Stusser v Police - [2013] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STUSSER v POLICE
[2013] SASC 73
Reasons for Rulings of The Honourable Justice Gray
23 May 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Appeal against conviction - where defendant charged on Information with two counts of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) - where defendant did not attend trial - where defendant was found guilty by a Magistrate of both counts following an ex parte hearing - whether the Magistrate determined to proceed ex parte without sufficient caution - whether the defendant had deliberately and consciously absented himself from the Court.
Held: Appeal allowed - respondent conceded the appeal should be allowed - findings of guilt recorded by the Magistrate set aside - matter remitted for retrial in the Magistrates Court by a different magistrate - defendant to pay the costs thrown away in the Magistrates Court and of the appeal - terms of the defendant’s bail agreement amended to require the provision of a cash surety.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
R v Gee (2012) 113 SASR 372; R v Hayward [2001] 1 QB 862, considered.

STUSSER v POLICE
[2013] SASC 73
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction.
On 23 April 2013, I made an order allowing the appeal of the defendant and appellant, Shaen Justin Stusser, and setting aside the findings of guilt recorded by the Magistrate, and remitted the proceeding for retrial. I made further orders that the defendant pay the costs thrown away in the Magistrates Court and the costs of the appeal. Finally, I amended the terms of the defendant’s bail agreement to require the provision of a cash surety. My reasons for making these orders follow.
On 28 July 2011, the defendant was charged on Information with two counts of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA). The defendant faced a maximum penalty on each count of three years imprisonment. On 14 December 2012, the defendant was found guilty of both counts by a Magistrate. This followed an ex parte hearing of both counts.
The alleged offending occurred on 9 and 13 June 2009. Count one alleged an assault on 9 June 2009 by the defendant of his 33 week pregnant partner. Count two alleged an assault on 13 June 2009 of the defendant’s partner when she was three days post-partum.
The court file records that the defendant was present at the Elizabeth Magistrates Court for a pre-trial conference on 20 September 2012. At that conference, the matter was listed for trial on 14 December 2012.
The defendant did not attend on 14 December 2012. His solicitor was, however, present. After a brief adjournment the defendant still had not appeared. His solicitor indicated that she had no instructions and sought, and was granted, leave to withdraw. The prosecutor made no application for a warrant to be issued for the arrest of the defendant. Further, there was no application by the prosecutor for the trial to proceed in the defendant’s absence.
The Magistrate determined that the matter should proceed ex parte. Her Honour amended count 2 on the Information to alter the date of the alleged offence from 9 June 2009 to 13 June 2009. The Magistrate provided reasons for her decision to proceed ex parte:
The defendant is charged with two counts of assault, aggravated by the fact that the defendant and the victim were spouses at the relevant time in accordance with Section 20(3) of the Criminal Law Consolidation Act. It is alleged that on 9 June 2009 at Smithfield Plains, the defendant assaulted his then partner by kicking and punching her and at the time she was pregnant to him. It is also alleged in count two that on 13 June, he assaulted her again by grabbing her throat and attempting to strangle her and also throwing a pair of gardens shears at her which narrowly missed.
The matter was set down for trial on 20 September 2012. On the morning of trial, Ms Ballans who has been acting for the defendant, attended but indicated that she did not know the whereabouts of the defendant. I kept the matter in the list for about an hour to enable her to make further enquiries and in that time she failed to make contact. In the circumstances, I determined that it was appropriate to commence the trial in the defendant’s absence. He was present when the matter was listed for trial according to the court record and the prosecutor had her witness ready to give evidence. Ms Ballans then sought to withdraw from the file and leave was granted.
The Magistrate delivered an ex tempore judgment at the completion of the complainant’s evidence, finding the defendant guilty on both counts. A warrant was then issued for the arrest of the defendant.
