Le Clair v Childs
[2015] ACTSC 118
•1 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Le Clair v Childs |
Citation: | [2015] ACTSC 118 |
Hearing Date: | 1 May 2015 |
DecisionDate: | 1 May 2015 |
Before: | Burns J |
Decision: | The appeal is upheld and the conviction and penalty imposed in the Magistrates Court are set aside. The matter is remitted to the Magistrates Court for re-hearing. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – assault occasioning actual bodily harm. APPEAL – Appeals From and Control over Magistrates – whether Magistrate took into account irrelevant considerations – whether adjournment should have been granted to allow appellant to obtain legal representation – appeal upheld – conviction and penalty set aside – matter remitted to the Magistrates Court for re-hearing. |
Parties: | Michael Aaron Le Clair (Appellant) Ashley Childs (Respondent) |
Representation: | Counsel Mr J O’Keefe (Appellant) Mr D Sahu Khan (Respondent) |
| Solicitors John O’Keefe (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 60 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 15 August 2014 Case Title: Childs v Le Clair Court File Number: CC13/7405 |
Burns J:
Procedural history
The present appeal is from a conviction and subsequent penalties imposed in the Magistrates Court on 15 August 2014. On that occasion, the appellant was charged with assault occasioning actual bodily harm. The matter had a chequered procedural history, which is set out in the written submissions for the respondent in these proceedings, and which I will not recite here. It was understandable, then, that when the appellant appeared before the Magistrate on 25 June last year when the charge was listed for hearing in the Magistrates Court, the Magistrate could well have been frustrated by the application by the appellant for a further adjournment. The basis of the application made to the Magistrate was that the appellant was not represented by a legal practitioner, and had made an application for legal aid but was currently awaiting a determination of that application.
The matter was stood down at 10.13 am on 25 June and resumed before the Magistrate at 11.29 am that day. It is clear from what follows thereafter that, in the intervening period, the Magistrate had made inquiries of his own concerning what was said to have been the dealings between the appellant and Legal Aid ACT relating to the appellant's application for legal aid. Whether the inquiries were made with the Legal Aid office or some other third party is not revealed. Essentially, the Magistrate put it to the appellant that he had been told that the appellant had been offered the services of a lawyer from the Legal Aid office, but that the appellant had refused the services of that particular lawyer and had requested the services of a different lawyer. The appellant disputed that proposition.
It is clear in my mind that the Magistrate thereafter proceeded to deal with the application for an adjournment based upon the proposition which he had put to the appellant, being that the appellant had been offered the services of a lawyer from the Legal Aid office but had refused to have that particular lawyer represent him, instead insisting upon the services of a different lawyer. No evidence was put before the Magistrate with respect to that issue, and the Magistrate did not indicate the source of his apparent information.
Consideration
The apparent investigation by the Magistrate of the appellant's dealings with the Legal Aid office in circumstances where the appellant was not made aware of those inquiries, or given any realistic opportunity to challenge the information which had been provided to the Magistrate, was grossly improper. The Magistrate should not have conducted his own investigations. He should have invited the appellant to provide evidence as to his dealings with the Legal Aid office, such evidence perhaps being constituted by evidence from the appellant himself together with evidence from an appropriate member of the Legal Aid office. At the very least, the appellant should have been given an opportunity to present evidence in relation to the question of his dealings with the legal aid office.
I am satisfied that the Magistrate took into account irrelevant considerations in the exercise of his discretion whether to grant an adjournment. In those circumstances, his discretion miscarried. As a consequence of the miscarriage of the Magistrate's discretion, the appellant was required to represent himself in the course of the proceedings before the Magistrate.
Decision
In my opinion, the just outcome with respect to these proceedings is that the appeal should be upheld, and the conviction and penalty should be set aside. The matter should be remitted to the Magistrates Court for re‑hearing before a different magistrate.
I want to make it clear that I do not suggest that magistrates are required to grant an adjournment every time such an adjournment is sought by an unrepresented accused in proceedings in that Court. Much will depend upon the circumstances of the case. However, what I want to make clear is that, in exercising the discretion whether to grant an adjournment, a magistrate is expected to act judicially and to abide by the rules of natural justice and also procedural fairness.
| I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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