Nugawela v Commonwealth Director of Public Prosecutions - [2024] WASC 495

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NUGAWELA -v- COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 495
CORAM:   HOWARD J
HEARD:   17 DECEMBER 2024
DELIVERED          :   17 DECEMBER 2024
PUBLISHED           :   20 DECEMBER 2024
FILE NO/S:   SJA 1086 of 2023
BETWEEN:   PATRICK ALLAN NUGAWELA
Appellant

AND

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE OLIVER
File Number            :   PE 22876 of 2018

Catchwords:

Criminal law - Single judge appeal - Where Magistrate adjourned a part heard trial - Where appellant did not appear at the adjourned trial - Where Magistrate proceeded pursuant to s 55 of the Criminal Procedure Act - Where it appeared there was doubt that the appellant received the adjournment notice - Where the appellant may have attempted to contact the prosecution and the Magistrates Court unbeknownst to them at the time of the adjourned trial - Where respondent conceded the appeal - Appeal allowed

Legislation:

Bankruptcy Act 1966 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms C E Moss

Solicitors:

Appellant	:	In Person
Respondent	:	Commonwealth Director Of Public Prosecutions

Case(s) referred to in decision(s):

Kaighin v The Queen (1991) WAR 390
Pallot v Harrison (1995) 14 WAR 427

HOWARD J:

(These reasons were delivered extemporaneously and have been lightly edited from the transcript.)

By prosecution notice dated 13 April 2018, the appellant was charged with an offence against s 54(1)(a) of the Bankruptcy Act 1966 (Cth).
On 11 September 2023, in the appellant’s absence, he was convicted of that charge.
The appellant commenced the current appeal by an appeal notice dated 9 October 2023.
By correspondence dated 9 December 2024, the respondent, after giving reasons, proposed that the appeal should be conceded.
On 16 December 2024, the respondent filed a minute of proposed orders to that effect. This Court was further assisted by submissions filed by the respondent on 16 December 2024.
When the matter came before the Court for the final hearing, the appellant was content for the respondent to concede the appeal but opposed the respondent’s proposed order for the matter to be sent back to the Magistrates Court for a rehearing.
By an affidavit made 16 December 2024 and filed 17 December 2024, the appellant effectively submits that it would not be appropriate for this Court to make an order under s 14(1)(e) of the Criminal Appeals Act 2004 (WA) on the basis that, in effect, this Court should either proceed to hear the whole of the appeal to seek to narrow the issues on any rehearing or that I should, pursuant to some power, dismiss the charge and acquit the appellant.
The respondent's submissions in reply rely on two Full Court decisions: Pallot v Harrison (1995) 14 WAR 427, and Kaighin v The Queen (1991) WAR 390, to the effect that it would be an appropriate order to send the matter back for rehearing.
The respondent properly submits that the appropriate order is that the matter ought to be remitted. In making that order, I am not endorsing any future decision to continue the prosecution against the appellant.
In all of the circumstances, I thought it appropriate to record why I considered the concession to be appropriately made and why the orders ought be made.
It is unimportant to the present matter to note that the trial from which this appeal was brought was the second trial of the charge. There had been a previous trial and a previous successful appeal made by the appellant.
The trial with which I am concerned commenced on 17 April 2023 and ran that day and the next.
When it resumed on 19 April 2023, the appellant was not present because of a medical condition which had developed the previous day in the Court, but after the conclusion of the day’s hearing.
The Magistrate adjourned the trial on 19 April 2023, to 11 September 2023 as a part-heard trial.
When the matter was called on 11 September 2023:
1.the appellant was not present;[1]
2.the prosecutor told the Magistrate that the prosecution had been in contact with the appellant by email in at least August 2023;[2]
3.the prosecution offered to show the Magistrate the emails which had been sent;[3]
4.the prosecutor sought for the matter to be dealt with under s 55 of the Criminal Procedure Act 2004 (WA);[4]
5.the Magistrate proceeded to hear and determine the charge in the absence of the appellant under s 55 of the Criminal Procedure Act;[5]
6.in doing so, the Magistrate did not hear any further evidence but had the prosecutor read a statement of the facts;[6]
7.the Magistrate took the facts read as proven;[7] and
8.proceeded to sentence the appellant.[8]
[1] ts 2 on 11 September 2023.
[2] ts 2 on 11 September 2023.
[3] ts 3 on 11 September 2023.
[4] ts 3 on 11 September 2023.
[5] ts 3 on 11 September 2023.
[6] ts 3 - 5 on 11 September 2023.
[7] ts 6 on 11 September 2023.
[8] ts 7 on 11 September 2023.
The appeal came before me for directions on 5 September and 25 November 2024.
Those directions hearings were principally taken up with discussing with the appellant his appeal grounds and submissions and, if they were to be persisted with, what evidence he may need to put before the Court. I note, as I apprehend it, that task has not yet been completed by the appellant.
However, at both of those directions hearings, the Court raised with the respondent whether the respondent had considered afresh the applicability of s 55 of the Criminal Procedure Act in circumstances where the trial had commenced (over at least 2 days) prior to the 'non‑attendance' of the appellant at what would have been the fourth day of trial on 11 September 2023.
Between the two directions hearings, this Court sought from the Magistrates Court the documents or notices relating to the adjournment on 19 April 2023 to 11 September 2023.
The notices were supplied by the Magistrates Court, and sent by this Court to the parties.
As said at paragraph 4 above, on 9 December 2024, counsel for the respondent set out that, on review, she considered that there may be additional grounds of appeal which had not yet been specifically identified or advanced by the appellant.
I do not need to recite them in detail, save to say that the respondent:
1.identified a doubt as to whether service of the adjournment order had been properly effected on the appellant; and
2.considered that, factually, there may be grounds for the appellant to contend that the conviction was a miscarriage of justice in that it appeared from the respondent's internal documents that the appellant may have attempted to contact the Magistrates Court and the respondent, and the respondent's 'cyber security protocols' had blocked that communication.
In relation to this second matter, the respondent submitted that both the Magistrates Court and the prosecutor on the day effectively proceeded on an incorrect basis: namely that the appellant had not attempted to contact the respondent or the Magistrates Court at a relevant time prior to 11 September 2023.
Taking those matters into account, I consider that it is entirely appropriate that the respondent, having reviewed the matter afresh, has sought to concede the appeal. And, in my view, the orders sought are appropriate and should be made.
Although it is not part of the concession made by the respondent, and it does not have to be decided by me now, I continue to have reservations that in the present circumstances the procedure under s 55 of the Criminal Procedure Act was available.
That is, there remains a serious question in my mind as to whether s 55 (with its unique procedure and consequences) is available where a trial is well underway and has been adjourned. That issue has not been argued and I have not considered it further.
During the hearing, I made certain observations to the respondent's counsel about matters that the respondent may take into account when deciding whether to re-prosecute the appellant.
However, consistently with the authorities, it appears to me that it would not be appropriate for me to do anything other than send the matter back to the Magistrates Court, constituted by a different magistrate for rehearing, and to leave the question of whether there should be any further prosecution to the independent prosecutor.
The respondent properly submitted that there may be power for me to uphold the appeal and not remit the matter. Accepting that possibility, where there was not a full trial below, it remains my view that would not be the preferable outcome.
I will make the following orders:
1.     that the appeal is upheld;
2.     the conviction is set aside;
3.     the matter is remitted to the Magistrates Court of Western Australia, to be constituted by a different magistrate; and
4.     there be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
20 DECEMBER 2024