Ede v Hyde [2014] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - appeal against Magistrate's refusal to make a non-conviction order for offence of supplying declared substance without authorisation - whether Magistrate misjudged seriousness of offence - whether Magistrate denied unrepresented defendant natural justice in not inviting him to seek an adjournment to obtain more evidence - whether Magistrate's reasons suggested erroneous views about need for custodial sentences, or availability of non-conviction orders, for drug-related offences - no error by Magistrate found - appeal dismissed.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Admission of Fresh Evidence - application to adduce expert evidence about likely effect on recipients of drug supplied by appellant and about appellant's mental health - evidence supported, but did not go beyond, submissions made by appellant in Magistrates Court and apparently accepted by Magistrate - admission of evidence tendered on appeal was not required by interests of justice and would not have provided any grounds for upholding the appeal - leave to adduce fresh evidence refused - appeal dismissed.

Court Procedures Rules 2006 (ACT), r 5193

Crimes Act 1900 (ACT), s 374

Crimes (Sentencing) Act 2005 (ACT), ss 10, 17, 17(3), 17(4), 133G

Magistrates Court Act 1930 (ACT), ss 214, 214(3), 214(4), 214(4)(a), 214(4)(b)

Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), ss 6(1), 6(1)(c), 26, 26(1)

Barac v Thexton [2008] ACTSC 137

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Grooms v Toohey [2012] ACTSC 28

Hossen v Hughes [2014] ACTSC 101

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kenny v Ritter [2009] SASC 139

Lumby v Cooper [2008] ACTSC 53

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Sullivan v Department of Transport (1978) 20 ALR 323

Talukder v Dunbar [2009] ACTSC 42

Lewis Carroll, Alice's Adventures in Wonderland, The Millennium Fulcrum Edition 3.0, Project Gutenberg, www.gutenberg.org, Chap 12

Case Title: Geoffrey David Hyde and Daniel Robert Ede

1. Daniel Ede was charged with, and pleaded guilty to, supplying a declared substance to someone else without authorisation, contrary to s 26(1) of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) (the MPTG Act).

2. The objects of the MPTG Act are set out in s 6(1):

(1) The main object of this Act is to promote and protect public health and safety by minimising -

(a) accidental and deliberate poisonings by regulated substances; and

(b) medicinal misadventures related to regulated substances; and

(c) the diversion of regulated substances for abuse; and

(d) the manufacture of regulated substances that are subject to abuse; and

3. As at 2 August 2013 when the offence was committed, s 26 of the MPTG Act was as follows:

(a) the person supplies a declared substance to someone else; and

(b) the person is not authorised to supply the substance to the other person.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

Note Supply includes sell or offer to sell (see s 24).

4. Section 26 provides a maximum penalty including five years imprisonment, but by electing to have the matter dealt with in the Magistrates Court under s 374 of the Crimes Act 1900 (ACT), the prosecutor had accepted a maximum available penalty including imprisonment for only two years.

5. The substance Mr Ede supplied was dexamphetamine, apparently a single tablet which Mr Ede had obtained under prescription. He broke it in half and gave the halves to two men with whom he had been drinking in the Mooseheads nightclub on the night of 2 August 2013. Mr Ede said he had been embarrassed because the two men had bought him drinks and he could not afford to buy drinks for them. He received a $20 note in return for the tablet, although he said he had tried to indicate to his companions that this wasn't necessary. This transaction was observed by a security guard and reported to police.

6. The relevant object furthered by the prosecution of Mr Ede seems to have been that set out in s 6(1)(c), to minimise "the diversion of regulated substances for abuse". While some of the other specified objects of the MPTG Act are directly related to the safety of individual members of the public, the diversion of regulated substances for abuse seems to raise issues that are broader than just the direct dangers of unauthorised consumption of the relevant substances. Those issues may include such things as the danger possibly posed to the community by people who have consumed mind-altering drugs without a good medical reason, affecting the availability of the substances for legitimate use and effectively diverting any public subsidies incorporated in the price of medicines supplied on prescription.

7. Mr Ede appeared unrepresented in the Magistrates Court, but he had had an opportunity to speak to a Legal Aid lawyer beforehand and accordingly brought with him written submissions which he handed up to the Magistrate. Those submissions addressed various matters including:

(a) that Mr Ede had no criminal history;

(b) that the recording of a conviction would be "especially punitive" in his case "given [his] career and future plans";

(c) that the quantity of dexamphetamine in question was very minor; and

(d) that in the period leading up to the offence, he had been suffering from moderate to severe depression and anxiety, compounded by a serious car accident that had rendered him unconscious for 45 minutes and had resulted in him being confined to bed for a month with back, neck and rib pain, which in turn had led to further mental health issues.

