I heard Hope Cooke yelling;

   She said, “He pushed me, he pushed me!”

   I heard [the appellant] yelling;

   He said, “I did not you fucking bitch, you fucking liar.”

   I helped Hope up and walked her to the meal room to get her out of the room and away from [the appellant].  I went back into room one (1) and said to [the appellant];

   I said, “You are not allowed to yell and scream and swear and treat her like that, she lives here.”

   At this time I left the room again to go and call my boss, Lucy.  I got in contact with her and informed her of what had happened.  We both decided that [the appellant] should be asked to leave the premises.  I walked back into room one with Theo, Nishant, Martine and Peter;

   I said, “I’d like you to leave.”

   He said, “I don’t have to go anywhere.  You can go and get fucked I didn’t do anything.”

   [The appellant] continued to refuse to leave and verbally abused me but I don’t remember exactly what he said.  [The appellant] then raised his right arm and clenched his right hand to make a fist.  He lunged his arm and fist forwards towards me;

   He said, “I’ll hit you.”

   At this time I felt scared and threatened like he was going to hit me.  I took a step back to try and avoid his fist connecting with me and avoid being hit.  He lunged forward with his fist again and again I was in fear that he was going to hit me.  I stepped back again.  At this time I decided to leave the room to avoid [the appellant] assaulting me.  I then called the police.

   A short time later police arrived.  I did not re-enter room one, where [the appellant] was or see him again until police arrived.

   [spelling and punctuation as in original]

6. The prosecution also called evidence from Peter John Zientara.  During his brief examination-in-chief, Mr Zientara stated that he was working at the Home on the afternoon of 27 November 2005.  Mr Zientara then identified a declaration sworn by him on 20 January 2006 which was said to set out his observations of the incident at the Home on 27 November 2005.  Mr Zientara gave evidence that his declaration was a true and accurate record of his observations on that day at the Home.  The declaration was tendered and admitted into evidence. 

7. In the course of Mr Zientara’s declaration he made the following observations:

   At about 5.00 pm on the 27^th of November 2005, I was on duty at Saint Basils nursing home which is situated at 9 Winchester Avenue Saint Peters,  My job description at the nursing home is a personal care worker.  At about this time I went to room one because of a disturbance that was occurring in that room, I went to room one with, Martine Smith, when I got to room one I saw Nashant, Theo and [Ms Sheean], there were also 2 other people in the room at the time I know them as the Kybouris’s, I also saw [the appellant] who was in the room visiting his mother.

   When I got to the room I observed [the appellant] he was abusing and shouting at Hope Cook[e], Hope Cook[e] is a resident at the home and has a bed in room one, I heard [the appellant] shout “you fucken liar”, at this stage all the staff left the room while [Ms Sheean] telephoned the supervisor and at the conclusion of the phone call [Ms Sheean] asked all of us to go back to room one whilst she asked [the appellant] to leave the nursing home.

   I returned to room one with Martine Smith, Nashant, Theo and [Ms Sheean], when we got back to room one [Ms Sheean] approached [the appellant] and asked him to leave the nursing home, [the appellant] became very aggressive and raised his right arm with his right clenched fist level with his right shoulder in a threatening manner, I thought at this stage he was going to punch [Ms Sheean], he was shouting and swearing at [Ms Sheean] but I am unsure exactly what he was saying.  At this stage [Ms Sheean] has backed away from [the appellant] and all the staff left room one, [Ms Sheean] again telephoned the supervisor and then telephoned the Police.

   [spelling and punctuation as in original]

8. It should be observed that a comparison of the declarations of Ms Sheean and Mr Zientara disclose a number of material differences, namely:

   -Mr Zientara claimed to be in room one immediately following the Ms Cooke incident.  He claimed that when he arrived Ms Sheean was already in the room.  However on Ms Sheean’s account when she arrived Mr Zientara was present.

   -Mr Zientara recalled that all five nursing staff left room one together.  This included Ms Sheean.  His account was that she had then made a phone call to her supervisor and on her request they returned together.  Ms Sheean’s account was markedly different.  She claimed to have left the room on two occasions.  The first with Ms Cooke and the second time to speak to her supervisor.  In her declaration she did not suggest that all five staff members left at the same time.

   -Mr Zientara recalled an incident when the appellant raised his fist in a threatening manner.  According to his declaration there was no movement or lunge toward Ms Sheean.  It was his account that the five carers were all in the room when this occurred.  Ms Sheean recalled repeated lunges were made toward her in a manner that caused her to fear that she may be struck.

9. Following the tender of Mr Zientara’s declaration, the Magistrate questioned him in the following terms:

   Q.Okay, thank you.  In her statement, [Ms Sheean] says ‘I’ referring to herself, ‘took a step back to try and avoid his fist connecting with me and avoid being hit.  He lunged ..’.  This is what I want to ask you about.  ‘He’ that is [the appellant], ‘lunged forward with his fist again and again.  I was in fear that he was going to hit me’.  I emphasise the words ‘he’ that is [the appellant], ‘lunged forward with his fist again and again’.  Does that accord with your recollection.

   A.The recollection I have is that he did raise his fist up.  There was another carer that was in between.  He did move forward, but not as a lunge as in like an actual coming thing, but he was, he did raise his fist up.

