Reardon v Donaghy
[2006] TASSC 47
•14 June 2006
[2006] TASSC 47
CITATION: Reardon v Donaghy [2006] TASSC 47
PARTIES: REARDON, Penelope Lynn
v
DONAGHY, Brendan Oliver
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 32/2006
DELIVERED ON: 14 June 2006
DELIVERED AT: Hobart
HEARING DATE: 13 June 2006
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – When remedy available – Failure to adjourn hearing.
Justices Act1959 (Tas), s107.
Aust Dig Magistrates [270]
REPRESENTATION:
Counsel:
Applicant: S J Bender
Respondent: P Barker
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: PWB Lawyers
Judgment Number: [2006] TASSC 47
Number of paragraphs: 10
Serial No 47/2006
File No LCA 32/2006
PENELOPE LYNN REARDON v BRENDAN OLIVER DONAGHY
REASONS FOR JUDGMENT EVANS J
14 June 2006
On 2 May 2005, a complaint issued charging the respondent, Brendan Donaghy, with common assault in breach of the Police Offences Act 1935, s35(1). The particulars of the charge are that on 10 April 2005 he unlawfully assaulted Margaret Donaghy by: saying the words "I've had enough of you, I'm going to kill you, you're going to die"; grabbing her in a headlock and choking her; pulling her down onto the floor and pinning her to the floor; and telling her to open her eyes because he was going to be the last person she saw before she died.
The record of proceedings shows that on 16 June 2005 the respondent pleaded not guilty to the complaint and it was adjourned for "contest mention". Following a contest mention hearing on 27 October 2005, the complaint was adjourned for hearing on 17 March 2006 when, due to insufficient court time, the hearing was further adjourned to Friday, 21 April 2006. On that day, when the complaint was called on for hearing, Mr Boonstra appeared for the applicant, Penelope Reardon, and Mr Barker appeared for the respondent. Mr Boonstra explained to the presiding magistrate that due to an administrative error, the witness summonses which had been issued required the witnesses to attend on 21 May 2006 instead of 21 April 2006. He informed the magistrate that he had spoken to the complainant at length and she wanted the matter to continue and he applied for an adjournment of the complaint for hearing on another day. The unedited transcript of what then ensued is as follows:
"HIS HONOUR: Mr Barker, I suppose you oppose it?
MR BARKER: I do oppose it, your Honour, I must - my client is here ready to proceed with the matter. He wants it over and done with, as does the complainant, as quickly as possible because he wants to go to Western Australia to earn his living as a bricklayer, which is difficult here. We have a witness over from Western Australia for the purposes of the hearing today, and so I must oppose it.
That having been said, it's a human enough error that's been made in the prosecution section of the kind which I might make myself; if your Honour were minded to adjourn the matter, I'd ask that an application for costs thrown away in respect of airfares in particular be noted, and perhaps there will be an argument about that later, and if the matter is adjourned if it could be given priority on the occasion upon which it next exerts your Honour, I'd be grateful.
HIS HONOUR: When is there a possible hearing date?
CLERK: 29th of May there's enough time, there are other hearings as well.
HIS HONOUR: What about next Wednesday? I suppose your witness is going to go back to Western Australia today?
MR BARKER: If I can just take instructions about whether he could remain. The witness has got to return on Sunday, and when he could come back is problematic because of his work commitments, we'll just have to see what see about it.
HIS HONOUR: The trouble is if I adjourn, of course, the ball's in your court then, you come along and say I can't call the witness, you probably won't have as much sympathy as you do today. I take the view that you've been along here twice, Mr Barker, with your client, ready to proceed. It's not your client's fault that the matter is not able to proceed today, and I don't think because the witnesses are in Western Australia it can be - the problem can be remedied easily, it might be a different matter if all the witnesses are in Hobart. I think the matter should proceed today.
MR BARKER: If your Honour pleases.
HIS HONOUR: Mr Boonstra?
MR BOONSTRA: The prosecution aren't in a position to proceed, unfortunately, today, your Honour.
HIS HONOUR: Are you going to call - you're not calling any evidence?