8. The document handed up by Mr Ede in the Magistrates Court referred to copies of medical records that would verify the claims about his health, but these records do not seem to have been produced to the Magistrate.

9. In the document, Mr Ede explained in relation to his career plans that he was running a web design and marketing business and would in the future hope to tender for government business. He believed it would not be possible to seek government business if he had a conviction recorded, regardless of how minor the offence concerned. He said that his former business partner was now in the United States promoting his version of the software they had developed, which Mr Ede had also hoped to do, but asserted that travel to the United States would be potentially impossible if he were convicted.

10. As to the quantity of dexamphetamine involved, Mr Ede noted that he had been prescribed six 5 mg tablets per day, and contrasted this with the half of a 5 mg tablet that he had given each of his two companions.

11. Before the Magistrate, Mr Ede made oral submissions containing further details about his personal circumstances, problems in his family including the fact that his father had legal difficulties in another jurisdiction and that this was causing considerable stress to his grandparents with whom he had been living, the anxiety he had been experiencing, a poor decision to stop taking his anxiety medication "cold turkey", and the car accident earlier mentioned which, as well as physical problems, had caused him financial problems because of his inability to work.

12. Mr Ede asked the Magistrate not to record a conviction, as permitted by s 17 of the Crimes (Sentencing) Act 2005 (ACT), which is relevantly as follows:

(1) This section applies if an offender is found guilty of an offence.

(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender's conviction for an offence (see Magistrates Court Act 1930, pt 3.10).

13. Magistrate Cook convicted Mr Ede, fined him $750 and required him to sign a good behaviour undertaking for 12 months. His Honour said:

You gave the drugs to those two people who immediately placed it in their mouths. You gave it to those people after they had consumed alcohol. They paid you for those drugs in return. You were observed doing that by a security guard at Mooseheads nightclub. That was subsequently then reported to police. You then stated to police that you had a prescription for Xanax and dexamphetamine, and that you gave them the dexamphetamine tablets.

...

I have read out the facts which give rise to the charge and find that the aggravating circumstances of these is that you provided to someone else, who was not authorised or prescribed to take drugs which were made out under law to you and you only. You gave it to them in circumstances where they were consuming alcohol. You had no knowledge or understanding of what might be the possible ramifications of them taking the drugs which is reported on the facts they put in their mouths immediately. In relation to that, that is a particular stance of aggravation in my view.

The first one as to the objective seriousness then follows on from that and I regard such offences in relation to, for the provision of drugs, to people without authorisation, without prescription, as on a scale of objective seriousness as a medium level on that scale or on that line. Ms Burgoyne-Scutts has indicated that it is at the lower end. I do not see it as the lower end. Any drug where the ramifications of it are unknown, and what might happen where a person consumes it, where you know that you are doing it with intent to give or to sell, on this occasion, has a serious issue attaching to it because the effects are simply completely unknown.

I am not saying that there is any relevance in relation to what I am about to say to this particular matter, but drug and alcohol-fuelled violence is getting enough entertainment these days in both social pages and the media, and while none emanates from what you did, there would be no knowledge from your perspective of that subsequently occurring at some later time on that evening because you would have had no idea of the possible consequences, and that is why I say to you it is a serious matter. You are otherwise unrecorded in relation to this sort of criminal activity. You have traffic offences emanating from Queensland.

I have taken into account the material which you provided to me which address in part significant family matters which give rise to anxiety and stress, to which you have experienced, to which you are receiving medication by your GP. I take into account the fact that you had a motor vehicle accident and you are recovering from that, and that also had limitations upon your capacity both to pursue your work, but also to get yourself up and about and doing those things that you would normally do. I take into account the fact that you are employed and that your design work in relation to web sites, web pages and the like is one which requires both you to be active and to be moving around and to be putting your ideas and be financial in relation to that.

14. Mr Ede has appealed against the recording of the conviction, on the grounds that the learned Magistrate's discretion to dismiss the charge under s 17 of the Crimes (Sentencing) Act 2005 (ACT) miscarried as follows:

(i) His Honour erred in rejecting the submission of the prosecution that the offence was at the lower end of the range for an offence of its kind;

(ii) The defendant, who was unrepresented in the Magistrates Court, was denied natural justice by not being offered the opportunity to adjourn his matter to obtain evidence in support of various written contentions he had made to the Magistrate, which contentions were not accepted by the Magistrate, and which, if accepted, would have had a significant bearing upon the sentence imposed; and

(iii) his Honour erred in not giving sufficient reasons for declining to dismiss the charge pursuant to s. 17, as sought by the defendant.

15. In written submissions filed before the appeal hearing, Mr Ede sought leave to add a further ground of appeal, being that:

having regard to the evidence, including the fresh evidence, a lesser penalty than that imposed by the learned Magistrates should be imposed.