   Q.My understanding of what you tell me, correct me if I am wrong, is that the movement forward was more a body action than a lunge.

   A.It was a body action moving forward, but he did have his fist up in a very threatening manner and he did move forward.

   Q.Did you see only one such forward movement.

   A.I came in late, okay, so I can’t state what happened prior, because what happened was at the time I was on the other side of the home, I heard the crash of a stroller getting thrown out of the –

   Q.Don’t worry about that, did you see only one such movement forward.

   A.I came in later at the time.

   Q.Yes, so you saw one such movement, but only one.

   A.Yes.  I came in late.

10. It could be said that this passage of transcript amounted to the Magistrate cross-examining Mr Zientara with a view to seeking to reconcile the differing accounts between Ms Sheean and Mr Zientara.  In the circumstances, however, this was not an appropriate way to elicit the evidence.  Had the evidence been the subject of oral testimony without reference to the declaration, a clearer unprompted account of the witness’ position would have been elucidated.

11. Mr Zientara’s responses to the Magistrate’s questioning gave rise, in any event, to the following further material differences to the account given by Ms Sheean:

    -Mr Zientara when pressed by the Magistrate spoke of one body movement toward Ms Sheean but did not agree to the description of the movement being a lunge or repeated lunges.

    -Mr Zientara spoke about a carer being between the appellant and Ms Sheean.  Ms Sheean made no mention of a person between herself and the appellant at relevant times.

    -Mr Zientara spoke of coming into room one part way through the incident in an apparent effort to explain the differences between the account that he was giving, and that given in Ms Sheean’s declaration.  However this did not accord with his earlier declaration when he spoke of hearing the Ms Cooke incident from the hallway and entering into the room immediately, well before any threatening behaviour toward Ms Sheean occurred.

    The Magistrate did not address or attempt to consider, analyse or resolve these differences.

12. The final witness called by the prosecution was Constable Anderson who attended at the Home at about 5.10pm on 27 November 2005 to remove the appellant from the Home.  During his brief examination-in-chief Constable Anderson gave evidence that when he first arrived at the Home, the appellant appeared to be “clearly agitated and frustrated and in a high state of arousal”.  Constable Anderson stated that before removing the appellant from the Home he spoke to the witnesses to the incident.  Constable Anderson gave evidence that after removing the appellant he conducted a tape-recorded interview with the appellant in the rear of the police car, in the presence of Constable O’Leary. 

13. Constable Anderson identified a transcription of the record of interview of 27 November 2005.  The transcription was dated 4 October 2006.  Constable Anderson gave evidence that the transcription was a true and accurate transcription of the record of the interview.  The transcription was then tendered and admitted into evidence.  Constable Anderson withdrew without any further oral examination.

14. In the course of the recorded interview the appellant said that he had not engaged in any untoward behaviour toward the staff at the Home.  The appellant suggested that the complaints made against him were made in retaliation to complaints he had made concerning the standard of care at the Home.  The appellant claimed that there had been ongoing tension with the staff at the Home for approximately 18 months to two years.

15. After the close of the prosecution evidence, the Magistrate delivered ex tempore reasons.  The Magistrate found the second count proved beyond reasonable doubt.  A conviction was recorded and the appellant was placed on a $50 good behaviour bond for 18 months.

16. During the course of his ex tempore reasons, the Magistrate made the following findings:

    On 27 November 2005 [the appellant’s] mother was a resident at the St Basil’s Nursing Home at St Peters.  I find that [the appellant] attended the home on 27 November 2005 apparently to visit his mother.  On the same day [Ms Sheean] was employed at the home.  She was alerted to a completely inappropriate upheaval within a room at the home shared with others by the [appellant’s] mother.  She entered that room to find another elderly resident, Mrs Cooke on the floor and to hear Mrs Cooke allege that [the appellant] had pushed her.

    I find that [the appellant] responded to that allegation with the words “I did not you fucking bitch..  You fucking liar.”  Ms Sheean assisted Mrs Cooke and took her to another room before returning to the room where the [appellant], his mother and others were saying to the [appellant] “You are not allowed to yell and scream and swear and treat her like that.  She lives here.”.

    Ms Sheean then left the room and spoke to a supervisor and it was decided that the [appellant] should be asked to leave the premises.  Ms Sheean returned to the room and, in my view with every legal and moral justification, asked [the appellant] to leave.  [The appellant]  responded verbally in this way “I don’t have to go anywhere.  You can go and get fucked.  I didn’t do anything.”  He augmented that verbal response by raising his right arm and clenching his right hand to make a fist.  On at least one occasion he lunged forward towards Ms Sheean causing her and intending to cause her to believe that she was going to be punched by [the appellant].

    In doing that, I find beyond reasonable doubt that he assaulted [Ms Sheean] on 27 November 2005.  I find the second, the remaining count proved.

    The Appeal

    An Appearance of Bias

17. It is convenient to first address the following questions: whether the Magistrate should have desisted from hearing the trial as a result of the pre-trial discussions with the appellant; and whether, as a result of his continuing to hear the trial, an appearance of bias arose.

