Przibilla v Police
[2012] SASC 107
•29 June 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PRZIBILLA v POLICE
[2012] SASC 107
Judgment of The Honourable Justice White
29 June 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - INDIGENT PERSON
The appellant was convicted and sentenced by a Magistrate for the commission of two offences of aggravated assault causing harm and one offence of unlawful damage.
Whether the Magistrate erred by failing to ensure the appellant was advised of, and understood, his right to elect for trial in a superior court and of his entitlement to trial by jury - whether the Magistrate erred by allowing the trial to proceed while the appellant was unrepresented - whether the Magistrate gave insufficient assistance to the unrepresented accused such that a miscarriage of justice had occurred.
Held (allowing the appeal): the fact that the appellant was not given the form for election for trial in a superior court did not cause a miscarriage of justice; and the Magistrate did not err in allowing the trial to proceed while the appellant was unrepresented - however, the Magistrate provided insufficient assistance to the appellant and a miscarriage of justice has occurred.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 20(4), s 85(3), s 170(1); Summary Procedure Act 1921 (SA) s 103; Criminal Law (Legal Representation) Act 2001 (SA); Magistrates Court Rules 1992 (SA) r 21, referred to.
Dietrich v The Queen (1992) 177 CLR 292, discussed.
Weinel v Fedcheshen (1995) 65 SASR 156; Begg v Police [2005] SASC 131; MacPherson v The Queen (1981) 147 CLR 512; Pezos v Police (2005) 94 SASR 154; R v Rostom (2007) 98 SASR 528, considered.
PRZIBILLA v POLICE
[2012] SASC 107Magistrates Appeal
WHITE J: The appellant and a co‑accused were convicted by a Magistrate of two offences of aggravated assault causing harm[1] and one offence of unlawful damage.[2] The Magistrate imposed on the appellant a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of imprisonment for 15 months, and fixed a non‑parole period of nine months, commencing on 23 November 2011.
[1] Criminal Law Consolidation Act 1935 (SA) s 20(4) – maximum penalty 4 years imprisonment.
[2] Criminal Law Consolidation Act 1935 (SA) s 85(3) – maximum penalty 2 years imprisonment as the damage alleged did not exceed $2,500..
The appellant, who was unrepresented at the trial, appeals against both the convictions and the sentence. He seeks substantial extensions of time in which to do so.
The precise date on which the Magistrate formally found the appellant and his co‑accused guilty is not entirely clear but seems to have been on 19 August 2011. The Magistrate had earlier published her reasons by faxing them to the parties on 30 June 2011. The Magistrate sentenced the appellant on 23 November 2011. The appellant did not commence his appeal in this Court until 8 March 2012, well outside the 21 day limitation period for appeals against convictions and sentences. I consider it appropriate to consider first the substantive issues in the appeal before turning to the application for an extension of time.
The prosecution case
The prosecution case was that on the evening of 13 March 2009, the appellant and two others, Mr Allen and Mr Anesbury (the three accused), had gone to the home of Mr W, the first victim. The second victim, Mr C, was also present. Mr W knew the three accused and, earlier in the evening, had sent a text to the appellant inviting him to come to his home for a drink.
The three accused arrived at Mr W’s house at about 11 pm. Mr W opened the door to the appellant’s knock. Thereupon, the appellant pushed the door open and he and Mr Allen embarked upon a sustained violent assault on Mr W, initially by punching and kicking him. When Mr C intervened, he was assaulted as well.
At one stage, Mr W’s head was forced through the panel of a toilet wall, and other damage was done to the internal and external walls of the toilet. While in the toilet, either the appellant or Mr Allen dragged Mr W along the floor and rammed his head two or three times into the toilet bowl. Later, the appellant took up a kitchen chair and, until restrained by Mr Anesbury, threatened to strike Mr W with it.
During the assault, the appellant head-butted Mr C, grabbed him by the throat, and punched him three or four times. Again, Mr C was spared further assault by the intervention of Mr Anesbury.
In addition to the damage to the toilet wall, a glass cabinet in the hallway was smashed.
Mr W suffered significant injuries in the assaults, including fractured and loosened teeth, severe facial bruising, substantial abrasions and a facial laceration. He has required extensive dental treatment. Mr C was less severely injured, suffering a black eye and a fractured tooth.