16. The further ground was not formally added, but was argued in general terms in the context of the application to admit further evidence.

17. The recording of a conviction in this case was part of the exercise of the Magistrate's sentencing discretion. As explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, an appeal against a discretionary decision is required to be based on a claim of specific error of fact or law, a failure to take account of a relevant consideration or a taking account of an irrelevant consideration, or on a claim that the decision is, in general terms, simply wrong (which includes in relation to a sentence that it was manifestly excessive or inadequate), from which error in the exercise of the discretion may be inferred. It is not enough that the appeal court considers that it would have imposed a different sentence.

18. I begin by pointing out that it is clear from the circumstances of the offence as described by the appellant that his intention was to give to his companions, in recognition of drinks they had supplied to him, a drug that would not have been legally available to them but that they seem to have been interested in obtaining (presumably in expectation that consumption would cause some kind of noticeable effect on their minds or bodies). It is hard to see that possession or consumption of a tablet that was clearly not going to have any effect on them would have been of any interest to the recipients even as an unconditional "thank you" for buying the appellant drinks, let alone that it would have been regarded as requiring payment of $20 to the appellant.

19. I accept that the claim that the drug was unlikely to cause the recipients any harm is relevant in assessing the seriousness of the offence, and that the offence might well have been aggravated if the appellant had believed that the drug might actually be dangerous to the recipients. However, it seems to me that the appellant's culpability fundamentally arises from his decision to divert the drug from its proper use to achieve a benefit for himself, and would not be mitigated by the fact that the recipients were unlikely to get a "benefit" of the sort that the appellant was presumably purporting to confer and that they presumably expected to receive.

Appeal ground (i): How serious was the offence?

20. Counsel for the appellant claimed that his Honour rejected the prosecutor's submission that the objective seriousness of Mr Ede's offence was at the lower end of the scale. It is true that at one point his Honour said:

I regard such offences in relation to, for the provision of drugs, to people without authorisation, without prescription, as on a scale of objective seriousness as a medium level on that scale or on that line. Ms Burgoyne-Scutts has indicated that it is at the lower end. I do not see it as the lower end.

It is at the lower end of the scale, though, as Ms Burgoyne-Scutts has indicated to me.

22. Certainly, his Honour could have expressed more clearly his conclusion about the gravity of the offence. It is not clear whether his Honour's first comment about this matter (at [20] above) in fact relates not to Mr Ede's particular offence but to the location of the s 26 offence in what is sometimes referred to as the "criminal calendar", that is, how the offence of supplying a relevant drug without a prescription or other authorisation compares with other offences created by other legislative provisions.

23. On the other hand, his Honour's second comment (at [21] above) does seem to relate to Mr Ede's particular offence.

24. Whatever exact meaning should be given to his Honour's words about the gravity of Mr Ede's offence, his Honour's ultimate sentencing disposition (a conviction, a fine of $750 and a 12-month good behaviour order), indicates that his Honour did not sentence on the basis that he was dealing with anything more serious than a low-range offence.

25. Counsel for Mr Ede in written submissions noted that:

there was no evidence before the Magistrate as to what level of risk was posed to the victims as a result of being supplied with ½ a tablet each of dexamphetamine.

26. This seems to miss the point. What Mr Ede was doing in providing one of his prescribed dexamphetamine tablets to companions who had no medical need for the drug was diverting his prescription medicine for abuse. As noted at [6] above, minimising the diversion of regulated substances for abuse is not solely aimed at protecting individual unauthorised consumers of the substances, but seems to have wider community implications, and therefore the seriousness of the offence does not depend solely on the level of risk posed to an individual "victim". Nor does proving the offence depend on showing that there was any risk at all to any actual or possible consumer of the substance.

27. I accept that the offence might be aggravated by, for instance, evidence that a large quantity of the drug concerned was supplied, or that the offender was obtaining unnecessary prescriptions in order to divert his medications on a regular basis, or that the drug was one which could have significantly variable effects on different consumers such that consumption by anyone who had not been subject to a proper medical assessment was positively dangerous. However, the absence of such evidence was not any kind of weakness in the prosecution case, and nor, as I have already determined, did it lead his Honour to overestimate the seriousness of the offence.

28. I am satisfied that, by the time his Honour sentenced Mr Ede, he did so on the basis that he was dealing with a low-level example of the conduct prohibited by s 26 of the MPTG Act.

Appeal ground (ii): Denial of natural justice?

29. This appeal ground refers to the Magistrate's failure to offer Mr Ede:

the opportunity to adjourn his matter to obtain evidence in support of various written contentions he had made to the Magistrate, which contentions were not accepted by the Magistrate, and which, if accepted, would have had a significant bearing upon the sentence imposed.

