Chu v Henham [1999] VSC 139

5. On 2 July 1998 the appellant was charged before the Magistrates' Court at Prahran that on 18 February 1998 he assaulted the respondent, a member of the police force in the execution of her duty, contrary to s.52 (1) of the Summary Offences Act 1958.

8. That section provides, as is relevant - "Any person who assaults ... any member of the police force in the execution of his duty under this Act or otherwise ... shall be guilty of an offence.

11. The appellant pleaded not guilty to the charge.

14. At the hearing before the Magistrates' Court the respondent gave evidence as did three other police constables and two other persons, in support of the prosecution case. The appellant also gave evidence.

17. After the appellant had been cross-examined by the prosecutor the Magistrate enquired of Counsel appearing for the appellant whether he intended to call further evidence. On being told that he did not, the Magistrate directed the appellant to return to his seat. The Magistrate then, after stating he was satisfied as to a number of matters (to which I shall later return) stated that he found the charge proved. After a further exchange between Counsel for the appellant and the Magistrate, Counsel addressed the court on the matter of penalty. The Magistrate then, by order, found the appellant guilty of the charge but without recording a conviction, adjourned the further hearing of the case to the Melbourne Magistrates' Court on 1 July 1999 on the appellant undertaking to be of good behaviour during the period of the adjournment and to appear before the court if given notice by the court requiring him to appear. It was further ordered that the appellant pay $300 compensation although on this appeal it was contended that the Magistrate ordered that the appellant pay $300 to the court fund. Nothing turns on this latter matter on this appeal however.

20. In making the finding that the appellant was guilty of the offence charged and making the further orders referred to, the Magistrate clearly exercised the sentencing discretion vested in him pursuant to s.75 of the Sentencing Act 1991. That section as relevant provides -

"75(1) A court, on being satisfied that a person is guilty of an offence,

may (without recording a conviction) adjourn the proceeding

for a period of up to 60 months and release the offender on

the offender giving an undertaking with conditions attached.

(2) An undertaking under sub-s.(1) must have as conditions -

(a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and

(b) that the offender is of good behaviour during the period of the adjournment; and

(c) that the offender observes any special conditions imposed by the court.

(4) An offender who has given an undertaking under sub-s.(1) may be called on to appear before the court -

(a) by order of the court; or

(b) by notice issued by the proper officer of the court.

(6) If at the time to which the further hearing of the proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking it must dismiss the charge without any further hearing of the proceeding."

27. On 31 July 1998 a Master of the Court stated by order a number of questions of law raised by this appeal. Although the questions of law raised by this appeal, as stated, were numerous, on the conduct of the appeal before the court, three questions of law were raised and pursued on behalf of the appellant. The first was whether on the whole of the evidence before the court it was reasonably open to the Magistrate to find the appellant guilty of the offences charged. It being contended on behalf of the appellant that it was not. Secondly, whether in the conduct of the trial the appellant was denied procedural fairness by the Magistrate refusing or omitting to permit his Counsel to re-examine him after being cross-examined by the prosecutor. Thirdly, whether the appellant was denied procedural fairness on his trial by the Magistrate refusing or omitting to give his Counsel an opportunity to make submissions of law following the close of evidence.

30. During the course of the hearing of this appeal Senior Counsel for the respondent conceded that the order made by the Magistrate on 2 July 1998 at the conclusion of the hearing of the trial of the appellant, including the finding of the Magistrate that the appellant was guilty of the offence charged, was a "final order" of the Magistrates' Court in a criminal proceeding such as to permit a party to appeal to this court on a question of law pursuant to s.92 of the Magistrates' Court Act, notwithstanding that the court did not record a conviction against the appellant. For the reasons hereafter expressed it is my view that such concession was correctly made.

33. "Final order" is not defined by the Magistrates' Court Act 1989 although "order" is defined as "includes judgment and conviction". Previously and by s.150 of the Justices Act 1928 and then by s.155 of the Justices Act 1958, which were in the same terms, a person who felt aggrieved "by a summary conviction or by an order of any Court of Petty Sessions or against whom any warrant" had been issued, was able to apply to this court for it to review the conviction order or warrant. "Order" was defined in each Act (by ss.4 and 3 respectively) in very wide terms. "Order" included "adjudication", "decision", "a determination of whatever kind made by justices or any Court of Petty Sessions". In Green v. Sergeant [1951] VicLawRp 72; [1951] VLR 500 Martin, J on the return of an order nisi to review, in circumstances when a Magistrate, in exercise of his powers pursuant to s.89(6)(a) of the Justices Act 1928, had adjourned the hearing of an information on an accused entering into a recognisance conditioned on him, appearing on the adjourned date and of being of good behaviour in the meantime, held that the granting of the adjournment was a "judicial determination" and subject to review. It is to be noted that s.89(6)(b) of the Justices Act 1928 provided that on the adjourned hearing on the justices being satisfied that the person charged had observed the conditions of the recognisance to be of good behaviour they "shall dismiss him without proceeding further and without hearing or determination of the information". The sub-section further provided that in any other event the hearing should continue in the same manner as if it had not been adjourned.

36. In Burnham v. Solomon [1946] VicLawRp 66; [1946} VLR 431 O'Bryan, J held that the word "order" in s.4 of the Justices Act 1928 was not limited to orders which finally determined a cause or matter but included orders made by the Court of Petty Sessions in the exercise of its judicial function including orders which were interlocutory in character and relate only to matters of procedure.

