Sekyere-Boakye v Whitney
[2013] WASC 147
•24 APRIL 2013
SEKYERE-BOAKYE -v- WHITNEY [2013] WASC 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 147 | |
| 24/04/2013 | |||
| Case No: | SJA:1124/2012 | 17 APRIL 2013 | |
| Coram: | HALL J | 17/04/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Conviction set aside and retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | NINO SEKYERE-BOAKYE ADAM BOYD WHITNEY |
Catchwords: | Criminal law Appeal against conviction Refusal to grant an adjournment Whether discretion properly exercised Failure to take into account a relevant consideration Failure to consider prejudice to the accused in refusing an adjournment |
Legislation: | Nil |
Case References: | Bennett v Councillor [2001] WASCA 342 Greer (1992) 62 A Crim R 442 Lasscock v Seidner [2013] WASC 94 Leary v The Queen [1975] WAR 133 Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 Lyster v Kemp [2010] WASC 47 Manonai v Burns [2011] WASCA 165 Minister for Immigration and Multi-Cultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 497 Myers v Myers [1969] WAR 19 Pallett v Paul [2007] WASC 290 Saad v Barron [2012] WASC 507 The Queen v Jones [1971] VR 72 The Queen v McGill [1967] VR 683 The State of Western Australia v Sillich [2011] WASCA 135 Touma v Saparas [2000] NSWCA 11 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ADAM BOYD WHITNEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 30805 of 2012
Catchwords:
Criminal law - Appeal against conviction - Refusal to grant an adjournment - Whether discretion properly exercised - Failure to take into account a relevant consideration - Failure to consider prejudice to the accused in refusing an adjournment
(Page 2)
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside and retrial ordered
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms S J K Teoh
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bennett v Councillor [2001] WASCA 342
Greer (1992) 62 A Crim R 442
Lasscock v Seidner [2013] WASC 94
Leary v The Queen [1975] WAR 133
Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483
Lyster v Kemp [2010] WASC 47
Manonai v Burns [2011] WASCA 165
Minister for Immigration and Multi-Cultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 497
Myers v Myers [1969] WAR 19
Pallett v Paul [2007] WASC 290
Saad v Barron [2012] WASC 507
The Queen v Jones [1971] VR 72
(Page 3)
The Queen v McGill [1967] VR 683
The State of Western Australia v Sillich [2011] WASCA 135
Touma v Saparas [2000] NSWCA 11
(Page 4)
- HALL J:
Introduction
1 On the hearing of this appeal on 17 April 2013 I granted leave to appeal, allowed the appeal and set aside the appellant's conviction. I said that reasons for that decision would be published subsequently. My reasons are as follows.
2 It is important to state at the outset that the appellant has at all times represented himself. He is unfamiliar with court procedure and the proceedings in the Magistrates Court were the first time he had ever been in a court. Those are factors which are relevant in any assessment of what occurred.
Background
3 On 18 April 2012 the appellant was issued with a traffic infringement notice for contravening a red traffic control light. He did not pay the infringement amount but instead elected to have the matter dealt with by a court.
4 A prosecution notice was prepared and signed on 13 June 2012. It alleged that the appellant was the driver of a vehicle on 18 April 2012 and had failed to comply with a red light on St Georges Terrace, contrary to s 40(1) of the Road Traffic Code 2000 (WA). The appellant endorsed a plea of not guilty on the written plea form served with the prosecution notice. He also stated on the form that he intended to call two witnesses, including himself, at the hearing.
5 The matter was mentioned in the Magistrates Court on 10 July 2012. At that time the appellant confirmed his plea of not guilty and the matter was adjourned for a trial on 18 September 2012.
6 On 18 September 2012 the appellant appeared unrepresented. He was asked by the magistrate whether he was ready to proceed and he said that a witness he wished to call was unavailable and he asked for an adjournment of the trial. Whilst the transcript is not complete at this point it would seem that the appellant advised the magistrate that his witness had needed to travel at short notice to the country. The exchange with the magistrate was as follows:
HER HONOUR: Are you ready to go through the trial?