18. Counsel for the appellant submitted that the remarks by the Magistrate to the appellant were generally in terms as might be expected at a pre-trial conference.  In those circumstances, counsel submitted, the pre-trial conference magistrate would ordinarily disqualify himself or herself from any subsequent trial.  This, it was said, was particularly appropriate in the present case where there was no lawyer to explain to the appellant how to interpret the Magistrate’s remarks.

19. The relevant principle pertaining to apprehended bias is well established.[1]  In Antoun,[2]  Hayne J summarised the principle as follows:[3]

    The principle to be applied ... is not in doubt.  If “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”,[4] the judge is disqualified from trying the case.

    It has been suggested that the reason that only an appearance of bias need be shown, rather than actual bias, is that the independence and impartiality of courts and tribunals is so important that even the appearance of a departure from it can undermine the integrity of the judicial system.[5]

    [1]    Cavaiuolo & Anor v Tinlins Wines Pty Ltd [2007] SASC 204.

    [2]    Antoun v The Queen (2006) 224 ALR 51.

    [3]    Antoun v The Queen (2006) 224 ALR 51 at [51].

    [4]    Johnson v Johnson (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

    [5]    Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

20. The test for apprehended bias can be difficult to apply.  In Re J.R.L.; Ex parte C.J.L.,[6] Wilson J observed that the test involves “questions of degree and particular circumstances which may strike different minds in different ways”.[7] 

    [6]    Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342.

    [7]    Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 359 (footnotes omitted).

21. In Laws v Australian Broadcasting Tribunal,[8] Gaudron and McHugh JJ articulated the test in the following way:

    A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. … When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

    It can be seen that the test does not require the reasonable bystander to apprehend a real likelihood or danger of bias.  What the test requires is a “real and not remote” possibility of bias.[9]

    [8]    Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.

    [9]    Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Re Refugee Review Tribunal; Ex parte H  (2001) 179 ALR 425 at [27].

22. The inquiry to be undertaken is of the impression that would be given to the reasonable bystander, not whether a judge had in fact pre-judged the issues.  This point was recognised by the High Court in Ebner v Official Trustee in Bankruptcy,[10] when Gleeson CJ, McHugh, Gummow and Hayne JJ observed:

    Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter.  The question is one of possibility (real and not remote), not probability.  Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome.  No attempt need be made to inquire into the actual thought processes of the judge or juror.

    [emphasis in original]

    [10]   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].

23. It should also be understood that the test is not whether a judge will decide the case adversely to one party, but rather whether there is a reasonable apprehension that the judge will not decide the case impartially or without prejudice.  As Mason J observed in Re J.R.L.; Ex parte C.J.L.:[11]

    There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

    …

    Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

    [11]   Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352.

24. In light of these considerations, the High Court in Ebner identified a two step process that should be followed when applying the apprehension of bias principle:[12]

    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

    [12]   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].

1. It is important that an appeal court take into account the context surrounding a particular statement when determining whether the statement could engender an impression of bias.  In Galea v Galea[13] Kirby ACJ observed:[14]

   In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation.

   [13]   Galea v Galea (1990) 19 NSWLR 263.

   [14]   Galea v Galea (1990) 19 NSWLR 263 at 279.

2. Along a similar line, in Re J.R.L.; Ex parte C.J.L. Wilson J commented:[15]

   A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding.  There must be “strong grounds” … for inferring with the existence of a reasonable suspicion.

   Impressions of bias that might first be thought to arise, can be ameliorated by the surrounding comments of a judge.  This has been recognised by the High Court in Vakauta v Kelly,[16] where Brennan, Deane and Gaudron JJ observed:[17]

   [I]f clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing.

   [15]   Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 359-360.

   [16]   Vakauta v Kelly (1989) 167 CLR 568.

   [17]   Vakauta v Kelly (1989) 167 CLR 568 at 572.

3. Counsel for the prosecution on appeal submitted that throughout the course of the discussion between the Magistrate and the appellant prior to the trial, the Magistrate made it plain that he was expressing tentative views and that he had not heard the evidence in the trial.  It is evident at least from the following remarks made by the Magistrate that this was the case:

   It may be, it seems to me, Mr Kyriacou, and I haven’t heard a word of evidence yet, but it may be, it may be that when you expressed your frustration, a frustration that I understand, in a way that began with throwing the walking frame.  It may be that your expression of your frustration, and it is not alleged you struck this woman, it is not alleged, but it may be that the expression of your frustration in that regrettable moment caused [Ms Sheean] to believe, perhaps mistakenly, that you might use force against her. …

   …

   Let me put another possible resolution.  Yes, let me put a resolution, a possible resolution for your consideration.  Don’t respond to it immediately, just think about it for awhile …

   …

   In the event that you choose to leave and I hear evidence in your absence and on the basis of it find the charge proved, then it would be unfair to impose [a] penalty in your absence.  If that were to happen, and I haven’t heard a word of evidence yet, if that were to happen, you would be arrested and brought before the court again.

