Preston Gilbert Sesar v. Colin Frederick Haymon [1987] NTSC 69; 50 NTR 1; 88 FLR 426; 34 A Crim R 188 (4 November 1987)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Rice J.(1) CWDS Appeal - Justices - whether Supreme Court has jurisdiction to hear appeal on plea of guilty - charge not read - whether plea through counsel proper in the circumstances. Justices Act ss.29, 64 and 67. Cases considered: Bull v Deed (1968) 16 SASR 236 Hinton v O'Dea (1977) 16 SASR 234 James Ellis (1973) 57 CAR 571 Rainbird v Samuels (1972) 4 SASR 187 Cases distinguished: Ex parte Dunn (1904) SR (NSW) 486 Rex v Thompson (1909) 2 KB 614. Cases followed: Rowen v Strophair HRNG DARWIN #DATE 4:11:1987 Counsel for the Appellant: M. Carter Solicitor for the Appellant: Close and Carter Counsel for the Respondent: J. Karczewski Solicitor for the Respondent: Solicitor for the Northern Territory ORDER Conviction and sentence quashed. The matter to be remitted to the Court of Summary Jurisdiction for hearing before another magistrate. JUDGE1 This is an appeal against a conviction recorded against the appellant on 27 May 1987 by a Court of Summary Jurisdiction sitting at Darwin for that on 14 February 1987 he was found on certain premises without lawful excuse. (Section 57(1)(n) of the Summary Justices Act). He was thereupon sentenced to one month's imprisonment. 2. The grounds of appeal stated in the Notice of Appeal dated 11 June 1987 are as follows:- "(1) The Learned Magistrate recorded a plea of guilty to the charge without reading the charge to the Appellant and requiring the Appellant personally to plead to the charge; (2) The Learned Magistrate accepted a plea of guilty to the charge through the Appellant's Counsel Mr Dennis Norman when the said Counsel had been instructed to enter a plea of not guilty." 3. At the commencement of the hearing before the magistrate, counsel for the appellant announced, "I appear for Sesar. The prosecutor is now here. I'm instructed to enter a plea of guilty to being found on a closed premises under the Summary Offences Act." The complaint, which was in the terms shown hereunder, was not read over to the defendant at any time in the course of those proceedings:- "Preston Gilbert Sesar (M 7/7/50) of 9 Tong Luck Street, Millner, on the 14th day of February, 1987, at Darwin in the Northern Territory of Australia, you were found on premises, namely, 1 Lambell Terrace, DARWIN, without lawful excuse: Section 57(1)(n) of the Summary Offences Act." 4. The first question which arises is whether or not this Court has jurisdiction to entertain an appeal after a defendant in a Court of Summary Jurisdiction has pleaded guilty to a charge. 5. In Rainbird v Samuels , Walters J. said at p 188:- "I do not think it can be doubted that there is jurisdiction in this Court to entertain an appeal against a conviction based on a plea of guilty in a court of summary jurisdiction, where the consequence is a manifest miscarriage of justice (cf. Gray v Jones ; If the entry of a plea of guilty has been brought about by mistake or misapprehension of the nature of the charge, or has been induced by an improper threat or promise on the part of a police officer or other person in authority, and if it appears that but for that mistake, misapprehension or inducement, the plea would not have been made, and if it also appears that a miscarriage of justice has resulted, then an appellate court has power, indeed a mandatory obligation, to quash the conviction and the penalty imposed (cf. R v Forde , at p 403; R v Murphy ; , per Sholl J. at p 190)." 6. On the same topic, see also Hinton v O'Dea and Bull v Deed which expound the same principles. In my opinion, they have equal application in this Court, having regard to the similarity of the provisions of the Justices Act in both the Northern Territory and South Australia. Furthermore, I am of the opinion that an appeal lies to this Court in a case where a mandatory condition precedent of the sort arising here has not been complied with. I shall expand upon this principle later. 7. Section 64 of the Justices Act provides:- "64. If both parties appear before the Court, either in person or by their respective counsel or solicitors, then the Court shall proceed to hear and determine the matter of the complaint." 8. Section 67 of the Justices Act provides:- "67.(1) When the defendant is present at the hearingthe substance of the c omplaint shall be stated to him,and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be). (My emphasis) (2) If the defendant admits the truth of the complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the court shall convict him or make an order against him accordingly." 9. There is little doubt in my mind that counsel is entitled at law to enter a plea on behalf of a defendant charged on complaint since, omitting the proviso to s.29 of the Justices Act, the section itself provides as follows:- "29. Every party to any proceeding before Justices shall be at large to conduct his case or make his application or his full answer to the charge or complaint (as the case may be) and to have the witness examined and cross-examined, by a legal practitioner: ..." 10. Moreover, there is little doubt, in my mind, that in relation to a complaint for a simple offence, counsel has, by virtue of the combined effect of ss.29 and 64 of the Justices Act, if the defendant is not present at the hearing, full statutory power and authority to enter a pleaand to conduct his case; but that if the defendant ispresent at the hearing it is mandatory, by virtue of s.67, that the substance of the complaint shall be stated to the defendant and he shall be asked how he pleads. My reasons for this view are that, first of all, the provision is by its very terms, mandatory. Secondly, it ensures that a defendant unequivocally through his own mouth enters a plea which can be accepted by the Court without reservation to the same extent that a legal practitioner, can, under s.64, in the absence of the defendant, enter a plea without reservation since, in those circumstances, the defendant has clothed his legal representative with all the trappings of ostensible authority. The reading of the charge to a defendant in those circumstances can be dispensed with because, by his own election, he is not present at the hearing. The position is different, however, when the defendant, either unrepresented or represented by counsel or solicitor, is present at the hearing since s.67 in clear and unequivocal terms requires that in that event "the substance of the complaint shall be stated to him". 