NORMAN v Police
[2005] SASC 12
•21 January 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NORMAN v POLICE
Judgment of The Honourable Justice Anderson
21 January 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE
Appeal against conviction for carrying an offensive weapon contrary to s15(1)(a) of the Summary Offences Act 1953 - appellant was unrepresented before the Magistrate, although he had been represented at earlier stages - appellant was not formally notified of the trial date due to a clerical error - the prosecution did not notify the appellant of the evidence they intented to call - portion of trial before Magistrate taped but not transcribed - tape produced and listened to by Judge and counsel - tape illustrates considerable confusion on part of appellant as to the nature of the proceedings - appellant did not give evidence or present a defence, although he told the Magistrate what his defence was - the consequences of failing to give evidence to present a defence were not explained to him - Magistrate did not offer the appellant an adjournment to seek legal representation - held: in the circumstances there was a miscarriage of justice - appeal allowed.
Summary Offences Act 1953 (SA) s15(1)(a), referred to.
Dietrich v The Queen (1992) 177 CLR 292, applied.
Platcher v Joseph [2004] FCAFC 68, discussed.
NORMAN v POLICE
[2005] SASC 12Magistrates Appeal
ANDERSON J This is an appeal from a decision of a Magistrate who convicted the appellant for carrying an offensive weapon contrary to s15(1)(a) of the Summary Offences Act 1953 (SA). The appellant was sentenced to imprisonment for one month.
For this particular matter, there was a long history of various attendances before different Magistrates when the appellant was represented by counsel. On the occasion in question he was not represented.
It is common ground that the appellant, who was in custody when brought to the court, was not sent the notice of the hearing due to a clerical mistake. He did however have some knowledge of the hearing date from a previous hearing, but he was not formally notified by the Registrar. The prosecution did not notify him of what evidence they intended to call. The appellant therefore says it was somewhat of a surprise to be taken from prison to the court and then dealt with by the Magistrate without any real idea of what was happening.
The transcript of the proceedings before the learned Magistrate shows that the matter proceeded with the police prosecutor calling evidence from several witnesses. The appellant did not cross-examine the witnesses who were called, and at the end of the prosecution case there was a discussion as to what should then happen.
I was informed that, although not transcribed, there was a tape of the discussion which took place between the learned Magistrate and the appellant. The tape was produced and I listened to it with both counsel. It became an exhibit in the appeal, although neither counsel required me to ask for the tape to be transcribed.
It is fair to say that there is considerable confusion illustrated by the tape recording in the way in which the appellant answers the Magistrate at different times. It seemed to me at one stage that the appellant was not clear as to whether he was actually being dealt with in relation to the charge in question, or whether this was something to do with the fact that he had breached parole, or again whether it might also be something to do with the Drug Court, with which he was also involved.
Having regard to all that I heard on the tape, I do not believe that the appellant was able to properly comprehend that he had to give evidence in relation to the defence which he wanted to run. He told the Magistrate what his defence was, but then when the Magistrate asked him whether he wanted to give evidence about it, he said no. He did not have the consequences of his failure to give evidence explained to him.
The principles relating to the extent to which a trial Judge should give assistance to an unrepresented litigant are conveniently summarised in the Full Federal Court decision of Platcher v Joseph [2004] FCAFC 68 at paragraph 104. Although this statement relates to civil proceedings, the comments are relevant, in my view, to an even greater degree in a criminal proceeding where imprisonment is a likely result.
There was a discussion between the Magistrate and the appellant at some stage about legal representation, and as to the fact that Mr Mancini had previously represented him. However, after this discussion, the Magistrate did not offer the appellant an adjournment to seek legal advice or ask him whether he wished to have an adjournment to seek legal advice. I believe in the circumstances he should have. It seems that the appellant was wanting to put forward a defence but did not know technically how to do it.
The appellant’s points are therefore:
1The appellant was not given any formal notice of the trial;
2He was not given any notice of the evidence to be led against him;
3He did not have, or was not given the opportunity of considering whether to obtain legal representation;
4He did not take any active part in the trial process;
5From hearing the tape, he was clearly confused as to what was going on; and
6He did not understand the significance of the need to give evidence to present his defence.
The question remains, therefore, whether as a result of some or any of the above factors, there has been a miscarriage of justice. The Magistrate was placed in an unenviable position, because on the one hand the appellant was appearing to want to get on with the matter and have it finalised, but on the other hand, in my view, it seems likely that he needed assistance to present his defence which he attempted to outline to the Magistrate. He did not understand at all the need for him to get into the witness box and give evidence of his defence, and this was not explained to him sufficiently.
It is my view that there was always a risk that prejudice could result if the matter proceeded with the defendant unrepresented. Given that the defendant had no formal notice of the hearing and was brought up from custody, and given that on the previous occasions he had been before the court, with only one exception, he had been represented, the Magistrate could have and should have explained things more fully.
With respect, the words of Brennan J in Dietrich v The Queen (1992) 177 CLR 292 at 325 summarise the situation. His Honour said:
“The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair. And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice.”
It is my view that the defendant has been unable to present a defence, and that in the circumstances there is a miscarriage of justice.
Therefore the appeal should be allowed, and the matter should be remitted for retrial before another Magistrate.
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