Mano v Iriks
[1999] WASCA 180
•2 SEPTEMBER 1999
MANO -v- IRIKS [1999] WASCA 180
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 180 | |
| Case No: | SJA:1028/1999 | 2 SEPTEMBER 1999 | |
| Coram: | McKECHNIE J | 2/09/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed; conviction set asideMatter remitted for rehearing | ||
| PDF Version |
| Parties: | PETER LAWRENCE MANO BERNARD MARINUS IRIKS |
Catchwords: | Criminal law Application for adjournment Unrepresented defendant Importance of the public interest Principles to be applied |
Legislation: | Nil |
Case References: | Eason v Bintley, unreported; SCt of WA (Ipp J); Library No 930061; 8 February 1993 Myers v Myers [1969] WAR 19 Vick v Drysdale [1981] WAR 321 Weary v Stok (1986) 3 MVR 411 Bryant v Drexel, unreported; SCt of WA (Owen J); Library No 980239; 4 May 1998 Gould v Reid, unreported; SCt of WA (Wallwork J); Library No 8153; 22 March 1990 Hansen v Huffa [1976] 15 SASR 36 Macskasy v Cox, unreported; SCt of WA (Walsh J); Library No 930163; 30 March 1993 R v Cox [1960] VR 665 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MANO -v- IRIKS [1999] WASCA 180 CORAM : McKECHNIE J HEARD : 2 SEPTEMBER 1999 DELIVERED : 2 SEPTEMBER 1999 FILE NO/S : SJA 1028 of 1999 BETWEEN : PETER LAWRENCE MANO
- Appellant
AND
BERNARD MARINUS IRIKS
Respondent
Catchwords:
Criminal law - Application for adjournment - Unrepresented defendant - Importance of the public interest - Principles to be applied
Legislation:
Nil
Result:
Appeal allowed; conviction set aside
Matter remitted for rehearing
(Page 2)
Representation:
Counsel:
Appellant : Mr J B Prior
Respondent : Mr D T Carlson
Solicitors:
Appellant : Williams Ellison
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Eason v Bintley, unreported; SCt of WA (Ipp J); Library No 930061; 8 February 1993
Myers v Myers [1969] WAR 19
Vick v Drysdale [1981] WAR 321
Weary v Stok (1986) 3 MVR 411
Case(s) also cited:
Bryant v Drexel, unreported; SCt of WA (Owen J); Library No 980239; 4 May 1998
Gould v Reid, unreported; SCt of WA (Wallwork J); Library No 8153; 22 March 1990
Hansen v Huffa [1976] 15 SASR 36
Macskasy v Cox, unreported; SCt of WA (Walsh J); Library No 930163; 30 March 1993
R v Cox [1960] VR 665
(Page 3)
1 McKECHNIE J: On 6 and 7 January 1999 the appellant stood trial in the Perth Court of Petty Sessions on charges of fraud. He had sought but was refused an adjournment. He was convicted and sentenced to a term of 12 months' imprisonment suspended. There is no issue that the offences were serious.
2 He originally appealed on five grounds.
3 On 2 June 1999 leave was granted to substitute the grounds of appeal.
4 The appeal proceeded on the following grounds:
"1. The Learned Magistrate erred in law in exercising his discretion in refusing the Appellant's application for an adjournment of the trial.
PARTICULARS
- . The Learned Magistrate failed to balance the prejudice to the Appellant and Respondent if the Appellant's application was refused.
. The Learned Magistrate applied the wrong test in law when considering the Applicant's efforts to obtain legal counsel as simply inappropriate.
. The Learned Magistrate failed to elicit from the Appellant the prejudice if any to him if the trial proceeded and he was unrepresented by legal counsel."
6 It is perhaps convenient that I first deal with my findings in relation to the evidence.
(Page 4)
Prior dealings with Mr Palumbo
7 Mr Palumbo was a consultant with Philip Lafferty, solicitors. In such capacity he acted in the successful defence of fraud charges brought against Mr Mano on 2 November 1998. He gave evidence that following the successful defence, the forthcoming trial of 6 January 1999 was discussed. Mr Palumbo asked for money on account of costs. The figure was $4500.
8 Notwithstanding criticisms which might be made about parts of his affidavit, I accept Mr Palumbo's evidence in preference to that of Mr Mano when he says that he told Mr Mano that he would only represent him if he paid up-front. I accept he was told by Mr Mano that he was unable to pay because of the need to pay for hospital treatment for his mother who is not an Australian citizen. This version is more plausible.