(Page 5)
- SEKYERE-BOAKYE, MR: Yes, but my witness is not here today. She has travelled (indistinct) so I (indistinct) if we could get it adjourned (indistinct).
HER HONOUR: Yes, it does, and usually a minor traffic matter I don't adjourn.
SEKYERE-BOAKYE, MR: Okay.
HER HONOUR: You have had plenty of time, plus I am not sure whether there - is it a camera?
PROSECUTOR: It's not a camera, ma'am, it's a police officer on a motorcycle.
HER HONOUR: Okay.
PROSECUTOR: It's a single witness and so there's no civilian witnesses involved in it at all.
HER HONOUR: All right, and have you been through a trial before?
SEKYERE-BOAKYE, MR: No. This is the first time I've been in court ever.
HER HONOUR: I will explain to you what happens. The prosecution, represented by the police officers, must prove their case beyond a reasonable doubt, which is the criminal standard of proof. Do you have the charge?
JSO: (indistinct)
HER HONOUR: In relation to this matter, what they have to prove is you, so your identity - on 18 April you were the driver of the motor vehicle 1DFS-080 on St George's Terrace, which is just out there, approaching a traffic light controlled pedestrian crossing near William Street, where a traffic control signal applicable to you displayed the colour red - that you went through a red light. They must prove all those elements of the offence.
You can concede that it was you, the date, 18 April, and that you were in a motor vehicle 1DFS-080, but your defence will be, or what you are saying, is, 'I don't go through a red light'. Otherwise you wouldn't be wasting our time in court today.
SEKYERE-BOAKYE, MR: Yes, ma'am.
HER HONOUR: So that may be the only issue.
SEKYERE-BOAKYE, MR: SEKYERE-BOAKYE: All right.
(Page 6)
- HER HONOUR: But the prosecution are still required to prove all the elements beyond a reasonable doubt. You don't carry an onus, you are not required to prove anything, but he who asserts a fact must prove that fact.
Now, if there is only one witness, I need to give you a section 30 direction when that witness's examination-in-chief is completed. Now, I only need to do a section 30 direction when you are unrepresented and you are acting in person. Then section 30 of the Magistrates Court Act says I must do this. I must tell you how to cross-examine and the consequences of failing to cross-examine properly.
SEKYERE-BOAKYE, MR: Okay.
HER HONOUR: But I don't need to worry about that at the moment. I just need to explain to you how it works. Once the prosecution have called their witnesses, or witness, today then you have an opportunity to give your own evidence, but you don't have to if you don't want to. That is, you go into the witness box and give your version of events.
SEKYERE-BOAKYE, MR: Okay.
HER HONOUR: But you don't have to.
SEKYERE-BOAKYE, MR: I shall do it. I am prepared to.
HER HONOUR: Yes? No, that's fine. Then the sergeant will cross-examine you.
SEKYERE-BOAKYE, MR: Okay.
HER HONOUR: At the end of all the evidence - that is, the prosecution evidence and your evidence - then each of the parties is entitled to sum up. That is, make a statement to the court in support of their side. The prosecution will no doubt say that you should be convicted, and you no doubt will say that you shouldn't be convicted of the offence.
SEKYERE-BOAKYE, MR: Okay, ma'am.
HER HONOUR: So each of you will speak to your own case. Then I give a decision on the spot, because this is one person against the other, it's not a difficult matter, it depends on the material before the court, and I can do an extempore decision (ts 2 - 3).
7 Following this exchange the magistrate invited the prosecutor to call his witness. While there was no formal refusal of the adjournment it is obvious that the magistrate did not accept that the appellant's application should be granted.
