Woodward v Moore - [2017] TASSC 63

[2017] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Woodward v Moore [2017] TASSC 63

PARTIES:  WOODWARD, Francis Gregory John
  v
  MOORE, Luke

FILE NO: 898/2017

DELIVERED ON: 9 November 2017

DELIVERED AT: Hobart

HEARING DATE: 4 September 2017

JUDGMENT OF: Brett J

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Interference with discretion of the court below – Particular cases – Refusal of adjournment - Cross-examination of child complainant continued in absence of accused person – Magistrate erred by refusing to grant adjournment – Motion upheld.

Hamilton v Littlejohn [2006] TASSC 109, cited.
Aust Dig Appeal and New Trial [58]

Criminal Law – Procedure – Hearing in open court and in presence of accused – In presence of accused person – Accused person was unwell - Cross-examination of child complainant continued in absence of accused person.

State of Tasmania v Bosworth [2005] TASSC 29, cited.
R v Abrahams (1895) VLR 343, considered.
Aust Dig Criminal Law [3058]

Criminal Law - Evidence - Competence and compellability – Particular persons and matters – Children – Conclusion that witness was competent to give sworn evidence was reasonably open.

Evidence Act2001 (Tas), ss 12, 13.
R v GW [2016] HCA 6, cited.
Aust Dig Criminal Law [2829]

REPRESENTATION:
Counsel:
             Applicant:  J Ker
             Respondent:  Y Prenc
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 63
Number of paragraphs: 65

Serial No 63/2017
File No 898/2017

FRANCIS GREGORY JOHN WOODWARD v LUKE MOORE

REASONS FOR JUDGMENT BRETT J

9 November 2017

On 12 December 2016, Magistrate Cure found the applicant guilty of two counts of indecent assault, contrary to s 127(1) of the Criminal Code. The crimes were alleged to have been committed against a 7 year old male child, who was the son of friends of the applicant. It was alleged that on two separate occasions, the applicant had touched the child on his penis on the outside of his clothing. In an interview with police, the applicant denied the occurrence of one of the occasions. He admitted that on the other occasion, he had touched the child in the area of his penis, but asserted that the touching had been accidental.
The hearing took place over several non-consecutive days between 1 April and 12 December 2016. There were a number of procedural difficulties and interruptions. On one occasion, the magistrate proceeded with the hearing, which included the cross-examination of the child, over objection and despite the absence of the applicant due to illness.
On 10 March 2017, the applicant was sentenced to a term of imprisonment.
The applicant seeks a review of the findings of guilt. The notice also sought a review of the sentence, but this has now been abandoned.
At the hearing of the review, the applicant argued four grounds and abandoned the balance. Grounds 1 and 2 complain of procedural irregularity. Grounds 3 and 4 relate to counts 1 and 2 respectively. Each asserts that the evidence was insufficient to establish the respective offence and that a finding of guilt was not reasonably open on the evidence. Counsel submits that if grounds 3 and/or 4 are upheld, then the applicant is entitled to be acquitted of the relevant offence. In respect of grounds 1 and 2, the applicant submits that the appropriate order is that both charges be reheard by a different magistrate.
It follows that if grounds 3 and 4 are successful, it will not be necessary to consider grounds 1 and 2. For this reason, it is convenient to consider grounds 3 and 4 first.