39. By the terms of s.92 and s.109 of the Magistrates' Court 1989, orders of a Magistrates' Court now capable of being the subject of appeals on questions of law are significantly reduced from those orders of Courts of Petty Sessions which could be the subject of orders to review pursuant to the Justices Act 1928 and 1958. An appeal lies now to this court only on a question of law from a "final order" of the Magistrates' Court. The decision in Green v. Sergeant cannot be of assistance in determining whether in this case the order of the Magistrate was a "final order" for the purpose of s.92 of the Magistrates' Court Act, notwithstanding that in that case and the present, the sentencing disposition of the Magistrate was similar in terms and possible effect, that being that the charge would be dismissed without a conviction being recorded.

42. In Kinex Exploration Pty Ltd v. Tasco Pty Ltd [1995] VicRp 58; [1995] 2 VR 318, Batt, J held that an order of a Magistrate refusing to grant, pursuant to s.110 of the Magistrates' Court Act, a re-hearing of civil proceedings before the court was not a "final order" under s.109 of the Act and that an appeal to this court from such order was incompetent. At p.320 his Honour said -

"The expression 'final order' is not defined in the Act, but it is clear both from the context and on the authority of decisions of Fullagar, J [in Bullmore v. Zuric Australian Life Insurance, (unreported 24 January 1991)] Gobbo, J [in Kennedy v. Victorian Rigging Pty Ltd (unreported 10 August 1992)] and Beach, J, [in Guss v. Johnstone (unreported 23 March 1994)] to which I shall refer later, that it is used as an antonym of the expression 'interlocutory order'. It is clear law that an order of a Supreme Court or a County Court refusing to set aside a judgment obtained upon default of the defendant in filing an appearance or delivering a defence is not a final order for the purposes of sections such as the former s.35 of the Judiciary Act 1903 (Cth) and s.13(4)(b) of the Supreme Court Act 1986 (although the latter actually refers to the antonym "interlocutory judgment"): Licul v. Corney [1976] HCA 6; (1976) 180 CLR 213 and Carr v. Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246. The rationale of those decisions is that the test applicable in Australia for determining whether a judgment is final or not is, "whether the judgment or order appealed from, as made, finally determines the rights of the parties".

46. Pursuant to s.83(1) of the Magistrates' Court Act 1989 it is provided -

"(1) A person may appeal to the County Court against any sentencing order made against that person by the court in a criminal proceeding conducted in accordance with schedule 2."

50. Schedule 2 of the Act provides for the procedure for the conduct of summary criminal hearings as was the case before the Magistrate, the subject of this appeal. Pursuant to s.3 of the Magistrates' Court Act 1989, "sentencing order" is defined to mean, 'any order made by the court following a finding of guilt' and includes -

(a) any order made under Part 3, 4 or 5 of the Sentencing Act 1991; and

(ab) ...

(b) the recording of a conviction.

56. Section 75 of the Sentencing Act, pursuant to which the Magistrate exercised his sentencing discretion in the present case, is within Part 3 of that Act. Appeals to the County Court as is provided by s.85 of the Act, must be conducted as a re-hearing.

59. However, it is to be noted that pursuant to s.83(2) of the Magistrates' Court Act 1989 it is provided -

"If a person appeals under sub-division 3 to the Supreme Court on a question of law, that person is deemed to have abandoned finally and conclusively any right under this or any other Act or appeal to the County Court."

63. Accordingly, whereas a person against whom a "sentencing order" is imposed by the Magistrates' Court in a criminal proceeding of the nature imposed on the appellant in this case following the finding by the Court of guilt, may appeal to the County Court, if such person appeals to this Court, under s.92 of the Act, that person is deemed to have abandoned finally and conclusively any right to appeal to the County Court. In my view it follows that it must have been within the contemplation of Parliament and to have been its intention that an appeal by a person to this Court against an order of the nature, the subject of this appeal, would be deemed to be an abandonment finally and conclusively of any appeal to the County Court.

66. However, as the only appeal to this Court pursuant to s.92 of the Magistrates' Court Act is from a "final order" of the Magistrates' Court the interaction of the referred provisions of the Magistrates' Court Act and provisions of the Sentencing Act as referred to leads to the conclusion, in my view, that where in proceedings before a Magistrates' Court, such as those the subject of the present appeal, the Magistrates' Court by order makes a finding of guilt against an accused and exercises its sentencing discretion as vested in it under s.75 of the Sentencing Act 1991, that order is a "final order" for the purpose of s.92 of the Magistrates' Court Act 1989.

69. The finding of the Magistrate that the appellant was guilty of the charge, finally and conclusively determined the question of guilt or innocence of the appellant notwithstanding that by operation of the sentence passed, the charge may eventually be dismissed. One can readily imagine circumstances where such a finding of guilt could not be sustained as a matter of law, for example, where there was no evidence at all before the court to establish a necessary element of the offence, the subject of the charge. The fact that such a finding finally determines the guilt or innocence of a person such as the appellant, notwithstanding that a conviction may not be eventually recorded and that finding forms part of the order of the Magistrates' Court, supports in my view the conclusion that the order in the present case should properly be categorised as a "final order" for the purposes of s.92 of the Magistrates' Court Act 1989.

