Police v Pithang - [2015] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PITHANG
[2015] SASC 88
Judgment of The Honourable Justice Parker
11 June 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - INJUSTICE - PARTICULAR CASES - REFUSAL OF ADJOURNMENT
MAGISTRATES - HEARING - ADJOURNMENT AND REMAND - OTHER CASES
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GROUNDS FOR GRANTING OR REFUSING - OTHER MATTERS
Appeal against dismissal by the Magistrates Court of two counts of aggravated assault involving an offensive weapon and driving a motor vehicle knowing that the act was likely to cause harm to another and intending to cause such harm or being recklessly indifferent as to whether such harm was caused. The alleged victim of the second count was present at the trial and willing to give evidence. He was unable to give evidence in English but spoke a Chin language. Court staff had made several attempts to obtain an appropriate interpreter. The trial was adjourned once to allow for an interpreter to be obtained. When the trial resumed, court staff had not yet been able to find an interpreter for the day. However, an intepreter might possibly become available at a later date. The magistrate refused an application by the prosecution for an adjournment of the trial. After hearing counsel submissions, the magistrate dismissed the charges on the basis of the evidence given by two other witnesses.
Whether the magistrate erred in refusing to grant an adjournment of the trial.
Held (Parker J):
Appeal dismissed. Sections 68 and 69 of the Summary Procedure Act 1921 did not require the magistrate to grant the adjournment sought by the prosecution. The refusal of the adjournment did not result in a denial of justice. The magistrate did not err by exercising his discretion to refuse the adjournment.
Summary Procedure Act 1921 s 68, s 69; Criminal Law Consolidation Act 1935 s 20(3), s 29(3); Magistrates Court Rules 1992 (Criminal) Rule 8.00, Rule 8.02, Rule 8.08, referred to.
Sali v SPC Ltd & Anor (1993) 116 ALR 625; Police v Slater (2003) 86 SASR 189; Police v Long [2004] SASC 381; Police v M, M [2012] SASC 83, considered.

POLICE v PITHANG
[2015] SASC 88
Magistrates Appeal (Criminal):

PARKER J: This is an appeal against the dismissal by the Magistrates Court of two counts against Jo Shua Pithang. Count 1 alleged an aggravated assault involving an offensive weapon[1] while Count 2 alleged an offence of driving a motor vehicle knowing that the act was likely to cause harm to another and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.[2]
[1] Section 20(3) of the Criminal Law Consolidation Act 1935.
[2] Section 29(3) of the Criminal Law Consolidation Act 1935.
The ground of appeal is that the magistrate erred in refusing a request by the prosecution for an adjournment to enable the attendance of an interpreter to interpret the evidence of a prosecution witness, Adp Biak Uk. That is said to be contrary to the duty imposed by s 68 of the Summary Procedure Act 1921.
Background
The prosecution case was that during an altercation involving a number of people, Mr Pithang threatened a Biak Sang while armed with an iron bar and three knives. He drove off in his car and Mr Uk had to jump out of the way to evade harm.
A status hearing was held on 16 May 2014. The record of outcome on the court file includes a note that an interpreter in Burmese was required for the trial. Subsequent file notes record several attempts made by court staff to obtain a Burmese interpreter prior to commencement of the trial on 17 July 2014.
At trial, the prosecution sought to call three witnesses. They were:
1Mr Sang, the alleged victim of Count 1;
2Mr Uk, the alleged victim of Count 2; and
3Stephen Olive, a bystander who stated that he had witnessed the events of the day.
Mr Sang and Mr Olive gave evidence in English without an interpreter.
An interpreter in Burmese arranged by court staff was present at trial on 17 July 2014 for the purpose of enabling Mr Uk to give evidence. However, the interpreter could not translate the Chin language or dialect spoken by Mr Uk.
There is conflicting evidence as to what precisely occurred on 17 July 2014. The police prosecutor has deposed that after Mr Sang gave evidence he called Mr Uk to give evidence with the assistance of an interpreter. Soon after Mr Uk commenced his evidence in chief it was found that the interpreter could not interpret his evidence. Mr Uk was stood down and Mr Olive was then called to give evidence.