The evidence

The prosecution called the complainant child, his mother and grandmother. The transcript of an interview between police and the applicant, and photographs of the interior of the applicant's residence, where one of the alleged offences is alleged to have been committed, were also admitted into evidence. The applicant did not give or adduce evidence.
When the hearing commenced, the complaint alleged that count 1 occurred on or about 17 October 2014 and was committed by the applicant putting his hand down the pants of the complainant and touching his penis. The second count was alleged to have been committed on or about 23 October 2014 and was constituted by touching the complainant on the penis with his hand. There does not seem to have been any further particularisation.
According to his evidence, the complainant was 7 years of age at the time of the alleged acts, and 9 when he gave evidence in 2016. He lived with his parents and had a grandmother. He knew the applicant as a friend of his parents. The applicant would come to his parents' house on a regular basis, maybe once a week. He described the applicant's car and said that he had been in the car with the applicant on two occasions only. On those occasions, they went to the applicant's house.
Notwithstanding that the complaint contained two charges only, the complainant described three separate occasions on which the applicant had touched him on the penis. Those occasions were:
·     The birthday party – this occasion occurred during the course of the birthday party of the son of the applicant's partner. The party took place at the house of the applicant's partner, which is separate to the applicant's residence. The complainant said that he went with the applicant in his car to the applicant's house in order to obtain a sponge, which had been made to look like a witch's face, for use at the birthday party. The applicant parked his car outside the front of his building. His apartment was in the top storey of the building. The complainant said that he wanted to stay in the car, but the applicant told him that he had to come inside. He went up a flight of stairs to reach the apartment. He described various features of the inside of the apartment, including a recliner chair which he described as brown and "a very dark colour". He said that while they were inside the apartment, the applicant sat on the recliner and told the complainant to "come and sit down". The complainant went and sat on the applicant's lap and the applicant then touched the complainant on "the private part" which he clarified was the "penis". He said that the applicant touched him on the outside of his jeans. Neither of them said anything further. After being touched, the complainant went back to the car and waited for the applicant. They then drove back to the party.
·     The DVD incident – this incident occurred after the birthday party and is the second time that the complainant said he had travelled in the applicant's car. He said that they were again at the applicant's partner's house and he went with the applicant to his apartment to collect some DVDs, which belonged to the complainant's father. The complainant said he did not want to go, but was talked into it by the applicant. He went into the apartment with the applicant and went to the toilet. He said that after he came out of the toilet, the applicant "did what he did last time". When asked to provide further detail, he said that the applicant touched him inside his clothing on his skin. They then left and went back to the applicant's partner's house. The complainant said that the next day, he told his grandmother what had happened.
·     The spider game – this incident occurred at the complainant's house. The applicant, the complainant and the complainant's parents were all present in the lounge room when the incident occurred. The applicant and the complainant were sitting on a couch. Although the complainant's parents were present, it seems that their attention was focussed elsewhere. The complainant said that during the course of a game, when the applicant was pretending that his hand was a spider, he touched the complainant on the outside of his clothing on his penis. The complainant became upset by this and went to his room. He subsequently told his parents what had happened.
The complainant's mother confirmed in general terms the complainant's description of the relationship between the applicant and the complainant's family. She said that the complainant would have been in the applicant's car, at times when the applicant had picked up the complainant from school. She recalled the birthday party and the applicant and the complainant going to get a sponge and bringing it back to the party. She also recalled an incident in her house when the applicant was tickling the complainant as they sat together on the couch. She said that after that incident the complainant told her that the applicant had touched him in the "private area". She understood this to be a reference to the area of the penis. In response to further questioning, she said that when the complainant left the room, she went and spoke to him and he told her that the applicant had touched him. She spoke to the applicant about this. The applicant admitted that he had touched the complainant as the complainant described but "said it was an accident".
The complainant's grandmother gave evidence of an occasion in 2014 when the complainant was with her and told her about the three occasions which he described in his evidence. Although there were some differences in the detail reported by the grandmother, her evidence as to what she was told is substantially consistent with the evidence of the complainant. The grandmother's evidence was that after this complaint was made to her, the applicant was not allowed again at the complainant's house. The grandmother was able to confirm the date of the birthday party. Her evidence was also consistent with the complainant's evidence that after the DVD incident, he told his grandmother about the applicant's conduct.
When interviewed by police, the applicant denied that he had touched the complainant on the penis on any occasion, except accidentally during the spider game incident. He agreed that he had taken the complainant to his house to collect DVDs, and on another occasion to collect a sponge, but said that on both occasions the complainant remained in the car while he went into his apartment to collect the relevant item of property. He asserted that the complainant had never been in his apartment. With respect to the spider game incident, he told police that he had raised the incident with the complainant and his parents:
"Well. I was playing with (the complainant). I was tickling him. And he moved the wrong way and I accidentally touched him on his private parts. I didn't mean to. It was a sheer accident. I told his Mum and Dad. And I told him, I said 'I'm sorry I done it'. I said 'I should never do that'. I said 'it was accidental. You moved the wrong way. I did not mean to do it'. I said. He said 'that's off limits'. I said 'yes I know'. I said 'if that ever happens and someone does that to you, you should tell your Mum and Dad straight away'. And (the complainant's parents) was there when I said it. They were standing there when I said that to the boy."
Ultimately the magistrate accepted, in substance, the evidence of the complainant and rejected the version given by the applicant in his police interview. It seems to have been an important factor in her Honour's reasoning that she was satisfied, on the basis of the complainant's description of the interior of the applicant's unit and the substantial accuracy of that description, having regard to photographic and other evidence, that he had been inside the applicant's unit. Her Honour rejected the applicant's assertion that the complainant had not been in the unit. Any mistakes as to detail were attributed by the magistrate to the age of the witness. Her Honour also accepted the complainant's mother's evidence that the complainant had gone with the applicant to get a sponge on the occasion of the birthday party. The magistrate accepted the evidence of the complainant about the birthday party incident, but limited her finding to the applicant having touched the complainant on the top of his clothing.
With respect to the spider game incident, the magistrate rejected the applicant's account. She considered that "the manner in which the complainant went to his room upset and told his parents making it implausible that it was a mistake or accidental and I am satisfied it was a deliberate touching".
The complainant's evidence as to the DVD incident had been the subject of objection and was received by the magistrate de bene esse. The prosecution had given notice of its intention to adduce this evidence as evidence of tendency on the part of the applicant, and, in particular, that he had a "guilty passion" towards the complainant. In her ultimate decision, the magistrate, relying on the approach of the majority in IMM [2016] HCA 14, ruled that the evidence did not have significant probative value, and that the evidence was inadmissible.