72. The conclusion that I have reached is that on the court being satisfied that the appellant was guilty of the offence charged and that forming part of the order of the court on which the sentence was imposed in exercise of the court's sentencing discretion under s.75 of the Sentencing Act 1991, the order of the court, the subject of this appeal, is a "final order" for the purpose of s.92 of the Magistrates' Court Act and the appeal to this court on a question of law is competent.

75. I propose to deal first with the third question of law raised by this appeal, that is, whether the appellant was denied procedural fairness on his trial by the Magistrate refusing or omitting to give his Counsel the opportunity to make submissions of law before announcing his findings, including that he found the charge proved. In order to address this question it is necessary to have regard to the evidence given before the Magistrate and matters which occurred during the hearing of the trial.

78. There is set out in the affidavit of the appellant sworn on 28 July 1998 that which he deposes was the evidence given before the Magistrates' Court by the various witness and also the events and matters which occurred before the Court during the course of the trial. There has been filed an affidavit by Senior Constable Janine Gleeson sworn on 21 January 1999. She was the prosecuting officer before the Magistrates' Court on the trial. In the main she has deposed that she agrees with the content of the affidavit of the appellant with some exceptions both as to evidence given before the Court and matters that occurred during the course of the trial. In Buzatu v Vournazos [1970] VicRp 63; [1970] VR 476 Newton, J at 478 held that in a proceeding such as this there exists the arbitrary rule that where there exists a material conflict between parties' affidavits as to evidence given in the lower Court the version which supports the decision of the lower Court should be accepted in the absence of a fair and practical method of resolving the conflict. Although that is an arbitrary rule of the Court it cannot be applied so as to lead to abuse or to relieve the Court from fulfilling its duty to determine where the truth lies if a material conflict rises in such affidavits: Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360; Thompson v Cross [1954] VicLawRp 89; [1954] VLR 635 and Aherne v Freeman [1974] VicRp 17; [1974] VR 121. When regard is had to the affidavit of Janine Gleeson it appears more that she expands the matters the subject of evidence given before the Magistrates' Court and further there is some additional detail as to what occurred during the course of proceedings which were not specifically dealt with in the affidavit of the appellant. In identifying the evidence given before the Magistrates' Court and the events that occurred on trial I have regard to the affidavit of the appellant as effected and modified by that set out in the affidavit of Janine Gleeson.

81. The first witness called before the Magistrate was Allan Sharp who was a security officer employed at the Housing Commission estate in Prahran, including a block of flats at 6 Essex Street Prahran. He gave evidence that at about 10.45 p.m. on 17 February 1998 he was requested to attend Flat 3, 6 Essex Street which premises were occupied by a female tenant, her son and her brother, the appellant. He said that when he attended in the company of another security officer, Robinson, the appellant was sitting downstairs from the flat talking to a male police officer who was saying to the appellant that his sister did not want him to return to the flat that evening. He said that the police officer spoke in a normal fashion and the defendant was "o.k. at first" but then stood up and became agitated and that he was raising his voice. He said the police officer kept asking him for the keys of the flat. He gave evidence that shortly thereafter two female constables arrived and the defendant then stood up and walked out of the stairwell into the rear court yard. He gave evidence that the appellant was becoming very agitated, that the police kept asking him for the keys to the flat, that the appellant said "you lock me up if you want to" to which the police office replied, "we don't want to lock you up we just want to get the keys to the unit". The witness gave evidence that there were then four police officers around the appellant. As appeared from the evidence, three of the police officers were women, including the informant, the respondent. The other was a male. He said that things then became physical and the defendant started going towards the policeman, that the male policeman grabbed the defendant and two policewomen assisted the policeman. He said that one of the policewomen yelled out that she had been bitten and then the appellant was restrained and handcuffed. He identified the respondent as the policewoman who had been bitten saying that she had come down from upstairs shortly before the appellant moved from the stairwell out into the courtyard. The witness in cross-examination said the police were asking the appellant for the keys to the flat and that he refused to give the same to the police, offering to go back to the police station but the police refused to take him there. The witness further said that he saw the appellant move as though he was going to push past the policeman and that the appellant was then grabbed by the policeman, that a scuffle broke out and the appellant was pulled to the ground and handcuffed. He said that it was during the scuffle that the policewoman put her arm out to restrain the appellant. He said further that the appellant was forced to the ground and restrained after he heard the policewoman scream that she had been bitten.

84. The next witness was the other security officer Robinson. He gave evidence to the same effect as to the evidence of Sharp. He gave evidence that the appellant "went for" the respondent and a male officer, that it looked as though the appellant was trying to push his way past the police, that the policeman restrained him and put him on the ground. He also gave evidence that the appellant was forced to the ground and restrained after the policewoman screamed out that she had been bitten.