The defence counsel has deposed that Mr Uk was not called to give evidence on 17 July 2014 and did not commence his evidence in chief. That was because it had been discovered prior to the commencement of the trial that a suitable interpreter was not available for Mr Uk.
The transcript suggests that Mr Uk did not commence to give evidence on 17 July 2014. Regardless of which of the two competing versions of what occurred is correct, it is clear that Mr Uk was present at the trial on 17 July 2014 and willing to give evidence. He was unable to do so because of the lack of a suitable interpreter.
After Mr Olive completed his evidence the prosecution requested an adjournment on the basis that it would not be able to proceed any further until a Chin interpreter was present. The defence opposed the application, submitting that the matter had already been through the pre-trial process and the prosecution had had ample time to arrange through the court to have an appropriate interpreter present. After hearing the evidence of Mr Sang and Mr Olive, the matter was adjourned part-heard to 1 September 2014 to allow for an appropriate interpreter to be arranged.
The Magistrates Court record of outcome for 17 July 2014 includes a note that a Burmese-Miso Chin interpreter would be required on the next occasion. The court file records efforts by staff to obtain an interpreter for the resumption of the trial on 1 September 2014. Police prosecution staff did not themselves take any steps to locate an interpreter. It was assumed that court staff would make the necessary arrangements.
The police prosecutor has deposed that he was informed by the magistrate’s clerk shortly before the trial resumed on Monday 1 September 2014 that a facsimile message had been sent to Police Prosecutions on Thursday 28 August 2014 advising that, despite three attempts by court staff, it had not been possible to secure a suitable interpreter. He was not previously aware of this facsimile message. It was also not until the same morning that the defence was made aware of the difficulties in securing a suitable interpreter.
When the trial resumed, the prosecutor informed the magistrate that Mr Uk was present at the court and willing to give evidence if a suitable interpreter was available. The prosecutor then sought an adjournment which was refused by the magistrate following opposition by defence counsel. During a short adjournment the magistrate’s clerk informed the parties that a suitable interpreter may possibly become available on 10 October 2014 but further communications with the interpreter were required to confirm her availability.
The prosecutor then sought an adjournment of the trial with a mention date before 10 October 2014 to confirm the availability of the interpreter. The application was refused by the magistrate.
The prosecution closed its case and the defence elected not to call any evidence. Following submissions the magistrate delivered an ex tempore judgment dismissing both charges. The magistrate considered that there was “a huge diversion between the evidence” given by the only two witnesses, Mr Sang and Mr Olive. Mr Olive gave evidence that he saw a bit of pushing, shoving and yelling but did not see any weapons. His evidence was that at the end of the exchange the defendant simply got in his car and drove off.
The magistrate preferred the evidence of Mr Olive over that of Mr Sang as the alleged victim of Count 1 and found that it threw doubt on the prosecution case. After noting that there was no evidence from Mr Uk as the alleged victim of Count 2, the magistrate found that neither offence had been proved.
The appellant’s contentions
The appellant has submitted that ss 68 and 69 of the Summary Procedure Act 1921 required the court to hear the witnesses called by a complainant or by a defendant. The proposed prosecution witness, Mr Uk, was an alleged victim of a crime. He had attended court on both 17 July 2014 and 1 September 2014 and was ready to give evidence on both occasions if a suitable interpreter was present.
The appellant further submitted that Rule 8.08 of the Magistrates Court Rules 1992 (Criminal) contemplates the dismissal of a complaint or information by a magistrate so as to protect the integrity of the case flow management system. Rule 8.08 provides that where there is a time default or the conduct of a party is contrary to the objects stated in Rule 8.02 the court may dismiss the proceedings in order to protect the integrity of the case flow management system and so as to implement the requirement of the court that matters proceed at the time fixed for hearing notwithstanding that any injustice to the other party might have been avoided by an order for costs or some other order. Rule 8.02 refers to the objects of the case flow management system. Those objects may be briefly stated as promoting just determination of litigation in dealing with matters efficiently and in a timely fashion.
