Trivett v Zoccoli
[2002] WASCA 138
•13 MAY 2002
TRIVETT -v- ZOCCOLI [2002] WASCA 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 138 | |
| Case No: | SJA:1032/2002 | 13 MAY 2002 | |
| Coram: | EM HEENAN J | 13/05/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Dismissal of complaint set aside and complaint remitted for hearing to Court of Petty Sessions | ||
| B | |||
| PDF Version |
| Parties: | PETER TIM TRIVETT BRIAN PETER ZOCCOLI |
Catchwords: | Courts Court of Petty Sessions Adjournment Discretion Factors for consideration Serious injustice to prosecution |
Legislation: | Justices Act 1902 (WA), s 79, s 186, s 199 |
Case References: | Australian Coal and Shale Employees Federation v The Commonwealth (1953) 74 CLR 621 Bennett v Councillor [2001] WASCA 342 Lowndes v R (1997) 195 CLR 665 Myers v Myers [1969] WAR 19 R v Jones [1971] VR 72 Vick v Drysdale [1981] WAR 321 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BRIAN PETER ZOCCOLI
Respondent
Catchwords:
Courts - Court of Petty Sessions - Adjournment - Discretion - Factors for consideration - Serious injustice to prosecution
Legislation:
Justices Act 1902 (WA), s 79, s 186, s 199
Result:
Appeal allowed
Dismissal of complaint set aside and complaint remitted for hearing to Court of Petty Sessions
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Category: B
Representation:
Counsel:
Appellant : Ms L Petrusa
Respondent : Mr A E Monisse
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : GC & KC Christou
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 74 CLR 621
Bennett v Councillor [2001] WASCA 342
Lowndes v R (1997) 195 CLR 665
Myers v Myers [1969] WAR 19
R v Jones [1971] VR 72
Vick v Drysdale [1981] WAR 321
Case(s) also cited:
Nil
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1 EM HEENAN J: This is an appeal by leave under the provisions of the Justices Act 1902 from the decision of his Worship Mr P G Thobaven, Stipendiary Magistrate, sitting in the Court of Petty Sessions at Joondalup on 11 February 2002, by which his Worship dismissed a complaint then pending before him after having refused an application for an adjournment made by the prosecuting police officer who had explained that the prosecution was not in a position to proceed for want of an essential witness. The order made by his Worship was that the proceedings should be dismissed and that there should be an order for costs in the amount of $1,715 against the complainant.
2 The charge that was before his Worship had been initiated by a complaint made on 20 June 2001 which alleged that on that day, the 20th day of June 2001, the respondent Brian Peter Zoccoli without consent was in the dwelling of Joy Marilyn Gillian and committed the offence of stealing contrary to s 401(2)(b) of the Criminal Code. The defendant was brought before the court on 21 June 2001 on this complaint, elected to be tried summarily and entered a plea of not guilty. There was a series of appearances and remands leading to arrangements to list the case for trial on 11 February 2002. The sequence of these is of some importance to the disposition of this present appeal.
3 Significantly, on 8 January 2002 the matter came before the Joondalup Court of Petty Sessions to be listed for trial and this occurred in circumstances where certificates or representations on behalf of the prosecution and the defence had been given to the effect that there were no material unavailable dates for trial. In those circumstances this case was listed for trial on 11 February 2002, a little over a month ahead.
4 There is some uncertainty as to whether the principal witness for the prosecution, Ms Gillian, was then available and willing to give evidence in February. There is no evidence on that matter before this court and I am invited to draw inferences that she must have been available and willing to attend or else there would have been no certification to that effect, but it is perfectly possible that there could have been some breakdown in communication and that, unknown to the prosecution, Ms Gillian was not available in February and knew, as early as 8 January, that she would not be available. I do not consider that it is necessary or proper to draw an inference one way or the other. What is clear, however, is that by 23 January 2002 the complainant became aware that Ms Gillian would not be available to give evidence on the day appointed for the trial and made arrangements for the matter to be relisted before his Worship in
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- the Joondalup Court of Petty Sessions in order to apply for an adjournment.
5 That hearing took place on 23 January last. A police sergeant prosecuting, appeared for the complainant and the defendant was represented by counsel. In the course of the application, explaining its purpose, the prosecutor said, and I quote:
"I appear, your Worship. Thank you. This matter is here for an application by the prosecution.
…
Your Worship, apparently it's an application for a - - to vacate the hearing date. The complainant in this offence is overseas in the United States and will be there between the dates of February the 1st and March the 1st. As a result the complainant will not be able to appear for the current hearing date set for Monday the 11th.
I'm unable to inform you when that person had these arrangements or had decided to go overseas – whether that was after the date was set or before, your Worship. I do apologise for that."
6 There then followed a series of submissions by counsel for the defendant pointing out that this development appeared to be inconsistent with the assurances given a little over a fortnight earlier that the prosecution was ready to proceed, and also pointing out that a delay resulting from an adjournment may be prejudicial to the defendant in that his eligibility to be transferred from the prison where he was then located in order to go to a lower security prison while serving a sentence under some other order, could be delayed.