   [emphasis added]

4. However, counsel for the prosecution accepted that the earlier quoted remarks of the Magistrate about the foolishness of the appellant were not tentative and were expressed in a critical manner.  As was observed in the transcript referred to earlier, when the appellant tried to explain why he could not accept the Magistrate’s proposal he was interrupted by the Magistrate on each occasion.  He was not allowed to provide his explanation.  This circumstance provides further support for an apprehension in the mind of a reasonable observer that the Magistrate may not bring a totally unbiased mind to bear on the issues at trial.

5. In assessing whether a reasonable lay observer would entertain an apprehension that the Magistrate may not bring an impartial mind to the trial, it is important to note the Magistrate’s comments after the appellant left the courtroom:

   HIS HONOUR:                   The [appellant] having chosen to leave the court, I give leave to proceed ex parte.

   [PROSECUTION]:       Thank you, your Honour.  I call Catherine Sheean, my first witness in this matter.

   HIS HONOUR:                   Given the discussion that we have had with the now departed [appellant], do you have any application as to whether or not I should continue to hear the matter?

   [PROSECUTION]:       Yes, your Honour, my application is that you do continue to hear ex parte.

6. This discussion indicates that the events that had occurred in the pre-trial conference had given rise to a concern in the Magistrate’s mind as to whether he should proceed to hear the matter.  The Magistrate was right to have raised this concern.  However, as discussed later, the concern could and should have been raised while the appellant was still present.

7. The pre-trial discussion referred to above involved an attempt by the Magistrate to resolve the issues between the prosecution and the appellant through negotiation.  There is much to be said for the Magistrate embarking on that course.  However, it should be borne in mind that the appellant faced a criminal charge that carried a maximum penalty of a term of imprisonment.  As earlier observed, the Magistrate warned the appellant that if he declined to come to an arrangement he could face an order for imprisonment and that in those circumstances he should not blame the Magistrate.  Presumably the Magistrate considered this to be a possible outcome.

8. In the course of the pre-trial discussion the Magistrate elicited from the appellant the substance of his case.  As earlier observed, the appellant was not warned about his right to silence or the significance of the Magistrate being informed of these matters and then going on to preside at the trial.  The Magistrate was informed primarily by the appellant but also by the prosecutor about aspects of the case.  The Magistrate became privy to a considerable body of information that was not before the court in the trial.

9. In the course of the pre-trial discussion the Magistrate clearly indicated what he considered to be the sensible course to be followed.  Ultimately, when the appellant indicated that he did not agree, the Magistrate did not permit the appellant to explain the reasons for his decision.  Following all of this, the Magistrate expressed in unequivocal terms his opinion that the appellant’s refusal to accept the terms offered was “foolish” and “unwise”, and that the appellant was putting his own interests before those of his mother.

10. These observations disclosed a mind set on the part of the Magistrate that was of such a nature that the Magistrate should not have presided over the trial.  There is no suggestion that another magistrate could not have been made available to hear the matter.

11. It should also be observed that the Magistrate saw fit to raise the question of his continuing to hear the case with the prosecutor but not with the appellant.  There was an opportunity to raise that matter with the appellant before he withdrew.  The Magistrate did not explain to the appellant the legal significance of actual or apprehended bias, or what rights a defendant may have in these circumstances.  At no stage did the Magistrate advise the appellant that he may have had an entitlement to address the issue of apprehended bias and to apply for a different magistrate to hear the trial.

12. The law relating to bias applies equally to all courts, including suburban and country Magistrates Courts.  If a situation arises before or in the course of a trial that gives rise to a question of possible bias, a magistrate should explain the nature of the potential bias and provide a brief explanation of the relevant legal principles to the unrepresented party.  The magistrate should inform the unrepresented party of the right to make an application that the magistrate desist from hearing, or continuing to hear, the trial.  In the present case, in the absence of appropriate disclosure, explanation and advice, it was not reasonably possible for the appellant to make a decision as to whether to request the Magistrate to disqualify himself for bias.[18]

    [18]   Friedrichs v Police [2007] SASC 6 at [35].

13. In all the circumstances, the pre-trial discussion provided information to the Magistrate of such a nature that it was inappropriate for him to hear the trial.  Further, and more importantly, the Magistrate’s criticism of the appellant’s decision to proceed with the trial would lead a fair-minded lay observer to reasonably apprehend that the Magistrate would not bring an impartial and unprejudiced mind to the resolution of the issues at trial.  The Magistrate should have disqualified himself from trying the case.

14. This is an immediate answer to the appeal.  However, as other matters raised on appeal have been fully argued, it is appropriate to address all arguments. 

    The Unrepresented Party

15. On appeal, counsel for the appellant complained that the trial should have been adjourned because of the appellant’s lack of representation and his desire to be represented at trial.

16. An appellate court must review the proceedings and evidence in its entirety to determine whether a miscarriage of justice has occurred and in turn, whether a re-trial is required.[19]  It is important to note that the occurrence of a procedural irregularity in a trial does not, of itself, amount to a miscarriage of justice.  As was observed by Barwick CJ in Driscoll:[20]

    [I]f there is error in the trial, whether of law or of procedure, or of emphasis or presentation of fact, a new trial is not a necessary result.  It remains, in my opinion, for the court on its own review of the evidence to be satisfied that a miscarriage has occurred.  Although I have stated that condition positively, it must rest upon the appellant in the first instance to raise in the mind of the Court of Criminal Appeal a reasonable doubt as to whether in all the circumstances a miscarriage may not have occurred.  It then must rest upon the Prosecution, if an order for a new trial is not to be made, to remove any such doubt from the mind of the court so that it is not satisfied that a miscarriage has occurred.