Principles applicable to grounds 3 and 4

Grounds 3 and 4 are in the following terms:
"(3)That the Learned Magistrate erred in fact and in law in finding that the complainant entered the Applicant's residence on the date of the incident alleged in count 1 of the complaint.
(a)That the Learned Magistrate failed to adequately address a prior inconsistent statement made by the complainant.
(b)That the finding was not reasonably open on the evidence.
(4)That the Learned Magistrate erred in fact and in law in finding that the incident alleged in count 2 of the complaint occurred other than by accident.
(a)That the Learned Magistrate failed to adequately address the innocent explanation proffered by the Applicant and the evidence in support.
(b)That the finding was not reasonably open on the evidence."
Each of the said grounds purports to assert a specific factual error. The asserted error in each case relates to the magistrate's finding in respect of a fact which is fundamental to the finding of guilt in respect of the charge to which the finding relates. The nature of the alleged error is that the magistrate arrived at an incorrect conclusion, having regard to the evidence before her. The principles to be applied on a motion to review under the Justices Act 1959, in respect of an assertion of factual error of this nature, were explained by Crawford CJ in Phillips v Arnold [2009] TASSC 43:
"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour& Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117.
47 In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."
I am satisfied that these passages correctly set out the test to be applied in respect of grounds 3 and 4. The question in each case will be whether the factual conclusion was one which was open to the magistrate as a reasonable person, on the evidence before her.

Ground 3

The applicant's argument in respect of this ground is that the magistrate, as a reasonable person, could not have been satisfied beyond reasonable doubt that the complainant entered the applicant's residence on the occasion of the birthday party incident. If this finding was not open to a magistrate acting reasonably, then it follows that it was not reasonably open to her to have been satisfied to the requisite standard that the assault, said to have taken place inside the apartment, had actually occurred.
The hearing commenced on 1 April 2016. As noted above, in evidence-in-chief, the complainant gave clear evidence that he had entered the unit at the insistence of the applicant on the occasion in question. He said that he wanted to stay in the car but the applicant had said that he had to come inside. He gave a detailed description of various aspects of the interior of the apartment, which the magistrate accepted was substantially consistent with photographic evidence. The complainant's evidence was also generally consistent with complaints which he had made to his grandmother.
In cross-examination, the complainant maintained his assertion that he had gone into the unit on this occasion. The following passage is relevant:
"Now do you remember being asked about going to Mr Woodward's house during Wade's birthday party by the police?.....Huh?
Do you remember being asked by the police about going to Mr Woodward's house while Wade was having his birthday party?.....Yeah.
You remember them asking you about that?.....Yes.
Okay. Do you remember – and I'm talking about the second time you spoke to the police – do you remember telling them that when you went to Mr Woodward's house during Wade's party you waited outside in the car?.....Yeah.
Because that's what happened isn't it?.....Yes.
Okay. So it was – the trip to Wade's party to collect the sponge you waited outside in the car and you didn't go into the unit that's right isn't it?.....Well, I did go into the unit.
Okay. Do you remember telling the police that when you went to the unit during Wade's party with Mr Woodward that you didn't go into the unit? Do you remember saying that?.....No.
Okay. So your memory now is that you went inside the unit during the trip on Wade's birthday?.....Yeah."
After that passage of cross-examination, defence counsel discussed with the magistrate his intention to play to the complainant the recorded interview between the complainant and police conducted on 26 October 2014. However, the interview was not played that day because of practical difficulties.
Further cross-examination of the complainant took place on 20 June 2016. Defence counsel put to the complainant that he had told police during an earlier interview that on the day of the birthday party he waited outside the applicant's apartment and did not go inside. The complainant did not admit saying that. A DVD, presumably of the interview, was played to him, although not admitted into evidence. After the complainant had viewed the interview, he was asked a series of questions in relation to the DVD incident. It was suggested to him that he was lying about this incident. He denied that that was the case.
He was then shown a second interview recorded on DVD. The DVD was not admitted into evidence. After that interview was played, the following passage of cross-examination took place:
"MR OXLEY: (Resuming) Now [complainant] do you agree again that that's a DVD of you speaking to the police?.....Yeah.
And that most of that conversation was about a trip that you took with Frank to his house while Wade's birthday party was going, do you agree with that?.....Yes.
All right. Do you also agree that you told the police that during that trip you didn't go inside his unit?.....Ah – yep.
Okay. You've told us that you did go inside his unit, do you agree with that?.....Well I'm not quite sure. It was a long time ago.
All right. So to the best of your memory as you sit there today you're not sure if you went inside during Wade's party, is that right, on that trip?.....I'm not quite sure."
This passage is relied upon by counsel for the applicant. Counsel's submission is that the state of the evidence at the conclusion of these questions was that the complainant was unsure whether he had been inside the unit or not. However, the following questions and answers immediately followed that passage:
"Okay. [Complainant] can I ask you some questions just very briefly. I'm not long until the end. What you told the police and what you've told us about the trips to Frank's house they're stories that you've made up aren't they?.....No.
You wanted to get Frank in trouble for some reason, is that right?.....No.
Has someone else told you to lie about what happened?.....No.
All right. When you spoke to your nan about what had happened at Frank's house, did you tell her that he'd picked you up from school before taking you to his house?.....No."

