Moore-McQuillan v Police - [2010] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOORE-MCQUILLAN v POLICE
[2010] SASC 149
Judgment of The Honourable Justice Nyland
28 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
Appeal against conviction - appellant found guilty by a Magistrate of assault occasioning bodily harm - appeal against conviction - whether counsel for appellant was incompetent such as to cause a miscarriage of justice - whether witness' reference to notes without permission prejudiced appellant - whether insufficient weight given to evidence of appellant's hearing disability - question of bias - whether appellant denied procedural fairness as a result of a failure by the prosecution to provide a summary of the prosecution case within the appropriate time frame - whether appellant deprived of right to elect for trial in a superior court - whether lapse of time between charge and trial prejudiced appellant.
Held: no unfairness to the appellant arising out of conduct of counsel - witness' reference to notes without permission did not give rise to miscarriage of justice - Magistrate entitled to assess appellant's hearing disability - disability of limited relevance to issues for decision - no actual or apprehended bias on part of Magistrate - appellant had ample opportunity to elect for trial in a superior court - disadvantage caused by lapse of time between charge and trial insufficient to enliven power of Court to stay proceedings - appellant failed to establish any grounds requiring Court to interfere with Magistrate's decision - application for extension of time refused and appeal dismissed.
Criminal Law Consolidation Act 1935 s 40; Magistrates Court Rules 1992 R 21; Summary Procedure Act 1921 s 103, referred to.
Browne v Dunn (1983) 6 R 67; Nudd v R (2006) 80 ALJR 614; R v Watson; ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288, considered.

MOORE-MCQUILLAN v POLICE
[2010] SASC 149
Magistrates Appeal

NYLAND J: This is an appeal against a conviction recorded by an auxiliary Stipendiary Magistrate in the Magistrates Court at Adelaide on 6 December 2007. The appellant was charged on an Information which alleged that on 21 April 2004 at Adelaide he assaulted Richard Thomas Webb, a person of or above the age of 12 years, thereby occasioning him actual bodily harm, contrary to the provisions of s 40 Criminal Law Consolidation Act 1935 (CLCA). The maximum penalty then applicable to that offence was imprisonment for a period not exceeding five years.
The trial commenced on 26 November 2007. The appellant, who was represented by counsel, pleaded not guilty. Evidence was then led by the prosecution from Mr Webb, the alleged victim, Mr Michael Crawford, a civilian, Dr Begg, a general practitioner, and Senior Constable Pope, a police officer.
At the conclusion of the prosecution case, counsel for the appellant indicated that there would be no witnesses called for the defence apart from the appellant. The appellant then commenced giving his evidence. That evidence was not concluded on 26 November 2007, so the matter was then adjourned to 6 December 2007 when the appellant’s evidence was completed. At the conclusion of the hearing the learned Magistrate found the charge proved. He recorded a conviction and ordered the appellant to perform 96 hours of unpaid work for the community within a period of nine months.
The appellant filed a notice of appeal against that conviction on 25 August 2008, which was received by the Court on 28 August 2008. The notice of appeal is therefore approximately eight months out of time and the appellant has applied for an extension of time within which to appeal.
The appeal first came on for hearing on 9 June 2009 at which time the appellant appeared in person and Ms Telfer appeared for the respondent. At the commencement of the hearing I indicated that I proposed to hear argument as to the substantive issues raised by the notice of appeal and in the event that I was satisfied there was merit in the appeal, I would grant an extension but otherwise the extension would be refused.
The notice of appeal is verbose and appears to have been prepared by the appellant without benefit of counsel. The grounds may, however, be summarised as follows:
(1)   Incompetence of counsel;
(2)   The witness Webb improperly reading from notes in the course of evidence-in-chief without having leave so to do;
(3)   Insufficient weight given by the learned Magistrate to the appellant’s hearing disability; and
(4)   Actual or apprehended bias.
After hearing submissions with respect to those grounds, I indicated to the parties that I would reserve my decision. In the course of argument, however, the appellant informed me that there was available evidence as to his hearing disability, which was relevant to his defence but had been overlooked by counsel representing him at the trial. I therefore told the appellant that I would provide him with the opportunity to produce that evidence and would hear further submissions as to that matter if required. The relevant document was subsequently forwarded to me by fax dated 14 July 2009 and is discussed later in these reasons.