8 The trial proceeded. The prosecution called one witness, a police officer. He was the traffic patrol officer who had been riding his
(Page 7)
- motorcycle on St Georges Terrace at the relevant time. He said that he noticed the car driven by the appellant because he thought it was driving too fast. He said that he signalled to the appellant to slow down, which the appellant did. He noticed that there was a female passenger in the front passenger seat.
9 Further along St Georges Terrace the officer was ahead of the appellant's car when he approached a pedestrian crossing controlled by traffic lights. The officer said that the lights turned amber when he was close to the line and he continued through the crossing. The officer said that he observed the appellant's car through his rear vision mirrors to also travel through the intersection. He said that the traffic lights at that time had turned red and that he heard the audible signal that indicates to pedestrians that it is safe to cross. He said that he then pulled the appellant's car over and issued the infringement notice.
10 After the prosecution closed its case, the magistrate explained to the appellant that he had a right to give evidence in his defence. The exchange was as follows:
HER HONOUR: Now, you don't have to give evidence if you don't want to. I can't tell you whether you should or shouldn't, because that's up to you. The prosecution have called their one witness, and that's all they need to call, plus he was alone on the motorbike so it's not as if they can call somebody else. So they have done that. They have closed their case.
If you want to open your case and give your evidence, you are entitled to do so, but you don't have to if you don't want to. The prosecution must prove their case beyond a reasonable doubt. So if you want to give evidence, you can. That's your choice.
SEKYERE-BOAKYE, MR: I would indicate I am not familiar with court proceedings, you can recollect that, because when I was talking I was - - -
HER HONOUR: No, not, that's all right.
SEKYERE-BOAKYE, MR: So I don't want to be doing that because I am not familiar with court proceedings.
HER HONOUR: It's up to you. I cannot recommend it either way because I not here to represent you, I am here to adjudicate.
SEKYERE-BOAKYE, MR: Okay.
HER HONOUR: All right. The accused elects not to give evidence and I will just hear the summing up. Sergeant, you first (ts 13 - 14).
(Page 8)
11 After hearing submissions from the prosecutor and the appellant the magistrate gave oral reasons for finding the appellant guilty of the offence. In doing so she stated that the police witness was, in her view, entirely credible and reliable. She then said:
Now, is there any evidence to displace the prosecution case, and the answer to that is, 'No'. The accused did not give evidence, so I don't need to make competing findings of credibility, and he doesn't have to, it's up to him; but in relation to Senior Constable Whitney's evidence, in my opinion, it is not displaced by cross-examination or the accused asking him the question of, 'The light was green. I went through on the amber because I couldn't stop'. That's not what the senior constable saw. What he saw was the accused travel through the red light after it was red for one second - one to one and a half seconds (ts 17).
Grounds of appeal
12 The notice of appeal contains three numbered grounds of appeal but in essence they raise two issues. First, whether the magistrate was in error in refusing to adjourn the trial. Secondly, whether the appellant was denied a fair opportunity to give evidence in his defence.
13 In regard to the second ground, the appellant explained on the hearing of the appeal that the magistrate's interruptions during the course of the trial had made him feel that he did not adequately understand court procedure. He felt that in these circumstances he would not be able to properly acquit himself as a witness. He also said that without the support of the witness who he had wished to call, he felt that it would be pointless to give evidence contradicting the police officer. It is evident from this that ground 2 is not an independent ground but is an aspect of ground 1. That is, that the appellant accepts that he chose not give evidence but says that that choice was made because he had been refused an adjournment and thereby an opportunity to call his witness.
14 At the hearing of the appeal I pointed out to the appellant that it was difficult to reach any view as to whether the refusal of the adjournment resulted in any serious injustice to him when the identity and nature of the evidence of the witness he wished to call had not been placed before the court. The appellant said he had attempted to prepare an affidavit but was unfamiliar with the proper way in which this should be done. He had, however, arranged for the witness to be in attendance at the appeal hearing. In the circumstances I considered that it was appropriate, if unusual, to allow the appellant to call the witness at the appeal hearing.
