Rowe v Smith

[2004] NSWSC 105

CITATION:	Rowe v Smith & Anor [2004] NSWSC 105
HEARING DATE(S):	4 February 2004
JUDGMENT DATE:	3 March 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	Leave to appeal refused; appeal dismissed.
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act, 2001 Justices Act, ss 104, 132, 133
CASES CITED:	Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81 Cucu v The District Court of New South Wales (1994) 73 A Crim R 240 Queensland v JJ Holdings Pty Limited (1996-97) 189 CLR 146
PARTIES :	Gavin Malcolm Rowe (Plaintiff) Jack Smith (1st Defendant) Commissioner of Police (2nd Defendant)
FILE NUMBER(S):	SC 13185/02
COUNSEL:	A. Fernon (Plaintiff) T. Lynch (Defendants)
SOLICITORS:	Embleton & Associates (Plaintiff) I.V. Knight (Defendants)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Ms H. Hannam

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 3 March 2004

13185/02 GAVIN MALCOLM ROWE v JACK SMITH & ANOR

JUDGMENT

1 HIS HONOUR: By amended summons the plaintiff claims the following relief:

“1. An order granting to the plaintiff leave to appeal against orders of a Magistrate in the Local Court at Deniliquin on 25 October 2002:
(a) denying access to the maintenance manual produced by the Second Defendant in relation to the Silver Eagle radar (the ‘Document’)
(b) dismissing the plaintiff’s application for an adjournment of the summary proceedings in which the plaintiff was charged on the information of the first defendant with a breach of Australian Road Rules, rule 20 on 26 December 2000 (the ‘Offence’); and
2. An order allowing the appeal.
3. An order setting aside the Plaintiff’s conviction in respect of the Offence.
4. An order that the second defendant produce to the Local Court the Document.
5. An order that the Local Court hear and determine the charge in relation to the Offence according to law.
6. Costs.”

2 The plaintiff did not pursue the claim for order 4 above. If leave is granted, and the appeal is allowed, order 4 can be sought in the Local Court. The relief here sought is opposed by the defendants.

3 The proceedings in the Local Court were commenced by way of summons issued on 7 May 2001. In that summons it was alleged that the plaintiff had committed a speeding offence on 26 December 2000. The allegation was that the plaintiff had exceeded the speed limit by more than forty-five kilometres per hour, and that his speed had been recorded on a radar device.

4 It is necessary to record details as to what occurred leading up to the hearing on 25 October 2002. The summons to which I have just referred was returnable at the Local Court at Moulamein on 18 June 2001. On that date the proceedings were adjourned and transferred to the Deniliquin Local Court where they were listed for hearing on 22 May 2002. The plaintiff retained an expert, Dr Leigh-Jones, a consulting engineer with a view to this expert giving evidence in the plaintiff’s defence. However, it became apparent on 22 May 2002 that the radar device which the police claimed to have been employed was not the device that the engineer believed had been used but a more recent device known as a “Silver Eagle”. Since the engineer had no previous knowledge or experience of the specifications and the methods of operation of that device the plaintiff sought and was granted an adjournment to afford the opportunity for the engineer to become acquainted with appropriate information as to the Silver Eagle. There was discussion with the prosecution about the necessity for access to documents, including the relevant manual for the device employed.

5 The proceedings were adjourned until 15 July 2002 to permit of the service of a subpoena upon the second defendant, calling for the production of relevant documents concerning the Silver Eagle. Whilst a subpoena was issued on 25 June 2002, for some reason it had not been served by 15 July 2002.

6 The transcript of proceedings in the Local Court on 15 July 2002 revealed that on that date the magistrate adjourned the summons until 25 October 2002 and made it clear that if there was to be an inspection of documents pursuant to the subpoena, the matter should be specially listed. Of particular relevance, the magistrate said this:

“And I am going to indicate that the matter must proceed on that date [that is, 25 October 2002], and if there is to be any inspection of documents pursuant to the subpoena, then Mr Embleton [the plaintiff’s solicitor] would have to ask for the matter to be specially listed for those orders to be made.”

