Police v Vuckic
[2010] SASC 271
•31 August 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v VUCKIC
[2010] SASC 271
Judgment of The Honourable Justice Duggan
31 August 2010
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GROUNDS FOR GRANTING OR REFUSING - ABSENCE OF MATERIAL WITNESS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - CONTROL OVER PROCEEDINGS - REFUSAL OF ADJOURNMENT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - ADJOURNMENT AND REMAND - ABSENCE OF MATERIAL WITNESS
Appeal against decision of Magistrate to refuse adjournment - appellant failed to arrange for essential witness to attend at trial - Magistrate refused to grant adjournment so that witness could be called - whether Magistrate erred in refusing adjournment.
Held: Appeal allowed - no prejudice flowing to respondent from adjournment - costs adequate compensation for inconvenience - public interest in pursuing the prosecution - matter remitted to Magistrates Court for further hearing.
Road Traffic Act 1961 (SA) s 47GA, s 47K(1ab), referred to.
James v Williams; Ex parte James [1967] Qd R 496; Sali v SPC Ltd & Anor (1993) 116 ALR 625, applied.
POLICE v VUCKIC
[2010] SASC 271Magistrates Appeal: Criminal
DUGGAN J: The issue in this appeal is whether the Magistrate who presided at the summary hearing wrongly exercised his discretion by refusing to allow the matter to be adjourned so that an essential prosecution witness could be called to give evidence.
The respondent was charged on a complaint alleging that he drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol. The respondent was also charged with driving a motor vehicle without due care and failing to give his name and address and the registration number of his vehicle to the owner of the vehicle with which he collided. The alleged offences arose out of the same incident which occurred on 9 December 2008.
The respondent was required to submit to a blood analysis test which recorded an alcohol concentration of .309 grams per 100 millilitres of blood.
Due to the time which lapsed between the accident and the breath analysis the presumption found in s 47K(1ab) of the Road Traffic Act 1961 (SA) (“the Road Traffic Act”) was inapplicable. In turn, it was necessary for the prosecution to prove the respondent’s blood alcohol concentration at the time of driving by other means. Both the prosecution and the respondent had previously obtained reports from an expert, Mr Lokan, in relation to the calculation of the respondent’s blood alcohol concentration at the time of driving. In order for the charge of driving with a prescribed concentration of alcohol to be proved at trial, it was necessary for Mr Lokan to be called as a witness and give evidence of back calculation. This would allow the prosecution to prove the respondent’s blood alcohol level at the time of the accident.
Due to an oversight by the police prosecutor, Mr Lokan was not advised that he was required to give evidence and did not attend Court on the day of the trial. When the prosecutor realised the oversight, an adjournment was sought so that the witness could be called. The Magistrate refused to grant the adjournment and then upheld the respondent’s application for a finding of no case to answer on the blood alcohol charge. The respondent pleaded guilty to the remaining two counts in the complaint.
The appellant contends that the Magistrate erred in the exercise of his discretion by refusing to adjourn the matter so that Mr Lokan could give evidence.
The reason for refusing the adjournment appears from the following remarks of the Magistrate:
I accept that there will be considerable prejudice for Mr Vuckic [the respondent] if I now adjourn to allow Mr Lokan to be called based on the case that he was called upon to answer according to the opening, I would be altering those circumstances completely.
I consider that in the circumstances it is inappropriate that I grant the application and on that basis I decline the application for adjournment.[1]
[1] Transcript of proceedings, R v Vuckic (Magistrates Court of South Australia, 1 June 2010) 44.
In order to determine whether this ruling was a proper exercise of the Court’s discretion it is necessary to consider in more detail the history of the matter.
It is alleged that the offence was committed on 9 December 2008. The complaint is dated 27 January 2009. The matter was first listed on 8 April 2009 when it was adjourned to a pre-trial conference to be held on 19 June 2009.