On 10 July 2009 the appellant filed a document entitled Further Grounds of Argument and Outline of Argument which purported to add a further ground of appeal. When the matter came on for hearing before me on 17 February 2010, the appellant made further submissions as to the matters raised therein. As I understand his argument, it is a complaint that the prosecution failed to comply with the provisions of Magistrates Court Rules 1992 (“MCR”) Rule 21.07 as to the timely delivery of the summary of evidence to him, as a result of which the charge against him should have been dismissed. The appellant also submitted that he had been prejudiced by the late delivery of those documents, as he had been deprived of the right to elect for trial in a superior court. I therefore propose to treat this as Ground 5 under the heading Denial of Procedural Fairness.
The facts
The factual background relating to this matter is summarised in the outline of argument filed by the respondent in these proceedings. Subject to a dispute as to whether Mr Webb was a licensed agent, the appellant agreed that the summary was accurate, namely:
2.Mr Webb at the relevant time … was engaged to serve a restraining order on the appellant, Mr Moore-McQuillan. The incident was alleged to have occurred as the appellant left the Supreme Court building in Gouger Street. It was alleged that while Mr Webb was attempting to serve the appellant with the restraining order the appellant struck him with his crutch, causing a 1.25cm laceration to his chin.
3.The appellant at trial denied that he had made contact with Mr Webb with his crutch. He said that Mr Webb had approached him, without identifying himself and he had formed the impression that Mr Webb was going to kick his crutches out from under him. He said he believed that Mr Webb was going to assault him but denied that he had used his crutch to defend himself.
Ground 1: Incompetence of Counsel
There are a number of grounds upon which the appellant relies in submitting that the conduct of the trial by his counsel was incompetent. In an affirmation filed in support of the appeal, the appellant referred to difficulties in obtaining legal representation. It appears that counsel who eventually represented the appellant at trial was only instructed shortly before the day on which the matter was listed for hearing and had insufficient time to prepare the defence case. The appellant also complained that his counsel had failed to comply with the rule in Browne v Dunn,[1] which was subsequently the subject of comment in the learned Magistrate’s reasons for judgment. The appellant also complained that his counsel had not properly been told about, or appreciated, all of the witnesses who were to be called in the prosecution case.
[1] (1893) 6 R 67.
As a general rule a party is bound by the conduct of counsel at trial. The appellant therefore needs to demonstrate that a miscarriage of justice has been occasioned in the conduct of the trial in order for this Court to intervene. To assess whether such a miscarriage has occurred, it is necessary to examine the impact of the impugned conduct upon the process of the trial, as opposed to the subjective reasons for that conduct.[2] As Gleeson CJ said:[3]
It is the fairness of the process that is in question; not the wisdom of counsel.
[2] Nudd v R (2006) 80 ALJR 614 at 619 (Gleeson CJ).
[3] Nudd v R (2006) 80 ALJR 614 at 618 (Gleeson CJ).
An examination of the Court file indicates that the trial date of 26 November 2007 was fixed by the Court on 16 May 2007. At that time the appellant was unrepresented. The trial date was confirmed on 22 October 2007 when the appellant appears to have been represented, although by different counsel from that who ultimately appeared at trial.
I am unaware of the date upon which trial counsel was eventually instructed by the appellant, but trial counsel was present on 26 November 2007 when the trial commenced. No application for an adjournment appears to have been made by him, nor any complaint made to the Court about any embarrassment occasioned as a result of any failure by the prosecution to provide relevant statements, lack of instructions, or lack of time to prepare. However, this was not a complicated matter, primarily consisting of a factual dispute between Mr Webb and the appellant.
Although Mr Crawford was described as an eyewitness, his evidence was disregarded by the learned Magistrate as being unhelpful. Mr Crawford was a fair distance from the incident and about three and a half years had elapsed by the time he gave evidence. Mr Crawford’s version of events was not consistent with that given either by Mr Webb or the appellant. Dr Begg’s evidence was uncontroversial. He coincidentally was the GP for both Mr Webb and the appellant. He confirmed that he had treated Mr Webb for a gash on the chin, which required three stitches. He also said that the appellant suffered from an anxiety condition which affected his behaviour. He confirmed that the appellant had problems with his hearing, although he was not sure which ear was affected.
Senior Constable Pope gave evidence about a statement made by the appellant in which the appellant denied that he had assaulted anyone. Issues arising out of the evidence of Senior Constable Pope are relevant to the claim by the appellant, as mentioned by the Magistrate, that his counsel had failed to comply with the rule in Browne v Dunn. I will discuss that aspect of the matter later in these reasons.