9 Contrary to Mr Mano's assertion in his affidavit, exhibit B, he had previously been asked for money on account by Philip Lafferty. The request for payment on account of costs to be incurred in this matter accords with general legal practice. I consider Mr Mano's experience of legal issues is such that he should have been well aware of the need to put his lawyer in funds before his lawyer would act for him.
The medical certificate
10 To the extent relevant, I am not persuaded that Mr Mano showed Mr McPherson the medical certificate. In any event he never raised the issue with the Magistrate. I do not consider that the Magistrate had an obligation to ask about Mr Mano's health in the absence of some positive indication of ill health which would give rise to an inquiry.
The comments by Mr Iriks
11 Having had the advantage of hearing and seeing both witnesses, especially Mr Mano when he was examined and cross-examined on other matters, I reject his evidence that Mr Iriks said to Mr Mano at the luncheon adjournment on the second day words to the effect: "I will get you locked up this time." I accept the evidence of Mr Iriks that these words were not said.
12 In any event, I fail to see why they would cause Mr Mano to send his witness away, particularly if, as he claims, he had the foresight to make immediate complaint to the judicial support officer in court. Whether the
(Page 5)
- witness, Mr Sundo, was in fact present is an open question. Mr Iriks did not see him but he was in court from 10 that morning. In my opinion both the medical note and the words in court are in any event peripheral to the main issue which is in relation to the adjournment.
Conclusions as to facts
13 I find that Mr Mano has used Philip Lafferty as his solicitors over a long period. Particularly, he has retained them when being prosecuted on fraud charges. I find that he wished to retain Mr Palumbo and they had conversations about it. Those conversations extended to telling Mr Palumbo the proposed date of the trial. Mr Palumbo was well aware that the Chief Stipendiary Magistrate, Mr Zempilas, had, on 29 September 1998, fixed 6 and 7 January 1999 as the trial dates. I find that although he wished to retain Mr Palumbo he was not able to afford to do so.
14 Although I reject his evidence that he was not ever asked to pay money on account, on the whole of the evidence I consider it is open to find that he nonetheless had some expectation that Mr Palumbo would appear for him, albeit that was an unreasonable expectation in the circumstances.
Principles relating to adjournments
15 There are some general principles. Reference in this area is often made to the judgment of Jackson J in Myers v Myers [1969] WAR 19, but the statements there must be reassessed in the light of the situation at the turn of the century. The case is 30 years old. Modern developments in case management, both civil and criminal, render it appropriate for a judicial officer to take into account, in addition to the injustice which might flow to a party, the public interest in the orderly and expeditious disposition of cases in busy courts such as the Court of Petty Sessions.
16 When a trial date is set some months in advance there is an obligation on both parties to ensure that, as far as reasonably possible, the trial is ready to proceed on that date. If circumstances change, prompt attention should be given to the matter and, if necessary, it should be brought on early for judicial determination as to an adjournment. In short, litigation, especially criminal litigation, is no longer subject only to the wishes and interests of the parties.
(Page 6)
The public interest must also be considered
17 In days of busy court lists, judicial time is a resource which, like any other resource, must be carefully husbanded. This general approach appears consistent with the decision of Ipp J in Eason v Bintley, unreported; SCt of WA (Ipp J); Library No 930061; 8 February 1993 and Pidgeon J in Weary v Stok (1986) 3 MVR 411. Furthermore, in Vick v Drysdale [1981] WAR 321, Wickham J adverted to general public interest considerations.
The discretion of the Magistrate
18 This Court will not lightly overturn a discretionary decision of a Magistrate to grant or refuse an adjournment unless he or she acted on a wrong principle, misunderstood a relevant factual matter, or the decision was such that no reasonable Magistrate could properly have reached it.
The proceedings before the Magistrate in this case
19 On 6 January 1999 at about 10.55 am, it would appear, the following occurred:
- "HIS WORSHIP: Yes?
MR McPHERSON: If your Worship pleases, my name is McPherson. I am appearing as solicitor for the WA Police Service. I'm attached with the Major Fraud Squad and I appear to prosecute these matters, sir. This is Mr Mano who is the named defendant in the matters.
HIS WORSHIP: Yes.
MR McPHERSON: He is unrepresented, sir.
HIS WORSHIP: Yes. Mr Mano, a charge of intent to defraud by falsify, and I understand there is a plea of not guilty?
MR MANO: That's quite right, sir.
HIS WORSHIP: Okay. Take a seat, please. Sit down. Yes?
MR McPHERSON: Sir, in fairness to Mr Mano, I don't know if he has an application to make to the court - which we will probably oppose. Might I approach him for a moment, sir?