The three accused were charged with the assault on Mr W and with the offence of unlawful damage. The appellant and Mr Allen were charged with assault on Mr C.
The Magistrate’s findings
Mr W gave evidence to the effect that Mr Anesbury was part of the concerted attack on him and Mr C. However, other evidence contradicted that. In particular, several of the witnesses said that Mr Anesbury had entered the house some time after the appellant and Mr Allen. There was also evidence that Mr Anesbury had played a placatory role, and both Mr W and Mr C said that he had intervened at different times to dissuade the appellant and Mr Allen from further attacks. In the light of this evidence, the Magistrate was not satisfied that the charges against Mr Anesbury had been established beyond reasonable doubt and acquitted him of both.
The appellant and Mr Allen gave evidence at the trial which was generally to the effect that Mr W had been the aggressor, and that they had been the victims of assaults at his hands. Their claim was that in general, their conduct had been of a defensive kind.
The Magistrate found that both the appellant and Mr Allen were intoxicated at the time of the assaults, Mr Allen grossly so. It seems that Mr W and Mr C must also have been intoxicated to some extent.
The Magistrate regarded much of the appellant’s and Mr Allen’s evidence as “incredible”, “astounding”, “ludicrous”, “farcical” and “unbelievable”. She also had reservations about the reliability of Mr W’s evidence, concluding that he was prepared to create evidence to fill in gaps or, alternatively, prepared to change his evidence depending on his mood or reaction to the counsel cross-examining him.
The Magistrate was unable to make any finding as to the motive for the assaults. All of the participants, apart from Mr Anesbury, gave evidence at the trial. The Magistrate considered that none of them had provided a plausible explanation for the events which had occurred and said that she was not convinced that they had been candid and truthful on the topic.
However, despite the Magistrate’s reservations about Mr W’s evidence, she was satisfied that the prosecution had proved the charges. The photographic and video evidence tendered at trial suggested strongly that a violent assault had occurred in the house. In addition, the Magistrate seems to have regarded Mr C’s evidence as more reliable.
The Magistrate’s conclusions appear in the following passages:
[73]… I reject as ludicrous the defendants’ suggestion that [Mr W] would spontaneously lose control and before any conversation lash out as soon as the front door was open and embroil himself in a fight in close proximity to his sleeping sons.
...
[75]I reject Przibilla’s claim that he did not strike [Mr W and Mr C]. I reject Przibilla’s claim that he may have knocked furniture, pushed a chair over and pushed furniture aside in an attempt to restrain Allen. I reject Przibilla’s claim that furniture and items may have been moved or fallen because it was difficult to restrain Allen because he only had a small confined area to move in. Przibilla’s assertion that he was a peacemaker was ludicrous.
[76]Przibilla and Allen created an unbelievable version of events to defend the charges against them. I reject their assertion that [Mr W] was the aggressor and they were called upon to defend themselves. I accept that [Mr W] was babysitting his sons who were asleep in the room adjoining and reject the assertion that [he] initiated a fight to [the] two men. A comparison of the injuries suffered by [Mr W and Mr C] compared with the trivial injuries to Allen and Przibilla confirms their physical superiority. The evidence establishes that they were the aggressors.
...
[79]I find that Allen punched [Mr C] in the right eye and reject that he did so to defend himself from [Mr C]. I find Przibilla head-butted [Mr C] connecting with his chin twice.
...
[81]Przibilla’s claim to be a peacemaker was farcical, given the height, weight and build of the defendants, their easy supremacy in any joint effort and the extent of the injuries, damage and the movement through the hallway, kitchen back area and toilet. No peacemaking effort would cause [Mr W] to end up with his head breaking through an interior and exterior toilet wall, no matter how flimsy the building materials were.
Ground 1: No Election for Summary Trial
In addition to the charges on which he was convicted, the appellant (and Mr Allen and Mr Anesbury) were originally charged with the offence of aggravated criminal trespass in a place of residence[3] (a major indictable offence). However, on 25 November 2009, the prosecution tendered no evidence on that charge and it was dismissed for want of prosecution. This meant that the appellant faced the two charges of aggravated assault causing harm (which are minor indictable offences) and the summary offence of unlawful damage.