Magistrate’s findings
In his reasons, the learned Magistrate was critical of the delay in the matter coming to trial. He also expressed his disapproval of Mr Webb taking advantage of knowledge that the appellant had to attend Court on an unrelated matter to try to serve a restraining order on him. In his reasons for judgment he set out his findings as to the evidence given by Mr Webb at [12] - [13]:
The competing versions are that, firstly, Webb’s instructions were to serve a restraining order on the defendant. He had had no previous dealings with the defendant but had a description of him. He hung about the precincts of the Supreme Court knowing that the defendant was engaged in court on that day in the library building. At the end of the day in court, he saw a person emerge from the area on crutches and head towards the Supreme Court gates to access Gouger Street on the southern side. As the defendant limped into Gouger Street on his crutches, Webb made an inane opening remark, “How did you go in court today, Mark”, and the defendant replied, “I don’t know you”. Webb said, “I have got a document for you, in fact, a restraining order for you”. He says the defendant says, “Go away, I don’t know who you are”. Webb said, “I’ve got a restraining order for you here”. At this stage the defendant began walking away on his crutches at a surprisingly fast rate. Webb followed him along Gouger Street and caught up with him. Webb said, “I’ve got documents to serve on you” Webb then attempted to shove the document inside the front of the defendant’s shirt. He did not succeed in doing so. It fell to the ground. Webb retrieved the document and again took off after the defendant who was again walking west along Gouger Street. He caught up with him near Mill Street. Webb then touched him on the shoulder with the restraining order. The defendant said, “Don’t assault me, I’m a cripple”, or words to that effect.
In the middle of Mill Street the defendant suddenly swung around, swung what Webb believes to be the crutch held in the defendant’s right hand and struck Webb in the chin with it. He said, “the crutch came at me with surprising speed and it me on the chin. I immediately felt pain.” Webb then put the restraining order document on or in the defendant’s backpack, or attempted to do so. In fact the document fell off out of the pack and went into the gutter. The defendant recommenced walking west along Gouger Street, saying as he did so, “Leave me alone, I’m a cripple”. Webb called out after him – somewhat pathetically, “You’re served”. The episode concluded. Webb bled from a cut to his chin. He took himself to see the mutual GP and got three stitches inserted.
The Magistrate then indicated that he considered Mr Webb to be a good witness, not prone to exaggerate and he thought that he seemed to be doing his best to tell the truth.
The Magistrate went on to discuss the evidence of the appellant relating to this matter. He said at [15]:
The defendant’s version first given to the police on 30 April 2004 about nine days after the event is as follows. I should add that the defendant doesn’t agree that he gave such a statement to Senior Constable Pope, but that was never suggested to Senior Constable Pope and it is a rather strange part of the evidence in this case.
He then said at [16 ] - [17]:
Pope noted that the defendant said, “I came out of the Supreme Court and went towards the market on my way home. There is a building – and I am deaf in my left ear – I heard a noise on my right. Someone was on my left going to kick my crutches causing me to fall. I turned my head and said, “Go away mate I don’t even know who you are” about two or three times. I thought he was after a smoke or money. I couldn’t describe him to you. I kept on going, I didn’t stop and I ignored him. I was scared he was going to kick my crutches and I had my backpack full of books. I was about to go up a ramp and I got the sensation of my backpack being pulled and me being pulled backwards causing me to spin. I thought I was going to fall. I regained my balance. I saw the male again. I said, “I don’t know you”. I walked off and went home. I thought nothing else of it.” The policeman, that is, Senior Constable Pope – asked him, “At any time did you hit the man”, the defendant said, “No. To my recollection I don’t recollect punching any male”. Senior Constable Pope said, “Did you assault any person on 21 April 2004?”. The defendant said, “No assault. I was the one that was assaulted”.
His evidence-in-chief to the court was along similar lines. The end part, according to my notes, goes as follows: “I was crossing Mill Street, he grabbed hold of my left shoulder and pulled it back. It could have been that he grabbed me by the left side of the backpack, my left shoulder in any event. I think I was grabbed. It caused me to come back. This caused me to lose balance. I spun to the left. My left hand crutch came out. I jammed it into the ground. I said, “I don’t know you, leave me alone”. He then continued to walk west along Gouger Street and that was the end of the episode.