7 The subpoena addressed to the second defendant was served on 22 July 2002, but that subpoena was made returnable for 25 October 2002, the date fixed for the hearing of the summons. It is not clear why the subpoena was not made returnable before that date; it may well be that Mr Embleton had in mind costs considerations. In any event, it does not appear that the plaintiff’s solicitor took any steps to ascertain whether the subpoena had been complied with until a few days prior to 25 October 2002. By letter dated 22 October 2002, the plaintiff’s solicitor referred to the then imminent return date of the subpoena and stated that unless the documents were made available within forty-eight hours the expert retained would be unprepared for the hearing and an adjournment of the summons would be necessary.

8 That letter appears to have crossed with a letter written on 23 October 2002 by the Crown Solicitor. The Crown Solicitor’s letter identified documents answering to the description of the documents sought in the subpoena. The letter alerted Mr Embleton to there being available a manual which would be produced without objection on 25 October 2002. There was, however, a second document falling within the terms of the subpoena identified containing specifications of the Silver Eagle radar unit. The letter gave notice that it was claimed that this document was confidential and, further, that access to the specifications for the unit “might assist persons to avoid detection by this equipment by the use of radar detection devices”. Hence, notice was given that objection to production of this document would be based on public interest immunity. The letter also alerted the plaintiff to the intention to raise a preliminary objection that there was no legitimate forensic purpose for the production of the document.

9 The Crown Solicitor’s letter of 23 October 2002 prompted the plaintiff’s solicitor to respond by letter dated 24 October 2002 in the following terms:

“We refer to your letter of 23rd October (read by the writer 24th October).
At the outset let us say that we were given no prior indication that the documents sought would be in issue. Further we are particularly concerned as to the late notification of your position.
Our client’s position is that he will insist on the documents sought being provided. We note your basis of objection, however we believe the documents to be essential to our client’s defence and are instructed to argue for their production.
We are advised by Counsel that he would require a reasonable time to prepare the argument and accordingly it would appear that the matter should be adjourned to a date to allow the argument, thereafter subject to that outcome, for hearing.
Please advise urgently of your views as we are concerned not to waste costs unnecessarily.”

10 It is clear that the plaintiff’s solicitor also endeavoured to speak to the solicitor with the conduct of the matter in the Crown Solicitor’s office on 24 October 2002 but was unsuccessful in doing so. That solicitor had set off for Deniliquin by the time contact was sought to be made with him.

11 An affidavit from the plaintiff’s solicitor sworn on 20 June 2003 for the proceedings in this Court addresses the costs considerations which evidently influenced the course Mr Embleton took on 25 October 2002. Counsel’s fee was to be $4500 per day, and the cost of having the expert attend was to be $2500 per day. Since the plaintiff’s solicitor did not perceive that the matter could proceed to be argued on 25 October, he sought to avoid the expenditure on counsel and the expert for that date and, indeed, he did not appear at the Local Court either. What he did was to engage an agent who appeared before the magistrate to seek an adjournment on the instructions of the plaintiff’s solicitor.

12 On the day prior to the making of that application, the prosecutor had been approached and had informed the plaintiff’s solicitor that no objection would be raised to an adjournment of the proceedings.

13 However, on 25 October 2002 the court refused an adjournment and, having first considered the objection to the subpoena, then proceeded with the hearing of the summons on that date. This was in the absence of the plaintiff and the plaintiff’s solicitor and, of course, the plaintiff’s expert.