30. The ground is presumably framed as it is because, in the current case, there was no request for an adjournment that was refused, and when Mr Ede was invited to make closing submissions, his only response seemed to relate to the quantity of dexamphetamine supplied, as follows:

I would have liked the police to actually investigate that, or the prosecution, and do their research on that beforehand to know. I mean, I don't have the resources to do that, and there's a lot of scientific material out there.

31. It is not clear what exactly Mr Ede thought the police should have investigated, once it was clear that the offence could be made out, or why he thought that public resources rather than his own resources should be devoted to such research. Certainly questions about the validity of the policy foundation for the relevant legislation are not matters that either the police or the prosecutors are expected to answer.

32. The appeal ground does not specify the particular contentions that are said to have been rejected by the Magistrate. Counsel for the appellant submitted in writing that:

In circumstances where an unrepresented defendant had made both oral and written submissions that the likely adverse effect of his actions upon the victims would be minimal, natural justice and procedural fairness required the Magistrate to at least inform the defendant that without further evidence he was not willing to accept his contentions, so that he could have the opportunity to seek an adjournment to try to obtain further evidence in support of same.

33. In fact the relevant contentions emerged in argument as Mr Ede's claims about how small a quantity of dexamphetamine he had supplied and whether that quantity of dexamphetamine posed any danger to the recipients.

34. Implicit in this appeal ground and the submissions made on behalf of Mr Ede are the following propositions:

(a) that his Honour did not accept Mr Ede's submissions about the possible impact of the drug he had given the two men;

(b) that his Honour should have made findings about the likely impact of the drug on the two men;

(c) that, before finalising the sentence, his Honour should have invited Mr Ede to apply for an adjournment to enable him to try to obtain further evidence in support of his submissions about the quantity of dexamphetamine and the likely effect of the drug on the two men.

35. I have already noted that that the possible or even actual effect of the drug concerned is only one of the considerations in the assessment of the seriousness of the offence and in determining the appropriate sentence.

36. More significant is my conclusion that his Honour, with the concurrence of the prosecutor, accepted that he was sentencing for a low-level offence (at [20] to [28] above). In those circumstances, there would have been no point in the Magistrate offering an adjournment to enable Mr Ede to obtain more evidence whose significance was only to lend support to the proposition that the objective seriousness of the offence was low.

Obligations of judicial officer to unrepresented litigant

37. Counsel for the appellant drew my attention to authorities about the duties of judicial officers in dealing with unrepresented litigants, mentioning in particular the summary of fundamental principles set out by Gray and Layton JJ in Kenny v Ritter [2009] SASC 139 at [23], as follows:

These authorities clearly demonstrate that when the self-represented litigant is before the court, the judge must ensure that a fair trial takes place. In order to achieve this, the judge is required to assist the self-represented litigant. However, the judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained. In our view, the following principles emerge from the authorities discussed.

- A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial. The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.

- Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.

- Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.

- The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.

- Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.

- In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.

- It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant's behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.

38. I do not quarrel with any of these principles. I am not, however, convinced that they require a judge to invite an appellant to seek an adjournment to obtain further evidence if it is already clear to the judge, because of the nature of the issue concerned, that the further evidence in support of submissions already made is very unlikely to make any difference to the judge's sentencing approach or, in the particular circumstances, to the judge's willingness to make the s 17 order sought.

39. Counsel for Mr Ede also drew my attention to Sullivan v Department of Transport (1978) 20 ALR 323, a case dealing with the failure of the Administrative Appeals Tribunal to adjourn a hearing on its own initiative, or to invite the unrepresented applicant before the Tribunal to seek an adjournment, to enable him to call further evidence about matters in dispute. Deane J (with whom Fisher J agreed, at 350) said at 343:

A refusal to grant an adjournment can constitute a failure to give a party to 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 & Sons [1968] l WLR 1478; [1968] 3 All ER 506). 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.

40. These remarks do not seem to advance Mr Ede's case.

41. In relation to the failure to offer an adjournment, counsel for Mr Ede sought to rely on Talukder v Dunbar [2009] ACTSC 42, in which Refshauge J upheld an appeal against a refusal to make a s 17 order. However, that decision depended on a finding that the Magistrate had erred in refusing the defendant a brief adjournment to enable his solicitor to produce to the court official material about the impact of a conviction on the plans of the defendant and his family to migrate to Canada. The Magistrate's refusal was made without explanation and shortly after his Honour had granted an application for a brief adjournment made by the prosecution. That finding of error enabled the re-opening of the sentencing discretion, and Refshauge J was persuaded that a new sentence should include the making of a s 17 order.