The Appeal
On the appeal, the defendant submitted that the Magistrate determined to proceed ex parte without sufficient caution. It was accepted that the Magistrate had a discretion to commence the trial in the absence of the defendant. It was argued that the critical question was whether the defendant had deliberately and consciously absented himself from the Court. The Court’s attention was drawn to the joint observations of the majority in Gee:[1]
For our part, we find the reasoning in the approach of the members of the House of Lords in R v Jones (Anthony) compelling. There appears to be no reason in principle for distinguishing between the circumstances of a defendant who is voluntarily absent before the trial, and a defendant who absconds during the course of a trial. Principle strongly supports the conclusion that a trial judge retains a general discretion to proceed with the trial in the absence of the defendant. However, that discretion should be exercised with caution. The factors discussed by Lord Justice Rose in R v Jones, Planter and Pengelly are important considerations.
[Footnotes omitted.]
[1] R v Gee (2012) 113 SASR 372, [79].
Counsel drew attention to the fact that the defendant had attended on a majority of occasions when the proceedings had been listed. On the two occasions when he did not attend, it had been pointed out to the Court that the defendant encountered difficulties when travelling from the defendant’s place of residence to the Elizabeth Magistrates Court.
Counsel for the defendant further submitted that once the Magistrate determined to proceed ex parte, the Magistrate was under an obligation to ensure that the trial was conducted as fairly as the circumstances permitted. Attention was drawn to the following further observations in Gee:[2]
It is to be accepted that the exercising of the discretion to proceed to trial in the absence of the defendant requires a departure from the prosecutor and judge's ordinary role in an adversarial trial. For example, a trial judge may well be required to highlight to the jury any defects or potential defects in the prosecution case, which would not necessarily be confined to the summing up. It is also to be accepted that the prosecutor may need to take a challenging approach to their own witnesses in examination-in-chief.
It was contended that no modification to the trial process occurred and that, in the circumstances, the trial was not conducted as fairly as the circumstances permitted.
[2] R v Gee (2012) 113 SASR 372, [92].
Counsel for the police accepted that the appeal should be allowed. In particular, it was acknowledged that the discretion to commence and proceed with the trial in the absence of a defendant should only be exercised when the presiding judicial officer is satisfied that the defendant has deliberately waived his or her right to be present or to be represented.
A defendant has a right to be present and legally represented at trial, but those rights may be waived, separately or together, wholly or in part, by the defendant. The trial judge has a discretion as to whether the trial should take place or continue in the absence of the defendant and their legal representatives. The trial Judge’s discretion is to be exercised with great care and it is only in rare and exceptional circumstances that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. Fairness to the defence is of prime importance, but fairness to the prosecution must also be taken into account. The trial judge must have regard to all the circumstances of the case, including:[3]
[3] R v Hayward [2001] 1 QB 862, [22]; See R v Gee (2012) 113 SASR 379, [92].
(i)the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii)whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii)the likely length of such an adjournment;
(iv)whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v)whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi)the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii)The risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii)the seriousness of the offence, which affects defendant, victim and public;
(ix)the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x)the effect of delay on the memories of witnesses;
(xi)where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
The Magistrate did not make a finding that the absence of the defendant on the day of the trial was deliberate or that the defendant had deliberately waived his right to be represented. Further, the reasons do not record any reference to the principles governing the exercise of the discretion to proceed in the absence of a defendant or to the majority reasons in Gee.[4]
[4] R v Gee (2012) 113 SASR 372.
There was no information before the Magistrate to allow her to be satisfied that the defendant had deliberately waived his right to be present or to be represented. There was no basis to exclude the reasonable possibility of accident, illness or that he was simply running late. In these circumstances, the trial should not have proceeded ex parte.
The allegations against the defendant were serious. If he were to be found guilty of either offence, he faced the real possibility of being sentenced to a term of imprisonment. Counsel for the police pointed out that the defendant had, only seven weeks prior to the incident the subject of count 1, entered into a good behaviour bond. As a consequence, the defendant’s liberty was at risk.
Counsel for the police accepted that the orders earlier identified should be made.
Before this Court, the defendant accepted that his non-attendance had caused costs to be unnecessarily incurred, both in the Magistrates Court and on this appeal. He consented to an order that he pay those costs. The question of the avoidance of any further delay then arose. A date on which a trial before another magistrate in the Elizabeth Court could proceed was determined and fixed. Having regard to the defendant’s earlier non-attendance, his terms of bail were varied to require the provision of a cash surety.