MADYANG v Carlin
[2011] WASC 108
•1 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MADYANG -v- CARLIN [2011] WASC 108
CORAM: COMMISSIONER SLEIGHT
HEARD: 1 APRIL 2011
DELIVERED : 1 APRIL 2011
FILE NO/S: SJA 1005 of 2011
BETWEEN: JAMES McCARTHY MADYANG
Appellant
AND
JOSEPH THOMAS CARLIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE K M BOOTHMAN
File No :PE 44285 of 2010, PE 44286 of 2010
Catchwords:
Criminal law - Appeal against conviction - Accused's witnesses not present - Accused selfrepresented - Accused not informed of right to apply for adjournment
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: Ms K J Dodd
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
De La Espriella‑Velasco v The Queen [2006] WASCA 31
Isherwood v Tasmania [2010] TASCCA 11
Tey v City of Gosnells [2010 ] WASC 96
COMMISSIONER SLEIGHT:
(This judgment was delivered extemporaneously on 1 April 2011 and has been edited from the transcript.)
The respondent has conceded the appeal in this matter and accordingly the reasons I give will be brief. I reserve the right to edit the transcript.
This is an appeal against convictions after trial in the Perth Magistrates Court on 8 December 2010. The appellant, Mr Madyang, was convicted of driving a motor vehicle with a blood alcohol content exceeding 0.05 and driving a motor vehicle whilst under suspension. Both offences were alleged to have occurred on 7 May 2010 at Claremont.
The sole issue at trial was the question of identification. The appellant denied that he was the driver of the vehicle and said that the vehicle had been driven by another person who I will describe as Mr Joseph W.
Grounds of appeal
Under s 89(1) of the Criminal Appeals Act 2004 (WA) an appeal may be on one or more of the following grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
The grounds of appeal filed are as follows:
1.the learned magistrate erred in law by failing to raise with the unrepresented appellant the option of seeking an adjournment when the appellant stated he had witnesses who were not present for the hearing;
2.the appellant had evidence indicating that another person was the driver of the relevant car at the time of the offences charged.
In my opinion these grounds are incorrectly framed insofar as they suggest an error in law. Essentially the grounds of appeal are a complaint that there has been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment.
The hearing
Appellant was unrepresented at the hearing. At the commencement of the hearing the magistrate enquired of the prosecutor whether the prosecution was ready to proceed. The prosecutor informed his Honour that the prosecution was ready to proceed but the appellant did not have any of his witnesses present. Notwithstanding being alerted to this potential issue, his Honour made no further enquiries, did not inform the appellant of the right to apply for an adjournment and proceeded to conduct the trial.
During the course of the trial the appellant indicated to his Honour that he was not aware he had to produce evidence from witnesses on the day of the trial (ts 11). The appellant informed his Honour that a Mr Joseph W would give evidence that he was the driver of the vehicle. The appellant also informed his Honour that the appellant's girlfriend who would provide alibi evidence, confirming that the appellant was not the driver of the vehicle. However, neither witness was present that day. Notwithstanding this information, his Honour required the appellant to proceed without being advised he was entitled to apply for an adjournment.
Further evidence on appeal
The appellant in this matter has filed two affidavits in support of his appeal. Section 40(1)(e) of the Criminal Appeals Act provides that an appeal court may admit any other evidence on the hearing of the appeal, although under s 39(1) of the Criminal Appeals Act the appeal normally is to be decided on the evidence and material that were before the lower court. If further evidence is admitted on appeal it can only be used to establish that there was a miscarriage of justice: De La Espriella‑Velasco v The Queen [2006] WASCA 31 [156] (Pullin JA).
Pursuant to s 40(1)(e) I admit into evidence two affidavits filed by the appellant. The first of these is an affidavit of the appellant. In this affidavit the appellant states he is a Sudanese immigrant who came to Australia in 2004. He did not receive any legal advice before attending the trial in the Magistrates Court and believed that once he identified the person he believed to be the driver of the vehicle, the court would conduct its own inquiry. The second affidavit is of a potential witness, being the owner of the vehicle. The content of this affidavit provides evidence supporting the appellant's evidence at the trial that the appellant was not the driver of the vehicle and that the driver of the vehicle was another person, Mr Joseph W.
The significance of these two affidavits is that they support the contention that the appellant was wrongly convicted and that therefore there was a miscarriage of justice as a result of the appellant not being advised of the option of seeking an adjournment to call additional witnesses.
The law
A judge or magistrate presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with the law: MacPherson v The Queen (1981) 147 CLR 512, 523 (Gibbs CJ & Wilson J). In the case of an unrepresented accused this will generally require the presiding judge or magistrate to give the accused such information and advice as is necessary to ensure that he or she has a fair trial. A trial in which a judge or magistrate allows an accused to remain in ignorance of a fundamental procedure, which if invoked, may prove to be advantageous to the accused, can hardly be labelled as 'fair': MacPherson (534) (Mason J).
There is no set list of matters which a judge or a magistrate must advise an unrepresented accused. It depends on the circumstances of the case and will be governed by the overriding principle of ensuring a fair trial: see Isherwood v Tasmania [2010] TASCCA 11 [59].
It must be recognised that unrepresented accused persons can impose burdens on the time, resources and attention of all courts. No doubt, in a busy Magistrates Court, the obligation of dealing with many accused persons who are unrepresented and not familiar with the court process, must cause considerable practical difficulties: Tey v City of Gosnells [2010 ] WASC 96 [8] (EM Heenan J).
Notwithstanding these difficulties, in my opinion it would normally be appropriate before a trial commences involving an unrepresented accused, for the trial magistrate to explain to the unrepresented accused the basic procedures of the trial, such as the calling of witnesses.
In this matter I am satisfied that the appellant was denied procedural fairness so that the trial proceeded without the matter being fairly decided on its merits. Once his Honour was alerted by the prosecutor that the appellant did not have his witnesses present, his Honour ought to have made further enquiry and given the appellant an opportunity to apply for an adjournment. I am satisfied that as a consequence of this failure that a miscarriage of justice has occurred.
Orders
I grant the appeal. The orders will be that the convictions in both matters be set aside and the matters be remitted to the magistrates court for rehearing before a different magistrate. The formal orders will be as per a minute of orders signed by the parties and dated 31 March 2011.
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