42. My findings of error in a Magistrate's handling of an application for a s 17 order in Hossen v Hughes [2014] ACTSC 101 (Hossen) and Lumby v Cooper [2008] ACTSC 53 (Lumby) are also distinguishable.

43. Hossen involved a failure by the Magistrate to allow the offender to make further submissions, or provide further evidence, when the offender indicated that there were further submissions he wished to make about his request for a s 17 order. In that case I said:

38. When his Honour asked Mr Hossen, in effect, whether his statement that the recording of a conviction might affect his future was the complete submission he wanted to make on that matter, Mr Hossen said "no", but instead of inviting him make further submissions, his Honour then invited the prosecutor to make submissions about a s 17 order.

39. Possibly more significant was that, having regard to the disadvantages under which Mr Hossen was labouring (at [30] above), the Magistrate did not ask him whether he had any evidence to offer about any particular effects on his future that were concerning him. Although it is clear that someone had alerted Mr Hossen to the existence of non-conviction orders, it was not clear that he was aware of either the need or the scope for articulating particular grounds for the making of such an order, or of the process by which particular grounds could be established.

...

41. An alternative approach by his Honour might have involved referring to the matters identified in s 17 as relevant to the exercise of the power to make a non-conviction order. His Honour might usefully have drawn Mr Hossen's attention to the factors mentioned in s 17(3) and the scope for other matters to be considered under s 17(4), and invited him to raise any specific matters he wanted the court to take into account. If Mr Hossen had been aware of any particular implications of the recording of a conviction on, for instance, his position as a PhD student in Australia, his ability to travel to places relevant to his study, or even his career options, this would have given him an opportunity to explain this to the Magistrate.

42. It is accordingly, in my view, arguable that his Honour fell into error in dealing with Mr Hossen's application for a s 17 order, by failing to give proper consideration to the application, having regard to the particular difficulties faced by the defendant in dealing with the Magistrates Court proceedings. However, whether this failure is identified as having led the Magistrate into an error of law or of fact in applying s 17, or into an error constituted by failing to take account of relevant considerations that might have been raised by Mr Hossen if his indication that he had not completed his submissions had been acted on, does not seem to matter in this case, for several reasons.

44. In Hossen I went on to dismiss the appeal despite having found error by the Magistrate. This was because on appeal the appellant had indicated that he did not in fact wish to tender any further material relevant to a s 17 order, and in the absence of any such material I could see no basis for finding that a sentence other than the one imposed by the Magistrate was appropriate.

45. That is, Hossen involved an express wish by the defendant to provide further information to the Magistrate that might have been relevant to the making of a s 17 order. When it became apparent on appeal that there was no such information, the appeal was dismissed.

46. In Lumby there was a failure by the Magistrate to take account of relevant considerations in deciding whether to make a s 17 order, despite repeated requests for such an order from an unrepresented defendant. There was no issue about whether the defendant should have been invited to provide more information or offered an adjournment to obtain more information. In that case I said at [40]:

However, when a court is dealing with an unrepresented defendant, especially one who is both young and completely inexperienced in the court, it is reasonable to expect the court, at least, to give proper consideration to any legal matter raised by ... that unrepresented person. This is not to say that busy magistrates are required to run cases on behalf of self-represented offenders as if they were the legal representatives of those offenders, but I consider that they are obliged to meet such a party's request to exercise a statutory power with a serious consideration of the basis on which the power might be exercised.

47. Unlike the Magistrate who dealt with Mr Lumby, the Magistrate dealing with the appellant gave explicit if not lengthy consideration to his application for a s 17 order and explained, in effect, his conclusion that on the one hand the offence did not require a prison term but that on the other hand the circumstances for making a s 17 order did not exist.

48. Neither Refshauge J's decision in Talukder v Dunbar nor my decisions in Hossen and Lumby provide any support for counsel's submission as quoted at [32] above.

49. There is no substance to the submission that the appellant was denied natural justice in not being invited to seek an adjournment to enable him to obtain evidence about matters that were not in any real sense in issue before the Magistrate and that, even if established, would not have made any difference in the Magistrate's view of the matter.

50. I have already concluded that the Magistrate accepted that he was dealing with a low-level offence. Accordingly, I reject the submission set out at [32] above as it applies to the current case. I express no views about whether there are cases in which such a proposition might be correct.

51. Counsel submitted that his Honour's reasons for recording a conviction were not sufficient, being "brief and unclear", and leaving an appeal court unable to understand what his Honour had taken into account in reaching his decision and what his reasoning process had been. This, counsel said, amounted to an error of law.