    [19]   Ardalich v Police [2007] SASC 196.

    [20]   Driscoll v R (1977) 137 CLR 517 at 526.

17. The right to a fair trial ultimately requires that a person not be tried and convicted unfairly.  It is acknowledged that for a trial to be fair it need not be perfect or ideal.[21]  In Jago v District Court of New South Wales,[22] Deane J observed:[23]

    The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law.  A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.  As a matter of ordinary language, it is customary to refer in compendious terms to an accused’s “right to a fair trial”.  I shall, on occasion, do so in this judgment.  Strictly speaking, however, there is no such directly enforceable “right” since no person has the right to insist upon being prosecuted or tried by the State.  What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.

    The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition.  Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one.  Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment.  The best that one can do is to formulate relevant general propositions and examples derived from past experience.  Thus, it can be said, as a general proposition, that default of impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.  One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.  Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence.  In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial.  It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused.  Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.

    [21]   Holt v Wynter (2000) 49 NSWLR 128 at [79].

    [22]   Jago v District Court of New South Wales (1989) 168 CLR 23.

    [23]   Jago v District Court of New South Wales (1989) 168 CLR 23 at 56-57.

18. These observations were reinforced in Dietrich,[24] where Gaudron J commented:[25]

    A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted.  If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all.  If an accused person declines to be legally represented, then he may be taken to accept that, in the circumstances, fairness does not depend on legal representation.  But that situation aside, if fairness requires legal representation there can be no trial without it. 

    If fairness requires representation in a particular case, in a particular class of case, or, even, in all cases, that will have consequences – probably in relation to the administration of legal aid schemes.  There may also be consequences for governments in relation to the funding of those schemes.  But whatever the consequences and whatever the cost, it is for the courts to decide what is or is not fair in a criminal trial.  And it is the duty of the courts to ensure that only fair trials are had, either by tempering the rules and practices to accommodate the case concerned or, if that not be adequate, by staying the prosecution.

    [24]   Dietrich v R (1992) 177 CLR 292.

    [25]   Dietrich v R (1992) CLR 292 at 365 (footnotes omitted).

19. In considering whether a miscarriage has occurred, attention must be given to the facts of the case, the background of a defendant, the circumstances in which the defendant came to be unrepresented and the nature and seriousness of the charge.  There are circumstances in which a criminal trial will be fair notwithstanding that a defendant is unrepresented.  As Brennan J reasoned in Dietrich:[26]

    The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case.  Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair.  And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside.  But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice.  The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law.  A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt.

    Deane J also observed:[27]

    In determining the practical content of the requirement that a criminal trial be fair, regard must be had “to the interests of the Prosecution acting on behalf of the community as well as to the interests of the accused”.  There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented.  The most obvious category of case in which that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available.  Another category of case in which that is so is where the accused has the financial means to engage legal representation but decides not to incur the expense.  It is true that, in the context of the current level of legal fees, it is arguable that no accused should be required to devote a substantial part of his possessions to obtaining legal representation in resisting a prosecution for an alleged offence of which the law presumes him to be innocent.  Nonetheless, it appears to me that it cannot be said that a trial is unfair by reason of lack of legal representation in a case where the accused possesses the means to obtain such representation but elects not to utilize them.  Finally, it is arguable that there are categories of criminal proceedings where inability to obtain legal representation would not have the effect that the trial of an accused person was an unfair one. For example, there is much to be said for the view that proceedings before a magistrate or judge, without a jury, for a non-serious offence would not be rendered inherently unfair by reason of inability to obtain full legal representation.  It is, however, unnecessary to pursue that question for the purposes of the present case where the trial was a jury trial of alleged offences which were, by any standards, serious.  It appears to me to be manifest that, in the absence of exceptional circumstances, the inability of an indigent accused to obtain legal representation from any source will have the consequence that such a trial is unfair.  At least in relation to such a trial, I would echo the conclusion of the United States Supreme Court in Gideon v Wainwright:  “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth.”

    [26]   Dietrich v R (1992) 177 CLR 292 at 325 (footnotes omitted).

    [27]   Dietrich v R (1992) 177 CLR 292 at 335-336 (footnotes omitted).

20. The history of the pre-trial proceedings has been set out earlier in these reasons.  It is evident that by December 2006 the appellant was aware that his legal aid application had been refused, that he was unable to afford representation and, therefore, that he would not be represented.  Matters had not changed when the matter was listed for trial in April 2007.  Nothing was put before the Magistrate or this Court as to any attempts made by, or prospects for, the appellant to obtain representation.  The circumstances of his obtaining representation for the appeal, and how it is being financed have not been disclosed.  No inference can be drawn that the appellant could have obtained representation for the trial. 