The appellant submitted that the circumstances of this case were not those contemplated by Rule 8.00. More significantly, the Rules could not be applied inconsistently with the mandatory obligations said to be placed upon the court by ss 68 and 69 of the Summary Procedure Act.
The appellant further submitted that, regardless of the preceding issues, the refusal of the adjournment was not appropriate. While an appellate court will be slow to interfere with the trial court’s discretion to refuse an adjournment, the appellant submitted that it should do so if the refusal will result in a denial of justice and the adjournment will not result in any injustice to another party.[3]
[3] Sali v SPC Ltd & Anor [1993] HCA 47 at [10]; (1993) 116 ALR 625 at 628 (Brennan, Deane and McHugh JJ); Police v Vuckic [2010] SASC 271 at [31].
The appellant also submitted that there is a public interest in the maintenance of prosecutions, particularly where the allegation is serious.[4] In that respect, the appellant noted that the penalty for an aggravated offence of assault was imprisonment for four years[5] and the penalty for the alleged offence of driving a motor vehicle knowing that the act was likely to cause harm to another and intending to cause such harm or being recklessly indifferent to such harm was imprisonment for five years.[6]
[4] Police v Slater [2003] SASC 284 at [31]; (2003) 86 SASR 189 at 194.
[5] Section 20(3) of the Criminal Law Consolidation Act 1935.
[6] Section 29(3) of the Criminal Law Consolidation Act 1935.
Consideration
Sections 68 and 69 of the Summary Procedure Act provide as follows:
68—Procedure on plea of not guilty
(1)If the defendant does not admit the truth of the complaint the court shall proceed to hear—
(a)the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and
(b)the defendant and his witnesses and any other evidence which he adduces in his defence; and
(c)any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character.
(2)Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.
(3)The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.
69—After hearing the parties court to convict or dismiss
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.
The appellant has referred to three judgments of this court in support of its contention that the refusal by the magistrate to grant an adjournment so as to allow a suitable interpreter to attend was contrary to ss 68 and 69 of the Summary Procedure Act.
In Police v Slater[7] Perry J held that a magistrate had erred in dismissing a complaint at a directions hearing without a plea having been entered. The magistrate should have allowed the prosecution the opportunity to produce the further material that it wished to call albeit that it had failed to comply with an earlier direction to do so. There is a public interest in the maintenance of prosecutions and in having serious charges dealt with and ventilated properly. That interest was not well served by the heavy handed application of case flow management principles. While Rule 8.08 of the Magistrates Court Rules authorised the court to dismiss proceedings where a party failed to comply with the case flow management system, the rule could not vary the procedure laid down in the Summary Procedure Act.
[7] [2003] SASC 284; (2003) 86 SASR 189.
In Police v Long[8] the charges had been laid 15 months before the trial date. There had been seven directions hearings and pre-trial conferences and the trial date had been set six months earlier. Due to a misunderstanding between police, forensic tests were not undertaken until soon before the trial. The prosecution did not open its case and sought an adjournment so as to allow the forensic test results to be provided to the defence. The defence did not oppose the adjournment.
[8] [2004] SASC 381.
The magistrate refused the adjournment, holding that it would be unfair to the witnesses if the trial was delayed and also unfair to the respondents if the trial proceeded without the forensic test results. The magistrate also said that he had concerns, albeit to a lesser degree, about the case management rules.
Besanko J held that there had been a failure to comply with ss 68 and 69 of the Summary Procedure Act. The substance of the complaints was not stated to the defendants and they were not asked to enter pleas to the charges. The prosecution had not been heard by the court in the sense referred to in ss 68(3) and 69. Besanko J also noted that in the circumstances it would have been open to the magistrate to refuse an adjournment.[9]
[9] Ibid at [27].
In Police v M, M[10] a magistrate had refused an adjournment that had been sought to enable a prosecution witness to attend so as to prove the provenance of closed circuit television footage. The magistrate indicated that he was “disinclined” to admit the footage in the absence of the witness. The magistrate then immediately dismissed the matter without giving the prosecutor the opportunity to make submissions or to lead such evidence as was then available.
