Re Blandford

[1998] QSC 86

IN THE SUPREME COURT
OF QUEENSLAND  Motion No.  3 of 1997
CAIRNS

[Re Blandford]

IN THE MATTER of The Criminal Practice Rules 1900

and

IN THE MATTER of The Justices Act 1886 (as amended)

and

IN THE MATTER of an Application of PAUL ROBIN BLANDFORD

REASONS FOR JUDGMENT
  BEFORE THE HONOURABLE JUSTICE JONES
  DELIVERED 8/5/1998

This is the return of an order nisi made on 12 December, 1997 directing Mr. Noel Nunan, Stipendiary Magistrate, to show cause why he should not determine, according to law, the matter of Blandford -v- Strickland PA 8906/1997. The application is made pursuant to s.38 of the Justices Act 1886 by Constable Paul Robert Blandford, the complainant in the abovementioned matter.

On 27 September, 1997 Constable Blandford responded to a call advising of an incident which occurred at the corner of Sheridan and James Street, Cairns.  Following his investigation he arrested Leslie Calvin Strickland (hereinafter “the defendant”) and charged him with two offences -

1.Wilful damage to property - namely to a motor vehicle owned by Kevin Rogers.

2.Whilst under the influence of liquor, being in charge of a motor vehicle - namely a Ford F100 utility on James Street, Cairns.

In respect of the first offence the defendant has elected to have the matter determined by trial by jury in the District Court.

The traffic offence was brought on for hearing on 29 October, 1997 before Mr. Nunan, Stipendiary Magistrate, at Cairns.  The defendant was not legally represented.

At the conclusion of the evidence and the addresses the learned stipendiary magistrate became concerned that, given that the charge of wilful destruction was to be tried in the District Court where there would be raised for determination issues of fact and admissibility of evidence, he should not continue with the hearing of the matter.

Of his own volition, the learned stipendiary magistrate ordered the adjournment of the matter to 10 April, 1998 for the purpose of rehearing the matter after the District Court had dealt with the wilful destruction charge.  He did so on three bases -

(I)His view that the facts relating to the charge before him “were inextricably tied up” with issues to be considered at the jury trial;

(ii)His concern about the admissibility of a covertly recorded conversation on an audio tape;

(iii)His concern that the rule in Jones -v- Dunkel might be applied adversely to the defendant.

The applicant seeks to persuade me that the learned stipendiary magistrate, in  making the orders that he did, failed to take into account relevant considerations and took into account irrelevant ones.  The applicant asserts that what has happened is that whilst purporting to exercise jurisdiction, the learned stipendiary magistrate in fact declined it.  The basis for that assertion is that whilst the order of the magistrate was to the effect that he adjourned the case to 10 April, 1998 it is clear from the discussions between himself and the police prosecutor that the purpose of the adjournment was to permit the retrial at a date after the jury had dealt with the charge of wilful destruction of property.  The following exchange occurred in the depositions at p.55 l.40 :-

“BENCH:..That’s a matter that will obviously be explored before a jury, I would’ve thought, on the other charge.  But it seems to me that in the circumstances I should not make a decision and simply adjourn the matter because of the potential conflict with the higher court.

SEN.  CONST McSHANE:  

To adjourn the matter until after the other matter’s dealt with?

BENCH:Till after the matter’s been - till after the ..jury’s heard all this, he’s had the benefit of legal representation, and the jury’s come to a decision.

SEN.  CONST.  McSHANE:

Would your Worship need to hear from the witnesses again?

BENCH:Well, I would’ve thought that yes, there’d have to be a retrial before someone else.  Like, really this trial shouldn’t have gone ahead...as far as I can see.   But there are essential elements to both charges, and one of them is going on indictment, and a mistake’s been made because quite clearly he elected to proceed by way of a jury trial.”

The evidence which had been adduced by the prosecution included the fact that the alcohol testing carried out by the police officers, showed that the defendant had a blood alcohol level concentration of 0.166 per cent. The certificate issued pursuant to the Traffic Act to this effect was duly tendered and was not challenged.

The only issue to be contested in the hearing was whether, at the relevant time and place, the defendant was "in charge of the motor vehicle". 

The evidence led on this issue was provided by Mr. Rogers who identified the defendant as the driver of the Ford utility and as the person who inflicted the damage on his vehicle.  Rogers' evidence as to the identification was challenged by the defendant.