The significance of the questioning relied upon by the applicant's counsel must be considered in the context of the whole of the complainant's evidence and other evidence accepted by the learned magistrate. While the complainant had indicated uncertainty when confronted with a prior statement made to police, he remained adamant that the incidents in question had occurred as he had described them. The magistrate was satisfied, particularly with respect to his description of features of the apartment and its comparison to photographic evidence, that he had been inside the apartment. The magistrate, reasonably in my view, contrasted this conclusion to the applicant's position in his police interview that the complainant had never been inside his apartment on any occasion.
The magistrate was satisfied that the complainant's knowledge of the features of the unit had come from having been inside the unit. She noted the complainant's age and made appropriate allowances in that regard. The magistrate was not required to specifically deal with the expression by the complainant of uncertainty during the course of cross-examination, nor the inconsistency of the prior statement to police. The evidence, taken as a whole, provided support for the conclusion reached by the magistrate that the child had been inside the unit and that his description of what had happened on that occasion was true. The prior inconsistent statement and the complainant's uncertainty during cross-examination was reasonably capable of explanation by confusion and imprecision consistent with the complainant's age. The magistrate had seen and heard the complainant give evidence and was entitled to accept that evidence. The conclusion she reached was one which was open to her as a reasonable person.
There is no merit in ground 3.

Ground 4

Counsel for the applicant correctly submitted that the prosecution carried the onus of excluding the reasonable possibility that the touching during the spider game incident occurred by accident. It was common ground that the applicant had conceded touching the complainant in the area of his penis on this occasion, but had claimed immediately, and in his police interview, that this had occurred accidentally during the course of the game. If the prosecution was not able to exclude accident beyond reasonable doubt, then the applicant was entitled to be acquitted.
The contact in question was not witnessed by anyone other than the applicant and the complainant. In cross-examination, the complainant adamantly rejected any suggestion that the contact had been accidental. As the learned magistrate noted, his contemporaneous distress, observed by his mother and conceded by the applicant in his police interview, is consistent with the truth of his account, including his rejection of the contact as accidental.
The learned magistrate was clearly aware of the relevant onus of proof. She was entitled to accept the evidence of the complainant about this question. On that basis, the conclusion reached by her that she was satisfied beyond reasonable doubt that the admitted touching was not accidental, was clearly open to the magistrate as a reasonable person. Ground 4 is not made out.