7 After hearing the submissions the learned Magistrate refused the adjournment saying, among other things:
"I think it's well known why the system has been developed and the purpose and what it's meant to achieve and the process everybody's got to go through.
Now unless when it comes to setting the trial date, the court has some certainty as to what is going to happen, really it becomes
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- ineffectual because it means that the court can't then marshall its time so it's used more productively.
And also flowing on from that, so that everybody knows what they're doing. The certificate which we have is dated the 27th of December; and there's no mention at all as to unavailability of any witnesses.
Now when the matter was coming up in January for the callover, I would've expected some inquiry to be made as to what was going on. And unfortunately on this application, the prosecutor's not able to say when the witness was going to - - or knew he was going to leave. Whether or not it was something that's only just happened, or whether it was something that was in the wind in any event.
Such being the case, I'm not going to allow the adjournment. The matter will remain listed for 11 February."
8 Then his Worship went on to deal with other matters. It is material to note that in the reasons given for refusing the adjournment on 23 January the only matter which was identified as being of significance by the learned Magistrate was the effect that an adjournment would have on the efficient use of court time and the importance of adhering to the procedures which had been adopted by the listing system. In particular, the learned Magistrate does not appear to have placed any weight on the submission made by the defendant, respondent, that some prejudice might result to him if the trial were to be postponed.
9 The complaint then came on for trial before his Worship on 11 February. Again a police prosecutor appeared for the complainant and the defendant was represented by counsel. At the commencement of proceedings on the morning of 11 February the learned prosecutor made submissions to the Magistrate in these terms. The prosecutor said:
"Yes; as you're no doubt aware this matter was brought early listed to you some days ago seeking an adjournment because the complainant had gone overseas to the United States.
…
I, again make that application even though I am aware that you refuse that application. I make that application on the grounds
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- that should this matter not be allowed to go ahead then justice would not be seen to be done.
The community would be left with the belief that all they have to do to get away with offences of this nature is ensure that the complainant is not available to come to the court on the day set."
10 The learned sergeant went on to make a number of other submissions. The Magistrate then ruled on the matter and refused the adjournment. In those circumstances the prosecutor explained that he was not able to adduce evidence. He asked that the complaint be struck out or that it could be withdrawn rather than being dismissed.
11 There were submissions made in opposition to that course by counsel for the defendant, respondent, and at the conclusion of those submissions the learned Magistrate ordered that the complaint should be dismissed and not merely struck out. His Worship then went on to make an order for costs. There was no further elaboration on the reasons for refusing the adjournment beyond those which were, by then, already plain from the hearing on 23 January.
12 In these circumstances the complainant brings this appeal, alleging that in terms of s 186 of the Justices Act there has been an error of law. The particulars of the alleged error are set out in the grounds of appeal where it is contended that in dismissing the appeal and in refusing the application for the adjournment, the learned Magistrate erred in law, first, by failing properly to exercise his discretion according to law; second, that the Magistrate erred in law by failing to give application to the discretionary test required of him by s 79(1) of the Justices Act, and, third, that in any case the learned Magistrate attributed unnecessary weight to the interests of the defence in dealing with the matter on 11 February 2002 while attributing insufficient weight to the interests of the prosecution and the public interest in the administration of justice.
13 In support of the appeal, counsel for the appellant has submitted that there was a wide discretion in the learned Magistrate to adjourn the hearing of the complaint, either on 23 January or 11 February under the provisions of s 79 of the Justices Act; that the grant or refusal of an adjournment is a matter for the discretion of the court to whom the application is made but that 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 a serious injustice to the other party. In
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- support of that proposition are cited the decisions of this court in Myers v Myers [1969] WAR 19, particularly at page 21, and the decision of the Full Court in Vick v Drysdale [1981] WAR 321, particularly at page 328. I have also been referred to a recent decision of his Honour Hasluck J in a case so far unreported,Bennett v Councillor [2001] WASCA 342, which followed and applied the decision in Myers and also examined the decision of the Full Court in Vick v Drysdale. Bennett v Councillorwas cited in support of the further proposition that the seriousness of the charge and the strength of the prosecution case are relevant factors when determining whether or not to grant an adjournment.
14 Finally, counsel for the appellant has submitted, having cited the well known decision of the High Court of Australia in Lowndes v R (1997) 195 CLR 665, in particular the passage at 672, that it is not sufficient for an appellate court to take a different view of the issue before the original court. It must be shown that the court at first instance failed properly to exercise its discretion by acting on a wrong principle or by misunderstanding or in wrongly assessing same salient feature of the material before it.