On 21 July 2009 Senior Constable Begg of the Holden Hill Criminal Justice Section wrote to Mr Twiggs, who was representing the respondent, advising that she had conduct of the matter and enclosing various documents relating to it. Constable Begg wrote to Mr Twiggs again on 9 August 2009 enclosing witness statements and other documents relevant to the prosecution. She stated that she was still waiting for back calculation results.
At a further pre-trial conference held on 21 August 2009 the following notation was made on the file:
Pros awaiting report relating to count back. Report to be provided to deft prior to next PTC.
On 6 October 2009 Senior Constable Begg wrote to Mr Twiggs and provided him with a copy of a report prepared by Mr Lokan on 24 August 2009. Mr Lokan stated in the report that he understood the drinking history of the respondent was unknown but that no alcohol was consumed after the accident. He noted that the blood alcohol reading was .309 per cent. He said that if the accident occurred immediately after the respondent finished drinking it was highly unlikely that the blood alcohol concentration at the time of the accident would have been less than .22 per cent. He stated that if the accident occurred one or two hours after drinking had finished it was highly unlikely that the respondent’s blood alcohol concentration at the time of the accident would have been less than .32 per cent.
There was a further pre-trial conference on 6 November 2009 which was adjourned to allow Mr Twiggs to consider Mr Lokan’s report. At a pre-trial conference held on 7 December 2009 Mr Twiggs advised that he was going to request a further report from Mr Lokan.
Mr Twiggs received the second report of Mr Lokan on 5 January 2010. Mr Lokan stated in the report that he took into account for the purposes of his calculations the assertion that the respondent had two whiskey glasses of cherry brandy after the accident. Mr Lokan estimated the blood alcohol level at the time of the accident based upon alternative assumptions as to the time at which the pre-accident drinking commenced. He set out his conclusions in the report.
At a pre-trial conference on 22 February 2010 it was noted that Mr Twiggs would provide the prosecution with of a copy of Mr Lokan’s second report. The report was sent to the prosecution section on 16 March 2010.
On 9 April 2010 Senior Constable Begg wrote to Mr Twiggs as follows:
I have two report [sic] of LOKAN on my file. One from the police and one from you taking into consideration different factors. As your client did not comply with legislation requirements to provide his name and address to any other party involved in a collision he cannot allege post accident drinking. Therefore the BA test result is to be relied upon.
As such Police will be alleging a test result of 0.309g/210 breath.
Please advise whether this matter will resolve on the next occasion.
In my view the letter does not suggest that Mr Lokan would no longer be required to give evidence. Section 47GA of the Road Traffic Act enables a defendant who has satisfied the Court of certain preconditions to put post driving drinking in issue. Where the defendant has been involved in an accident a precondition is the fulfilment of certain duties required by the Road Traffic Act. Hence the reference in the letter to the defendant not providing his name and address to the other party. However, the letter does not suggest that the prosecution had no need to call Mr Lokan to relate the blood analysis evidence back to the time of driving.
At a hearing held on 13 April 2010 the matter was listed for trial to take place on 1 June 2010.
Senior Constable Handley of the Criminal Justice Section assumed conduct of the matter on 13 April 2010. He was advised that as the blood alcohol test took place approximately two hours and twenty minutes after the accident the prosecution would be unable to rely on the provision in the Road Traffic Act which allows the prosecution to rely on a conclusive presumption as to the blood alcohol level at the time of driving.
Senior Constable Handley stated in an affidavit dated 30 July 2010 that he rang Mr Lokan on 17 May 2010 to advise that the matter was listed for trial and that Mr Lokan would be required as a witness. He said Mr Lokan was not at his place of work and a message was left for him to return the call. Apparently the call was not returned and Senior Constable Handley did not look at the file again until 31 May 2010. He forgot to telephone Mr Lokan again to arrange his attendance at the trial. He cited pressure of work as the reason for this oversight.