Having considered these matters the Magistrate said that he had no hesitation in accepting Mr Webb’s version of events and rejecting that given by the appellant. He was satisfied that Mr Webb had explained his purpose to the appellant and confronted him on at least three occasions. The Magistrate went on to say at [19]:
… Although the defendant tried to claim deafness, he had no apparent difficulty hearing everything that went on in court and responding appropriately to questions put to him in ordinary tones, and I find it inconceivable that he didn’t hear Webb explaining that he had a restraining order to serve upon him. I find it as fact that he well knew Webb’s intent that his subsequent conduct was to one end: to avoid service. The defendant’s suggestion of deafness is a red herring.
The Magistrate rejected the appellant’s suggestion that the injury to Webb was an accident. He considered that the appellant’s denial that he had actually made contact with Mr Webb had to be rejected and that was a matter which reflected adversely on the appellant’s credibility. He also rejected the defence of self-defence. He said at [21]:
… If the contact was accidental, although the defendant now says that it never occurred at all, but if it was accidental when the defendant lost his balance and spun left and his crutch came out, where is there any suggestion of self-defence? It was never suggested to Webb that he attempted to, or put himself in a position where it might seem that he was about to kick the defendant’s crutches from under him. There is no possible basis for the defendant’s state of belief that Webb was about to rob him. The defendant’s denial of the interview with Senior Constable Pope occurring at all is strange. Pope’s evidence was allowed to pass without challenge. I am satisfied beyond reasonable doubt that the interview did in fact take place and the defendant’s denial that it did speaks adequately of his mendacity.
The Magistrate was satisfied beyond reasonable doubt that that when Mr Webb attempted to serve the appellant with a restraining order that the appellant had attempted to evade that service and had become annoyed. In a fit of pique the appellant had struck Mr Webb on the chin with his crutch. The Magistrate accepted that the appellant was vulnerable at the relevant time but considered that did not excuse his actions, it simply made him more likely to lose his temper.
Evidence of Constable Pope
Senior Constable Pope gave evidence that on 30 April 2004 he, with another police officer, attended at the Riverside building, North Terrace, in order to locate the appellant with respect to an unrelated matter. He had a conversation with the appellant at the Riverside building and in due course the appellant was escorted out of the premises. Pope said he left the appellant outside the Riverside building, but thereafter, as a result of further information, caught up with the appellant at the Adelaide Railway Station. He had a further conversation with the appellant, following which the appellant accompanied him to the Hindley Street Police Station. His evidence then was:[4]
[4] Police v Moore-McQuillan, Transcript of proceedings, Magistrates Court, 26 November 2007, 35-37.
A.I said ‘I am now going to ask some further questions in relation to this matter. You don’t have to answer them, but anything you do say may be written down and used in evidence. Do you understand that?’
Mr Moore-McQuillan said ‘All right’.
I said ‘It’s been alleged you assaulted someone at 3.50 pm on 21 April 2004 at Mill Street, Adelaide, whilst being served with a process order. What can you tell me about this?’
He said ‘Not me. Never assaulted anyone and not been served with any order.’
I said ‘What happened at that time?’
He said ‘Came out of the Supreme Court, going towards the market on my way home. There’s a building – and I am deaf in the left ear. Heard a noise on my right. Somebody on my left behind me and was going to kick my crutches, causing me to fall. I turned my head and I said “Go away mate. I don’t even know who you are” about two to three times. I thought he was after a smoke or money. Couldn’t describe him to you. I kept on going; didn’t stop, and ignored him. I was scared he was going to kick my crutches, and I had my backpack full of books. About to go up a ramp and got the sensation of my backpack being grabbed and pulled backwards, causing me to spin. I thought I was going to fall, and I regained my balance and saw the male again. Told male “I don’t know you. Leave me alone.” And walked off and went home. Thought nothing else of it. Can’t even describe the male.
I said ‘At any time did you hit any male on 21 April?’
He said ‘No.To my recollection I don’t remember punching any male.’
I said ‘Did you assault any person on 21 April 2004?’
He said ‘No assault. I was assaulted.
HIS HONOUR
Q.Sorry. Could I just get that right. He said ‘No assault.’ Is that right.
A.That’s correct.
Q.‘I was the one who was assaulted.’
A.‘I was assaulted.’
I said ‘You’re going to be reported for assault on 21 April 2004. Do you understand that?’
He said ‘So you say, yes. I don’t understand why.’