[3] CLCA s 170(1).
Charges for minor indictable offences are ordinarily to be tried in the Magistrates Court, but s 103 of the Summary Procedure Act 1921 (SA) (SPA) contains provisions enabling a defendant to elect for trial in a superior court:
…
(2)The defendant must be provided with a copy of the information and, if the defendant is charged with a minor indictable offence, the appropriate form for electing for trial in a superior court.
(3)If a defendant charged with a minor indictable offence does not elect, in accordance with the rules, for trial in a superior court, the charge will be dealt with in the same way as a charge of a summary offence.
…
(4) Where—
(a) two or more people are charged with committing a crime jointly; and
(b) one or more of the defendants elect for trial in a superior court; and
(c) one or more of the defendants fail to elect for trial in a superior court,
the Court may order that the defendants who have failed to elect for trial in a superior court be committed for trial in a superior court with the defendants who have so elected.
The effect of s 103 is that defendants are to be informed on their right to trial in a superior court but to make trial in the Magistrates Court the default position.
Rule 21 of the Magistrates Court Rules 1992 specifies that the form of election should comply with Form No 8 (subr (1)); that it should be provided to the defendant at the time of service of a summons or when the defendant first appears in Court (subr (2)); and that an election must be made within 14 days after the delivery to the defendant of the prosecution summary of evidence or, when no summary has been required or directed, not later than six weeks after the defendant’s first appearance before the Court (subr (7)). Subrule (8) provides that an election may not be made after a matter has been set for trial.
In his first ground of appeal, the appellant complained that he had not consented to the trial of the charges against him in the Magistrates Court and that the Magistrate had erred in failing to ensure that he was advised of, and understood, his right to elect for trial in a superior court. The appellant said that he had not been provided with a form of election and that the Magistrate had not enquired at the commencement of the trial whether he wished to exercise his right to trial by a jury. This meant, the submission continued, that he had been deprived of his right to trial by jury and, as I understood it, that that circumstance vitiated his convictions.
Although the evidence on the topic was not complete, for the reasons which follow, I am prepared to find that the appellant was not provided with the election form.
The information against the three defendants was laid on 22 May 2009 and the appellant first appeared in Court on 26 May 2009. He was unrepresented on that occasion and again at the next appearance on 23 June 2009. Thereafter, the appellant was represented by a solicitor, Ms Budden, on seven occasions: 5 August, 2 September, 14 October, 25 November, 14 December 2009, 18 January (the pre‑trial conference) and 15 March 2010. On the last date the matter was listed for trial commencing 20 April 2010.
On 18 March 2010, Ms Budden wrote to the Magistrates Court asking that her firm be removed from the Court file as it was not “financially instructed” by the appellant. The Magistrate gave that approval and thereafter the appellant was unrepresented.
In the affidavit which I received on the appeal, the appellant deposed:
[15]When I was first charged and was talking to my solicitors I don’t recall any mention being made about an election to have a jury trial. I had no idea what that was all about.
An affidavit from the appellant’s present solicitor exhibited a letter from Ms Budden in which she said:
[T]he writer has checked both our hard copy file and electronic file for Mr Derek Przibilla and can now confirm that there is no copy of an election form on either file, or evidence of one ever having been provided during the period while we were acting for Mr Przibilla.
As can be seen, Ms Budden was really focussing her attention of the contents of her firm’s file rather than on discussions with the appellant.
Mr Modra, the prosecutor, did not advert to this issue in the affidavit which the respondent filed in relation to the appeal.
As earlier noted, I regard this evidence as incomplete. The appellant does not, for example, depose by reference to Form No 8 that he was not provided with a copy of it nor given advice in relation to it. Nor does Ms Budden refer in her letter to any consideration of the topic whether in discussions with the appellant or otherwise. However, the evidence does, in a general way, support this claim of the appellant. I note in addition that the Magistrates Court file does not contain any election form nor any reference to an election having been made.
Further, in the circumstance that the information originally laid alleged a major indictable offence, it is readily understandable that the election form was not provided to the three accused at the time of service or when they first appeared in the Magistrates Court. It also understandable that the provision of the election form may have been overlooked when the charge of the major indictable offence was dismissed for want of prosecution.