15 Counsel for the respondent in this appeal also cites Myers v Myers and Vick v Drysdale but in addition has cited a decision of the Court of Criminal Appeal in Victoria, R v Jones [1971] VR 72, in particular the passage at page 78, where the following appears:
"Many applications for adjournment are made which are plainly without foundation. If these applications are to be made in a bona fide way, then we think it is highly desirable that they should be supported by evidence, either verbal evidence or evidence on affidavit. Unless that course is taken, the learned judges to whom the applications are made are left with assertions being made one way and assertions being made the other way, and there is no real opportunity of having the matter properly tested by evidence properly authenticated and placed before the court."
16 Counsel for the present respondent also cited a passage from the judgment of Kitto J in Australian Coal and Shale Employees Federation v The Commonwealth (1953) 74 CLR 621 at page 627 which emphasised that in relation to matters of discretionary judgment any approach by an appeal court should be on the basis that:
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- "There is a strong presumption in favour of the correctness of the decision appealed from and that the decision should be affirmed unless the court of appeal is satisfied that it is clearly wrong."
17 These submissions by counsel for the respondent were advanced in support of the further proposition that, on the hearing of an appeal such as this under the Justices Act, this Court is confined to a determination of the case upon the materials which are before the Court, pointing out, in order to give colour to the submission, that only evidence before the Magistrate could be considered in this Court in this particular case and that no regard should be had to explanations or speculations about how or when the omission to realise that the witness would be away in America at the date listed for trial occurred or on whose behalf or when it occurred. All those submissions are properly made and I accept them.
18 We come therefore to consider whether or not any error of discretion has been shown by the learned Magistrate in refusing this adjournment. It has been properly pointed out that there is an interest in allowing matters before the court to proceed to a determination upon their merits, that this is the right and the expectation of the parties and that in a case involving a prosecution for an alleged criminal offence it is also the expectation and hope of the community.
19 The resolution of a case of this nature should, in my view, ordinarily take place upon the merits after a proper hearing of the evidence at which the concerned parties have a reasonable opportunity to attend and be heard. There is undoubtedly a supervisory role and discretion in the Court of Petty Sessions to ensure that its procedures are employed efficiently and that its time and resources are not wasted. In the exercise of that function any court, including the Court of Petty Sessions, has many broad discretions.
20 However, in my opinion discretions of that nature are subordinate to the achievement of justice in the individual case. The discretion is there to be exercised in order to achieve a just disposition of the issues between the parties. This primarily will entail a hearing of the case on the merits so long as that can be achieved within a reasonable time having regard to the court's commitments and without significant prejudice to the parties.
21 Court efficiency and the reliability and predictability of listing procedures are unquestionably important matters but they are designed to serve an end, that is, a resolution by the court of a case on its merits
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- wherever that is possible. In this particular instance it seems very probable that had the unavailability of the homeowner, Ms Gillian, been known at the listing date on 8 January some arrangements would have been made to list the case for hearing probably in March or later when she had returned from the United States.
22 That this did not occur was an unfortunate oversight. Whose oversight it was and what are the consequences of that are subsidiary to the question of the proper disposition of the case. However, once it became known, as it plainly was by 23 January, that Ms Gillian would not be available to give evidence on 11 February, and when the application for an adjournment of the trial was made in circumstances which clearly implied that she was an essential witness, it seems difficult to understand why the hearing was insisted upon.
23 To persevere in having a hearing on a date when it was known that a vital witness could not attend seems to me, with respect, to lead to an inevitable injustice in that it will prevent a case being determined on its merits. That may not always be the case. There can always be exceptions.
24 If there was no reason proffered for the absence of the vital witness or if there was some particular urgency about the case or if there had been many opportunities previously set for hearings and for one reason or another they had been changed or abandoned, different considerations would apply, but here this was the first occasion on which the case was listed. It was listed in ignorance of the important fact of the unavailability of the witness and it seems that contrary arrangements could still have been made.
25 Even in those circumstances however an adjournment is by no means inevitable. The consequences of the adjournment on the other party affected, namely the defendant, need to be determined, weighed and considered, and once that process has been done a balancing exercise undertaken to determine where the interests of justice lie in the face of these practical difficulties.
26 It is at this point, I regret to say, that I consider that the learned Magistrate's discretion miscarried. Instead of ascertaining what the precise consequences would be of attempting to proceed in the absence of Ms Gillian and without evaluating the consequences for the defendant of an adjournment, there was a repetition by way of reference to the practical importance of the listing procedures of the court. These no doubt merited
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- attention and I do not make or imply any criticism of the learned Magistrate in giving them significant attention but I do not consider that they were the sole or the dominant factors. I consider that the need to address whether the attainment of justice in the particular case required some investigation of whether it was reasonably practicable to have a hearing on the merits, to be of superior importance. But that was not investigated and those considerations were not evaluated. In those circumstances I am satisfied that the exercise of the discretionary judgment to refuse the adjournment was made without regard to all the material factors that required consideration and therefore miscarried.
27 In the circumstances I consider that this appeal should be allowed and that pursuant to the provisions of s 199(1) I should remit this case for rehearing before the Court of Petty Sessions at Joondalup on a date to be fixed by that court.
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