(Page 9)
15 The witness was Mrs Sally Owusu-Bempah. She said that she was the passenger in the vehicle on the relevant day. The appellant had picked her up from hospital and she confirmed that they drove through Perth along St Georges Terrace. She said that there was a police officer on a motor bike directly in front of the vehicle and that they passed thorough the traffic lights at William Street and the pedestrian crossing while both sets of lights were green. She said that the second set of lights at the pedestrian crossing turned amber but only after the appellant's vehicle had crossed the line. She said the lights were not red at any relevant time. She said that she had a clear recollection of the events and was not on any medication at the time. She said that in her experience the appellant was a safe driver and that he was being particularly careful that day because she had her 8-month-old baby in the back of the car.
16 Mrs Owusu-Bempah also said that two days prior to the trial she had received an urgent request to visit a friend in Kambalda. This was unexpected and had resulted in her being away on the day of the trial.
Ground 1: Refusal of adjournment
17 The decision to grant or refuse an adjournment is a discretionary one. The correctness of such a decision can only be challenged on the usual grounds for interfering with a discretionary decision: Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 [40].
18 The principles applicable to an appeal on the ground of refusal of an adjournment were set out by Hasluck J in Pallett v Paul [2007] WASC 290 [52] - [55]. See also Lyster v Kemp [2010] WASC 47, Saad v Barron [2012] WASC 507 and Lasscock v Seidner [2013] WASC 94. Those principles can be summarised as follows:
(a) Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless, in turn, this would mean serious injustice to the other party: Myers v Myers [1969] WAR 19. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted: Bennett v Councillor [2001] WASCA 342 [22].
(b) It is fundamental to the administration of justice that accused persons are given the full opportunity to present their defence. An adjournment should be granted if it is necessary to enable the
- accused person to properly present that defence: Leary v The Queen [1975] WAR 133, 138.
- (c) It is proper to reject an application for an adjournment to allow a defence witness to be brought from elsewhere if the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused: The Queen v McGill [1967] VR 683; The Queen v Jones [1971] VR 72.
(d) Adjournments are not available for the asking. In criminal proceedings it is necessary to take into account interests other than those of the accused. These include the interests of the community in the prompt disposal of charges. It undermines the orderly disposal of the work of the courts when criminal trials are adjourned unnecessarily: Greer (1992) 62 A Crim R 442, 448.
19 The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Minister for Immigration and Multi-Cultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 497 [40] and Touma v Saparas [2000] NSWCA 11 [27]. See also Manonai v Burns [2011] WASCA 165 [76].
20 In the present case the appellant did not merely ask for an adjournment; he gave a reason for seeking it. He said that he had a witness who he wished to call who had had to travel to the country. There was no indication that an adjournment would prejudice the prosecution and there is nothing to suggest that the application was opposed.
21 It is true that the appellant did not name the witness or explain the significance of her evidence. However, he had very little opportunity to do so and, as has been noted, was unrepresented and unfamiliar with court proceedings. In the circumstances it would have been appropriate for the magistrate to have asked the appellant:
(1) who the witness was;
(2) what the significance of her anticipated evidence was; and
(3) why she was not available.
(Page 11)
22 Without asking these questions no proper assessment could be made of whether the refusal of the adjournment would cause prejudice to the appellant.
23 In refusing the adjournment the magistrate referred to a number of considerations. I will deal with each of them. First, she said, 'usually a minor traffic matter, I don't adjourn'. If what was meant by this was that the nature of the charge weighed against the grant of an adjournment then, with respect, the magistrate was wrong. The quality of justice to be dispensed is not diminished because of the relative triviality of the charge being dealt with. It is no doubt important that the large volume of work in the Magistrates Court be dealt with efficiently. If adjournments were granted too readily the efficiency of the court would be impaired. However, this does not mean that in appropriate cases adjournments should not be granted: See The State of Western Australia v Sillich [2011] WASCA 135 [37] (Martin CJ).