Accordingly, I consider that this ground of appeal should be determined on the basis that the appellant is correct in his claim that he was not ever provided with the form of election. It is therefore necessary to consider the effect of this omission.
Counsel submitted that the right to trial by a jury is so fundamental[4] that an unrepresented defendant should be advised about it and to have the opportunity to make an election for such a trial.
[4] Mattner v Director of Public Prosecutions [2011] SASC 89 at [56]-[57].
In my opinion, the omission to provide the appellant with the form of election for trial in the District Court has not, in the circumstances of this case, given rise to a miscarriage of justice which warrants the setting aside of the convictions. In the first place, although the appellant may not have had the prescribed form and used it, his consent to the charges being heard and determined in the Magistrates Court can be inferred from his conduct. As noted, apart from the first two appearances, the appellant was represented by a legal practitioner at all the Court appearances prior to the commencement of the trial. This included the pre‑trial conference and the appearance at which the trial dates in the Magistrates Court were fixed. There is nothing in the materials which indicates that Ms Budden or the appellant raised any concern about the trial taking place in the Magistrates Court, or that they requested a committal hearing. This indicates a tacit consent to trial in the Magistrates Court.
Secondly, I consider it quite improbable that the appellant, if provided with the notice of election, would have elected for a trial in the District Court. The very fact that his then legal representative did not seek such a trial speaks loudly against such an election being made.
Thirdly, I note that the appellant’s co‑accused did not elect for trial in the District Court. That does not mean of course that the appellant may not have taken a different view, (and s 103(4) of the SPA contemplates such a circumstance) but it does provide an indication of the way in which accuseds in circumstances similar to those of the appellant, and who had legal representation throughout, viewed the matter.
Fourthly, a trial in the Magistrates Court had advantages for the appellant. Such a trial was likely to be cheaper and, in the event of conviction, the limits on Magistrates’ sentencing powers imposed by s 19 of the Criminal Law (Sentencing) Act 1988 (SA) would be applicable. Regard should be had to these pragmatic considerations.
The omission of the Court or the prosecutor to provide the appellant with the election form was a procedural irregularity. It is not every form of procedural irregularity which gives rise to a miscarriage of justice. There may circumstances in which the omission to provide the election form may have that effect but I am not satisfied that that is so in the present case.
The appellant submitted in the alternative that the Magistrate had erred by failing, at the commencement of the trial on 20 April 2010, to inform him of his entitlement to trial by jury. I do not accept that submission. In the first place, the evidence suggesting such an omission by the Magistrate is sparse. However, more fundamentally, the Magistrate was entitled to consider that this was a matter which had already been addressed. As noted earlier, r 21.08 provides that election for trial in a superior court may not be made after the matter was set for trial. In the present case that occurred on 15 March 2010 at a time when the appellant did have representation. Further still, the Magistrate was aware that no issue about the matter proceeding in the Magistrates Court had been raised on any of the six earlier occasions when Ms Budden had been present.
Allowing Trial to Proceed while Appellant Unrepresented
The appellant submitted that the Magistrate had erred by failing to ensure he had a fair trial. The Magistrate should, so it was submitted, have advised him of his right to apply for an adjournment of the trial in order to obtain legal representation and, or in the alternative, adjourned or stayed the trial to enable him to arrange legal representation.
The appellant referred to the principle in Dietrich v The Queen.[5] In Dietrich it was held that, although the common law of Australia does not recognise the right of an accused to be provided with counsel at public expense, the power of courts to stay criminal proceedings which will result in an unfair trial may be exercised in a case in which representation of the accused by counsel is essential to a fair trial. The relevant principle is stated by Mason CJ and McHugh J in the following passage:
[I]t is desirable that, at the risk of some repetition, we identify what the majority considers to the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.[6]
(Emphasis added)
[5] (1992) 177 CLR 292.
[6] Ibid at 315.
Dietrich concerned the trial of an accused for serious offences in a superior court. The principle is, however, equally applicable in relation to the trial of serious offences in courts of summary jurisdiction.[7] The offences with which the appellant was charged should be regarded as serious offences – the two offences of aggravated assault causing harm were each punishable by imprisonment for up to four years.
[7] Weinel v Fedcheshen (1995) 65 SASR 156 at 160-1; Begg v Police [2005] SASC 131 at [9].