When Constable Blandford arrived on the scene a short time later he was travelling in a police vehicle with Constable Connors.  As his vehicle passed a parked Ford F100 he observed the defendant sitting in the driver's seat appearing to be fiddling with a set of keys in the ignition.  The police vehicle did a U-turn and went back to the parked vehicle and the two police officers spoke to the defendant and the other occupier of the vehicle who by this time were standing outside the vehicle.  When challenged the defendant denied that he ever drove the vehicle and denied that he was using keys in the ignition.  He was asked to supply a specimen of breath following which he was taken to the police station where a breath analysis was carried out.  At the police station, discovered amongst his belongings was a string with two keys on it, one of which was observed to be a key for a Ford motor vehicle.  When asked whether that key belonged to the utility in question the defendant said "I've got nothing to say".

Part of the conversation between Constable Blandford and the defendant held at the police station was taped but neither the tape nor any transcript of the conversation was ever tendered, the court being advised that the conversation produced no formal admissions relevant to any matter in dispute.

Constable Connors gave evidence that when the police vehicle stopped beside the Ford F100 he saw the defendant sitting in the driver's seat and another occupant in the passenger's seat with both doors open.  As he approached the Ford F100 both the occupants alighted from the vehicle and stood beside it.  Constable Connors gave details of the conversation that followed at the scene.

The defendant, after expressing some reluctance to do so, gave evidence in his own defence which was to the effect that there were three persons in the Ford F100, that he never drove the vehicle, nor did he see how the damage to Mr. Rogers' car occurred.  He stated that he was in the driver's seat when the two police officer's arrived because he was simply attempting to retrieve his belongings from the Ford F100 so that he could leave by means of a taxi which he had ordered by making a phone call from the Burger Bar shop across the road.

The only issue for the learned stipendiary magistrate to determine was whether when the defendant was observed by the police officers to be in the driver’s seat of the Ford F100 he was in charge of the motor vehicle.

Relevant to that issue (but not crucial to it) was the evidence of Mr. Rogers and his companions at an earlier time and the defendant’s challenge to that evidence and his explanation as to his movements.  These matters simply give rise to a question of credibility of the kind with which the courts constantly deal.  The identity of the driver of the Ford F100 at the earlier time is relevant to the wilful damage charge since Mr. Rogers’ evidence is that it was the driver who was the perpetrator of the damage.  But in respect of the offence before the learned stipendiary magistrate, Mr. Rogers’ evidence as to the identity of the driver might be wholly rejected and it would still be open to the court to find that the defendant was in charge of the motor vehicle when observed by the police officers.

Consequently the elements of the charge to be considered by the jury are not “inextricably tied” to the elements of the summary offence.  In my view there is no risk of inconsistent decisions of courts being made in respect of the two charges. 

The question of whether a summary offence ought to be adjourned to allow the prior determination of a related offence by a superior court is properly within a magistrate’s discretion.  I was referred to the decision of White DCJ in Sharpe -v- Hellwig (Dist.  Ct.  App.  Cairns No.  45/1996) which made reference to what is in effect a statement of prudence.  This practice was referred to by Kelly J.  (as he then was whilst a Justice of the Supreme court of the Territory of Papua and New Guinea) in R -v- Magistrate at Rabaul ex p.  Kereku and Ors (1969-70) PNGLR 457 in the following terms:-

“On an examination of these authorities I would consider that the better view is that the fact the superior court is seized of an issue between parties does not mean that the inferior court is thereby deprived of jurisdiction to determine that same issue between those parties and that it is a matter for discretion of the inferior court as to whether it proceeds or adjourns.  It is true that as was said in Kaye -v- Kaye in a passage referred to by Ormrod J.  In Lanitis -v- Manitis: ‘In all other than exceptional cases the justices should, as a matter of obvious convenience and public policy, exercise their discretion to adjourn the proceedings until the High Court proceedings are disposed of.  But there may be exceptional cases where they would be justified in exercising their discretion to proceed to adjudication notwithstanding that proceedings are on the file of the High Court covering the same ground.’  However, as the matter is not properly one of jurisdiction prohibition would not lie where the magistrate chose to proceed.  It follows of course that prohibition would not lie on this ground at the suit of any of the prosecutors.”

