Director of Public Prosecutions v Gursel Ozakca & Anor

CATCHWORDS : NATURAL JUSTICE - refusal to adjourn - special considerations in criminal proceedings - balance justice between parties - constructive failure to exercise jurisdiction

LEGISLATION CITED : Crimes (Local Courts Appeal and Review) Act 2001 (NSW)

Alexandroaia (1995) 81 A Crim R 286 Blazevski v District Court Judges of New South Wales (1992) 29 ALD 197 ex parte Hebburn Limited v Kearsley Shire Council (1947) 47 SR(NSW) 416 House v The King (1936) 55 CLR 499 Maxwell v Keun [1928] 1 KB 645 CASES CITED : MIMA v Bhardwaj (2002) 209 CLR 597 Pearce v Queen (1998) 194 CLR 610 Priddle v Fisher [1968] 1 WLR 1478 Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 Sali v SPC Limited (1993) 67 ALJR 841 Sullivan v Department of Transport (1978) 20 ALR 323

P: Director of Public Prosecutions PARTIES : D1: Gursel Ozakca D2: Mr J McIntosh, Magistrate

COUNSEL : P: Ms C.A. Webster D: Ms Cox

P: Ms McGlynn, Solicitor for Public Prosecutions SOLICITORS : D1: Ms R Neil, Legal Aid Commission of NSW D2: I V Knight, Crown Solicitor

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Director of Public Prosecutions v Gursel Ozakca & Anor

JUDGMENT 1 ROTHMAN J: The Director of Public Prosecutions seeks orders in the nature of certiorari and mandamus, together with consequential declarations, against the second defendant his Honour John McIntosh LCM in relation to the refusal of an adjournment sought by the plaintiff in the proceedings before the learned Magistrate. The plaintiff also seeks redress pursuant to the provisions of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). The plaintiff appeals, pursuant to s56(1)(c) of the Appeal and Review Act, the order dismissing the matter and seeks leave, pursuant to the terms of s57(1)(c) of the Appeal and Review Act, to appeal the interlocutory decision refusing the adjournment. The primary remedy sought is certiorari and mandamus. 2 The proceedings before the learned Magistrate were proceedings relating to a number of offences, being a number of counts of contravening apprehended domestic violence order and use carriage service, being a telephone, to menace. The offences were said to have occurred between 2 and 9 November 2005. 3 On 9 November 2005 the first defendant was charged by Court Attendance Notice, appeared and bail was refused. The first defendant remained in custody, bail refused, from 9 November 2005 until 13 January 2006. On 13 January 2006 the first defendant was granted bail, which he entered on 14 January 2006. 4 The matter came before the Local Court on 24 March 2006 and a hearing date was fixed for 30 May 2006. 5 The offences charged relate to a single victim. 6 On or about 11 May 2006 the victim left Australia to attend to her father who was seriously ill due to a severe heart condition. On 13 May 2006 the informant endeavoured to contact the victim and was informed of the emergency in Turkey and the fact that the victim had left Australia temporarily. Contact was eventually made with the victim and the victim endeavoured to arrange her flights so that she would arrive in Sydney and be available to give evidence on 30 May 2006, the date of the listing. 7 The prosecutor contacted legal representatives of the accused and informed them of the position and that the prosecutor would be seeking an adjournment. 8 When the matter came before his Honour below there was initially no appearance by the legal representative for the defendant who had been apparently delayed. The accused was in attendance. Also in attendance were interpreters that were required for the purpose of cross-examining witnesses and another interpreter whom the defence wished to cross-examine because of that person's role in the police interview. 9 When the legal representative of the defendant attended he confirmed to the Court the receipt of prior notice of the adjournment application in the following terms: "My understanding your Honour is that the matter's not ready to proceed today and I had the courtesy of a call from the informant on that."

That was the only statement made by either the accused or his legal representative during the adjournment application. The adjournment application was not opposed by the accused. 10 After the refusal of the adjournment application, the matter proceeded a short way into the hearing but ultimately, because of the absence of evidence from the victim, there was no prima facie case and all matters were determined on the basis of no prima facie case and the charges were dismissed. The victim was expected to arrive home at 8pm on that evening.