The Criminal Law (Legal Representation) Act 2001 (SA) has as its objects the ensuring of legal representation to those charged with serious offences and the avoidance of disruption to trials by adjournments arising from a defendant’s lack of legal representation. However, the Act has no application to trials in the Magistrates Court. Accordingly, it is the principles stated in Deitrich which are to be considered.
Ms Budden’s letter to the Magistrates Court of 18 March 2010, indicated that at that time the appellant owed the firm more than $4,400 on account of legal fees. The letter continued:
On 17 March 2010 Mr Przibilla instructed us via telephone that he can no longer afford our representation and cannot fund his representation at trial. We have advised him that we will be making this application to be removed from the Court file.
We have provided Mr Przibilla with a legal aid application form and will assist him as much as we can in making an urgent application to the Legal Services Commission for legal aid funding of his trial. However, as Mr Przibilla is current employed full‑time, his application for legal aid may well be unsuccessful. We believe that Mr Przibilla will therefore be representing himself at trial.
Ms Budden wrote again on 14 April 2010 saying:
We now wish to inform the Court that Mr Przibilla was unsuccessful in his application for legal aid and remains unable to privately fund his trial.
A letter from the Legal Services Commission indicated that legal aid was refused because Mr Przibilla did not meet the Commision’s means test.
The transcript of the proceedings in the Magistrates Court on 20 April 2010 commences, in effect, with the arraignment of the three accused and the prosecution opening. There is no transcription of the exchanges which occurred between the Magistrate and the appellant before that time. However, Mr Modra’s affidavit indicates that the Magistrate discussed the appellant’s lack of legal representation with him:
[5]At the commencement of the trial [the Magistrate] warned the appellant of the dangers of being unrepresented and the appellant appeared to understand the dangers of such a course. [The Magistrate] informed the appellant of the Court processes so far as the evidence being given by the various prosecution witnesses and for the need for the appellant to listen carefully to what was said and make notes of any questions he wished to put to the witnesses. (A note pad and paper were supplied to the appellant at the direction of the Magistrate). [The Magistrate] explained in detail the trial process within the Court and there was nothing further that could have been explained to the appellant about the process and his obligations and rights. The appellant was offered the opportunity to cross‑examine all of the witness by [the Magistrate]. However the appellant asked very few questions in his opportunity to cross‑examine witnesses.
The appellant agreed with the content of that paragraph. He said that at the commencement of the trial the Magistrate asked him what he intended to do and that the following interchange then occurred:
AI can’t afford one. I will have to represent myself.
HH Do you think that’s wise?
AI don’t know what else I am meant to do.
The appellant went on to say that he believed that he had no choice but to act for himself. The trial then proceeded.
There is no suggestion that the appellant sought an adjournment in order to pursue the obtaining of legal representation or to exercise the right of appeal against the refusal of legal assistance to which the Legal Services Commission’s letter had referred. Nor did he seek a stay. Instead the appellant seemed to indicate that he was content for the trial to proceed even though he did not have legal representation. These circumstances take the present case outside the principle articulated by Mason CJ and McHugh J quoted earlier.
I will discuss separately whether the Magistrate should have informed the appellant of the circumstances in which he could seek a stay or an adjournment by reason of his lack of legal representation.
The appellant’s reliance on the Dietrich principle also suffers from a lack of evidence, both in the Magistrates Court and in this Court. As King CJ observed in R v Karounos:[8]
[A]n accused person, charged with a serious offence, seeking an adjournment or stay on this ground must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation and that that inability is not due to fault on his part.[9]
The appellant did not address this issue at all in the Magistrates Court and provided only limited evidence of his means in this Court. That evidence comprised the material which Ms Budden had provided to the Legal Services Commission on 31 March 2010 in support of the appellant’s application for legal assistance. It indicated that the appellant was in receipt of a gross weekly wage of $1,050 from which the sums of $210 and $117.21 were deducted for PAYG tax and family support payments respectively. The materials did not indicate how the appellant expended the balance of his income. The appellant did not own a house and did not make any claim that he was paying rent or some other amount for his accommodation.
[8] (1995) 63 SASR 451.
[9] Ibid at 457.