52. Curiously, counsel then submitted that the reasons his Honour did give indicated error on his Honour's part. First, he said, his Honour must have "determined that the circumstances of this particular offence were objectively too serious for the application of s 17" and, secondly, his Honour must have concluded that "the starting point for any offence of drug supply was some form of custodial sentence".

53. Neither of these complaints relates to a failure to give reasons; rather, the complaint is that the reasons inferred from his Honour's remarks are erroneous.

54. The asserted assumption by his Honour that the starting point for any drug supply offence was a custodial sentence is said to be erroneous because s 10 of the Crimes (Sentencing) Act provides that a sentence of imprisonment may only be imposed "if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate".

55. First, I note in passing that the description of imprisonment as a "last resort" (relied on by counsel for Mr Ede in written submissions) is found not in s 10 but in s 133G of the Crimes (Sentencing) Act relating to the sentencing of juvenile offenders (as distinct from adults).

56. Secondly, despite the sentencing Magistrate's earlier general comment that:

Ordinarily in relation to drug-related matters such as this, and the seriousness to which I attach to your conduct on that night, a term of imprisonment would ordinarily be imposed

his Honour clearly concluded that a sentence of imprisonment was not warranted in the current case.

57. If the Magistrate had gone on to impose a term of imprisonment that, in the circumstances, could only have been justified by a conclusion about the nature of the offence charged rather than by an assessment of the appropriate penalty for the particular offence being dealt with, his Honour might have fallen into error. However, in fact he rejected the option of a term of imprisonment, and there is no direct error identifiable in this aspect of his approach.

Claimed assumption about s 17 orders

58. The asserted indication from his Honour that the offence was too serious for the making of a s 17 order is said to be erroneous because the offence was not particularly serious, as already argued (at [20] to [28] above).

59. His Honour's statement that he was "not in a position to grant a s 17 application ... based on the seriousness of this matter" may have indicated a particular view about the cases in which s 17 orders were available, but it may equally have been simply a somewhat compressed use of language to describe his conclusion that he was not in the particular circumstances of the case persuaded to make such an order. In fact his Honour made the following comments about the application for a s 17 order:

I note the concerns that you raise but you have provided me nothing formally, perhaps from the US Embassy, which would otherwise indicate that a conviction would prevent you from entering that state. That is not generally the case. It can be, but it is not automatically to be taken that you cannot go and enter countries overseas because of a conviction being recorded.

Having regard to that, and looking at the criteria set out in section 17(3) regarding whether or not a non-conviction can be recorded, I have, insofar as I am able to from the documents that you have provided, from the information that you have provided to me at the bar table, formed the view that, based on your age and your personal characteristics and those matters which relate to your current feelings of anxiety and stress which are being worked through slowly as you get yourself back into the workforce, determine that a term of imprisonment is not going to occur, but on appropriate sentencing principles, I am not in a position to grant a section 17 application and no conviction being recorded based on the seriousness of this matter.

60. If his Honour had believed that a s 17 order was not as a matter of law available in the particular case, he would not have needed to mention the s 17(3) criteria in general, or the absence of evidence about the impact of a conviction in particular.

61. The difficulty for Mr Ede is that the power to make a non-conviction order is a discretionary power, albeit one to be exercised judicially having regard to the matters mentioned in s 17(3) and (4) (which latter provision refers to "anything else the court considers relevant") and any applicable authorities.

62. There may be circumstances in which it could be said that a sentencer has erroneously overlooked the restriction on the sentencing discretion imposed by s 10, but s 17, in extending rather than confining the sentencing discretion, does not identify any circumstances in which a court is obliged to make a s 17 order, and it is accordingly impossible, in my view, to identify a failure to make a s 17 order, as such, as an error. Clearly this does not mean that a sentencer can never fall into error in making, or declining to make, such an order, but it does mean that the fact that a s 17 order might seem to have been available, or that another court might have taken a different view about whether an order should or should not be made, cannot of itself establish error in declining to make, or making, the order.

63. I do not consider that his Honour's reference to not being "in a position" to make a s 17 order is sufficient by itself to establish an erroneous interpretation of s 17 that would allow the re-opening of the sentencing discretion.

64. I also reject the proposition that his Honour's approach to the making of a s 17 order was somehow contaminated by an assumption that "ordinarily" a term of imprisonment would be required for a drug-supply offence.

65. Finally, I do not accept that there was any obligation on the Magistrate to pursue the question of the risk posed by the drugs supplied beyond the material that Mr Ede had already put to him. This is especially the case given that such risk was not an element and not necessarily even a relevant factor in the offence.

66. As to the new ground of appeal relating to the fresh evidence sought to be adduced about the possible risk posed by consumption of the dexamphetamine tablets, I note first that if an error in his Honour's sentencing were identified, then further evidence could be admitted for the purposes of a re-sentencing.