Senior Constable Handley referred in his affidavit to his preparation for the hearing and said:
On the morning of Tuesday 1 June 2010, before my attendance at the trial, I commenced preparation for the opening address for the Prosecution case. Due to the heavy work load, I based my opening on an old opening for a prior PCA prosecution. However that opening did not address the issue of a back calculation because it was not an issue in that case. Consequently, I forgot that the Prosecution was not entitled to rely on certificate evidence to establish a presumption of excessive blood alcohol content for the PCA office. The preparation of the opening address did not remind me that I required Mr Lokan to give evidence to provide the blood alcohol content at the time of driving. I did not properly complete my opening address prior to attending trial.
Senior Constable Handley said he did not refer to Mr Lokan in his opening address as he had overlooked the expert’s role in the case. He said it was only at the morning break that he realised his oversight and that Mr Lokan would be required to give evidence of his back calculations.
He immediately telephoned the Forensic Science Centre but was advised that Mr Lokan had retired. He then contacted Mr Lokan at his home address. Mr Lokan said he would be able to attend Court at 2:15 pm the following day. Senior Constable Handley then applied for an adjournment which was refused. He was left with no option but to close the prosecution case. The Magistrate then upheld a submission of no case to answer.
The workload of the Magistrates Court is a factor which should not be overlooked. The pressures which it places on the Magistrates and those who appear before them are self evident. It is annoying to adjourn a matter which should have been ready for trial.
However, it is relevant to note that the adjournment in this case was not refused for reasons associated with case flow management. The stated reason for the refusal was that an adjournment would result in considerable prejudice to the respondent in that he would be called upon to answer a case which was different from that which was opened upon.
The opening was not transcribed, but it is difficult to see how it could have caused prejudice to the respondent. The prosecutor said nothing about Mr Lokan or the relevance of back calculations in his opening. If he did not call such evidence it is clear that the case would fail, as indeed it did. It is not as though the prosecutor opened on a path to conviction which did not require Mr Lokan’s evidence.
In the course of his comprehensive argument on behalf of the respondent Mr Anders was unable to identify any part of the defence case up to the time of the application for adjournment which would have been conducted differently if the prosecutor had opened on the expert evidence.
Furthermore, it could not be said that there was any element of surprise in the evidence which Mr Lokan would have given. The issue which he was to address was obvious and had been the subject of reports requested by both the prosecution and the defence. It was an issue which had received prominence in the discussions which took place at pre-trial conferences. There would have been no prejudice of such a nature as to cause unfairness in the trial process if his evidence had been given at an adjourned hearing.
Of course there was the potential inconvenience to the Court and the respondent if the adjournment had been granted. But this could have been compensated by an order for costs.[2]
[2] James v Williams; Ex parte James [1967] Qd R 496 at 501.
The difficulty appears to have resulted from an oversight on the part of the prosecutor. He took steps to rectify the situation as soon as he realised his mistake. Even if the Court could not sit on the matter on the following day, there is no reason to think that the witness would not be able to give evidence at some time in the near future.
There is also the public interest which should have been taken into account in deciding whether to grant an adjournment in the present circumstances. It was alleged that the respondent drove his vehicle at a time when there was a high concentration of alcohol in his blood and that he collided with a parked car while doing so. There is an obvious public interest in pursing the prosecution if this will not involve prejudice to the respondent at the trial. In Sali v SPC Ltd & Anor,[3] Brennan, Deane and McHugh JJ said:
In Maxwell v Keun,[4] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions.[5] Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.[6]
[3] (1993) 116 ALR 625 at 628.
[4] [1928] 1 KB 645 at 650, 657, 658.
[5] See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Block (1981) 55 ALJR 701, at 703; 37 ALR 55, at 58-9.
[6] Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.
It is apparent from the reasons for decision of the Magistrate that he based his decision on perceived prejudice to the respondent’s case. However, for the reasons which I have given, there was no such prejudice.
The appeal will be allowed and the matter remitted to the Magistrates Court for further hearing.
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