Other materials indicated that in 2006 and 2007 solicitors had pursued a claim for damages on the appellant’s behalf, in respect of injuries he had sustained in an incident involving a motor vehicle on 11 November 2006. The appellant has not provided any information regarding the outcome of that claim nor the use which he made of any damages which he received.
It can be inferred that the appellant did not pursue an appeal against the Legal Services Commission’s refusal of the grant of legal aid, but he has not provided any explanation for his omission to do so. He has not led evidence of the anticipated cost of representation at the trial, nor of attempts to agree sensible payment terms in respect of such representation, nor of his inability to obtain assistance from others to whom he could reasonably look for support.
The evidential position is therefore somewhat unsatisfactory. It is appropriate to repeat the observations made by King CJ in R v Karounos as to the onus resting on those seeking to invoke the Dietrich principle:
Dietrich has established that the opportunity of legal representation, irrespective of means, is a necessary incident of a fair trial on a charge of a serious offence. It is, however, the responsibility of an accused person to arrange his own legal representation. He is not deprived of a fair trial if a lack of legal representation is due to the accused’s failure to take the appropriate measures to obtain legal representation. Those measures include utilisation of his own financial resources or, if they are insufficient to fund the trial, taking the necessary steps to obtain legal aid. If legal aid is sought the accused must comply with the reasonable requirements of the legal aid authority. Dietrich should not be applied in a manner which would undermine the proper procedures of the Legal Services Commission for ensuring that it is not imposed upon and that it is provided with all necessary information and means of verifying it.[10]
[10] Ibid at 458.
For these reasons, I do not consider that the appellant has established that the Magistrate erred by allowing the trial to proceed while he was unrepresented and that a miscarriage of justice has thereby occurred.
Assistance to an Unrepresented Accused
The appellant submitted that the Magistrate had failed, during the course of the trial, to provide him with the requisite degree of assistance as an unrepresented accused. For the reasons which follow, I consider that these submissions do have some force and should be accepted.
The obligations of judges and magistrates conducting criminal trials in which an accused is unrepresented have been discussed in a number of authorities including MacPherson v The Queen;[11] Pezos v Police;[12] R v Rostom;[13] and Foster v The Queen.[14] The general principle was stated by Gibbs CJ and Wilson J in MacPherson:
There is no limited category of matters regarding which a Judge must advise an unrepresented accused – the Judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.[15]
Mason J observed to similar effect:
Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial Judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial … A trial in which a Judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.[16]
[11] (1981) 147 CLR 512.
[12] [2005] SASC 500, (2005) 94 SASR 154.
[13] [2007] SASC 210, (2007) 98 SASR 528.
[14] (1981) 37 ALR 81.
[15] (1981) 147 CLR 512 at 524-5.
[16] Ibid at 534.
The obligations of a judge or magistrate with respect to assistance to an unrepresented accused vary according to the nature of the case and the circumstances of the accused. Similarly, the circumstances in which it may concluded that material unfairness has occurred in the course of a trial of an unrepresented accused will vary considerably.
In Pezos v Police,[17] Debelle J summarised the responsibilities of courts to unrepresented defendants as including, but not limited to:
·Keeping the defendants apprised of their rights and duties;
·Being vigilant to keep the proceedings free of error or misunderstandings;
·Alerting the defendants to the implications or consequences of the manner of conduct of a defence;
·Explaining to an accused person the choices open during a trial (without advising on the exercise of those rights and without unduly interfering in the prosecution case);
·Explaining the form in which questions may be put;
·Advising of the right to seek a voir dire hearing.
[17] [2005] SASC 500; (2005) 94 SASR 154.
In the circumstances of the present case, I consider, with respect, that the Magistrate fell short of discharging these obligations. In the first place, it seems that the Magistrate did not inform the appellant that he could, in accordance with the Dietrich principle, apply for an adjournment or a stay because of his lack of legal representation. There is no reason to suppose that the appellant was otherwise aware of that right.
During the course of his opening, the prosecutor tendered a number of documents, saying that it had been agreed with “my friends”. It is doubtful that that expression included the appellant. The documents tendered by the prosecution included reports from the dentists who had provided treatment to Mr W and Mr C, photographs of the interior of Mr W’s house, and a plan of the house. These were probably non‑contentious.
