TRAN v Police

[2004] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TRAN v POLICE

Judgment of The Honourable Justice Anderson

24 September 2004

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - BEGINNING AND ENDING OF HEARING

Appellant appeared in Magistrates Court for failing to complete a community service order imposed after being convicted for assault offence - appellant had two hearings in the Magistrates Court - original Magistrate ordered report from Department of Correctional Services and adjoured the matter - matter heard by another Magistrate on the adjourned date - second Magistrate finalised the matter in the absence of the report - period of imprisonment imposed - appeal on grounds that: matter was part-heard in front of original Magistrate, second Magistrate erred in finalising matter in absence of report - whether second Magistrate adequately considered unrepresented appellant's circumstances - held: matter was part-heard in front of original Magistrate - appeal allowed, matter to be re-listed before original Magistrate to be finally heard and determined.

Sealy v Nichol (1977) 17 ALR 104; Wentworth v Rogers (No. 3) (1986) 6 NSWLR 642, applied.
Cooling v Steel (1971) 2 SASR 249; McGlynn v SA Police (1993) 61 SASR 277; McFadzean v Hayes (1986) 133 LSJS 142, considered.

TRAN v POLICE
[2004] SASC 303

1. ANDERSON J  In this matter the appellant has advanced several grounds of appeal.  The first of these is that the learned Magistrate erred in proceeding to hear the matter himself because it was already part-heard in front of another Magistrate.

2. If it is found that the matter is part-heard it should be remitted for hearing before the original Magistrate.  I adopt, with respect, the words of Muirhead J in Sealy v Nichol (1977) 17 ALR 104 (at 106):

   “I take the view it constituted an irregularity in the processes of justice as it is a traditional rule of judicial procedure that once a court having jurisdiction has entered on the hearing of a case, it should, as originally constituted, go on and dispose of it.”

3. Allied with that ground of appeal is another ground of appeal that the learned Magistrate erred in proceeding to finalise the matter in the absence of a report from the Department of Correctional Services that had been ordered by the original Magistrate.

4. It seems to me that the original Magistrate was seized of the matter and that therefore the matter should have continued before him until finalised, consistent with the authority of Sealy v Nichol and also Wentworth v Rogers(No.3) (1986) 6 NSWLR 642. The court file notes that the matter was “part-heard”. That might not necessarily be conclusive but, in my view, when combined with the following notation on the court file, namely:

   “For report – list before Mr T. Iuliano SM – community service assessment report (written) – his Honour orders a report from the Department for Correctional Services commenting on the defendant’s ability or otherwise to complete the outstanding 72 hours of community service”,

   it is a very strong indication that it was part-heard.

5. I have considered whether this is an appropriate case in which to obtain a report from the original Magistrate, but I have decided against that because the court file indicates quite clearly that the matter was to be again listed before the original Magistrate for the purpose of enabling him to consider a report which he had specifically ordered, and for which the matter was adjourned.

6. On the occasion in question, the Magistrate appealed from decided to proceed, notwithstanding that the report had not been obtained, and in my view was in error in doing so.

7. The appellant was unrepresented before both Magistrates.  He has filed an affidavit in this matter.  It is clear from that affidavit that the appellant had an impression that the original Magistrate was considering the appellant’s explanation for the breach of the community service order together with his ability to perform the service required, and that is why the original Magistrate ordered a report.  The Magistrate appealed from did not have that report before him, and proceeded to impose a term of imprisonment on the appellant.

8. He did not give the unrepresented defendant any indication that he was considering a term of imprisonment.  He did not refer the defendant to the duty solicitor or advise him generally in relation to the importance of obtaining legal advice.  He should have done so – see generally – Cooling v Steel (1971) 2 SASR 249 (at 250-257), McGlynn v SA Police (1993) 61 SASR 277 (at 278), and also McFadzean v Hayes (1986) 133 LSJS 142.

9. I mention these latter aspects because that is where the injustice has occurred, in my view.  Whereas the appellant was expecting the original Magistrate to consider the whole position in light of the report which he had ordered, he suddenly found himself in front of the Magistrate appealed from without the benefit of a report, and with someone who was considering imprisoning him.

10. In my view, this is a clear-cut case in which the original Magistrate was seized of the matter and where an injustice has been done in not allowing the matter to proceed to finality in front of the original Magistrate.  Therefore the matter should be remitted to him for further hearing.  The appellant is entitled to have the original Magistrate consider whether the defendant’s failure to comply with the conditions of his bond was trivial or whether there were proper grounds upon which the failure should be excused, and therefore whether the Court would refrain from revoking the suspension of the sentence.

11. I therefore order that the order of the Magistrate appealed from, revoking the suspension and ordering the sentence to come into effect, should be itself revoked.  The matter is to be re-listed before the original Magistrate to be finally heard and determined.