87. The respondent gave evidence that she was called to attend a disturbance at Flat 3, 6 Essex Street Prahran and that she attended with Constable Cole. He was the male police officer. She said that when she arrived she found the appellant and a female yelling at one another in an argument. She said the door of the flat was open, but the fly wire door was closed. She gave evidence that she asked Cole to take the defendant outside to speak to him while she spoke to the female. She said that she was told that the female lived at the flat with her son and her brother who is the appellant. She gave evidence that the female told her she did not want the male to return to the flat that night and when she advised the female to lock the flat she was informed that the appellant had keys to the flat and would return. The respondent gave evidence that she was concerned that a fight would occur if he returned and that there was a child on the premises. She said that she and Cole decided that they needed to obtain the keys from the appellant to prevent him from returning to the flat that night. She said that she went downstairs to where Cole was speaking to the appellant. He refused to give her his keys stating that he would go to the police station and stay the night at the police station. She said that she explained he could not come to the police station as it was not a hotel, that he had done nothing wrong and was not under arrest and they would not take him there. She said that they moved away from the stairwell to the rear yard of the premises where the appellant was crying, he was slightly hysterical and sitting down and standing up repeatedly. She said that the appellant got up and went to move towards the stairwell and attempted to push past Constable Cole. She said Constable Cole grabbed the appellant by the upper arm to prevent him from going back and that she put her arm across the appellant's chest as he was going towards Cole. She said that when she put her arm up she made contact with the appellant's mouth, that the appellant then bent his mouth to her arm and bit her causing her to call out, "the bastard has bitten me". She gave evidence that the skin on her arm was broken by the bite and there was some blood. She gave evidence that up to that point the appellant had not been arrested, but he was then arrested, restrained and handcuffed. As part of her evidence she tendered a record of the interview held later that night by her and Cole with the appellant.

90. In cross-examination she agreed that it was the intention of the police to obtain the appellant's keys, that he had not been charged with any offence and was not under arrest at that time. It was put to her that the appellant did not make any physical advance towards the police. She disagreed to the suggestion. It was suggested to the respondent that the only reason that the defendant was grabbed by the police was because the police wanted to get his keys. The respondent disagreed and said that the appellant moved first and they grabbed him to prevent him from going back to the flat. In cross-examination, the respondent was directed to a number of questions put by her to the appellant during the course of her interviewing the appellant, where in substance it had been put to the appellant that Constable Cole had grabbed him to take his keys from him. Examples of these questions as put to her were questions 84 and 92 and the answers. They were -

Q: And at this time Constable Cole attempted to take the keys from your person.

Q: All right and as a result in the following struggle to get the keys you bit me on the arm.

99. In further cross-examination, it was suggested to the respondent that the only reason the appellant was grabbed was because the police officers wanted to get his keys. The respondent said she disagreed. In further cross-examination, the respondent said that she may have been wrong in the interview about the reason for Cole grabbing the appellant. She agreed that Constable Cole also directed questions towards the appellant during the interview and that he did not direct a question to the appellant that the reason why he grabbed the appellant was to stop him from going upstairs. The respondent said that Cole grabbed the appellant, but denied the suggestion that she had put her arm around the neck and throat of the appellant. She denied the suggestion, put to her, that she had put the appellant's head in a head lock and denied that someone had applied pressure to the sides of the appellant's neck. She disagreed with the suggestion that she had grabbed the appellant in such a way that his breathing was restricted. She denied further the suggestion put to her by Counsel in cross-examination, that the only reason the defendant may have bitten her was because she was preventing him from breathing by the way that she had restrained him. In re-examination the respondent said that the reason the appellant was grabbed was to stop him from going upstairs and she further said that the appellant was pulled to the ground and restrained after he had bitten her.

102. Constable Cole gave evidence that he attended at 6 Essex Street Prahran with the respondent where he heard a male and female screaming at each other. He gave evidence that he requested the appellant to come downstairs, that he spoke to him for a short time there before they moved out into the court yard. He said that when he was joined by the respondent she told him that the appellant's sister was scared and stated that the appellant had keys for the flat. He said that he spoke further to the appellant and explained that his sister did not want him to return to the flat, that the appellant said that he wanted to go back upstairs to talk with his sister and that they told him he could not go back to the flat. The witness gave evidence that the appellant pushed past him, that he believed that he was trying to go back upstairs to the flat, that he grabbed the appellant's arm and that as he did the appellant raised his other arm as if he was going to strike him. He said that the respondent then moved to restrain the appellant and that he saw the appellant bite the respondent on the arm following which the respondent called out that she had been bitten. He said that he grabbed the appellant's arm, pushed it around his side and pulled him to the ground so that he could handcuff him. During the course of his evidence a photograph of the respondent's forearm, taken after the appellant was arrested, was tendered.

105. In cross-examination the witness agreed that he had been told by the respondent that they needed to get the appellant's keys. He said that he spent 20 minutes or more with the defendant trying to obtain his keys. The witness denied that he had grabbed the appellant in order to take his keys from him. He said that he grabbed the appellant to stop him from going back to the flat. The witness said that he was present when the appellant was interviewed. He was taken to question 84. He said that it was not the case that the appellant was grabbed in an attempt to get his keys. He said that the reason he grabbed the appellant was to prevent him going back upstairs. It was suggested to the witness that he allowed questions to be put to the appellant to the effect that the appellant was grabbed to remove his keys from him as that was the truth. The witness disagreed with that. In further cross-examination the witness maintained that the appellant had tried to push past him.

108. Also called on behalf of the prosecution was Constable Barsby who stated she attended at 6 Essex Street where she found the appellant talking to Constable Cole in the stairwell of block 6. She said that the appellant was agitated and that Cole was trying to calm him down. She said that she was told that the officers in attendance were trying to prevent the appellant from returning to his flat. She said that the situation escalated, the appellant became extremely agitated and pushed past Cole. She said that she saw Cole grab the appellant by the arm as he went by, that the appellant lifted his other arm as though he was going to strike Cole and that the respondent moved to restrain the appellant. She said that she heard the respondent yell out that she had been bitten. She gave evidence that the appellant was then over-powered and pushed to the ground and handcuffed.