However, the prosecutor also tendered records of the interviews by the police of the appellant and Mr Anesbury. The transcript indicates that the Magistrate did not inform the appellant that there were circumstances in which he could object to the tender of the police record of interview with him, or of the grounds upon which he could seek the exclusion of the record of interview, or of his right to seek a voir dire. The appellant’s intoxication at the time of the offence, as found by the Magistrate, was relevant in this respect. The police interview of him took place at 2.00 am on 14 June 2009, about three hours after the alleged assault. The fact (if it be the fact) that the appellant was still intoxicated when interviewed by the police would not of course necessarily mean that the questioning of him as unfair[18] but in the circumstances, it was appropriate for the Magistrate to inform the appellant of his entitlement to object on this ground, and to seek a voir dire for this purpose. I note that the Magistrate relied on inconsistencies between the appellant’s account when interviewed by police and his evidence at trial in forming an adverse view of his credibility and reliability.
[18] R v Webb and Hay (1992) 59 SASR 563 at 573.
I also consider, with respect, that the Magistrate provided insufficient assistance to the appellant in relation to his cross‑examination of the principal prosecution witness, Mr W.
The Magistrate required the appellant to cross‑examine Mr W after counsel for Mr Allen, but before counsel for Mr Anesbury. The transcript records the following:
Her Honour: Mr Przibilla, it’s your turn. Up to the lectern, please.
Defendant: I haven’t got anything to say.
Her Honour: You’d better have.
Defendant: Well, what do you want me to say?
Her Honour: I don’t want you to say anything. Stand up. You are in a criminal court. You are charged with an extremely serious offence. You have just seen what Mr Kernahan had to do. You haven’t got a lawyer. That’s your choice. Now you are in a position where under the law you have got to put your side of the story to this man. It’s about the fact that if you agree with everything he has to say then you would be guilty of an assault.
Defendant:I don’t but –
Her Honour: You are suggesting it didn’t happen that way, so you had better tell him what actually happened. So what do you admit, what do you agree with, what do you disagree with, what is it that he says that’s true, what is that he says is false.
Defendant:Well, not much of what he said here has been true.
Her Honour: You tell me what happened that night, and break it down into sentences, and get him to comment. Did you go to his house?
Defendant:Yeah but –
There then followed some nine page of transcript recording for the most part an interrogation by the Magistrate of the appellant, interspersed with occasional questions from the Magistrate to Mr W based on the appellant’s answers. In that nine pages, only 12 questions were directed to Mr W, all of them quite short. On some occasions, after the appellant had given a long answer, the Magistrate simply asked Mr W whether he agreed with that answer, without differentiating between the various facts contained in it.
In my respectful opinion, the explanation of the nature and purpose of cross‑examination given by the Magistrate as set out in the passage quoted above was inadequate. It did not indicate that one of its purposes was the eliciting of evidence which may assist the appellant. The Magistrate explained in only limited terms the obligation of the appellant to put to Mr W all the matters upon which he would seek, in his own evidence, to contradict him. Instead, the technique adopted by the Magistrate required the appellant to disclose his account of events, and accordingly his defence, before the prosecution had called all its evidence.
Other passages in the transcript indicate that the Magistrate had informed the appellant that he was not obliged to give evidence but could choose to do so. However, by her interrogation of the appellant during his “cross‑examination” of Mr W, the Magistrate effectively deprived him of the exercise of that right.
The difficulties confronting the Magistrate in this trial because of the appellant’s lack of legal representation are not to be underestimated. They were considerable. One matter, known to this Court, but not known to the Magistrate, must have added to the difficulties. A report from a psychologist upon which the appellant relies in relation to the sentence appeal (and obtained only after the Magistrate had imposed sentence) indicates that the appellant suffered a significant traumatic brain injury in a car accident on 11 November 2006; that he is now a person of limited cognitive ability, functioning at around the third percentile of the age equivalent population, and that his problem solving abilities are equivalent to those of an average eight-year-old child. This indicates both the appellant’s requirement for considerable assistance and the difficulties for the Magistrate in providing that assistance.
