Lusted v Menichelli

[2010] TASSC 15

[2010] TASSC 15

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Lusted v Menichelli [2010] TASSC 15

PARTIES:  LUSTED, Sergeant Gary
  v

MENICHELLI, Robert Peter

FILE NO/S:  51/2010
DELIVERED ON:  15 April 2010
DELIVERED AT:  Launceston
HEARING DATE:  25 March 2010
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrate – Jurisdiction and procedure generally – Procedure – The hearing – Adjournment and remand – Absence of material witness – Application for adjournment refused – Proper exercise of discretion.

Sali v SPC Ltd (1993) 116 ALR 625, applied.

Aust Dig Magistrates [115]

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons – Refusal of adjournment without statement of reasons.

Re Appleby [2003] TASSC 29; Australian Securities Commission v Schreuder A79/1994, [1994] TASSC 127, applied.
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Appellant:  J P Ransom
             Respondent:  P O'Halloran
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number:  [2010] TASSC 15
Number of paragraphs:  33

Serial No 15/2010
File No 51/2010

SERGEANT GARY LUSTED v ROBERT PETER MENICHELLI

REASONS FOR JUDGMENT  CRAWFORD CJ
  15 April 2010

1. On a complaint made on 7 October 2008 the respondent was charged with six offences:

1Carrying a firearm, a .32 calibre pistol, with intent to commit the crime of assault on 9 September 2008 at Waverley, contrary to the Firearms Act 1996, s114(1)(a).

2Possessing that firearm when not the holder of a firearm licence contrary to s9(1).

3Possessing a firearm part, a .22 calibre rifle barrel, at Gladstone on 3 October 2008, contrary to s107. 

4Possessing a controlled plant, four cannabis plants and 20 cannabis seedlings, at Waverley on 17 September 2008, contrary to the Misuse of Drugs Act 2001, s25.

5Possessing a controlled plant or its products, 314 grams of cannabis leaf and 9.6 grams of cannabis seeds, at the same place and on the same date, contrary to s25.

6Possessing a TNT brand electronic testing device, at Waverley on 17 September 2008, which device was reasonably believed by a police officer to have been stolen or unlawfully obtained, contrary to the Police Offences Act 1935, s39(1).

1. The motion to review before this Court concerns the refusal of a magistrate to adjourn the hearing of the first two charges, following which they were dismissed or, in the magistrate's words, struck out. 

1. The respondent first appeared before a magistrate on all charges on 7 October 2008.  The hearing was adjourned to 21 October.  On that date the hearing was adjourned until 11 November, and it was further adjourned to 20 November, when it was adjourned to a date to be fixed.  The reason for that was that he was facing charges of a more serious and indictable kind on a different complaint and it was decided to await the outcome of the proceedings in the criminal court. 

1. The hearing of the present complaint was relisted for 31 August 2009.  At that time he was in prison serving a sentence imposed by the criminal court.  (That was still the case when this motion to review was heard.)  The hearing of the complaint was adjourned to 22 September 2009.  On that date he pleaded not guilty to charges 1, 2, 3 and 6 but guilty to charges 4 and 5.  The hearing of charges 1, 2, 3 and 6 was fixed for 19 October 2009.  However, the magistrate was unavailable that day and on the initiative of the Magistrates Court, the parties signed a notice under the Justices Act 1959, s50B, and as a result a clerk of petty sessions adjourned the hearing to 8 January 2010.

1. The respondent had always been represented by counsel and that was the case on 8 January.  He appeared that day for the hearing of three different complaints and an application.  In addition to the six charges on the complaint that is presently before this Court, also scheduled was a hearing of two charges on a complaint alleging that he breached an interim family violence order, and a condition of bail, by telephoning a woman who was protected by the interim family violence order.  He also appeared for the hearing of an application to make an interim family violence order a final order.  Finally, there was another complaint for hearing which also charged him with breaching a family violence order, and a condition of bail, by going to the home of the woman protected by the interim family violence order.  The other two complaints were resolved that day.  Concerning the application to make the interim family violence order a final order, the order was varied and the application was adjourned for hearing on 4 March. 

1. As I have noted, he had previously pleaded not guilty to charges 1, 2, 3 and 6 and guilty to charges 4 and 5 on the complaint that is the subject of the motion to review.  On that day he changed his plea on charge 6 from not guilty to guilty and he was sentenced for that.  The prosecution tendered no evidence on charge 3 and it was dismissed.  He was also sentenced for charges 4 and 5.