I said ‘I’ve made notes. Do you wish to read them or have me read them to you?’
He said ‘Read them back.’
And then I read my notes to him. Mr Moore-McQuillan didn’t agree with it.
I said ‘What do you want changed?’
Q.What did he say? ‘I don’t agree with that.’
A.I didn’t write that actual part in my notebook but he didn’t agree with my notes.
Q.He didn’t agree.
A.No.
Q.And you said.
A.‘What do you want changed?’
He said ‘In the first question you said I punched someone.’
I said ‘I don’t agree with you, but I’ve written it in.’
Q.What did you mean by that exactly? That you’d altered his first answer or your first question or –
A.No, I didn’t –
Q.You just said that by saying ‘but I’ve written it in’, meaning in your last note.
A.Yes, I’ve written – yes.
Q.Yes.
A.I said ‘Do you wish to sign these notes?’
He said ‘No, they’re not accurate.’
And that conversation finished at 12.25.

Pope said that at the conclusion of that conversation the police offered to return the appellant to the Railway Station but the appellant did not avail himself of that offer.
The evidence of Pope was not seriously challenged by counsel representing the appellant, and the failure to satisfy the rule in Browne v Dunn is one of the grounds upon which the appellant relies in asserting incompetence of counsel. When the appellant gave evidence, he disputed that he had made the detailed statement at the Hindley Street Police Station, as described by Pope. The appellant said that a few days after the incident involving Mr Webb, he went to the Christies Beach Police Station where he made a statement. He agreed, however, that he had been at the Riverside building on 30 April and had been removed therefrom by the police and had attended at the Hindley Street Police Station with Senior Constable Pope. He said that on the way to the police station in the back of the car, Pope had asked him whether he had assaulted any person on 21 April 2004. The appellant said he denied that and told Pope that he had already answered those matters at the Christies Beach Police Station. In his reasons, the Magistrate commented that the appellant’s denial of giving Pope the statement given in evidence was never suggested to Pope and it was “a rather strange part of the evidence in this case”. However, it went no further than that and, in my opinion, nothing turns on this. The appellant’s evidence about this matter was confusing and regardless of how it came about, the effect of Pope’s evidence was that the appellant had always denied assaulting Webb. It is likely that in that situation the appellant’s counsel made a forensic decision not to challenge the evidence of Pope as to the circumstances in which that statement was made. None of the matters raised by the appellant support his claim that his counsel was incompetent.
Ground 2: Mr Webb’s notes
The appellant complained that Mr Webb commenced giving his evidence by reading from his notes, without having leave to do so. That is borne out by the transcript.[5] Counsel for the appellant drew that matter to the attention of the learned Magistrate, who then required the notes to be put aside. There is nothing to suggest that Mr Webb looked at them thereafter. There are about four pages of transcript recorded during the period in which the witness had access to his notes. Thereafter, Mr Webb completed his evidence, including cross-examination, apparently without having recourse to them. Mr Webb had, however, initially been asked in evidence about his notes and he told the Court that he had made them immediately after the assault had taken place, following which he made a statement to the police. He then indicated that he was able to recall his observations without reference to his notes. The Magistrate indicated that if he “got stuck, we’ll deal with that when it happens”. If Mr Webb had indicated he was not able to recall his observations without reference to his notes, in view of his evidence as to their contemporaneity, it is likely that permission to refer to them would have been given. Although this was an irregularity, I do not find it to be a material one such as to give rise to a miscarriage of justice. The appellant also claims that Mr Webb was told what to say and what not to say prior to giving evidence, but there is no evidence that any pre-trial proofing exceeded the proper bounds of what would be required in the normal course of proofing a witness for trial.
[5] Police v Moore-McQuillan, Transcript of proceedings, Magistrates Court, 26 November 2007, 10.
Ground 3: Insufficient weight given to appellant’s hearing disability
I have earlier referred to the evidence of Dr Begg about this matter and the observation by the learned Magistrate that he considered that the appellant had no apparent difficulty in Court in hearing what was going on and responding appropriately to questions put to him in ordinary terms. As earlier mentioned, subsequent to the date on which I reserved judgment in this matter, the appellant sought leave to re-open the appeal to provide evidence relating to his hearing, which he said had been in the possession of his counsel prior to the trial. I subsequently received a copy of a report of an audiologist dated 4 December 2007. That report is somewhat cryptic but indicates that the appellant does have “some degree of hearing loss” which required “a full diagnostic assessment”. In the absence of some explanation as to the effect of the assessment, however, I do not think the document takes the matter any further than the evidence of Dr Begg, who acknowledged that the appellant had a hearing problem. The appellant gave evidence about his hearing difficulties and does not appear to have been challenged in cross-examination about that aspect of the matter.