21. The charge arose out of what could be said to be a relatively minor incident involving alleged threatening behaviour, but no suggested striking or other bodily contact.  The allegations did not suggest serious criminal misconduct.  Magistrates frequently have to deal with minor matters where the defendant is unrepresented, and are able to accord procedural fairness and ensure a fair trial.  These proceedings would appear to fall within the category of an alleged non-serious offence referred to by Deane J in Dietrich.  There is nothing in the material before the Court to suggest that the appellant, as an unrepresented party, could not have received a fair trial.  In these circumstances this complaint should be rejected.

    The Conduct of the Trial

    The Power to Proceed Ex Parte in the Absence of the Appellant

1. Counsel for the appellant complained on appeal that the trial should not have proceeded ex parte in the absence of the appellant.  In response, counsel for the prosecution submitted that the Magistrate had a general power pursuant to section 62BA of the Summary Procedure Act 1921 (SA) to proceed ex parte.  It should be observed that section 62BA was not raised by the prosecution at trial.Section 62BA provides for ex parte proceedings where an appellant does not appear and does not plead guilty:

   (1) Where in any proceedings under this Act —

   (a)     a complaint has been made by a public authority or public officer within the meaning of section 57A of this Act; and

   (b)     the defendant has been duly served with a summons but does not appear at the time and place appointed for the hearing or determination of the complaint or at a time and place at which the complaint is subsequently heard or determined, or, in the case of a complaint and summons served under section 57A of this Act, he neither so appears nor pleads guilty in the manner provided by that section,

   the court may proceed to adjudicate on the complaint in the absence of the defendant in the manner provided by, and subject to the conditions in, section 62 of this Act, but may in so doing regard any allegation contained in the summons, or complaint and summons (as served upon the defendant) as sufficient evidence of the matter alleged.

   (1a)If the court finds the charge proved, the prosecutor may recite to the court any relevant matters alleged against the defendant in the same way as if the defendant had personally appeared and pleaded guilty.

   (2)Allegations are contained in a summons, or complaint and summons, for the purposes of subsection (1) of this section if they are contained in, annexed to, or accompany, the summons or complaint and summons.

   (3)The allegations referred to in subsection (1) of this section may include particulars of the alleged offence and of the circumstances in which it is alleged to have been committed.

   (4)Where a complaint purports to have been made by a public authority or public officer within the meaning of section 57A of this Act, it shall be presumed to have been so made in the absence of proof to the contrary.

   (5)The provisions of this section are supplementary to, and do not derogate from, any other statutory provisions regulating the hearing and determination of a complaint.

2. More specifically, it can be seen that pursuant to subsection (1)(b), if a court is satisfied that a defendant had been duly served with the complaint and summons it may proceed ex parte to adjudicate on the complaint in the absence of the defendant in the manner provided by, and subject to the conditions in, section 62 of the Act.  In so doing, the Court may have regard to any allegation contained in the summons, or complaint and summons, as sufficient evidence of the matter alleged. 

3. Counsel for the prosecution submitted that the appellant’s attendance at Court on 20 April 2007 would have satisfied the Magistrate that the appellant had been duly served with the complaint and summons.  On this basis, counsel for the prosecution submitted that the Magistrate was entitled to proceed in the absence of the appellant and to elect not to hear any evidence on the basis that section 62BA allowed him to regard the allegations in the complaint as evidence of the offence.

4. Whilst I accept that the procedural pre-requisites for the operation of section 62BA of the Summary Procedure Act  were met, it must be remembered that the power to proceed ex parte under this section is a discretionary power which should be exercised with caution.  This point was recognised by Bray CJ in Walker v Eves[28] when his Honour, in discussing an earlier analogue of section 62BA[29] observed: [30]

   [28]   Walker v Eves (1976) 13 SASR 249.

   [29]   Justices Act 1921-1925 (SA), section 62ba.

   [30]   Walker v Eves (1976) 13 SASR 249 at 255.

   Here again the vital word is “may”, not “shall”.  It is not mandatory for a court of summary jurisdiction to proceed ex parte under this section whenever a complaint has been made by a police officer and the summons is served as authorized by the Act and the defendant does not appear.  It should not automatically do so.  It should consider the seriousness of the offence and the possibility of a satisfactory explanation for the failure to appear.  Requests for adjournment should not be lightly refused.

   His Honour later continued: [31]

   [31]   Walker v Eves (1976) 13 SASR 249 at 256.

   [B]ut I repeat that it is permissive not mandatory.  The word is “may”.  The Court has not only a discretion whether to hear the case ex parte at all, but another discretion once it has been decided to hear it ex parte whether or not to regard the allegations in the complaint or summons as sufficient evidence of the matter alleged.

   Bray CJ acknowledged that a disadvantage of proceeding ex parte was the Court’s inability to know how much of the prosecution’s account was disputed by the defendant.[32]  In this case however, the appellant on at least one occasion, informed the Magistrate that he had a defence to the charge.  The following exchange took place:

   [32]   Walker v Eves (1976) 13 SASR 249 at 255.

   HIS HONOUR:    Let’s make it clear.  On the basis that there was no allegation, never has been of any force used against [Ms Sheean], on the basis that your expression of frustration caused her to mistakenly think that that might happen, you enter – and only on that basis – you enter a plea of guilty to the remaining count without conviction.  I immediately discharge you on a bond by which you promise to behave towards the staff of and at the nursing home in a peaceful manner.  It is not much to ask.  Let’s do it.