The application for an adjournment

1. Concerning charges 1 and 2, the following took place.  At the outset of the hearing of all matters, the prosecutor applied for an adjournment of the hearing of those two charges.  He gave the following as his reasons for the application.  He had wanted to call three civilian witnesses concerning the events at Waverley on 9 September 2008 when, it was alleged, the respondent went to a house at Waverley carrying a firearm.  The prosecutor referred to the person whose address that was as the complainant.  He said that the complainant "was a witness when the defendant allegedly showed up at his address carrying the firearm" and the other two civilian witnesses were "present as well as ... the complainant at the time".  One of those two witnesses had been served with a summons to give evidence and was present in the court, willing to do so.  The other of those two persons had not been served with a summons because he could not be located.  A summons to witness addressed to the complainant was issued and sent to the police in mid-November.  The address on the summons was a residential address.  However, police ascertained that he was a prisoner at Risdon and effected service there.  The prosecutor was unaware of that.  He had rung the mobile telephone of the complainant on several occasions, but had been unable to contact him because it was turned off.  It was only earlier on the morning of the hearing, when he checked with the court to see whether the complainant had been served with the summons, that he discovered he had been served in the prison.  It was then too late for him to make the necessary administrative arrangements to have the complainant transferred from Risdon to Launceston for the hearing.  He accepted that it was his responsibility to arrange for that by the use of a document commonly known as a body warrant, but pleaded his ignorance about the imprisonment of the complainant.

1. The prosecutor concluded by asking for an adjournment so that the complainant could be re-served with a summons and a body warrant issued to bring him from the prison. 

1. Counsel for the respondent opposed the adjournment.  He said:  "This defendant seeks to [sic] these charges finalised as soon as possible, that he's being further prejudiced by the delay in relation to the finalisation of these charges, that the mere presence of these charges and the lack of finalisation affects his own status and categorisation whilst he serves sentence on another unrelated matter."  Counsel did not explain what the claimed prejudice was and in what way the delay in finalising the hearing of the charges affected the respondent's status and categorisation. 

1. The learned magistrate gave no reasons for his decision.  All he said was:  "Yes, well I'm not granting any adjournment."  After dealing with other matters, he asked the prosecutor:  "In relation to 1 and 2, ... you don't have evidence in relation to those?"  The prosecutor responded that he did not, adding that they were the counts in respect of which he made an application for an adjournment.  The learned magistrate then announced:  "Well in those – there being no evidence, those matters are struck out." 

The grounds of the motion to review

1. The grounds are:

1That the learned magistrate erred in fact and/or in law in refusing to grant the adjournment of the hearing of the complaint requested by the prosecutor;

1AThe learned magistrate erred in law in that he failed to provide a sufficient statement of his reasons for refusing the application for an adjournment.

2         The learned magistrate erred in fact and/or in law by dismissing the complaint.

Submissions

1. Counsel for the applicant made the point that the offences were not minor ones.  The prescribed penalty for each was a fine not exceeding $6000 or imprisonment not exceeding two years or both.  It was argued that the public had a significant interest in the prosecution of the charges. 

1. It was also argued for the applicant that there was no suggestion that the prosecution had been dilatory. The application for an adjournment on 8 January 2010 was the first application for an adjournment of the hearing that had been made by the prosecution.  The summons to witness that was served on the complainant was addressed to him at a street address in Scottsdale but the memorandum of service showed that a police officer had served the summons on him at Risdon Prison on 28 October 2009.  It was submitted that at worst, the conduct of the prosecution that led to the need for an adjournment was the making of an inadvertent error. 

1. Counsel for the applicant relied on Fruin v White [2005] TASSC 25 where at pars16 – 19 Blow J dealt with the need for adequate reasons for a decision. Counsel also referred to my judgment about that in Re Appleby [2003] TASSC 29 at par14. It was submitted that the learned magistrate failed to comply with the duty to state adequate reasons and because of that, the motion should be upheld.

1. Concerning grounds 1 and 2, counsel for the applicant said that it was difficult to argue them because of the failure of the learned magistrate to give reasons for his decision.  He submitted that there was no basis upon which it could be said that the conduct of the prosecution amounted to an abuse of process, nor could it be argued that the case had gone on for too long and had been adjourned too many times.  Effectively, the adjournment was sought at the first scheduled hearing date as a defended case.  It was submitted that having regard to case management principles and generally, there was no need to discipline the prosecution.  It was argued that the prejudice claimed by the respondent's counsel was too vague to be accepted without further explanation, which was not sought by the learned magistrate.  It had not been asserted that the respondent would be prejudiced in his ability to defend the charges. 

1. Counsel for the respondent submitted that the transcript disclosed that once the magistrate had said that an adjournment would not be granted, the prosecutor made a decision not to tender evidence.  As a result, the learned magistrate correctly dismissed the charges.  It was pointed out that the prosecutor could have called the one witness who was available.  I comment that it does not appear that the prosecutor, counsel for the respondent or the magistrate contemplated the possibility that the evidence of the one available witness might be called.  Nevertheless, as two of the three civilian witnesses were unavailable that day, and one of them was the person against whom it was asserted the intended assault was to be committed, it is understandable that the prosecutor sought an adjournment at the outset of the hearing. 

1. Counsel for the respondent made the point that the decision not to grant an adjournment involved the exercise of a discretion which should not be overturned unless plainly wrong.  He referred to the statement of Kirby P in Cucu v District Court (1994) 73 A Crim R 240 at 246 that it is rare that an appellate or reviewing court will disturb a decision to grant or refuse an adjournment because such decisions are essential discretionary in character.