MR BOONSTRA: Well I haven't got anyone to call -
HIS HONOUR: Well, you've got to say, are you going to call - are you going to proceed or are you not calling evidence, tell me?
MR BOONSTRA: I'm not in a position to call any evidence, no.
HIS HONOUR: Yeah, well you're not calling evidence. I dismiss the case."
The hearing of a parallel application by the complainant, Margaret Donaghy, for a family violence order against the respondent had been listed for hearing at the same time as the complaint for assault, together with an application as to the respondent's breach of an interim family violence order. These applications were adjourned, with the consent of the respondent, to 29 May 2006. As the allegation of assault that was the subject of the complaint underpinned the complainant's application for a family violence order, it may be that the respondent intended to call his Western Australian witness on the hearing of that application. This possibility was not explored before the learned magistrate.
The applicant has filed a notice to review the course adopted by the learned magistrate which led to the dismissal of the complaint of assault.
The grant or refusal of an application for an adjournment is an order that is reviewable for the purposes of the Justices Act 1959, s107(1): see Norton v Loring [1976] Tas SR 40; Bailey v Rainbird [1970] Tas SR 236; Canning v Smith [1969] Tas SR 8; and Wilson v McCormack [1968] Tas SR 55. A denial of natural justice incidental to the consideration of the appropriateness of an adjournment hearing may also be an error for the purposes of s107(1), Hawker v White [2005] TASSC 60.
By requiring that the hearing proceed, the learned magistrate rejected the applicant's request for an adjournment. The learned magistrate did so because: this was the second occasion when the respondent had attended the court ready to proceed with a defended hearing and it was not his fault that the hearing could not proceed; the respondent had a witness from Western Australia for the hearing and the witness was to return before the complaint could be re-listed; it was problematic when the witness could come back to Tasmania; and, if on an adjourned hearing the respondent was not able to call that witness, the learned magistrate would probably not be as sympathetic to the respondent.
An additional matter that had been mentioned to the learned magistrate by Mr Barker was of little moment and was not referred to by the learned magistrate. This was the respondent's desire to get the hearing over in order that he could travel to Western Australia to obtain work as a bricklayer. That consideration was of no weight as the respondent was in any event obliged to remain in or return to Tasmania for the parallel proceedings referable to a family violence order. In addition, the learned magistrate was informed that if the respondent went to Western Australia, he would be returning to Tasmania as it was his home and he had a farming property in Tasmania that needed his attention.
As to the general approach to be taken to an application for an adjournment such as that which was before the learned magistrate, I adopt the following passage from the decision of Hanger J (agreed with by Mack CJ) in James v Williams; ex parte James [1967] Qd R 496 at 501 – 502:
"If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant – the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged."
This passage was applied in Shield v Topliner Pty Ltd [2005] 1 Qd R 551.
Faced with the adjournment application in question, it was incumbent upon the learned magistrate to explore whether justice could be done if the application was granted. This was a balancing exercise which required the learned magistrate to bear in mind that if the application was refused, the complainant, Margaret Donaghy, would suffer an injustice in consequence of an administrative error for which she was not responsible. A number of means were available for avoiding or minimising any injustice to the respondent that might arise from an adjournment. One was that suggested by the respondent's counsel, Mr Barker; indemnifying the respondent against the costs of his witness travelling from Western Australia to give evidence. Another, which is commonly resorted to, was to arrange to take the witness's evidence by video link from Western Australia pursuant to the Evidence (Audio and Audio Visual Links) Act 1999. A further possibility was, with the agreement of the parties, to on that day proceed to take the evidence of the Western Australian witness out of sequence. In my respectful view, the learned magistrate unnecessarily made a precipitate decision to press on with the hearing without adequately exploring whether an adjournment could be granted without injustice to the respondent. The course adopted by the learned magistrate brought about the dismissal of the complaint; a real injustice to the true complainant, Margaret Donaghy, and an error. It would have been open to her, as a person aggrieved, to have brought this notice to review had the applicant not done so: McCarthy v Xiong A32/1993.
The notice to review is allowed and the order dismissing the complaint is quashed. I will hear the parties as to further consequential orders.
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