A Refusal of Adjournment: General Principles 11 The general principle which applies to a decision to refuse (or grant) an adjournment application is that such a decision is a matter wholly within the discretion of the court or tribunal. An appeal against such a decision is an appeal against a discretionary decision and will be subject to interference by an appeal court only on one of the well known bases dealing with discretionary judgments: House v The King (1936) 55 CLR 499 at 504 - 505. 12 For an appeal court to interfere with an exercise of discretion there must be a basis other than that it would have taken a different course. There must be error. That error must either be identifiable or manifest. If identifiable it must be based upon wrong principle, mistake of fact or law or the failure to take into account all and only relevant matters. 13 However, in these proceedings the plaintiff does not put its case on the basis of an exercise of discretion. It seeks prerogative relief on the basis of, inter alia, a denial of natural justice. The Court raised with the parties during the course of the short hearing the judgment of Justice Deane in the following terms: "A refusal to grant an adjournment can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher [1968] 1 WLR 1478). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." ( Sullivan v Department of Transport (1978) 20 ALR 323 at 343, Full Court Federal Court of Australia, per Deane J with whom relevantly Fisher J agreed). 14 In circumstances described in the forgoing passage the refusal of an adjournment takes on a different character from the exercise of a discretion and, in such circumstances, is a denial of natural justice requiring different considerations than a simple exercise of discretion. In the instant proceedings the Magistrate refused the adjournment application in circumstances where his major consideration was case management. After reciting the history of listings for the purpose of setting hearing dates and the fact that the brief had been served on 13 January 2006 and that it had been set for 24 March 2006 to fix a date his Honour said: "On 24 March over to 30 May, today, for hearing. Listed for 3 hours. There are two Turkish interpreters were requested. One for, I take it, the alleged recipient of the telephone calls … and for the accused. … those two interpreters are present and there is a third interpreter. … so this is an expansive exercise. … there was a third interpreter present who the prosecutor has indicated was present when an interview was conducted with the defendant and questions need to be asked of the interpreter as to that - I take it, it is his interpretation at the time of the interview. This is the second time that has happened to me, where I have had an interpreter questioned about interpretation and I haven't stopped talking about the first time because it is so unusual, I have to say. … we have got interpreters interpreting for interpreters and so forth. … so today, 30 May, the prosecutor has made an application for adjournment. The recipient of the alleged telephone call or alleged recipient of the alleged telephone calls … had been called to Turkey because her father has a heart condition. She left for Turkey on 11 May and she is due back tonight, 30 May. A subpoena issued for her attendance on 13 May, unfortunately. I cannot help but come to the view that I think the subpoena should have been issued before she left so that appropriate arrangements could have been made by her to be back for today, but the informant is not to know that she was going overseas, but ideally, the subpoena would have issued soon after 24 March rather than mid May, so I mean - as I have already indicated, I mean no criticism of the informant at all.

The prosecutor's alternate position is that the matter commence today and go over part heard to allow the attendance of the alleged victim, for want of better terminology, but this case has a long history. First before the Court on 10 November. The accused spent two months in custody, just over. The matter has just been listed since 24 March, two and a half. Well over two months for the matter to be ready to proceed today. There are three interpreters present today. Two of those would have to return on another day. There are only two prosecution witnesses to give evidence today. The matter would roughly take an hour, an hour and a half, I think the prosecutor has indicated. … then have to go over part heard. In view of all the material before me, I am of the view - what I've asked the prosecutor to outline the allegations. He has done so. In light of all the material - I am of the view I should not grant the application Mr prosecutor for an adjournment." 15 The High Court has examined the issue of the appellate review of a refusal of an adjournment and developed the principles adumbrated by Justice Deane when a member of the Federal Court. In Sali v SPC Limited (1993) 67 ALJR 841 at 843, the High Court (Brennan, Deane and McHugh JJ) said: "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 the 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. 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." 16 Their Honours go on to deal with the concept of case management and the importance of understanding the congestion of court lists. However case management of itself is not a basis upon which an adjournment which renders an injustice to the applicant should be refused. The High Court has said: " Sali v SPC was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim." ( Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 154, per Dawson, Gaudron and McHugh JJ)

Adjournment: Criminal Proceedings 17 The above statements of the High Court (and of Deane J when a member of the Federal Court) set out the general principles that apply to an adjournment application. However, in the current circumstances there are different emphases. It is a quite different situation when that which is sought to be adjourned is a criminal prosecution. In a criminal prosecution the factors associated with the "injustice to any other party" or "the only way that justice can be done to another party in the action" (see Sali, supra) take on a far greater significance. 18 Counsel for the plaintiff relies in her submissions on Alexandroaia (1995) 81 A Crim R 286 which applies the reasoning in Maxwell v Keun (and other cases) to the criminal jurisdiction. In that case, the Court of Criminal Appeal (Hunt CJ at CL, Grove and Dunford JJ) said: "Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give wait or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellant court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion it is under a duty to review the order made." (at 290) 19 Alexandroaia was a judgment concerning an application for an adjournment by an accused. A different balancing exercise arises when the application for adjournment is made by the State: "In criminal proceedings, judges are entitled to take into account considerations such as the accused's right to a hearing of charges brought by the State, without undue delay. Such judges are also entitled to take into account proper and efficient case management, case flow and the demands of other litigation." ( Blazevski v District Court Judges of New South Wales (1992) 29 ALD 197 at 200) 20 Blazevski was also a case in which the accused sought an adjournment because of the unavailability of counsel and the trial judge, according to the Court somewhat peremptorily, refused the adjournment. 21 There are very few instances in the superior courts where consideration has been given to an adjournment application made by the prosecutor. While the principles must be the same, the weighing of justice as between the parties takes on other considerations. One of those considerations, going to the injustice to the accused, is one of the concepts which underpin the principles in double jeopardy. 22 In the instant proceedings, the prosecutor attends the Court below, seeks an adjournment, has the adjournment refused, commences the proceedings and the charges are dismissed against the accused. The plaintiff now seeks for those dismissed proceedings to be reagitated and there are serious aspects to such a course. There will be numerous occasions when, even where there is an error of law in the refusal of an adjournment, an appellate court will exercise its discretion and refuse a remedy.