   [APPELLANT]:    There is just one problem I see with that.

   HIS HONOUR:     You tell me.

   [APPELLANT]:   Like I was trying to explain earlier, when you make a complaint against one staff, they gang up against you.  I have seen certain families take their residents out because the staff are ganging up on this person.  Now, the only reason – [Ms Sheean] – I never, I never raised my fist.  I never did anything to her.

   HIS HONOUR:Mr Kyriacou, I am interrupting you again, I know.  I understand from our discussion what you are telling me.  You have the power to control how you behave.  You don’t have the power to control how others behave, except, except by your example.

   [emphasis added]

   As observed earlier in these reasons, on other occasions when the appellant attempted to articulate the reasons why he could not accept the Magistrate’s proposal for resolution he was interrupted by the Magistrate. 

5. Notwithstanding this, it was appropriate for the trial to proceed ex parte.  Although the appellant had applied for an adjournment, he had not put anything before the Court to justify that course of action, other than his letter of 11 April 2007.  There was no suggestion, either at trial or on appeal, that there was any realistic prospect of him obtaining legal representation.  Had the trial proceeded before a different magistrate, there could have been no complaint about the court proceeding, either with the appellant unrepresented or ex parte. 

6. There are a number of authorities which set out the factors relevant to the question of whether a conviction imposed in a defendant’s absence should be overturned.[33]  For example, where a defendant has been prevented by “genuine misadventure” from attending court, the court will ordinarily lean towards exercising its discretion in favour of the defendant.[34]  Or, even when carelessness prevented attendance, the court may set aside the conviction in exceptional circumstances, or if there is shown to be a probability (as opposed to a possibility) of injustice if the conviction is not set aside.[35]  An applicant would also need to show a clearly evident defence to the charge.[36]

   [33]   See generally Ralph v Police [2006] SASC 296.

   [34]   Hird v Keech (1979) 21 SASR 237; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334.

   [35]   Van Ryswyck v Hicks (1974) 8 SASR 376; Rough v Rix (1982) 30 SASR 301.

   [36]   Van Ryswyck v Hicks (1974) 8 SASR 376; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334.

7. In Maider v Dancis,[37] Cox J, after reviewing the authorities, concluded that in this area there cannot be any hard or fast rules and that dicta from ad hoc cases, however useful, could not be applied “like the words of a statute”:[38] 

   [C]onvictions and orders are not to be set aside on grounds that are unmeritorious or otherwise inadequate.  The rights and interest of the respondent are to be considered, not only those of the applicant.  There will be times when it will be appropriate to have regard to the substantial merits of a proposed defence, and times when it will not.  There may be other useful ways of probing the merits of an application.  But in the end … it will be a matter of doing what the justice of the case in hand requires.

   [37]   Maider v Dancis (1985) 39 SASR 136.

   [38]   Maider v Dancis (1985) 39 SASR 136 at 142.

8. A more recent decision of this Court supports the approach identified by Cox J.  Leuschel v Police[39] involved an appeal from the Magistrates Court, the issue being whether a conviction should be overturned to allow alibi evidence not led during a trial to be led at a re-trial.  Doyle CJ, while acknowledging that a court will not usually set aside a conviction on the basis of fresh evidence if, with reasonable diligence, it could have been led at trial, said that:[40] 

   This approach is not required by a rule of law.  The ultimate issue for an appellate court is whether there has been a miscarriage of justice.

   [39]   Leuschel v Police (1999) 75 SASR 231.

   [40]   Leuschel v Police (1999) 75 SASR 231 at [10] (Doyle CJ).

9. It is important to note that the basis of the defence case had been disclosed to the Court.  The Magistrate was apprised of the fact that the appellant’s denial of the assault was suggested as the reason why a false complaint may have been laid against him.  There was obviously a long history to the matter.  This was a consideration that was relevant to the way in which the ex parte proceeding should have been conducted.

10. For the reasons expressed above, in the circumstances then before the Magistrates Court, it was appropriate to proceed with the matter even though the defendant was unrepresented, and following his withdrawal, to proceed ex parte.  However, it was not appropriate for the Magistrate who had conducted the pre-trial discussions to hear the matter.  An appearance of bias had arisen.  There remains a further matter for discussion concerning the manner in which the ex parte hearing was conducted and, in particular, whether shortcuts in the taking of evidence were justified.

    Affidavits – Sworn Declarations

11. Counsel for the appellant complained that the admission into evidence of the two sworn declarations of Ms Sheean and Mr Zientara, in lieu of the giving of oral evidence, was irregular.  In response, the prosecution submitted that the Magistrate had power to receive evidence in this way pursuant to Rule 35 of the Magistrates Court Rules 1992 (SA).  This Rule provides that in any proceedings before the court, unless the court directs otherwise, any matter may be proved by affidavit without the necessity of calling oral evidence unless the other party objects.  It is in the following terms:

    35.01In any proceedings before the Court unless the Court directs otherwise any matter may be proved by affidavit without the necessity of calling oral evidence unless the other party objects.

