Lamositele v Arnold

[2007] QDC 362

[2007] QDC 362

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RYRIE

No 738 of 2007

KAPELIELE LAMOSITELE	Appellant
and
JASON ARNOLD	Respondent
BRISBANE ..DATE 10/12/2007
ORDER

10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ)

HER HONOUR: This is a matter in respect of the appeal before	1
the Court under The Justices Act, section 222, brought on behalf of the appellant, and I will spell it into the record, K-A-P-E-L-I-E-L-E, surname, L-A-M-O-S-I-T-E-L-E, against the respondent, Constable Jason Arnold.

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Notice of appeal against conviction and sentence was filed in this Court on the 15th of March 2007. The notice sets out the grounds of the appeal, one of which is then set out in greater detail in the outline of the submissions that have been filed

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on behalf of the appellant in respect of conviction. Those
outlines, both in relation to conviction and sentence imposed,
was filed in this Court on the 4th of April 2007. In essence,

ground 1 is set out as:

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"The learned Magistrate by refusing an adjournment
application by my solicitor to allow sufficient time for
delivery to me and adequate consideration of, the brief
of evidence against me, irreparably prejudiced my ability

to receive a fair hearing of the charge against me."

The submission that is made on behalf of the appellant by Mr

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Wynne, who appears today, is that the Magistrate in essence, under that ground at least, denied the appellant natural justice in that he had pre-judged the issue without giving any due or proper consideration to the merits of the application for the adjournment even before the application was made. Mr

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Wynne goes on further today to submit that, pursuant to the
obligations as contained in statute, namely, The Criminal
Code, as they appear, more specifically under section 590AI,
subparagraph (2), sub (a), and further obligations under
10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 2 ORDER 60

section 590AM, which sets out the time for the disclosure,	1
contained the obligation to provide under section 590AI has not been adhered to by the prosecution.
In essence, what happened was that on the date of the hearing

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that was set down Mr Galler who appeared on behalf of the
appellant had made an adjournment both in writing initially to
the Registry Office of the Court some days earlier indicating
that he needed his appellant client to have an interpreter

present for the purpose of the summary hearing and

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subsequently that he also needed time to prepare because they
were not, indeed, at that point solicitors on the record but
had received some instructions from the appellant regarding

the hearing date.

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There is a note on the Lower Court file written in handwriting that I can only understand to be a reply which fits, as it were, with the affidavit that has been filed in support of the applicant's case on the 17th of April 2007 under the hand of Donald John Gunn, more particularly at paragraph 4, that that

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entry on the Lower Court file on the letter that I have
referred to that was received by the Registry from the
solicitors suggests that the communication was given back to
the solicitor not on the record but that the interpreter had

been booked by the Court, the matter had been listed for

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hearing for two months, and the parties should be ready to
proceed on the trial date. Indeed, in the relevant affidavit
that I referred to of Mr Gunn at paragraph 4 he indicated that
he had indeed received a telephone call in reply to the letter
10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 3 ORDER 60

he had sent to the effect that he was advised even at that	1
point that the Magistrate would not be granting any application.
It seems that Mr Gunn then turned up at the relevant date set

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for summary hearing and made an oral application further to page 2 of the hearing before the relevant Magistrate that took place on the 20th of February 2007. In essence, Mr Gunn had
the written letter he had given to the Court to that effect.

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indicated again on the record that day of a formal note that
he had made an oral application again as indicated in relation
to the letter that had already been sent to the Registry. In
addition, Mr Gunn said that a vital defence witness had not

been able to be located; that they were only supplied with a

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copy of the brief of evidence as late as this morning from the

prosecution.

It is noted that Mr Gunn then says that he understood that his

Honour had indicated that he, in any event, had wished the

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matter to proceed. Mr Gunn was bold enough at least to say at
that point that he believed there may well be grounds for a
mistrial if in fact that happened but was willing to accept
that his Honour had wished to proceed and that they were

proceeding.

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There was an opportunity given by the Bench on the morning of the summary hearing to Mr Gunn for about 30 minutes to read the brief. Indeed, the relevant Magistrate also seemed to 10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 4 ORDER 60

take the view that because the defence have had amply	1
opportunity for over two months to be able to get in touch with the prosecution and get a copy of the brief that the obligation therefore seemed to lay with the defence and that that in itself afforded him, as the Magistrate, the right to

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say that the matter should proceed regardless.

