Nunn v Delaney
[2002] TASSC 25
•10 May 2002
[2002] TASSC 25
CITATION: Nunn v Delaney [2002] TASSC 25
PARTIES: NUNN, Adrian
v
DELANEY, Paul Lesley
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 99/2001
DELIVERED ON: 10 May 2002
DELIVERED AT: Hobart
HEARING DATES: 24 April 2002
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates - Procedure - The hearing - Adjournment and remand - Absence of material witness.
Aust Dig Magistrates [115]
REPRESENTATION:
Counsel:
Applicant: F C Neasey
Respondent: T D Cox
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2002] TASSC 25
Number of Paragraphs: 14
Serial No 25/2002
File No LCA 99/2001
ADRIAN NUNN v PAUL LESLEY DELANEY
REASONS FOR JUDGMENT BLOW J
10 May 2002
The applicant is aggrieved by a decision of a magistrate to refuse an adjournment. He is a police prosecutor. He charged the respondent with driving a motor vehicle with a blood alcohol concentration exceeding 0.05 grams per 100 millilitres, namely 0.184 grams per 100 millilitres, and with driving while being the holder of a provisional licence with alcohol present in his body. The complaint was listed before the learned magistrate for the first time on 14 June 2001. The respondent appeared, and the matter was adjourned without plea. On 15 August 2001, in the absence of the respondent, pleas of not guilty were entered through counsel, and the matter adjourned to 26 November 2001 for hearing. On that day another prosecutor applied unsuccessfully for an adjournment, and the learned magistrate dismissed the complaint.
That prosecutor sought an adjournment because two police witnesses were absent. He told the learned magistrate that one of them, who was not a crucial witness, could not attend because "he had an abscess on the weekend". He said the other witness was a crucial witness, that a witness summons requiring his attendance had been issued, and that he did not know whether that summons had been served. He said:
"I know that he transferred up from the country some time ago, your Worship, and I don't [sic] whether the summons got redirected to the wrong spot, or whether he got served and forgot about it in moving ¾ I've got no substantial explanation for his non attendance in court, your Worship."
After the learned magistrate had stood the matter down to enable that prosecutor to make enquiries, he informed the court that the witness summons had been issued when the missing officer was stationed at Geeveston; that that officer had subsequently been transferred to Hobart, and from Hobart to Bellerive; that he was currently on annual leave; that his telephone at home was ringing out; and that his mobile phone was disconnected.
Before the matter was stood down, the respondent's counsel had opposed the adjournment, informing the learned magistrate that the respondent was ready; that his witness was present; that both were employed and missing days off work; and that an insurance company was refusing to meet a claim in respect of damage to the respondent's vehicle, pending the determination of the proceedings.
The learned magistrate noted the nature of the charges, noted that there had been an interval of three months between the plea and the hearing, and expressed the view that there was no excuse for the failure of the witness to attend. She took into account the fact that an adjournment on that day, 26 November, would have resulted in the hearing being listed in the new year. She said it was simply not reasonable and fair for the respondent to be required to come back again then.
Mr Neasey submitted that the learned magistrate erred in failing to consider the provisions of the Justices Act 1959, s77(7), which empowered her to order the applicant to pay the respondent the costs of, or occasioned by, an adjournment. It is true that the learned magistrate did not refer to that subsection or the question of costs at all. If the learned magistrate had granted an adjournment and made an order for costs, that order could have covered the respondent's legal costs thrown away as a result of the adjournment, and any expenses incurred by him in relation to the attendance of his witness, such as the reimbursement of lost wages. However such an order for costs would not have covered any wages lost by the respondent, nor could it have had any impact on the refusal of the respondent's insurer to pay for the repairs for his vehicle pending the determination of the proceedings. It is true that there was no suggestion that an adjournment would prejudice the respondent's chances of a fair trial. However an adjournment was likely to cause prejudice by prolonging the delay in processing the insurance claim, and by requiring the respondent, in all probability, to take another day off work for the adjourned hearing. Mr Neasey submitted that the failure of the learned magistrate to advert to the costs power under s77(7) was an error of law that vitiated the exercise of her discretion. However I am not persuaded that the learned magistrate misunderstood the extent of her powers or failed to take into account a relevant consideration in this regard. One must, I think, take into account the fact that she was exercising summary jurisdiction, and could not reasonably be expected to deliver a pedantically thorough decision detailing every relevant consideration, however minor.
In substance the other grounds relied upon by the applicant assert that refusing the adjournment was unjust and unreasonable, and in particular that the learned magistrate did not give sufficient weight to the public interest in bringing drink-driving offenders to justice.
The decision to grant or refuse an adjournment is a discretionary one. The principles applicable to appeals from discretionary decisions are well known. They were well summarised by Kitto J in Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627, as follows:
"… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936)55 CLR 499, at pp 504, 505."
There is no suggestion that the learned magistrate made any mistake as to the facts, nor that she acted in accordance with a wrong principle, nor that she took into account any irrelevant matters.
The Court of Appeal of New South Wales considered an application for prerogative relief in relation to the refusal of an adjournment in Cucu v District Court of New South Wales (1994) 73 A Crim R 240. Kirby P, with whom Meagher and Sheller JJA agreed, said at 246:
"It is rare that a court such as this ¾ either in appeal or in judicial review ¾ will disturb the decision to grant or refuse an adjournment. This is because such decisions are essentially discretionary in character. They are made, as necessity requires, quickly and as the justice of the application strikes the decision-maker. The reasons for not disturbing such decisions are too well known to require lengthy elaboration: see, eg Sali v SPC Ltd (1993) 67 ALJR 841 at 848-849; Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 250; Adamopoulos [v Olympic Airways SA (1991) 25 NSWLR 75] (at 77); GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 712."
At 249, Meagher JA commented that in his view "a trial judge's decision to grant or refuse an adjournment ought to be almost inviolable".
There were a number of factors that weighed in favour of the learned magistrate granting an adjournment. There was the public interest in bringing drink-driving offenders to justice. The case had not been listed for hearing before. There was no reason to think that an adjournment would prejudice the chances of a fair trial. It was not positively established that the witness summons had not been served. However, despite those factors, I believe it was reasonably open to the learned magistrate to refuse an adjournment. She was entitled to take into account the fact that there was no reasonable explanation for the missing constable's absence, and the fact that an adjournment would result in some prejudice to the respondent.
I understand that, when a police officer is needed to give evidence for the prosecution in a court of petty sessions, it is usual for a witness summons to be issued and served on that officer in accordance with the Justices Act, s41. In my view, whenever a case is proceeding to a hearing, a prosecutor should check a reasonable time before the hearing date to ensure that all necessary witness summonses have been served. If one has not been served, or if there is no record of one having been served, that prosecutor should make enquiries and ensure that the summons is served and that the witness is available to attend court on the hearing date. Evidently little or nothing was done prior to the magistrate sitting on the day in question to establish whether the critical police witness had been served and was available. In those circumstances, I think the learned magistrate was entitled to give significant weight to the unreadiness of the prosecutor. I do not think that she gave undue weight to that factor, nor insufficient weight to the public interest factor, nor that her decision was unjust or unreasonable.
The motion is dismissed.
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