Ground 1

Ground 1 reads as follows:
"(1)That the Learned Magistrate erred in fact and in law in determining that the child complainant was competent to give sworn evidence without making sufficient inquiry as to his capacity in that regard."
This ground attacks the decision of the learned magistrate to permit the 9 year old complainant to give sworn evidence. The applicant's argument is that although the learned magistrate purported to assess the complainant's competence to give such evidence, she did not make sufficient inquiry, nor apply the appropriate test in that regard. Accordingly, it is argued, she should not have been satisfied that the complainant was competent to give sworn evidence, and further, did not satisfy the statutory pre-conditions of permitting the complainant to give unsworn evidence.
The question of a witness' competence to give evidence, sworn or otherwise, is dealt with by the provisions of ss 12 and 13 of the Evidence Act 2001. Section 12 sets out the default position. By s 12(a), except as otherwise provided by that Act, every person is competent to give evidence. Accordingly, a 9 year old child will be competent to give evidence, unless there is a provision to the contrary contained in the Act.
The contrary provisions are contained in s 13. That section provides as follows:
"13    Competence: lack of capacity
(1)     A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability) –
(a)the person does not have the capacity to understand a question about the fact; or
(b)the person does not have the capacity to give an answer that can be understood to a question about the fact –
and that incapacity cannot be overcome.
(2)     A person who, because of subsection (1) , is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3)     A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4)     A person who is not competent to give sworn evidence about a fact may, subject to subsection (5) , be competent to give unsworn evidence about the fact.
(5)     A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person –
(a)     that it is important to tell the truth; and
(b)that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c)that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6)     It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7)     Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8)     For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience."
The applicant does not challenge the complainant's competence to give evidence within the meaning of s 13(1). The applicant's argument relates to the application of s 13(3). In particular, the applicant submits that the magistrate ought not to have been satisfied that the complainant was competent to give sworn evidence. In particular, the applicant argues that the magistrate did not adequately address the question as to whether the complainant had "the capacity to understand that, in giving evidence, he … is under an obligation to give truthful evidence". Before turning to the magistrate's determination about this question, some general observations can be made concerning s 13(3). Firstly, as was pointed out by the High Court in R v GW [2016] HCA 6, the provisions of s 13(6) mean that it will be presumed that a person, including a child, will have the requisite capacity under s 13(3), unless the court is "affirmatively satisfied that (the witness) did not have" that capacity. Secondly, the assessment must relate to the capacity of the witness to understand that in giving evidence in a court proceeding, that witness is under an obligation to give truthful evidence. This is not necessarily the same thing as simply understanding what the truth is and the difference between the truth and a lie. Thirdly, because the inquiry focusses on the question of capacity, the determination of that question "requires consideration of the whole of the circumstances". (See GW at [28].)
In this case, it is apparent that having regard to the age of the child, it was appropriate to make inquiry in relation to the question of competence. This course was not opposed by either counsel. Her Honour proceeded to question the child at some length. She explored the complainant's age and level of education. The child confirmed that he understood that it was "very important" to tell the truth, that "when you go to court sometimes you swear to tell the truth", and that he understood what swearing to tell the truth meant. At the conclusion of the questioning, her Honour concluded that she was "of the view that he ought to be sworn". She then explained to the complainant that he would be asked to swear to tell the truth and he confirmed that he understood that. It is not apparent from the transcript that the parties expressly agreed to this determination, but neither was there any overt objection to this course.
It is arguable that her Honour did not expressly and explicitly address with the complainant the question posed by s 13(3). However, she was not required to do so. The presumption is that the complainant was not incompetent because of s 13, and accordingly the "default position" was that he was competent to give sworn evidence. Her Honour asked many questions which were relevant to the question of the child's capacity. It was appropriate for her to concentrate on his underlying capacity to understand his obligation, and this was clearly the focus of her questions. The section does not require the magistrate to directly inform the child of this obligation. That information is provided when the oath is taken, as it is to any other witness. The crucial question is capacity, not necessarily knowledge, that is whether the child has the capacity to understand that obligation when he is formally informed of it when the oath is administered. Simply providing that information will not necessarily inform the question of the capacity of the child to understand that obligation. Clearly, her Honour's conclusion that "he ought to be sworn" implied a determination that she was not satisfied that he was not competent to give sworn evidence. Having regard to her thorough questioning of the child, this conclusion was open to her.
Accordingly, I am not satisfied that there is merit in this ground.

Ground 2

"(2) That the Learned Magistrate erred in law in directing that the hearing proceed in the absence of the Applicant."