Unfortunately, the Magistrate, in making those statements, fell into error. First of all, simply having it communicated that an adjournment would not be granted by the Registry staff

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in the manner in which it was communicated to Mr Gunn after he
had sent a letter is not the way that any application for an
adjournment of any matter before the Court, particularly as it
relates to any traffic or criminal matter, should be dealt

with. The matter should be properly aired in the Court by way

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of a proper application and any subsequent reasons for any
granting or refusal should be stated in Court in the record.

Notwithstanding that fact, again the Magistrate, even after an oral application was again made by Mr Gunn at the summary

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hearing, once again had formed an incorrect view. It seems that he thought the obligation fell on either the applicant himself and/or his legal representatives to obtain a copy of
the brief from the prosecution. Clearly, that is not the

case.

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The applicant in this matter, it was well known to both police and, indeed, to the Magistrate hearing the oral application, as was put to the Court because of the fact that there was the 10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 5 ORDER 60

need for an interpreter, was well aware that the applicant	1
himself would have had difficulties in any event even understanding even if he did go and get his own brief to prepare his own case. Secondly, the solicitors that had been engaged by the applicant, who were not actually up until that

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point even solicitors on the record, had no obligation already stated under section 590.
whatsoever to get the brief off the prosecution until indeed
they are notified in accordance with what is required under

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The prosecution have the obligation, clearly, under The Criminal Code to provide to the accused person as soon as practicable once it becomes into the possession of the prosecution those matters that relate to any in this case

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summary trial that was going to take place. The obligation in as I understand it.
terms of time is that if it is going to be provided, then it
must be done so within fourteen days or at a time that the

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There is no contest that the police brief was only given prior to the hearing taking place that morning. Indeed, thirty minutes, as I have said, was allowed for Mr Gunn to read it and to proceed. It seems that Mr Gunn went ahead with the

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matter and cannot be criticised. He initially, perhaps,
should have been more forthright but probably realised after
the communication had been received from the Registry office,
together with, once again, the impression he was getting in
10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 6 ORDER 60

respect to any oral application and the fact that he had been	1
given 30 minutes to read the brief that he had got that morning, that any application by him to have the matter further delayed to obtain the elusive witness that seemed to not be available for the actual summary hearing at the

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relevant time, would be fruitless. That, to me, was not an
unrealistic expectation from Mr Gunn.

The fact that the brief from the police was only provided to the defence on the morning, not within the relevant statutory

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requirements, and indeed that is not in itself fatal; but the
fact that there was only 30 minutes afforded to Mr Gunn to
prepare the matter without the benefit of any witness even
though it should be said that the Magistrate did give Mr Gunn

the opportunity to have the matter delayed, as it were, for a

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period of time that Mr Gunn felt so to allow him to get that
witness there, that that, in my view, is not reasonable to
allow a fair hearing in respect of the matter that then took

place.

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Those reasons alone satisfy me that there has been a denial of natural justice afforded in the circumstances to allow the appellant in this case to have conducted the hearing.

As to whether he has any merit even with the presence of the

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witness that was not available to be called in his case on any
further summary date hearing, is yet to be seen. It is not a
matter that this Court can determine or predict. It is also
not a matter not necessary to be determined at this point by
10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 7 ORDER 60

this Court in light of the fact of the decision and ruling I	1
have just made where I consider that this matter, therefore, needs to be remitted back to the Magistrates Court to allow in fact the hearing to take place with or without the witness who was not available at the summary hearing before the relevant

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Magistrate when it was set down to be heard.

It is for those reasons that I consider that the ground 1 relating to procedural fairness as it relates to the delivery of the lateness of the brief of evidence against the appellant

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for the purpose of any summary hearing that then took place
was, in all the circumstances, denied the appellant the right
to have his case heard both procedurally in a fair way and

denied him natural justice.

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It is for those reasons that I consider the matter should be remitted back to the Magistrates Court as Richlands in order that the matter shall be heard by way of summary hearing, and
I also direct as part of that order in accordance with the provisions of The Justices Act that allows me to do so as an

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appeal Judge hearing this matter that the proceeding be sent critical of Magistrate Austin but rather I consider it
back to that Court but with the direction that the summary
hearing proceedings, if it goes ahead, ought to be heard by a

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appropriate, as does both counsel who appeared in relation to
the parties today, that it would be better if the Magistrate
who made the decision on this matter in the first place, be
10122007 T(3)5-6/PAF(BNE) M/T BRIS28 (Ryrie DCJ) 8 ORDER 60

not the one to hear the summary hearing if it ultimately does	1
proceed.
Those are my reasons.

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