111. In cross-examination she agreed that the objective was to get the appellant's keys to the flat. She said that she saw the appellant push his way past Cole. She said that she did not see anybody apply pressure to the appellant's neck. She said that she did not see the respondent restrain the appellant around the neck area.

114. Constable Considene gave evidence that she also attended the flat and that she saw Constable Cole speaking to the appellant. She said he was trying to explain to the appellant that he was to surrender his keys and that he couldn't return to the flat. She said that the appellant did not want to give up his keys. The witness said that the appellant was squatting then standing and at one stage he got up from the squatting position, moved towards Constable Cole and brushed past him. Her evidence was that Constable Cole grabbed the appellant's arm that the respondent moved to restrain the appellant to prevent him striking Cole. She said that she heard the respondent yell out that she had been bitten.

117. The appellant gave evidence. He said that he lived in flat 3, 6 Essex Street Prahran with his sister and her twelve year old son. He said that he was in his room when the police arrived and that previously there had been an argument between himself, his sister and his sister's friend. He said that he spoke to Cole outside the flat and went downstairs with him. He gave evidence that he was not having any argument at the time that the police came to the flat and further said that it was his sister who had called the police and who had asked them into the flat. The witness said that Cole asked him to give him his house keys because his sister did not want him to return home that night and that he refused to give Cole his keys. He said that all four police officers were wanting him to give his keys to them but he wanted to wait for his sister to go to bed so that he could return and go to bed. He said he wanted to return to the flat when his sister was asleep. The witness gave evidence that Constable Cole was feeling his jeans to see if he had any keys in his pockets and that when the four police officers were around him Cole suddenly grabbed him by the arm and twisted it behind his back, he said that the respondent then put her arm around him at his neck, that someone grabbed him by the neck with a hand and squeezed his neck with a thumb and forefinger. He said that the respondent was squeezing his neck with her arm such that he could no longer breath and that in order to defend himself and to enable him to breath, he bit the arm that was around his neck. The appellant said that he was then pushed to the ground, his arms were twisted hard behind his back. He said that Cole grabbed him to take his keys from him and that he did not make any attempt to go back to the flat and that when he was grabbed by Cole he was not pushing past him nor was he going back up to the flat. Photographs were tendered showing marked discolouration to each side of the appellant's neck. He said that the only reason he bit the policewoman was that he was acting in self defence. The witness said that the respondent's arm was against his neck, that he bent his mouth downwards and bit the arm that was around his neck and then the arm was released and he was able to breath.

120. In cross-examination he demonstrated how he said he was held around the neck saying that it was at that point that he bit the police officer. He denied that he was pushing past Constable Cole as had been described by other witnesses.

123. In the affidavit of the appellant filed in these proceedings he has deposed that during his cross-examination the Magistrate asked him a number of questions. He has sworn that at the end of his cross-examination the Magistrate then asked his Counsel if he intended to call other witnesses and when his Counsel said that he did not intend to do so, the Magistrate told him to leave the witness box and to return to his seat. He has sworn, "Counsel was not given any opportunity to re-examine me following the cross-examination by the prosecutor or the questions by the learned Magistrate and I had no opportunity to say anything in reply to the cross-examination."

126. Janine Gleeson has sworn that it was after she had completed her cross-examination that the Magistrate asked a question of the appellant. She has sworn that the Magistrate gave both parties an opportunity to respond to those questions. She has not deposed how that opportunity was given, whether it was by reason of something which was said or by reason of the fact that no further question was asked. There is no evidence before this court that at this time the Magistrate said anything relating to either party wishing to ask the appellant any questions arising from the questions asked by him. In all events the appellant was not re-examined.

129. I return to the events that occurred and that which was said by the Magistrate and Counsel for the appellant after the Magistrate had informed the appellant that he was to return to his seat. The appellant has sworn that what was then said and that which occurred was that the Magistrate said - "I am satisfied the defendant bit the policewoman. I am satisfied he was not justified in doing it. I am satisfied the best way of dealing with the situation was that he should have given the police his house keys. If he had given the police his house keys this situation would not have arisen. I found the charge proved." The appellant has sworn that his Counsel then objected that he had not been given an opportunity to make a submission in law and that the Magistrate then said, "This is not a question of law. This is a question of fact. Whether the police were acting reasonably or not is a question of fact. I am satisfied that the police were acting reasonably in taking the keys from the defendant. The defendant by his own admission stated that he intended to return to the flat after his sister had gone to sleep. It was reasonable to take his keys to stop him." The appellant has further sworn that the Magistrate then asked the prosecutor whether there was "anything known" to which the prosecutor said that there was nothing known against the appellant following which the Magistrate said, "Well, he is a student, I suppose he is going to ask for a non-conviction". It appears that following this, the appellant's counsel made a plea on behalf of the appellant as to sentence following which the Magistrate sentenced the appellant as previously referred to.

132. In her affidavit, Janine Gleeson has also sworn that in addition to the findings of the Magistrate as referred to he further said, "I am satisfied that his own evidence was that he intended to return to the flat that night after the police left, therefore he may continue to breach the peace."