This ground is based on the following circumstances. As has already been discussed, during the course of defence counsel's cross-examination of the complainant on the first day of the hearing, 1 April 2016, counsel indicated that he wished to play to the complainant part of an interview between police and the complainant which had been recorded at an earlier time. As already noted, there were practical difficulties in doing so. These difficulties arose because the complainant was giving evidence from the remote witness room, and it was not thought that the technology would allow the recording to be played to him in a manner that it could be heard simultaneously in the court and the remote witness room. The matter was adjourned to 11 April 2016, to allow for investigation and resolution of this problem. The date was for mention only, and it was intended that a further date for hearing would be allocated at that time.
On 11 April, with the technical difficulty apparently resolved, the case was adjourned to 27 May 2016 at 2.15pm, for further hearing. Her Honour indicated that it was her intention to, at the least, complete the evidence of the complainant on that day.
On 27 May, defence counsel informed the magistrate that his client was present at court but extremely ill. The applicant was seated in the waiting room outside the court. Defence counsel applied for an adjournment. There was then an exchange between the magistrate and counsel which included the following:
"HER HONOUR:   There is no prospect of you doing it in the absence of your client? I know that's a tall order.
MR OXLEY:   No. I'm not willing to do that.
HER HONOUR:   All right. That's fine. I wouldn't force you to. It was worth asking.
MR OXLEY:   I'm sorry. In this case in particular there may well be matters where I would need to take instructions as I cross-examine [complainant] and I think in this case in particular it's important that Mr Woodward be able to hear the –
HER HONOUR:   He is entitled to. Do you want to say anything about that?
MS PRENC:   I don't, your Honour. I don't make any submissions."
There was then further discussion during which her Honour expressed her concern in relation to the effect on the complainant of an adjournment of proceedings. In the end, her Honour adjourned the matter for further hearing on 20 June 2016. During the discussion leading up to the adjournment, her Honour indicated to counsel that she required the applicant to obtain a medical certificate in relation to his illness on that day, but there was no further discussion as to the detail of the information to be provided in that certificate, or when and how it was to be provided to the Court.
The matter was mentioned before her Honour on 16 June 2016. Subsequent discussion between counsel and the magistrate reveals that this listing had come about at short notice as a result of a request from the prosecution. The applicant's counsel on the hearing, Mr Oxley, was not available, but the applicant was represented by another lawyer from the Legal Aid Commission. That lawyer asserted, and this seems to have been confirmed by Mr Oxley in subsequent proceedings, that the purpose of the listing was to put an agreed position between defence and prosecution to the magistrate that having regard to the applicant's ongoing health difficulties, the proposed hearing date for 20 June should be vacated and the matter adjourned to a subsequent date.
The magistrate, however, was not prepared to agree to the adjournment. She queried the whereabouts of the medical certificate relevant to the last occasion. Counsel for the applicant said that she was not in possession of it. The magistrate then said:
"HER HONOUR: Well before Monday I'm not going to adjourn anything unless I see a medical certificate and it needs to be detailed not just that he's unfit for his usual employment or unfit to – there needs to be some detail in this. I haven't even called on the prosecution but this – this matter involves a child witness who was part way through his evidence and it's going to take a great deal to satisfy me that this matter ought not go on."
Although defence counsel asserted that it had been agreed by the parties that the listing of 20 June should be vacated, prosecuting counsel, who also was not counsel in the hearing proper, did not support this assertion. The matter was adjourned to the following day. Her Honour indicated that she expected to see detailed medical information then.
On 17 June 2016, a third lawyer from Legal Aid appeared for the applicant. That lawyer handed up a medical certificate which simply indicated that on 27 May, the applicant was not fit to attend court. Her Honour commented that there was a lack of detail. Defence counsel indicated to the magistrate that the applicant had attempted to get into his doctor before 20 June, but the first available appointment was on the morning of that day. She told the magistrate that her understanding was that the prosecution did not oppose the application for adjournment. The magistrate was adamant that she would not agree to the matter being adjourned from 20 June, and demanded that the applicant present himself to the court on that day. She commented:
"Mr Woodward will find himself subject to a warrant of arrest if he's not here – I will list this at 11.30."