Perhaps a better technique in the circumstances would have been for the Magistrate to have assisted the appellant by taking him through the account given by Mr W and enquiring whether he wished to ask Mr W any questions about each topic, while at the same time reminding him of the necessity for him to put his own account of events to the extent that it differed from that given by Mr W. The Magistrate could also have permitted the appellant to defer his cross‑examination until after the counsel for Mr Anesbury. It was not necessary to insist that the appellant cross-examine in the order in which his name appeared in the Information. The appellant may well have been assisted by that cross‑examination.
The transcript shows that the “cross‑examination” of the second principal prosecution witness, Mr C, also comprised, in the main, another interrogation of the appellant by the Magistrate with the occasional questions directed to Mr C.
I add, in fairness to the Magistrate, that the transcript does show assistance from time to time to the appellant. For example, when counsel for Mr Anesbury raised the possibility of a no case to answer submission, the Magistrate explained to the appellant in appropriate terms the procedure involved.
Counsel drew attention to the Magistrate’s apparent tone in the passage of transcript concerning the appellant’s cross-examination of Mr W set out above. He submitted, in effect, that the tone was somewhat brusque and intimidatory. On the bare face of the printed word, this submission does appear to have some force. I recognise in this respect the limitations of the printed word and that the apparent tone of the Magistrate may have been mitigated by the actual tone of voice or demeanour at the time.
However, a later passage in the transcript concerning the possible animosity between Mr Anesbury and Mr W arising from a relationship which Mr Anesbury had had with Mr W’s partner and does indicate that the Magistrate’s manner may have been somewhat curt:
Mr Przibilla: No, I did not know that there was animosity there because no one said nothing about – it was all kept quiet about them two sleeping together until it all came out around after all this stuff happened and talk started to get around Riverton being a small town and it was like Stuart and him wouldn’t get on anyway –
Her Honour: Before we [descend] into a Home and Away script we will leave it at that.
Mr Przibilla: I know – that’s how it was though.
Her Honour: Remind me not to stay in Riverton …
It does seem therefore that not only did the Magistrate not provide appropriate assistance to the appellant, but also that her manner and tone may (no doubt unintentionally) have been somewhat intimidating.
For these reasons, I am satisfied that a serious miscarriage of justice did occur in the trial. Ordinarily, a serious miscarriage of this kind would warrant the convictions being set aside. As noted earlier, the Magistrate regarded the prosecution case as strong and aspects of the appellant’s evidence as “incredible” and “ludicrous”. I have considered whether in these circumstances the convictions should be allowed to stand. However, the requirement that convictions be recorded only after a fair trial is fundamental, and I consider that, subject to the grant of an extension of time, the convictions should be set aside.
The Extension of Time
As previously noted, the Magistrate sentenced the appellant on 23 November 2011. He had been represented in relation to the sentencing submissions by a solicitor, Mr Hegarty.
The delay in commencing an appeal until 8 March 2012 has not been well explained. Mr Hegarty’s affidavit indicates that an application for legal assistance for the appeal was lodged on 2 December 2011 and legal aid granted on 13 December 2011. One would have expected the notice of appeal to be lodged shortly thereafter. It seems that Mr Hegarty chose instead to defer commencing an appeal until he had received a psychological assessment of the appellant, and this required a further grant of legal assistance.
I do not regard these circumstances as satisfactory. The appellant went into custody on 23 November 2011 and, in those circumstances, one would have expected that the appeal would be prosecuted with expedition. The long delay in the commencement of the appeal counts against the grant of an extension of time. The 21-day limitation period reflects the policy of the law that appeals of this kind should be heard and determined as soon as practicable after the conviction or sentence to which the appeal relates.
Nevertheless, I am satisfied that it would be inappropriate to allow the convictions to stand, given my finding that they are the product of an unfair trial. For this reason, despite my misgivings about the explanation for the delay in commencing the appeal, I will grant the appellant an extension of time for the commencement of the appeal to 8 March 2012.
Conclusion
It is unnecessary to consider the remaining grounds of appeal.
For the reasons given above, I make the following orders:
1.I grant an extension of time for the commencement of the appeal to 8 March 2012.
2.I allow the appeal against the convictions and set those convictions aside.
3.I set aside the orders made by the Magistrate on 23 November 2011.
4.I remit the matter to the Magistrates Court for retrial before another Magistrate. It will be for the prosecution authorities to determine whether, given the period which the appellant has already served in custody, he should be retried for these offences.
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