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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Pithang

Details

AGLC: Police v Pithang [2015] SASC 88
Case: [2015] SASC 88
Decision Date: 11 June 2015

CaseChat Overview and Summary

In the matter of Police v Pithang, the appellant, the Police, brought an appeal against the decision of the Magistrates Court of South Australia, which had dismissed their application for an adjournment. The police sought the adjournment to allow for the attendance of an interpreter for a witness, Adp Biak Uk, who was unable to give evidence due to a language barrier. The central issue was whether the magistrate erred in refusing the adjournment and whether such a refusal contravened the duties imposed by sections 68 and 69 of the Summary Procedure Act 1921. These sections pertain to the procedure on a plea of not guilty and the court’s duty to hear and determine the matter after hearing the parties and their evidence.

The court considered the statutory provisions and the relevant authorities to determine if the magistrate's discretion was exercised wrongly. It examined whether the refusal to adjourn amounted to an injustice, particularly in light of the public interest in the maintenance and proper handling of serious charges. The court also noted the conflicting accounts regarding whether the witness had commenced giving evidence before the interpreter issue was discovered. Ultimately, the court concluded that the magistrate did not err in exercising his discretion to refuse the adjournment. The statutory provisions did not mandate the granting of the adjournment, and the refusal did not result in an injustice. Therefore, the appeal was dismissed.

The reasoning of the court hinged on the interpretation of sections 68 and 69 of the Summary Procedure Act, which outline the procedure for hearing complaints and the court's duty to hear and determine the matter. The court held that these sections did not compel the magistrate to grant an adjournment in these circumstances. Furthermore, the court found that the refusal to adjourn did not result in an injustice, especially given the magistrate's prior efforts to ensure the presence of an appropriate interpreter and the availability of alternative measures to proceed with the trial.

Orders

Orders of the court

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Background

Background to the litigation

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; and3Stephen 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 dismissWhen 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.