The Magistrate was entitled to have regard to his own observation of the appellant in Court and the fact that the appellant appeared to hear and answer questions appropriately. I reject the appellant’s submission that in so doing the Magistrate not only erred in making his own assessment of the matter, but had also discriminated against someone who was hearing impaired.
The appellant relied on his hearing disability to explain that he had not heard Mr Webb say anything prior to the incident taking place in order to support a claim of self-defence. However, on the appellant’s own evidence the issue of self defence did not arise. The appellant did not say he struck Mr Webb as a result of being taken by surprise because he did not hear him approach. Rather, he claimed that he did not strike Mr Webb at all. The issue of self-defence was therefore irrelevant and the appellant’s hearing disability was of limited relevance to the issues for decision.
Ground 4: Actual or apprehended bias
On the hearing of the appeal the appellant agreed that he had not had any prior dealings with the Magistrate who heard this case. He did, however, make numerous unsubstantiated assertions that a member of the Sheriffs’ office had spoken to the Magistrate prior to the hearing and informed him of the appellant’s reputation as a result of which additional security in Court was arranged. As I understand the appellant’s argument, there is some significance to be attached to the fact that the Magistrate assigned to hear this matter was brought out of retirement to hear the case. That, he submitted, supported his argument of apprehended bias. However, the test with respect to bias is whether the circumstances are such that: [6]
… it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind.
The reasonable observer is presumed to: [7]
… approach the matter on the basis that ordinarily a judge will act so as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of pre-judgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court.
[6] R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 264 (Barwick CJ, Gibbs, Stephen, Mason JJ).
[7] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299 (Mason, Murphy, Brennan, Deane, Dawson JJ).
In this case the appellant has not shown that the learned Magistrate had any interest in the proceedings nor by any prior conduct had demonstrated an attitude to the appellant which might require him to disqualify himself. At its highest, all the appellant can say is that the appellant’s reputation preceded him and the Magistrate must have been biased against him. At the same time the appellant acknowledged that the majority of sitting Magistrates could be precluded from hearing his case.
In my opinion there is nothing in the conduct of the learned Auxiliary Magistrate to suggest that he did anything other than give the appellant a fair hearing, nor anything which would give the hypothetical reasonable observer any reason to suppose that the Magistrate might not resolve the questions before him other than with a fair and unprejudiced mind.
Ground 5: Denial of procedural fairness
The appellant complains that the prosecution failed to comply with Magistrates Court Rule 21.07, as he was not provided with the relevant documentation for a period of about 10 weeks. The appellant was therefore prejudiced in defending the charge against him and the Court should have dismissed the charge for lack of evidence. In addition, the appellant was deprived of the right to elect for trial in a superior court. Section 103(2) of the Summary Procedure Act 1921 which relates to procedures in the Magistrates Court provides that:
The defendant must be provided with a copy of the information and, if the defendant is charged with a minor indictable offence, the appropriate form for electing for trial in a superior court.
Section 103(3) provides that:
If a defendant charged with a minor indictable offence does not elect, in accordance with the rules, for trial in a superior court, the charge will be dealt with in the same way as a charge of a summary offence.
MCR 21 deals with the form of the election and a number of sub-rules are relevant to the argument of the appellant.
MCR 21.04 provides that:
Unless an election has been sooner made the prosecution shall, upon the request of the defence or direction of the court provide the defence with a summary of the evidence in support of each charge.
MCR 21.05 provides that:
A request for a summary of evidence must be made not later than three weeks after the first appearance of the defendant before the court.
Pursuant to MCR 21.06:
A summary of evidence shall be provided within three weeks of a request being made or a direction given.
MCR 21.07 provides that:
An election must be made within 14 days of the delivery of the summary of evidence or where no summary has been requested or directed not later than six weeks after the defendant’s first appearance before the court.
MCR 21.08 provides that:
Notwithstanding any other provision an election may not be made after a matter has with the consent of the defendant been set for trial.