1. As to the prejudice asserted but not explained to the learned magistrate, counsel for the respondent claimed to this Court that he had not been relying on any prejudice in defending the charge but to prejudice arising out of the respondent's status as a prisoner.  He pointed to the Corrections Regulations 2008, reg5, which provides that a classification committee is to classify prisoners into maximum, medium and minimum security categories, having regard to any relevant factor. He submitted that having outstanding charges might be regarded as a relevant factor. I have no information that enables me to determine whether that is so, nor whether the respondent was likely to suffer prejudice.

1. As to the asserted lack of adequate reasons by the learned magistrate, counsel for the respondent submitted that having regard to what had just been said on behalf of the parties, the reasons were clear. 

1. Counsel for the respondent submitted that even if there was a failure to give adequate reasons, the motion should be dismissed because there was no substantial miscarriage of justice, the decision not to adjourn being the correct one.  See the Justices Act, s110(2)(ab). It was also submitted that there was no substantial miscarriage of justice in the dismissal of the charges, because it occurred as a result of the statement by the prosecutor that he did not have any evidence in relation to the charges.

The failure to give reasons

1. The absence of reasons makes it impossible to know why the learned magistrate refused to grant an adjournment of the hearing so that the complainant could be called to give evidence. 

1. Counsel for the respondent suggested that having regard to what he had just submitted to the learned magistrate, the reasons for refusing the adjournment were obvious.  I am not persuaded of that.  The only basis asserted in opposition to the adjournment was the vague claim of prejudice arising out of an unexplained affect an adjournment might have on the respondent's status and categorisation as a prisoner.  It was so vague that it required better explanation before it could have justified a refusal to grant the adjournment.

1. The discretion whether to adjourn is an unfettered one.  But it must not be exercised in accordance with whim or fancy.  It must be exercised judicially in accordance with principle and having regard to the interests of justice. 

1. The learned magistrate did not make any statement of principle and did not explain why it was in the interests of justice that the application should be refused. 

1. It is well settled that a magistrate must give reasons for a decision.  Re Appleby [2003] TASSC 29. In Australian Securities Commission v Schreuder A79/1994, [1994] TASSC 127, at 11, Underwood J held: "There is a clear obligation upon a judicial officer to deal with relevant submissions made by parties to litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done."

1. I have commented more than once that the duty to give reasons may not require a magistrate to do more than state them briefly.  See for example Phillips v Arnold [2009] TASSC 43 at par67; Harrison v Taws [2009] TASSC 33 at par34; James v Eyles [2007] TASSC 55 at par27. Here the absence of any reasons amounted to a breach of the duty and a reviewable error.

Was the refusal to grant an adjournment erroneous

1. The principles governing appellate review of the exercise of a discretion to grant or refuse an adjournment, are to be found in the judgment of Brennan, Deane and McHugh JJ in Sali v SPC Ltd (1993) 116 ALR 625 at 628 – 629:

"In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. (See, for example, Walker v Walker [1967] 1 WLR 327, at 330 ; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 55, at 558–9). Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.

…

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties."

1. At 631, their Honours added:  "It is true that it is only in extraordinary circumstances that the interests of justice would be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings." 

1. I accept the comments made by Underwood CJ in Hamilton v Littlejohn [2006] TASSC 109 concerning reservations that might be expressed concerning the statements in Sali.  Nevertheless, I regard this a clear one for holding that the discretion in this case was wrongly exercised.  My reasons are as follows.

1. No previous application for an adjournment had been made by the prosecution.  It was not until the day of the scheduled hearing that the prosecutor became aware that the complainant would not be able to give evidence as a witness, notwithstanding that he had been summoned to do so, because he was an inmate in Risdon Prison and no administrative arrangements had been made with the prison for his attendance.  In that regard, counsel for the applicant stated to this Court, without demur from counsel for the respondent, that the affidavit of service recording that service had been effected in the prison was not provided to the prosecution by the serving police officer but instead was filed at the court.  It was only when the prosecutor looked at the court file on the morning of the hearing that he realised there was a problem.  There may have been some human error giving rise to the need for an adjournment, but it was of a very minor nature.  The summons to the witness was issued well before the hearing and the address of the witness was a private one.  Service had been effected.  It appears likely that the witness made no attempt to communicate with the prosecution from the prison to explain the predicament he was in unless administrative arrangements were made for his attendance.  In all the circumstances, an adjournment was the only appropriate order to make, subject to the question whether the respondent would suffer prejudice as a result, either in his defence of the charges or in some other way.  In that regard, the claim of prejudice that was made by his counsel was inadequate and should not have been accepted without further enquiry. 

1. There will be cases where it is in the interests of case management and therefore, of justice itself, that an adjournment should be refused.  This was not such a case.  The adjournment should have been granted.  It is likely that the appropriate course that should have been taken was to require the prosecution to call the available witness to give evidence and at the conclusion of his evidence, to adjourn the hearing to enable the complainant to be brought from prison to give his evidence.

Was there no substantial miscarriage of justice

1. It appears likely that the prosecutor tendered no evidence because he judged that he could not prove his case without the evidence of the complainant.  It has not been shown that there was no substantial miscarriage of justice.

Orders

1. It will be ordered that the dismissal of charges 1 and 2 is set aside and that they are remitted to a magistrate for hearing.