The power of a magistrate to adjourn proceedings derives from common law (see Boettcher -v- Boettcher (1948 St.R.Qd 73) and here particularly from s.88 of the Justices Act. The exercise of that power imports a discretion to act in accordance with recognised judicial principles.

Here as I indicated above the learned stipendiary magistrate has used his assessment of similarity of issues not merely to adjourn but to refuse to determine whereby a new trial would be necessary.  It is because of this additional factor that the question of a prerogative order arises.

The second concern raised by the learned stipendiary magistrate was whether the rule in Jones -v- Dunkel may have brought about some unfairness to the defendant.

The rule in Jones -v- Dunkel has a number of features which are well documented and explained.  See Cross on Evidence (Aust.  Ed.)  Vol.  1 para.  1215.  It is not necessary to restate the scope of the rule here.  What has to be noted is that the learned stipendiary magistrate was himself the trier of the facts.  He was aware of the rule.  Whether any inferences ought to be drawn in the circumstances was entirely a matter for him.  Some explanation had been given by the defendant for absences of witnesses namely, that the date of the hearing had been set over the defendant’s objection only 6 days earlier (deposition 58/10).  The circumstances were not such that the learned stipendiary magistrate would necessarily have had to apply the rule.  But the existence of the rule itself was not a basis for a refusal to determine the case according to law.  It appears to me that the learned stipendiary magistrate’s true concern was one of doing justice to the defendant who may not have been given sufficient opportunity to have his witnesses available.

The third concern raised by the learned stipendiary magistrate can be dispatched more succinctly.  The covertly recorded conversation was never played to the court nor was any transcript of it sought to be tendered.  All that was before the learned stipendiary magistrate was a discussion about its contents and an acknowledgement that it did not contain any admissions in relation to disputed facts (pp.26-27).  There was no question of admissibility of evidence therefore to be determined and any concern about the use of the tape-recording in another tribunal was merely speculative.

It seems to me that once the learned stipendiary magistrate has embarked upon the hearing of evidence he has a duty pursuant to s.146 of the Justices Act 1886 to hear witnesses and “upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require.”

Confronted with the difficulties occasioned by the defendant appearing for himself and the unavailability of his witnesses the learned stipendiary magistrate quite rightly showed consideration for the question of whether justice was being done to the defendant and quite properly ought to have invited the defendant to apply for an adjournment for a reasonable time on reasonable grounds.  It is difficult to see that his discretion would extend beyond those limits.  In my view his discretion did not extend to deciding not to determine the case at all.  A similar situation arose in Lee -v- Saint (1958) VR 126 per hearing C.J. at p.129 as follows:-

“In the ordinary course of events there can be no warrant for adjournments of this kind (adjournment for an indefinite period) for they may really involve a refusal by the court to hear and determine the case then before it.  Adjournments of this kind like adjournments for an unreasonable period may in effect amount to the court declining jurisdiction.  I repeat what I said in Mathieson -v- Mathieson viz - ‘the adjourning of litigation that comes before a court is very much a matter of discretion, and it is most undesirable that this discretion should be fettered in any way.  At the same time, this discretion is a judicial one and must be exercised in accordance with legal principle and upon relevant and not irrelevant considerations.  I think it may also be said that there are adjournments and adjournments.  In the ordinary course of events cases are adjourned from day to day, and sometimes it is necessary to put them over for longer periods or to the next sittings of the court in a particular place.  But the indefinite adjournment of proceedings may amount to much more than a mere postponement;  it may amount to a refusal to hear and determine the particular application before the court, and in these circumstances the adjournment may become a mere disguise for a refusal to exercise a jurisdiction committed to the court.”

As I have indicated, the learned stipendiary magistrate here has gone further than merely adjourning a case and he has done so taking into account irrelevant considerations as I have outlined above.  Counsel who appeared on behalf of the respondent has not shown cause  why the magistrate should not now continue to proceed to a determination of the matter. 

In those circumstances it seems to me that the magistrate has wittingly or unwittingly, declined jurisdiction.  It is proper to make absolute the order nisi and call upon the learned stipendiary magistrate to determine according to law the charge against the defendant which he has commenced to hear.

I indicate that as part of his determination of the matter the learned stipendiary magistrate would properly consider any application for the reopening of the defendant’s case for the purpose of adducing further evidence.