    35.02The party intending to rely on the affidavit must serve the other party with a copy thereof at least 21 days before the hearing together with a copy of this Rule.

    35.03The party upon whom the affidavit is served may object by notice in writing (giving detailed reasons therefore) to the party intending to rely on it at least 10 days before the hearing.

    35.04Service of the affidavit or notice may be effected by post either on the party or the party's legal representative.

    35.05The manner of service must be endorsed on a copy of the affidavit or notice.

    35.06The Court may order costs against a party unreasonably objecting to the use of an affidavit.

    35.07The Court may if it is not satisfied that a genuine dispute exists between the parties or that compliance with the rules of evidence might involve unreasonable expense or delay direct that certain evidence be given by way of affidavit.

    35.08Where any proceedings before the Court or a Registrar may be dealt with, without notice to any other party, any matter may be proved by affidavit filed in the registry without service on any other party.

12. Counsel for the prosecution acknowledged that the two declarations had not been served on the appellant in accordance with Rule 35.02, and that, consequently, the appellant did not have an opportunity to object to the use of the declarations in accordance with Rule 35.03.  Counsel for the appellant submitted that certain statements were served upon the appellant’s solicitor when he was represented but that the appellant had not retained copies of these documents, that once unrepresented he was not served with further copies of the witness statements, and that he was never advised that the prosecution would seek to rely upon the statements as evidence.

13. Counsel for the prosecution contended that the court had power to dispense with the rules of evidence in certain circumstances.  It was submitted that in accordance with Rule 35.07 of the Magistrates Court Rules and section 59J(1) of the Evidence Act 1929 (SA), which are in substantially similar terms, the court may direct that certain evidence be given by affidavit if it is not satisfied that a genuine dispute exists between the parties, or if compliance with the rules of evidence might involve unreasonable expense or delay. Section 59J(1) of the Evidence Act provides:

    A court may at any stage of civil or criminal proceedings—

    (a)dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute; or

    (b)dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay.

14. The prosecution submitted that, by his withdrawal, the appellant had elected not to dispute any evidence put before the Magistrate.  Consequently, it was suggested that the appellant’s guilt was a matter that was not genuinely in dispute for the purposes of Rule 35.07 of the Magistrates Court Rules and section 59J(1)(a) of the Evidence Act. It is clear, however, from the interchange that took place between the Magistrate and the appellant, and specifically the appellant’s denial of the charge, that the appellant’s guilt was in fact a genuine matter of dispute.

15. The prosecution further submitted that the following passage of the Magistrate’s reasons demonstrated a concern about delay, which, it was submitted, was one of the reasons the Magistrate relied upon in deciding to receive the evidence in the way that he did:

    Witnesses for a complainant have rights too.  They have the right to a fair, polite, respectful and prompt hearing.  This allegation goes back to November 2005. The witnesses called were here to discharge their civic duty today and that is why I granted leave to proceed ex parte.

    [emphasis added]

    There are no other references to delay in the transcript of the proceedings.  I am not satisfied that this passage alone demonstrates that the Magistrate’s concern about delay was a possible justification for not admitting evidence in the usual way. 

16. The prosecution also contended that pursuant to Rule 40 of the Magistrates Court Rules, the Court had power to dispense with compliance with the Rules if the justice of the case required it.  Rule 40.01 is in the following terms:

    In court may relieve any party from compliance with the rules if the justice of the case requires it and on such terms as the court orders.

    In Hillier v Lucas,[41] Lander J made the following observation about the Court’s power to dispense with the rules: [42]

    The purpose of allowing parties to proceed notwithstanding non compliance with the Rules is to allow justice to be done. Rules of this kind are to aid in the attainment of justice: Gallo v Dawson (1990) 64 ALJR 458; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262.

    [41]   Hillier v Lucas (2000) 81 SASR 451.

    [42]   Hillier v Lucas (2000) 81 SASR 451 at 478-9.

17. It was submitted that the Magistrate's reference, in his ex tempore reasons, to the rights of witnesses and the fact that the witnesses in this matter were called before the court to discharge their civic duty, demonstrated that the Magistrate had weighed up the various aspects of the case and was satisfied that he should have proceeded in the manner that he did.  I accept that the course followed by the Magistrate in receiving into evidence out of court statements was irregular.  In the case of Ms Sheean, although her statement was recorded by a police officer on the day of the incident, it was not sworn as to its accuracy for almost a year.  There is no evidence that the statement was reviewed at the time when the facts were fresh in Ms Sheean’s memory or in fact at any time prior to her swearing as to its accuracy many months later.  The declaration of Mr Zientara was not made until January 2006, some months after the incident.  As observed earlier, there were material differences between Mr Zientara’s account and that of Ms Sheean in regard to movements made by the appellant. 

18. If the appellant was to be convicted on such a hearing, it should, in the circumstances of this matter, be on admissible evidence put before the Court in proper form.  In light of all of the circumstances discussed earlier in these reasons, and in particular, the appellant’s assertion of a defence to the charge, it was not in the interests of justice to proceed other than by evidence being received in the usual way.

    Conclusion

19. For these reasons this appeal should be allowed and the matter remitted for rehearing.