135. From that which occurred immediately after the Magistrate had announced his findings, concluding that he found the charged proved, it is apparent that Counsel for the appellant objected that he had not been given an opportunity to make a submission in law. It would therefore appear from that fact alone that it was the intention of Counsel to make a submission to the Magistrate on a matter of law at the conclusion of the evidence although it would appear that at no time before the Magistrate announced his finding had Counsel informed the Magistrate of that matter. It does appear, however, from the affidavit of Janine Gleeson that during the course of the luncheon adjournment Counsel for the appellant advised her that he would be arguing that the appellant had a right to assault the police as his arrest was illegal, stating that he would be relying on the decision of Nguyen v. Elliott (unreported 6 February 1995, Hedigan, J,). She has deposed that she stated to Counsel that she believed that the case related to the police officers' duties and obligations to prevent a common law breach of the peace, informing him of the cases that she was going to rely on. One case referred to by Janine Gleeson was Minto v. Police [1987] 1 NZLR 375. The facts of that case were that Minto was one of a group of protesters involved in an anti apartheid demonstration at a tennis tournament. One of the tools used by the protesters, including Minto, was a loud hailer. After its initial use a police officer warned Minto and others that action would be taken for a breach of the peace if they persisted. The loud hailer was used to amplify chanting and comments, the police officer considered that there was a real likelihood of a breach of the peace, he grabbed the loud hailer from Minto who grabbed it back from the police officer, and then Minto was arrested and charged with intentionally obstructing a police constable in the course of executing his duty. In the course of his judgment at p.377 Cooke, P referred to the judgment of Lord Diplock in Albert v. Lavin [1982] AC 546 at p.565 where His Lordship stated -

"Every citizen in whose presence a breach of the peace is being or reasonably appears about to be committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation."

139. In his judgment, Cooke, P referred to a submission that had been made to the court in which it had been stressed that the powers of police to take steps to prevent threatened breaches of the peace should be confined to situations where an immediate or imminent breach was apprehended. The President continued -

"That is inherent or implicit in what Lord Diplock said. Obviously immediacy is in part a question of degree. It would be going too far to say as a matter of law that the powers of the police at common law can be exercised only when an instantaneous breach of the peace is apprehended, but the degree of immediacy is plainly highly relevant to the reasonableness or otherwise of the action taken by the police. What Lord Diplock spoke of was reasonable steps to prevent a breach being committed or about to be committed. So his proposition has its own in-built limitations.

It is true that nothing was said in Albert v. Lavin about impounding personal property, but it seems to me a matter of common sense that in certain circumstances reasonable steps to prevent a breach of the peace may extend to the temporary taking and detention of chattels such as the loud hailer in the present case. After all, the common law power extends to detaining a person against his or her will. It is evidence that, on some occasions at least, to detain the personal property of an individual against his or her will must be a less drastic step than detaining the individual and a less serious interference with the liberties of a citizen. I can see no reason for withholding as a matter of law power to take temporary control of a chattel."

143. From the evidence before the Magistrates' Court and without having any reference to the exchange that occurred during the luncheon adjournment between Counsel for the appellant and the prosecuting police officer it is apparent that on the facts of this case a question of law arose as to what were the duties and the extent of the duties of the attending police officers, particularly Constable Cole and the respondent relevant to the time that the appellant was first grabbed. There were clearly questions of fact to be determined by the Magistrate, including; was the appellant grabbed as an act in order to restrain him and to prevent him from committing a breach of the peace; did it reasonably appear by any acts of the appellant that he was about to or threatened to breach the peace; was the appellant grabbed as an act to detain him so as to search him to see if he had keys to the flat on his person and to take those keys from him? These questions, in my opinion, needed to be addressed particularly having regard to evidence of the respondent that she said to the appellant that he had done nothing wrong and that he was not under arrest and that although it was the intention to take keys from the appellant he was not under arrest. These questions of fact were relevant for determination by the Magistrate as the appellant was charged that he assaulted the respondent in the execution of her duty. It was the prosecution case that the keys were to be taken as a reasonable step to prevent a breach of the peace by the appellant. It was in those circumstances that it would appear that counsel intended to make a submission of law to the Magistrate. It is not suggested that he intended to seek to address the court on the evidence before the court, alone. In Clause 2(3) of Schedule 2 to the Magistrates' Court Act it is provided that on the hearing of a summary charge before the Magistrates' Court -

"Leave of the court is necessary before the court may be addressed on evidence by or on behalf of the informant or defendant, whether the address is for the purpose of opening, or summing up, the evidence."

147. The authority on which Counsel for the appellant had intended to address the court was a decision of this court in Nguyen v. Elliott. In that case Nguyen had been charged before the court on a number of charges including assaulting a police officer in the course of the execution of his duties. The charges were not related to a breach or apprehended breach of the peace as in this case. It had been found by the Magistrate that in respect of a police officer Nguyen took physical action against the officer in opposition to a threatened unlawful search of him for a drug of dependence.

150. In the course of his judgment Hedigan, J stated -

"The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free from unlawful search and seizure may be traced through centuries of cases."

154. His Honour referred to previous decisions of this court including to McLinley v. Minster [1911] VicLawRp 67; [1911] VLR 347, in which case Madden, CJ at p.350-351 said -

"The whole question was - did Minster assault McLinley ... if the question of the assault on McLinley had been deliberately and properly investigated it would have become important to ascertain whether or not the assault was justified and that would depend on whether the constable had lawfully arrested and was lawfully holding Minster because it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has a perfect right to use reasonable efforts to beat him off and to get out of his custody."