Her Honour indicated that her primary consideration was to complete the cross-examination of the child complainant on 20 June.
On 20 June 2016, the applicant appeared and was represented by Mr Oxley. Mr Oxley presented a more detailed medical certificate relating to the applicant's current state of health to the magistrate and applied for an adjournment. He told the magistrate that his client was not well enough for the matter to continue, and noted that the applicant's doctor had informed him that the applicant was unable to concentrate and to follow what was happening. Her Honour at one point commented that: "the strongest evidence before me is how unwell your client looks". She also quoted from the certificate which had been handed to her by Mr Oxley which said: "I do not believe he will be able to fully understand what is going in court and I will review him weekly". The prosecutor seemed to agree that the certificate and the appearance of the applicant confirmed that he was "very unwell and we can all see that".
There was then a prolonged discussion during which the magistrate pressed for the matter to proceed in the absence of the applicant, and Mr Oxley resisted that course. Counsel submitted that the ongoing cross-examination of the complainant was a crucial aspect of the hearing and that he required his client's contemporaneous instructions during that evidence.
In response to the magistrate's ongoing criticism concerning the late provision of detailed medical information, Mr Oxley made the point that he had not been aware prior to the matter being listed at short notice on 16 June, that the magistrate required anything other than a medical certificate confirming that the applicant was too ill to attend court on 27 May, and further that he was not in a position to have medical information available for 16 June because the matter had been listed by the prosecution at short notice. He also indicated that he had understood, prior to the matter coming before the court on 16 June, that the prosecution agreed that the listing for 20 June should be vacated.
Ultimately, her Honour refused to grant an adjournment and required the matter to proceed that day, notwithstanding that it was accepted by her that the applicant's illness would mean that he would not be present during the hearing. It is clear from her Honour's ruling that she was concerned about the effect on the complainant if he was required to come back on another day to face the balance of cross-examination. She attempted to ameliorate any prejudice to the applicant by directing that a transcript and tape of proceedings be made available to him, and indicating that if defence counsel required the complainant to be recalled, after taking instructions, she would accede to that request.
The case proceeded and the cross-examination of the complainant was completed that day. The matter was then adjourned to 15 August 2016 for finalisation of the hearing.
Ground 2, in essence, attacks the magistrate's decision not to grant an adjournment of the case on 20 June. The effect of her Honour's decision was that an important part of the case, the balance of the cross-examination of the complainant, proceeded in circumstances in which it seems to have been accepted by all concerned, including the magistrate, that the applicant was too ill to remain, and if he did remain, was too ill to follow the proceedings and properly instruct his counsel. Her Honour's decision to refuse the adjournment was an exercise of discretion. Her comments make it clear that she was aware of the competing considerations, and aware also that a decision to refuse the adjournment would mean that that part of the cross-examination would proceed in the absence of the applicant.
In Hamilton v Littlejohn [2006] TASSC 109, Underwood J (as he then was) dealt with the refusal of a magistrate to grant an adjournment at the request of the prosecution. His Honour discussed the principles applicable to appellate review of such a decision, at [17] and [18]:
"17 It is, of course, trite law that courts are reluctant to entertain appellate review of an order made in the exercise of the judicial discretion. It suffices to simply refer to Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627 and House v R (1936) 55 CLR 499. With respect to the exercise of the discretion to grant or refuse an application for an adjournment, the New South Wales Court of Appeal expressed the view in Cucu v District Court of New South Wales (1994) 73 A Crim R 240 at 246 that, 'It is rare that a court such as this ¾ either in appeal or in judicial review ¾ will disturb the decision to grant or refuse an adjournment'. However, it is clear that this is such a rare case and that error infected the exercise of the learned magistrate's discretion.
18 The principles which should govern appellate review of the exercise of a discretion to grant or refuse an adjournment, were stated in these terms by Brennan J (as he then was), Deane and McHugh JJ, in Sali v SPC Ltd (1993) 116 ALR 625 at 628 – 629:
In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. (See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 55, at 558–9). Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.
…
In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.'"
See also Bennett v Coombs [2007] TASSC 53.