(Page 7)
- HIS WORSHIP: Yes. Yes, Mr Mano?
MR MANO: Your Worship, my lawyer acted for me on the 2nd November 1998, recently in this court here and he said to me he would represent me when he came back from Bali, because his wife's a schoolteacher and he will be back in Australia on the 2nd. I went two days ago and yesterday and he has not come back, and I rang the detective sergeant and I mentioned to him that he's not back in town again, so I - - at 5.30 I rang the Fraud Squad and said, 'The lawyers are not in town, and Philip Lafferty's company don't even know how to reach Alex - - Mr Palumbo'.
HIS WORSHIP: So who is your lawyer?
MR MANO: Mr Alex Palumbo from Philip Lafferty & Co, in Victoria Park.
HIS WORSHIP: Yes. Take a seat, Mr Mano.
MR MANO: Thank you, your Worship.
HIS WORSHIP: Yes?
MR McPHERSON: Sir, the application for an adjournment is opposed. This matter is listed for trial commencing today. It has previously been before this court, as I understand, on 15th September and 29th September. The defendant has had ample opportunity in which to brief counsel. We have had no notification that the matter is not to proceed until, effectively, court this morning. We have a police witness who has attended from Geraldton, we have two company directors, we have three other police witnesses involved. There is significant inconvenience should the matter not proceed today as far as the prosecution is concerned, and we would suggest the matter should proceed to trial, sir.
Sir, my instructions are that Mr Palumbo is not the current lawyer for Mr Mano. I think he is between lawyers at this stage.
HIS WORSHIP: Yes. The matter, as I say, has a history dating back to the first appearance on 15th September and was listed for trial on the 29th September, so nearly three months
(Page 8)
- ago. There are a number of prosecution witnesses involved who have come, Mr Mano. As I say, if the matter was proceeding to trial one would have thought that you would have given or received detailed instructions long ago, and to leave it to this stage in my view is simply inappropriate. In all the circumstances I take the view that the matter should proceed.
Yes, Mr McPherson?"
20 In my opinion in that passage the Magistrate distracted himself from the proper principles by his reference to the inappropriateness of waiting to obtain a lawyer. This is certainly a powerful factor but it is not the only factor to be taken into account.
21 The appellant is obviously a man to whom English is a second language. Refusal to grant an adjournment would have meant that the appellant would face trial on a relatively complicated, and certainly serious matter, without the benefit of a lawyer. Obviously the Magistrate must have been aware of that fact. However, all the Magistrate knew was that the appellant had left it too late, not that the appellant could never obtain the services of a lawyer.
A person defending himself or herself is always at a disadvantage in court
22 Where there is a prospect that representation can be obtained, the desirability of such a prospect being realised should be a powerful factor in favour of an adjournment, notwithstanding other factors. A trial with an unrepresented defendant increases dramatically the risk of an unfair trial or a miscarriage of justice, notwithstanding with the best efforts of the Magistrate to achieve balance.
23 The fact that there were a number of prosecution witnesses who were present, including one officer from Geraldton, was a factor to be weighed which the Magistrate did take it into account.
24 Witnesses will always be inconvenienced if a trial fails to proceed on its appointed date. However, inconvenience does not equate with prejudice. It is not demonstrated that the prosecution would have been prejudiced by an adjournment as opposed to the inconvenience and the general public issues in the prompt expedition of trials.
25 If the Magistrate had articulated these matters and nevertheless concluded that the trial proceed, this Court would be slow to interfere with his discretion. However, he did not. In consequence I consider that his
(Page 9)
- discretion miscarried because he failed to take into account relevant considerations.
26 That being so, I should allow the appeal unless I am satisfied that there is no substantial miscarriage of justice. In this regard I note that the prosecution case was strong. On my examination of the transcript Mr Mano was at times confused about the proceedings. Whilst I consider that the Magistrate did an exemplary job in the circumstances, to try and render the trial fair, on my review of the transcript there are aspects which suggest that justice did miscarry. The reason for that miscarriage was because the trial proceeded with an unrepresented defendant.
27 Finally, I note that Mr Mano has adduced evidence which may have a bearing on the case. Whether or not the evidence is relevant and whether or not it does affect the outcome of a trial is not a matter about which I intend to comment. I can say, however, that the existence of that evidence at least leads to the conclusion that the result of the trial would not necessarily be the same without that evidence. Therefore I am of the opinion that the proviso does not apply. Consequently I allow the appeal, set aside the conviction and remit the matter to Petty Sessions for rehearing.
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