11. In Rowen v Strophair , Andrews D.C.J., (as he then was,) when considering s.145(1) of "The Justices Acts 1886-1965 of Queensland" which provides that "when the defendant is present at the hearing the substance of the complaint shall be stated to him and he will be asked how he pleads", observed at p 35:- " Enactments regulating the procedure in Courts seem usually to be imperative and not merely directory (Maxwell on the Interpretation of Statutes" (Tenth Edition)) p 379. See also Stefani v John Although in Todhunter v Zacka , Stefani v John (supra) was not thought by the Court to be apposite to the point there under consideration, in my view it supports the proposition that there are certain duties imposed upon Courts for the protection of accused persons which even in summary proceedings as distinct from pleas of the Crown may not be waived. As to the taking of a plea ss.145 and 146 in their present form appear in my view to be more precise and more definite than the sections which by "The Justices Acts Amendment Act of 1964" (No. 32 of 1964) they replaced. The sections (145 and 146) thus repealed were similar in wording to s.14 of The Summary Jurisdiction Act of 1848 (Eng.). Of proceedings regulated by that Act and "The Summary Jurisdiction Act of 1879" (which latter does not vary the provisions of s.14 of the earlier Act) it is said in Stones Justices Manual (83rd edition) at p 224 "But though the irregularity of defendant's appearance may be waived it is necessary the defendant should be told what the charge is before conviction." 12. In that case the defendant had been represented by counsel but neither the substance of the complaint was stated to him nor was a plea taken. It was held, allowing the appeal, that the conviction could not stand. 13. His Honour said at p 36:- "Having regard to the wording of ss.145 and 146 of "The Justices Acts 1886 to 1964" in their present form, it might be necessary that some consideration be some time given to whether it is permissible to follow the time-honoured practice of counsel's saying 'I take the complaint as read and plead 'Not Guilty'.' But in this case that was apparently not done." 14. After distinguishing other cases cited in his judgment, His Honour concluded by saying:- " They all deal with various defects or irregularities in summary proceedings in the manner of bringing defendants before justices and waiver thereof; with the effect of appearances by defendants in response to summonses or informations which are defective, and in the case of Dixon v Wells with appearance under protest to a summons issued in violation of an imperative statutory provision. In my view they are not in point except that in Dixonv Wells (supra) an imperative section of an Act was considered to provide a condition precedent to the trial of offences under the relevant Acts." 15. Counsel for the respondent relied upon the case of Ex parte Dunn ; In my opinion that case is distinguishable on two grounds, namely that the defendant was not present at the hearing and when asked to plead the defendant's counsel replied, "Not Guilty". Hence the factual basis of that case is the very reverse of what transpired in the present case; and at its highest, it is authority only for the proposition that where the defendant is not present in person, the complaint need not be stated unless counsel desires it. Indeed, in that case, the learned Chief Justice leaves open the question of the interpretation of s.78 of the Justices Act (1902) (comparable in terms to s.67 of our Act) at p 490 where he observes in obiter dicta:- "It is now complained that the substance of the charge was not stated in Court under s.78 of the Justices Act. It may be that that section does contemplate cases wherea defendan t is represented by counsel as well as thosein which he is persona lly present, but it appears to me that if counsel appears, it is his duty, if he has any doubt as to the nature of the charge, to ask that it may be stated, or that the information be read. If instead of doing so he pleads when called upon it seems to me that he waives his right to have the substance of the information stated to him. It would be a mere waste of time." (My emphasis.) 16. Moreover, in my opinion, Rex v Thompson is also distinguishable on the facts; and in any event, is not authority for the proposition that a Court of Summary Jurisdiction may dispense with the stating of the substance of the charge, even where the defendant, who is represented by counsel, is absent. 17. With respect, I prefer the reasoning in Rowen v Strophair (supra) for it ensures a clear and unequivocal response to the charge as stated to a defendant personally present in Court. 18. For the foregoing reasons, I uphold the first ground of appeal. 19. As to the second ground of appeal, I consider that the less said about the circumstances the better since, having heard the evidence of both the appellant and of his counsel, both of whom were cross-examined, I am disturbed about whether or not counsel had his client's instructions to enter a plea of guilty for him. Counsel for the appellant in the lower court categorically denied any lack of instructions while the appellant in evidence before me said that he was shocked and stunned when his counsel pleaded guilty and then beckoned him away when he sought to question the plea. 20. After a good deal of reflection, I do not consider that it would serve the interests of justice to try to resolve this dispute; but in view of my reasons for upholding the first ground of appeal, I think it is timely that this Court should lay down an inflexible rule of practice, namely, that in Courts of Summary Jurisdiction, (just as in the criminal jurisdiction of this Court,) whether an accused person is represented or not, the charge should be read over to an accused person on every occasion no matter how seemingly trivial the offence, thereby ensuring that there is no question about the plea being clear and unequivocal and emanating from the mouth of the person charged. (cf. James Ellis (1973) 57 CAR 571, at pp 573-575, which, although dealing with procedure on arraignment, highlights the views I have sought to express.) 21. The formal order is that the conviction and sentence be quashed and that the matter be remitted to the Court of Summary Jurisdiction for hearing before another magistrate.