67. Apart from this, the question is whether further evidence is admissible under s 214(3) or (4) of the Magistrates Court Act 1930 (ACT) for the purposes of the appeal itself. The question has in this context much in common with the issue already dealt with at [29] to [50] above about whether the Magistrate should have offered Mr Ede an adjournment to enable him to pursue evidence of the kind he now seeks to have admitted on appeal.

68. Counsel for Mr Ede referred me to Grooms v Toohey [2012] ACTSC 28, in which Refshauge J grappled with the operation of ss 214(3) and (4) and the significance of those provisions in the context of appeals by way of rehearing that require a finding of error. Section 214 of the Magistrates Court Act is as follows:

(1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).

(2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.

(3) In an appeal to which this section applies, the Supreme Court must -

(a) if it considers it necessary or expedient to do so in the interests of justice -

(i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and

(ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and

(iii) receive the evidence, if tendered, of any witness; and

(b) receive evidence with the consent of the parties to the appeal.

(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if -

(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and

(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

69. In Grooms v Toohey, Refshauge J summarised principles relating to the operation of s 214 as follows:

1. The principles determined by his Honour and subsequent consideration may be set out as follows:

(a) As to both s 214(3) and (4):

(i) the provisions apply to appeals against both conviction and sentence from the Magistrates Court;

(ii) the two sub-sections are each a separate head of power to admit the evidence and neither restricts the operation of the other;

(iii) the provisions may be more liberal in the power they give to admit the evidence than the provisions for admitting evidence in a court of criminal appeal on appeal from a trial or sentencing proceeding on indictment;

(iv) the evidence is more likely to be admitted if it has been set out properly in an affidavit, now required by r 5193 of the Court Procedures Rules 2006 (ACT) as explained in Barac v Thexton [2008] ACTSC 137; and

(v) the evidence may not be admitted if the appellant (or, presumably, the respondent) has intentionally refrained from adducing it before the Magistrate so that, in the event of an unfavourable outcome, it may be relied on in the appeal; and

(b) as to s 214(3):

(i) the consideration of the interests of justice referred to in the sub-section is to be read in the light of the notion of a miscarriage of justice as explained by the High Court in cases such as Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 and Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132;

(ii) the discretion under this provision to admit the evidence is unfettered and is not circumscribed by any requirement to show that the Magistrate erred on any question of fact or law;

(iii) to determine whether it is in the interests of justice, it may be necessary to consider what the Magistrate said or did in the proceedings below; and

(iv) the appellate court is obliged to receive the evidence if both parties consent to it being adduced; and

(c) as to s 214(4):

(i) the appellate court is obliged to receive the evidence if the conditions in the provision are satisfied, namely that the evidence is credible, it would have been admissible before the Magistrate, it was not adduced before the Magistrate and there is a reasonable explanation as to why it was not so adduced;

(ii) the provision does not apply to evidence of events which occurred subsequent to the completion of the proceedings before the Magistrate;

(iii) it does not have to be shown that it was not possible [for] the evidence to be adduced in the Magistrates Court; and

(iv) inadvertence or even a failure to appreciate the likely significance of the evidence may be a reasonable explanation.

70. I note first that his Honour's summary does not refer to the qualification in s 214(4) on the Court's obligation to receive evidence that satisfies paragraphs 214(4)(a) and (b), being that the court is not to receive the evidence if it is "satisfied that the evidence would not afford any ground for allowing the appeal".

71. It is not clear to me that there is any particular logic in requiring that a conclusion be reached about the outcome of the appeal before deciding what evidence should be admitted on the appeal; in effect, the contents of the appeal hearing can be determined only after the outcome of that appeal hearing is determined (an approach which appears to reflect the "Sentence first - verdict afterwards." preference of the Queen of Hearts; Lewis Carroll, Alice's Adventures in Wonderland, The Millennium Fulcrum Edition 3.0, Project Gutenberg, www.gutenberg.org, Chap 12). This approach seems to require a degree of intellectual flexibility the need for which is not apparently justified by any obvious disadvantage of a more linear approach of admitting the relevant evidence if it satisfies the s 214(4)(a) and (b) criteria and then determining, having regard to that evidence as well as the record of proceedings in the lower court, whether there are any grounds for allowing the appeal. Certainly the latter approach would demand a clarification, which is generally avoided under the current approach, of any continuing significance of the House v The King appeal grounds in cases where further evidence is admitted. Fortunately, given the conclusions I have reached about the particular evidence sought to be admitted in this case, there is no need to pursue that issue.

72. The further evidence sought to be admitted consisted of:

(a) an "expert's report" about the impact of half a 5 mg dexamphetamine tablet; and

(b) a report from a clinical psychologist about Mr Ede's mental health.