I agree that an appellate court should be cautious about interfering with an exercise of discretion such as that which is the subject of this ground. However, in this case, I have concluded that the learned magistrate erred by refusing to grant an adjournment on 20 June. My reasons for this conclusion are as follows.
The magistrate's skepticism prior to 20 June as to whether the applicant was genuinely precluded by his illness from attending court, was understandable given the information presented to her prior to that date. However, when regard is had to the information available to her on 20 June, it is clear that the interests of justice required the adjournment. On the basis of that information, it was beyond dispute, and accepted by all, including the magistrate, that if she did not grant the adjournment, the cross-examination of the complainant would proceed either in the absence of the applicant, or if he remained, without him being capable of providing proper instructions to his counsel. The cross-examination of the complainant was evidence which was undoubtedly crucial to the outcome of the case. By that time, it must have been clear to her Honour that proof of the complaint depended on the acceptance of the credibility and reliability of the complainant's evidence. Defence counsel had submitted to the magistrate that he required his client's presence to provide instructions as to the cross-examination as it proceeded. With respect, this was a submission which was obviously correct. Cross-examination is intended to be a dynamic interaction between the cross-examiner and the witness, and relies on this quality to achieve its effectiveness as a test of the credibility and reliability of the evidence. A cross-examiner cannot and should not be expected to foresee every answer or twist and turn that the cross-examination may take. In rare and exceptional cases in which cross examination does proceed in the absence of the party on whose behalf the cross examination is being undertaken, it must be recognised that this occurs at the expense of the full efficacy of the process.
Further, it is a fundamental aspect of a criminal trial that the accused should be present "to hear and reply to every allegation and argument urged against him or her by witnesses and counsel for the prosecution. The presence of the accused throughout the trial has generally been regarded as essential", see State of Tasmania v Bosworth [2005] TASSC 29, at [17]. The reason for this extends beyond the practical desirability of enabling the accused to provide instructions to counsel. In R v Abrahams (1895) VLR 343, a decision of the Victorian Full Court, Hood J expressed the requirement of the presence of the accused as follows:
"I think that not only has an accused person a right to be present during the hearing of any proceedings against him, but as a rule, which should never be departed from except under special circumstances, he is also bound to be there. 'The object of a trial is the administration of justice in a course as free from doubt or chance of miscarriage as merely human administration of it can be; not the interests of either party': R v Bertrand. That being so, unless the accused be present to defend himself, or to instruct those who are defending him, no one could feel any confidence in the correctness of any result adverse to him, nor feel satisfied that justice had been fairly done. All that we are here deciding, in my opinion, is that the presiding Judge may in misdemeanors proceed without the presence of the prisoner, where the absence is voluntary. He has in law a discretion, but that discretion should be exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone." [Footnote omitted.]
In Abrahams, the court considered the different approach adopted at common law between felonies and misdemeanours. In this State, the power of a court to permit a trial to proceed in the absence of the accused is dealt with by statute and will depend on whether the trial is being conducted under the Criminal Code, (s 369), or the Justices Act. The latter does not specifically deal with this question, although s 72D contemplates that in a limited number of simple offences or breach of duty matters, the court may proceed in the absence of the accused. However, even in these cases, s 72D(2) provides that a person may not be imprisoned "if that person is not present at the hearing of the complaint referred to in that subsection".
The matter is also dealt with in the Justices Rules 2003. Rule 31 provides:
"31    Hearing in defendant's absence
(1)     The justices may proceed to hear the case in the absence of a defendant if –
(a)the defendant does not appear and the justices are satisfied that the defendant has been served with the summons or notice; or
(b)     the defendant does not answer to bail.
(2)     The justices may hear a case in accordance with subrule (1) whether or not the procedure under rule 32 has been applied.
(3)     In hearing a case in the absence of the defendant, the justices may receive the evidence they think fit either orally or by way of affidavit."
This would seem to provide the magistrate with a general discretion to proceed with a hearing in the absence of a defendant in certain circumstances. However, even if such a discretion applied in the circumstances of this case, her Honour was bound to exercise that discretion judicially. In doing so, she was required to have regard to the principles discussed above.
In refusing to grant the adjournment, the magistrate, quite understandably, was concerned about the impact on the complainant of returning yet again for the purposes of cross-examination. Of course, she did not have any specific evidence before her of any such impact, but it was reasonable for her to be concerned about this in a general way. However, the inconvenience and potential distress to the complainant of having to come to court on 20 June, only to be sent away, and having to return on another day, could not reasonably have been regarded as sufficient to outweigh the potential injustice which arose from the case proceeding in the way it did. There was no prejudice to the prosecution if this adjournment was granted, apart from the assumed inconvenience and distress to the complainant. This was not sufficient to justify the refusal of the adjournment in circumstances in which it was accepted by all that the applicant was too ill to participate in the proceedings, and his counsel was submitting that his presence and participation was necessary for the proper conduct of his defence. I conclude that the magistrate erred by refusing to grant the adjournment and proceeding with the cross-examination of the complainant in the absence of the applicant. Because of the importance of that evidence to the prosecution case and to her Honour's findings, I cannot conclude that no substantial miscarriage of justice has occurred as a result of that part of the case proceeding in the applicant's absence.
It follows that ground 2 is made out.
I uphold the motion and quash the applicant's conviction on both charges. I agree with counsel for the applicant that the only appropriate order is that the complaint be retried by a different magistrate. I so order.