24 Secondly, the magistrate considered that the appellant had had 'plenty of time'. I assume from this that the magistrate meant that the appellant had had adequate time to ensure the attendance of his witnesses. This, of course, assumes that the reason why the witness was not in attendance was a failure on the part of the appellant to make appropriate and timely arrangements. However, without asking questions of the appellant no such assumption could properly be drawn. Furthermore, that assumption has now been shown to be incorrect. The appellant always intended to call Mrs Owusu-Bempah but she had unexpectedly had to travel to Kambalda two days prior to the trial.
25 Thirdly, the magistrate referred to the nature of the prosecution case. The magistrate asked whether the prosecution evidence was 'a camera'. She clearly meant by this that if the prosecution evidence was based on a photograph from a traffic camera then any defence witness would be of limited significance. However, the prosecutor advised that the evidence in this case was not a camera but that of a police officer on a motor cycle. It was clear from this that the prosecution case would be relying upon the observations of the police officer in question. In these circumstances, there was clearly potential for other witnesses to be able to give relevant evidence.
26 Fourthly, the magistrate considered that the prosecution case comprised of one police witness; no civilian witnesses were involved. That does not mean that possible defence witnesses were irrelevant. On the contrary, as the magistrate recognised in her reasons for convicting the
(Page 12)
- appellant, whether or not there was any contradictory evidence was relevant in considering whether the charge was proven beyond reasonable doubt. It is ironic that the magistrate emphasised the absence of any contradictory evidence when she had denied the appellant the opportunity to call it.
27 It is now apparent that the witness who the appellant wished to call could have given evidence relevant to the charge. It is not my task to determine whether the evidence of Mrs Owusu-Bempah should be accepted, but it is clear that that evidence relates to the principal matter in issue at trial. It cannot be doubted that to refuse the appellant the opportunity to call this witness must have caused him significant prejudice. That prejudice was not taken into account in refusing the adjournment.
28 This case is unlike a number of other cases where appeals in relation to the refusal of an adjournment by a magistrate have failed: Pallett v Paul, Lyster v Kemp and Lasscock v Seidner. In those cases it was not established that the refusal of the adjournment caused any substantial prejudice. That is because there was either nothing to indicate what evidence would have been given or the proposed evidence was not such as to be material to the relevant issues in the case. In contrast the proposed evidence here is relevant to the central issue in the case and could, depending on what view of it is taken, have affected whether the magistrate was satisfied that the charge was proven.
29 In those circumstances, this is a case where the discretion to refuse an adjournment was not properly exercised. In particular, the magistrate failed to take into account a relevant consideration, namely whether the refusal of an adjournment would cause prejudice to the appellant. In my view, had that relevant consideration been taken into account an adjournment would have been granted. The failure to grant an adjournment caused a miscarriage of justice because the appellant was denied the opportunity of an acquittal. Accordingly, this ground of appeal must succeed.
Ground 2: Failure to give evidence
30 There is no merit in this ground as an independent ground. The magistrate properly and fairly advised the appellant of his right to give evidence. She stressed that the choice was his, both at the commencement of the trial and at the close of the prosecution case. There was nothing confusing about what was said and the appellant has accepted that he
(Page 13)
- exercised a choice not to give evidence. However, this ground is immaterial given the success of ground 1.
Conclusion
31 The discretion to refuse an adjournment of the trial was not properly exercised. The refusal of an adjournment denied the appellant the opportunity to call a material witness. In these circumstances an adjournment should have been granted. Accordingly, on the hearing of this appeal I made the following orders:
1. Leave to appeal in respect of ground 1 is granted.
2. The appeal is allowed.
3. The appellant's conviction on charge PE 30805/12 is set aside.
4. The matter is remitted to the Magistrates Court for a retrial before a different magistrate.
4
11
1