158. It is not appropriate for me to discuss the principles enunciated by Hedigan, J in Nguyen and the authorities referred to in his judgment with reference to the facts in this case. It is sufficient in my view to conclude, as I have, that there were issues of fact in this case to be determined by the Magistrate and depending on such findings of fact, principles of law stated in Nguyen and authorities referred to by Hedigan, J in his judgment may well have been relevant to the ultimate issue to be decided by the court, namely, whether the appellant was guilty of the offence charged.

161. The question of law that then arises in the circumstances of this case is whether having regard to the events that occurred in the conduct of the trial was the appellant's trial not fair as his Counsel did not have the opportunity to address the court on a matter of law which may well have been relevant to the decision of the court as to whether it had been proved that the appellant was guilty of the offence charged.

164. In my view it is important to be reminded of and to repeat that which was said by Barry, J in Mooney v. James [1949] VicLawRp 6; [1949] VLR 22 at p.29 where his Honour said -

"Courts of Petty Sessions are courts of summary jurisdiction, but a summary hearing does not mean that the inferior court is to dispense with the aids that superior courts find substantial protection against injustice. Courts of Petty Sessions occupy a place of great importance in the hierarchy of courts; the matters committed to them are of vital significance to the community; they are the courts best known to a large section and such knowledge as a great many members of the public have of the administration of the law is drawn from the experience of those courts. It is necessary that the business should be done with dispatch dispensing with needless details, but Magistrates should bear in mind when seeking to do 'ideal justice, fair and fast' the next and concluding line of the late Sir Frank Gavin Duffy's poem, 'A Dream of Fair Judges' (19 ALJ at pp.43-4), 'But less fast were more fair'.

In a great many of cases, addresses by counsel will be unnecessary, but where the case is complicated (and the enlarged jurisdiction of Courts of Petty Sessions means that difficult cases

not within the jurisdiction of Petty Sessions when they were

originally set up now come frequently for decision) the Bench

should avail itself of the assistance that can be had from the Bar."

168. Those words of his Honour are equally applicable to Magistrates' Courts today as they were applicable to the Courts of Petty Sessions at the time they were written.

171. In Simon Parsons and Co v. Batt and Falls (unreported, 13 August 1996, Batt, J) the court had before it proceedings in which the plaintiff sought relief by way of judicial review under Order 56 of the Rules of the Supreme Court. The plaintiff sought to have set aside an order made by a Magistrates' Court on the grounds that the plaintiff had been denied procedural fairness during the course of proceedings before the lower court. In that case the Magistrate, when a solicitor sought to address him with respect to a question of costs, pre-emptorily stopped hearing the submission being made and then made an order as to costs in the case before him. Batt, J in his judgment set aside the order and remitted the matter for re-hearing before the Magistrates' Court. In the course of his judgment his Honour said -

"I am not unmindful of the need from time to time, and perhaps more so than in the past, for a judicial officer to stop unnecessary or repetitive cross-examination or argument, but, in my view, it was necessary for the Magistrate at least to allow the solicitor to indicate the argument, that is to state the cases by name or at the very least by topic or genus. Otherwise there is, in my view, a want of procedural fairness in that part of the case has not been heard."

"It seems to me to decline to hear part of an argument is to deny a proper hearing. I make it clear that I am not talking about repetition of an argument already advanced or exemplification of a point already made or some minor branch or twiglet of an argument. Nor am I suggesting that if the cases had been identified individually or by genus it would not have been open to the Magistrate to say, if this was his view, that he did not want to hear them for some reason which he then advanced ... .

I am, then, sensible to the difficulties facing all judicial officers, but I do think here that the solicitor should have been allowed to refer to the authorities at least until, if at all, the Magistrate formed the conclusion, when he actually knew what they were, that they were inapplicable for some stated reason or other."

179. It is to be appreciated that Simon Parson and Co differs significantly from the case presently before me. In that case the solicitor had commenced to endeavour to address the court whereas in the circumstances of this case at no time before the Magistrate announced his decision including that he found the charge proved did counsel indicate that he wished, on behalf of his client, to make submissions of law to the court. On behalf of the respondent it was submitted that as Counsel for the plaintiff had at no time before the Magistrate commenced to give his decision inform the court that he wished to make a submission as to law there was no denial of procedural fairness to the plaintiff in the circumstances of this case. It was further submitted, on behalf of the respondent, that if in circumstances where a Magistrate at trial does not actively prevent a submission of law, relevant to the trial, being made or actively decline to hear such a submission, it could be later contended in proceedings such as the present, that the party against whom the decision of the court went had been deprived of procedural fairness on his or her trial, as it was intended to make such a submission had the opportunity been given before the decision was announced, then proceedings such as these could be open to abuse. That is certainly not the case here. I am satisfied that it always was part of the strategy of Counsel in the conduct of the appellant's defence to make a submission of law to the court relevant to the facts in this case. The opportunity to address a Magistrates' Court on the evidence in a trial is the subject of the Rules of Procedure to which I have previously referred. However, if a party appearing before a Magistrates' Court or his or her legal representative wishes to make a submission of law relevant to the case the court should entertain the same. For a Magistrate to decline to hear such a submission it would result in the party appearing before the court being deprived of procedural fairness in the conduct of the trial. As referred to by Batt, J in Simon Parson and Co it is well within the capacity of the Magistrate hearing such a submission to manage and control the same while ensuring that procedural fairness is given to the party making the submission. It is to be noted that in Mooney v. James, Barry J at p.31 held that on a submission of "no case" being made to a Magistrates' Court, which the defendant was entitled to have heard, Counsel was entitled to advance the submission by examination of the evidence. Such would be the case on other submissions of law made to the court.