14 Her Worship expressed her reasons in considerable detail for the decision reached:

“This is an application for an adjournment of proceedings in respect of a speeding matter, the defendant being Gavin Rowe. No application to vacate the hearing date has been made prior to today in accordance with the Practice note which is meant to be followed in this State. It was an oral application and it is made, it is clear, on the understanding – on the expectation that the application would not be opposed by the prosecution and that the Court would grant it. It is of course a matter entirely for the Court and the issue of the expectation is of course to be taken into account but it is not determinative of the matter. It still has to be considered in the usual way.
The defendant’s argument in relation to the matter is as follows, that it is necessary for the defence of the matter to call an expert, that the expert is not in the position to prepare his or her report or to give evidence on the matter until certain material has been provided by the Commissioner for Police, being technical material in relation to the radar unit; that a subpoena was issued for the production of that technical material and that until 23 October, indeed late on that day, the principal of Mr Rolfe who represents the defendant today, was unaware that that subpoena would be challenged by the Crown Solicitor’s Office who represents the Commissioner for Police. In fact the Commissioner for Police was challenging – did comply with the subpoena in that he produced the only two documents that fell within the terms of the subpoena but resisted access to the second of those documents being technical specifications. And counsel engaged by the Crown Solicitor has appeared in court today and the defendant was on notice from two days ago and confirmed yesterday that Mr McIlwaine would be appearing on behalf of the Commissioner.
The prosecutor’s position initially was that the application for adjournment was not opposed. The prosecutor certainly, and quite properly, does not want to be now opposing it in light of some further material that’s come to light, in light of having told the principal solicitor yesterday that he did not oppose it. And his position now, as I understand it, is neutral in the sense that it is neither opposed nor consented to. But it is also noted by the prosecutor that in saying that he did not oppose it yesterday that was on the basis that there would be further communication from the principal as to conversations that he had had with the Crown Solicitor’s Office as to the issue of the subpoena.
Essentially the defence’s application all hangs upon an assertion that until certain material is produced, which I’m not entirely clear and I don’t know that Mr Rolfe is really in a position to be able to say – it is not entirely clear whether that material is the manual alone, which clearly is being produced, or whether the specifications are required – that that material is required for the expert to form his opinion. As I say, this has been asserted as the basis for the application. There is no evidence to support that.
On the other hand there is some evidence by the prosecution given by an expert who is Sergeant Eric Jones, who is the technical officer of the Radar Engineering Unit of the New South Wales Police and has been so for eight years. And certainly on the basis of his statement, I regard him as an expert as to this issue. And he said that whilst he personally had no difficulties producing certain documents that the police may very well have their own concerns – the Police Service as a whole – and that the owner of the intellectual property associated with one of those documents also may have some concerns.
He had a conversation with Dr Jones, who is the expert who it is proposed is to be called by the defence, when he and Dr Jones were both here at court on 22 May of this year when the matter was first listed for hearing, and at least at that day Dr Jones knew that the type of radar unit that was being talked about was the Silver Eagle. Now, Sergeant Jones gave evidence under cross-examination and it was not contradicted that he did not agree with the proposition that it would be necessary for the operations manual to be produced in order for the expert to ascertain whether there was any interference with the band and that is the area upon which his expertise is said to be critical.
The expert’s response was it would not be necessary. If he had any knowledge of radar, he would have the knowledge that he would need. Now, I would have thought that anyone who claims to be an expert in a radar would be a person who has some knowledge of radar. So the fundamental basis of the adjournment application – that is, that it is necessary for this document to have been produced and considered prior to the expert being able to give evidence, in my view is seriously undermined by that evidence.
In addition, the matter has been clearly fixed for hearing. Since June last year it has been asserted that an expert will be called. Indeed, when the matter was listed for hearing on the first occasion in May of this year the expert was here. Notwithstanding the conversation that the prosecution had with Mr Embleton yesterday, it’s not clear why the matter did not proceed to be fixed for hearing today, why the expert was not here and indeed perhaps some of the matters which are asserted could have been covered by that expert; why the defendant is not here and why it was assumed by everybody, or at least by Mr Embleton, that the Court would accept the assertion that at least the operations manual is required for the expert to be able to give his evidence and why the matter was not prepared for hearing or why the usual procedure in terms of vacating of the hearing date was not followed.
In all of the circumstances I cannot accept, on the evidence available before me, the assertion that it is necessary for the expert to be in a position to have considered – to get the manual, consider the manual and prepare a report in order to be able to give his expert evidence, and why the matter was not prepared for hearing today on the assumption that the Court would agree with that proposition that that was necessary or why there was no earlier application to vacate the date. And notwithstanding the prosecution’s position, at least as expressed to Mr Embleton yesterday, I do not grant the adjournment of the hearing of the matter.”

15 In the absence of the appellant and his expert, Mr Embleton’s agent was in no position to resist the prosecution case. The magistrate proceeded to find the offence proved, and the matter was adjourned for sentence until 19 November 2002. Following conviction the plaintiff was fined and his licence was suspended.

16 Hence the summons to this Court.

17 This appeal was instituted prior to the commencement of the Crimes (Local Courts Appeal and Review) Act, 2001, which applies from 7 July 2003. The relevant statutory provision is therefore to be found in the Justices Act. Section 104(4) is applicable:

“A defendant…may appeal under this Division to the Supreme Court against any interlocutory order that is made by a magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.”