[10] [2012] SASC 83.
White J held that the failure to allow the prosecutor an opportunity to lead such evidence as he had available and to make submissions was contrary to the mandatory procedures in ss 68 and 69 of the Summary Procedure Act.
It is clear from the text of ss 68 and 69, and confirmed by the authorities that I have discussed, that if a defendant pleads not guilty s 68(1) requires the court to hear the prosecution and defence and their respective witnesses. In addition, s 69(3) requires the court to consider the parties’ submissions. Section 69 directs that after the parties and their evidence have been heard, the Court must consider and determine the matter.[11] Those requirements are mandatory and prevail over the case flow management principles in Rule 8.08.
[11] Police v M, M [2012] SASC 83 at [14].
I consider the present case to be readily distinguishable from each of Police v Slater, Police v M, M and Police v Long. In each of those cases the charge had been dismissed without the court having heard any evidence or submissions (other than those relating to an adjournment). That was not what happened in this case.
The court heard the evidence of the prosecution witnesses Mr Sang and Mr Olive. The defence elected to call no evidence. The court also heard the prosecution and defence submissions. The magistrate then dismissed the charges and delivered ex tempore reasons. In that light I reject the appellant’s submission that his Honour had failed to comply with the duties imposed by ss 68 and 69.
If the construction of s 68 urged by the appellant was correct, a party would be entitled to an adjournment to enable it to call further witnesses regardless of the circumstances. There is nothing in the text of s 68 (or s 69) that suggests such a legislative intention. I also note that Besanko J indicated in Police v Long that if there had not been a failure to comply with ss 68 and 69 it would have been open to the magistrate to refuse an adjournment.[12]
[12] [2004] SASC 381 at [27].
Thus, the decisive question is whether the magistrate erred by refusing the adjournment. That requires consideration of the surrounding circumstances.
The prosecution simply assumed that the court registry staff would take all necessary steps to ensure the attendance of an appropriate interpreter. In my view, at the very least, the prosecution should have taken steps to ensure that all possible action was being taken by the registry staff to secure the attendance of a Chin interpreter. That was particularly important given that it had been necessary to adjourn the trial on 17 July 2014 because of the unavailability of an appropriate interpreter.
That earlier adjournment was a relevant consideration when a further adjournment was sought on essentially the same grounds. Moreover, the information provided to the court did no more than suggest that there was some possibility that if a further adjournment was to be granted an interpreter might become available. There was no certainty of availability.
I am not persuaded that the refusal of the adjournment has been shown to have resulted in a denial of justice. The magistrate heard all of the available prosecution evidence and preferred that given by the bystander, Mr Olive, to that of the other alleged victim, Mr Sang. I also accept, as the defendant’s counsel submitted, that the grant of the further adjournment may have also caused him some prejudice by delaying the resolution of the serious allegations he faced. There is a public interest in trials not being unduly delayed without sound reason.
Rule 8.08 of the Magistrates Court Rules 1992 (Criminal) is not directly relevant to this matter. That is because the Rule refers to the dismissal of proceedings whereas this case was resolved by a not guilty finding after a trial. Nevertheless, the case flow management principles enshrined in Rule 8.00 give some support to the exercise by the magistrate of his discretion to refuse the adjournment.
While there is clearly a public interest in the maintenance of prosecutions, particularly where the allegation is serious, the several matters to which I have referred were countervailing considerations in the particular circumstances. Thus, I am not satisfied that the magistrate erred in refusing the adjournment. Moreover, as the appellant correctly conceded, an appellate court should be slow to set aside an exercise of the discretion to refuse an adjournment.

The problems that have arisen in this case highlight the need to identify with precision the language spoken by a proposed witness before arrangements are made to secure an interpreter. The generic description “Burmese” was apparently an accurate description of the national origins of Mr Uk but it did not serve to identify the language that he spoke.
Conclusion
Sections 68 and 69 of the Summary Procedure Act did not require the magistrate to grant the adjournment sought by the prosecution. The magistrate did not err by exercising his discretion to refuse the adjournment. For these reasons I have dismissed the appeal