In order to consider the argument presented by the appellant it is necessary to have regard to the way in which the charge against him proceeded through the Magistrates Court. The Information and summons is dated 15 March 2006 and was initially listed for hearing in the Magistrates Court at Adelaide on 1 May 2006. There was no appearance by the appellant at that time and a warrant was issued for his arrest. On 23 June 2006 the appellant appeared ex-custody in a bedside hearing at the Royal Adelaide Hospital. He was unrepresented. No plea was taken but the appellant intimated that he would be pleading not guilty and he was granted bail. The matter was then adjourned until 30 June 2006. The hearing on that date appears to have been concerned with the application by the appellant for variation of bail, which was subsequently withdrawn. The matter was then remanded to 2 August 2006. On 2 August 2006 the appellant appeared unrepresented. The file records that no plea was taken and the matter was remanded “for negotiations” to 13 September 2006. On 13 September 2006, the appellant appeared in the Magistrates Court represented by Ms Porter. The matter was then adjourned to 18 October 2006 for a pre-trial conference to take place.
On 18 October 2006 the appellant attended the pre-trial conference, at which time he was represented by Mr Vadasz. The case was then remanded to a status conference to take place on 5 March 2007 and the trial was listed for two days, starting 29 March 2007.
On 5 March 2007 the status conference was held in the Magistrates Court. The appellant was then represented by Ms Ferris. The trial date of 29 March 2007 was confirmed. The file, however, records that on 22 March 2007 Mr Vadasz was granted leave to withdraw from the file. The trial dates of 29 March 2007 and 30 March 2007 were then vacated and the matter stood over until 24 April 2007.
On 24 April 2007, the appellant appeared in Court represented by Mr Christoforou and the matter was then remanded to 16 May 2007. On 16 May 2007 the appellant appeared in the Magistrates Court unrepresented. A new trial date was fixed for 26 to 28 November 2007. Leave was given to the appellant to have the matter called on for the purpose of making any application he chose to make or in any event if he had difficulties in finalising his legal representation. Such leave was limited to six weeks prior to 12 November 2007. A note was also made as to a Magistrate who was disqualified from hearing the matter.
On 22 October 2007 the matter came on for further hearing, at which time the appellant was represented by Ms Matson. The trial date of 26 November 2007 was confirmed. On 26 November 2007 the trial commenced in the Magistrates Court, at which time the appellant appeared represented by counsel and evidence was taken with respect to the charge against him.
As earlier mentioned, the learned Magistrate was critical of the delay in this case proceeding to trial but it would appear that at least some of that delay was due to the appellant’s difficulties with legal representation.
On 18 October 2006 the Court ordered that the case be listed for trial in March 2007. That was therefore the last date that the appellant could have made an election for trial in a superior court in accordance with MCR 21.08. The appellant was represented by Mr Vadasz when the Court fixed the trial date and there does not appear to have been any complaint at that time about the matter being listed in the Magistrates Court and proceeding in a summary way. Nor was there any complaint made as to a failure by the prosecution to supply the defence with any documentation relevant to the trial. The trial date was confirmed at the further hearing on 5 March 2007 when the appellant was still represented by counsel. Once again there is no record on the file of any desire of the appellant to proceed other than by summary trial in the Magistrates Court. The first trial date was vacated as a result of the appellant’s difficulties with legal representation but there is no record of any wish by the appellant to elect for trial in a superior court at any time thereafter. The appellant had ample opportunity to make that election if in fact that was his wish and there is nothing to suggest that his failure to make that election is the result of any delay by the prosecution in the provision of the summary of evidence to him.
A Magistrate has the power to stay criminal proceedings if they are an abuse of the process of the Court or to prevent injustice to an accused. However, in this case it would appear that much of the delay was the result of the difficulties the appellant had with respect to legal representation. The appellant may have been disadvantaged to some extent by the change in his legal representation from time to time, but that is insufficient to enliven the power of the Court to stay the proceedings.
At the end of the day this was a relatively straightforward matter. The issue came down to resolving a conflict in evidence between Mr Webb and the appellant. The appellant gave evidence as to what occurred at the relevant time but unfortunately for him, he was disbelieved by the Magistrate. The Magistrate was in the best position to resolve issues of credibility. As a result of being satisfied that Mr Webb had told the truth, the Magistrate was able to find the charge against the appellant proved beyond reasonable doubt. The appellant has failed to establish any grounds which would require this Court to interfere with the decision reached by the learned Magistrate. The application for extension of time is refused and the appeal is dismissed.