18 It is to be observed that the opportunity for relief in this Court from an interlocutory ruling of the Local Court is a limited one. Leave of this Court is necessary, and the ground for leave must involve a question of law alone. By way of contrast, the plaintiff also has an appeal pending in the District Court, and that is an appeal against conviction and sentence “by way of rehearing” (s 132 of the Justices Act). In written submissions, Mr Fernon has pointed out that the District Court appeal against conviction ordinarily involves a rehearing relying on the transcript of evidence taken in the court below (s 132(1)) of the Justices Act. That would be altogether unsatisfactory in this case because of what occurred in the Local Court. However, if the appeal proceeds in the District Court, the judge entertaining such appeal may grant leave to adduce additional evidence. Section 133 of the Justices Act contemplates this may occur in any case where “the court is of the opinion that there are substantial reasons why, in the interests of justice” a witness should attend to give evidence. Whilst ultimately it would be for the judge hearing the appeal to determine this, there would seem to be compelling reasons why the attendance of witnesses should be required in the event that this appeal proceeds in the District Court.

19 I do not refer to the pending District Court appeal as a reason for refusing the relief sought in the amended summons, but to emphasise the narrower basis for intervention by this Court. What is the error of law here, for the purposes of s 104(4) of the Justices Act?

20 In reaching her decision the magistrate was clearly influenced by a number of considerations that included:

(a) the age of the case;

(b) the directions that had been given in the Local Court on 15 July 2002 that the matter must proceed on 25 October 2002;

(c) the failure of the plaintiff to seek inspection of the documents in a manner contemplated by the magistrate on 15 July 2002 (see para 6 above);

(d) the failure of the plaintiff to comply with the “usual procedure” for seeking to vacate the appointed hearing date;

(e) the appearance of the Crown Solicitor to argue the issue of production on the subpoena.

21 There were, of course, features to be considered in the plaintiff’s favour on the adjournment application, including the following matters:

(a) that the prosecution did not oppose the adjournment;

(b) that neither the prosecution nor the Crown Solicitor had alerted the plaintiff’s solicitor to the refusal to make available the specification document before 23 October 2002;

(c) consideration of costs where an adjournment was not opposed. Plainly it would have been expensive for the plaintiff’s counsel, his expert and the plaintiff to attend the Deniliquin courthouse;

(d) Since neither the plaintiff nor his expert was present at court, there was absent the opportunity for the plaintiff to respond to the evidence given by Sgt Jones, evidence which, from the expression of the magistrate’s reasons, was plainly influential in the decision reached;

(e) the exposure of the plaintiff in the event of refusal of the application to the risk of conviction and penalty.

22 Whilst the decision here challenged was strictly an interlocutory one, its practical effect was to lead inevitably to finality in the proceedings absent the plaintiff and his expert. Mr Embleton’s agent was, of course, heard on the adjournment application, but once that failed the agent’s role was effectively exhausted.

23 Courts must be careful to ensure that considerations as to the management and disposal of cases do not assume undue importance. I refer to what was said in the joint judgment of Dawson, Gaudron and McHugh JJ in Queensland v JJ Holdings Pty Limited (1996-1997) 189 CLR 146 at 154:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

24 However, as Meagher JA observed in Cucu v The District Court of New South Wales (1994) 73 A Crim R 240 at 249:

“A trial judge’s decision to grant or refuse an adjournment ought be almost inviolable.”

25 The magistrate in this case had to weigh up considerations in favour of granting an adjournment with considerations to the contrary. The weight to be given to those various considerations is not a question of law. See, for example, Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81 at 83. Moreover, it is not for this Court to weigh those competing features as if it was conducting a rehearing. It is not sufficient for the plaintiff’s purposes for this Court to come to the view, if such be the case, that it would have granted the adjournment which the plaintiff sought had it been entertaining the application. This Court can only intervene if it be established that the decision to refuse the adjournment was based on or influenced by an error of law, and after anxious consideration of the matter, it does not seem to me that this has been shown.

26 Even if the plaintiff was here to be considered to be appealing against his conviction, s 104(1) of the Justices Act would require that he establish either a ground that involved “a question of law alone” (s 104(1)(a)), or a ground that involved “a question of mixed law and fact” (s 104(1)(b)). No error of law is established.

27 For the above reasons, leave to appeal is refused and the appeal is dismissed.

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Last Modified: 03/05/2004