Prosecutor's Application: Double Jeopardy 23 In circumstances where it is the prosecutor that is seeking an adjournment of proceedings that are otherwise listed for hearing the matter will be, a fortiori, within the discretion of the Magistrate. It will take exceptional circumstances before an appellate court, exercising rights of appeal or prerogative relief, will interfere with such an exercise.

24 In dealing with the issue of double jeopardy the High Court (Pearce v Queen (1998) 194 CLR 610 at 614) cited with approval the judgment of the US Supreme Court in the following passage: "If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States (1957) 355 US 184 at 187 - 188: 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.' That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. … It may be seen as a value which underpins and affects much of the criminal law." ( Pearce at [10], per McHugh, Hayne and Callinan JJ) 25 It cannot be stressed enough that the elements associated with the right of an accused to escape the continuing state of anxiety and insecurity that necessarily accompanies a criminal charge must be paramount in any review by an appellate court of the exercise of discretion to refuse to adjourn. The accused is entitled to expedited justice. It is only in exceptional circumstances that an appellate court will interfere to require such a right to be overtaken by inconvenience associated with the unavailability of a witness.

Conclusion 26 However, in the present circumstances, the following situation arises:

(a) the unavailability of the witness, who is also the victim, was caused by circumstances beyond her control;

(b) the unavailability was associated with an emergent and urgent illness overseas of a member of her immediate family;

(c) notwithstanding the requirement for her to be overseas, the victim still made attempts to be in attendance at the court;

(d) the uncontroverted material before the Magistrate was that it was impossible for her to return earlier;

(e) the prosecutor had notified the accused prior to the hearing of the fact that they were seeking an adjournment and the reasons for that adjournment;

(f) the accused was not in custody at the time; and

(g) the defendant did not oppose the adjournment. 27 There is little doubt that the effect of the refusal of the adjournment was to deny the prosecutor justice and the opportunity of properly presenting its case. In the exceptional circumstances outlined above, the rights of the accused to a speedy trial do not outweigh the requirement on the Court to provide to the prosecutor a proper opportunity of presenting its case. There is a denial of natural justice and, thereby, a constructive failure to exercise the jurisdiction conferred. 28 The determination that the Magistrate has constructively failed to exercise the jurisdiction has the consequence that the charge has not been dealt with and is still before the Local Court. The jurisdiction of the Local Court, having been enlivened by the laying of the charges, remains undetermined: that is, the constructive failure to exercise jurisdiction left "the jurisdiction in law constructively unexercised": see MIMA v Bhardwaj (2002) 209 CLR 597 at [53]; ex parte Hebburn Limited v Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420 per Jordan CJ. 29 On that basis, mandamus (or orders in the nature of mandamus) will issue to compel its exercise. 30 Further, the charge (and the status of the defendant) is as it was immediately before the hearing on 30 May 2006. On the view that I take, the defendant/accused is still on bail (or entitled to be). Of course, he could not be punished for any breach of that bail between 30 May 2006 and today. If I am wrong, then I would grant bail forthwith and, for abundant caution, I do so. It is an essential aspect of the discretion that I exercise in quashing the orders that the accused is not, and was not, in custody. 31 Further, I should make clear that the circumstances of the dismissal of these proceedings by the Magistrate and their reinstatement by this Court would undoubtedly have an effect on the accused/defendant and, if he is convicted, should properly be considered to his benefit on sentence. I do not have material that would allow any further comment on that issue; nor is it appropriate. 32 Lastly, I deal with costs. The plaintiff sought an adjournment of the proceedings below. The costs of that day must be borne by the plaintiff. Since it was the plaintiff's witness' unavailability that has caused all of this aspect to be litigated, and in circumstances where the defendant did not oppose the adjournment application, the costs of these proceedings also ought be borne by the plaintiff.

Orders 33 In the exceptional circumstances of this case, I find that the prosecutor has been denied natural justice and I make the following orders:

(a) an order in the nature of certiorari , pursuant to the terms of s69 of the Supreme Court Act , calling up the record of the Local Court sitting in its criminal jurisdiction in proceedings of Police v Gursel Ozakca and the orders of his Honour Magistrate McIntosh of 30 May 2006 refusing an application for adjournment made by the prosecution and dismissing the proceedings;

(b) an order in the nature of certiorari quashing the aforesaid decisions of the learned Magistrate;

(c) a declaration that the jurisdiction of the Magistrate in the aforesaid matter has constructively not been exercised;

(d) an order that the matter be remitted to the Local Court to be dealt with in accordance with law;

(e) an order pursuant to the terms of s28 of the Bail Act 1978 that the defendant be granted bail in relation to the charges now pending before the Local Court on the same conditions as previously existed, such conditions to be confirmed within 48 hours of the publication of this judgment;

(f) the plaintiff shall pay the defendant's costs of the proceedings before the Magistrate of 30 May 2006 and of these proceedings, as agreed or assessed. **********

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