182. If a party or his or her legal representative wishes to make a submission on the law relevant to the evidence at the conclusion of the evidence and before the Magistrate gives his or her decision, that fact should at an appropriate point in the trial be brought to the attention of the Magistrate in order that the submission may be heard before the court gives its decision. In this case, unlike the circumstances which occurred at trial in Simon Parson and Co the Magistrate did not actively decline to hear a submission of law being addressed to the court or sought to be addressed to the court for at no time was he informed, before he commenced giving his decision that Counsel sought to make a submission of law. But in my view that does not end the matter in this case. It is extremely difficult on the hearing of an appeal such as this to obtain an appreciation of the timing of events that occurred in the course of the trial before a Magistrates' Court when the material before this court is affidavit material only. It should not be part of the duty or function of a Magistrate in the conduct of a trial before the court in each case to enquire, before announcing the decision of the court, whether a party appearing before the court or his or her legal representative wishes to address the court on a matter of law relevant to the evidence.

185. However, in this case being satisfied that it was always the intention of Counsel to address the court on a matter of law and having acquainted the prosecuting officer of that fact and informed her of the authority on which he intended to rely, I have reached the conclusion that whereas the Magistrate sought in the conduct of this trial to give, "ideal justice fair and fast" Counsel was not given the opportunity before the decision of the court was announced to inform the court that he wished to address it on a question of law and to advance argument to the court on a question of law relevant to the evidence before the court. Events occurred too rapidly between the appellant being told to resume his seat and the Magistrate announcing his decision for Counsel to inform the court of that matter. As said by Deane, J in Jago v. District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 56 and agreed with in its terms by Mason and McHugh, JJ in Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292 at 299, an accused person has a right not to be tried unfairly and has "an immunity against conviction otherwise than after a fair trial" which "right is manifested in rules of law and of practice designed to regulate the course of the trial". Having reached the conclusion that in the circumstances of this case that at the close of evidence events took place too quickly to give to the appellant's Counsel the opportunity to inform the court that he wished to address it on a question of law relevant to the evidence before the court announced its decision and being satisfied that it was the intention of Counsel to make such submission, I have further concluded that in the circumstances of this case there was a failure to accord the appellant procedural fairness on his trial. Such failure strikes at the decision and order of the Court. The decision and order must be set aside.

188. I am comforted in reaching such conclusion by authorities drawn to my attention by Senior Counsel for the respondent after the hearing of this appeal had concluded, where in each case events occurred not dissimilar to the present. In R. v. Middlesex Crown Court, ex parte Riddle [1975] Crim. LR 731, the Divisional Court (constituted by Lord Widgeny CJ, O'Connor and Lawsonn, JJ) had before it on application for an order of certiorari to quash a conviction on the ground of the judge's refusal to allow the applicant to address the Crown Court, which was hearing an appeal by the applicant from a conviction before Magistrates, before it announced its decision, was a breach of natural justice. Not unlike the events that occurred in the present case, at the close of the applicant's evidence before the Crown Court he was asked whether he wished to call more evidence. The applicant answered no and was about to make a speech when the judge announced that the applicant's appeals were dismissed. The applicant complained that he had been deprived of the opportunity of making a final speech. When asked what the speech would include and on informing the court, the judge dismissed the appeal without hearing the speech. The Divisional Court on allowing the application held that there had been a breach of the rules of natural justice.

191. In Ex parte Kent, Re Callaghan and Anor (1969) 70 WW (pt. 1) NSW 40, Herron, CJ, with whom Sugerman and Mason, JJA agreed, held, that in circumstances where after the close of evidence in a children's court, Counsel for the defendant and the prosecutor had addressed the court as to guilt or innocence but not as to penalty, at the conclusion of which the Magistrate said that he was satisfied that the case was established and then proceeded to sentence the applicant, that there had been no opportunity given to Counsel for the applicant to address on the question of penalty and that this amounted to a denial of natural justice. It was ordered that the rule nisi for prohibition be made absolute. See also Ex parte Kelly; Re Teece (1966) 85 WW (pt. 1) NSW 151.

194. Having reached the conclusion that the order of the Magistrates' Court in this case should be set aside it is unnecessary for me to consider the other grounds of appeal.

197. In the result the appeal must be allowed and the order of the Magistrates' Court made on 2 July 1998, as identified in this proceedings by the order of the Master made 31 July 1998 must be set aside and the charge before the Magistrates' Court at Prahran the on 2 July 1998 against the appellant be re-heard. In circumstances where the Magistrate who initially heard the charge announced his decision it is appropriate that the re-hearing of the charge against the appellant be heard by a Magistrate other than the Magistrate who conducted the trial on 2 July 1998.

2. That the order of the Magistrates' Court at Prahran made on 2 July 1998, as identified by order of the Master made 31 July 1998 be set aside and that the charge against the appellant as heard by the Magistrates' Court at Prahran on 2 July 1998 be re-heard by the Magistrates' Court by a Magistrate other than the Magistrate who heard the charge on that day.