73. Mr Ede in an affidavit explained the failure to tender this evidence on sentence by saying that:

3. I was unaware at the time that what I told the Magistrate about the circumstances of my offence and my health may not be accepted by him without further evidence.

4. Further, I did not have any supporting documents to use as evidence for my sentencing at that time apart from my written submissions, which I handed to the Magistrate.

74. John Andrew Farrar has a Bachelor of Science with Honours, and is a Fellow of the Australasian College of Biomedical Scientists. He operates a consultancy that gives advice on "the effects of alcohol and other drugs on alleged perpetrators and victims of crime". The conclusion of his report is:

It is probable that the consumption of 2.5 milligrams of dexamphetamine, as a single dose by an adult person, would produce no noticeable effects whatsoever.

75. I cannot see that this report is admissible. First, there is room for argument whether a proposition in this form would be relevant within the meaning of s 55 of the Evidence Act. However, without pursuing that argument but having regard to my conclusion that the possible effect of the dexamphetamine on the recipients was only one of many considerations relevant in sentencing, and that his Honour had in any case accepted that the offence was a low-level offence, I cannot see that evidence tending to support the appellant's submissions before the Magistrate would or should have made any difference to the ultimate disposition of the matter, and I consider therefore that the interests of justice do not require the admission of that report under s 214(3).

76. For the same reasons, I am satisfied that, although it might well have met the criteria in s 214(4)(a) and (b), the evidence does not indicate any error in his Honour's approach to Mr Ede's sentencing or any basis for finding that a different sentence should have been imposed, and more generally:

(a) would not have made any difference to the sentence imposed in the Magistrates Court;

(b) would not therefore afford any ground for allowing the appeal; and

(c) is therefore not admissible under s 214(4).

77. Matt Visser is a clinical psychologist. His report about Mr Ede records a diagnosis of "Major Depressive Disorder recurrent, with moderate symptoms", and does not rule out "Generalised Anxiety Disorder, with mild symptoms". It provides considerably more organised detail about Mr Ede's personal history and his emotional problems than was provided by Mr Ede to the Magistrate in his written submissions, but does not in my view contain any factual material that was not alluded to in the Magistrates Court, nor any expert opinion about Mr Ede's mental health or other circumstances that puts any different complexion on the material before the Magistrate. It does not usefully add to what was before the Magistrate.

78. It is clear that his Honour took account of the anxiety and stress suffered by Mr Ede around the time of the offence and afterwards, saying:

I have taken into account the material which you provided to me which address in part significant family matters which give rise to anxiety and stress, to which you have experienced, to which you are receiving medication by your GP. I take into account the fact that you had a motor vehicle accident and you are recovering from that, and that also had limitations upon your capacity both to pursue your work, but also to get yourself up and about and doing those things that you would normally do. ...

I take all those personal matters into account, in fact the history with your father and your family in relation to the effect it has had on you which has resulted in you being prescribed the medication that you have been receiving, but of course none of that gives you the opportunity, and none of it is linked to why you did what you did on the night other than, as you indicate to me in broad terms, that would be an aberration to your normal behaviour.

79. As indicated, Mr Visser's report does not usefully add to what was before the Magistrate and what his Honour took into account in general terms. Nothing in that report provides any basis for finding that, if Mr Visser's report had been available to the Magistrate, another decision would or should have been made, and therefore that either the interests of justice would be served by admitting it (s 214(3)) or that it would afford any ground for allowing the appeal (s 214(4)).

80. The only further evidence that might have been useful in Mr Ede's claim for a non-conviction order was evidence that a conviction would have a significant effect on his ability to travel to the United States. He did not tender such evidence in the Magistrates' Court, despite the prosecutor's reference to the appellant's failure to provide evidence supporting his comment about the possible effect of a conviction on his ability to obtain a US visa, and despite the Magistrate's invitation to him to respond to the prosecutor's submissions. He did not seek an adjournment in order to obtain such information when the Magistrate invited a response, and nor has he sought to adduce such evidence on appeal. This is notable given the effort he has put into the attempt to adduce further evidence about other matters that were considered by the Magistrate and were, as I have already concluded, largely accepted in Mr Ede's favour.

(a) I can find no error in his Honour's approach to the evidence or submissions that were before him;

(b) I can find no breach by his Honour of any obligation to give procedural fairness, to an unrepresented defendant or at all;

(c) the fact that a s 17 order was available on the evidence before his Honour, and that some courts might have made such an order, is not a basis for re-opening his Honour's sentencing disposition, and does not establish that a s 17 order ought to have been made or ought now to be made (at [17] above).

82. The problem for Mr Ede is that he had received legal advice before appearing to face the charge, he had appeared in court armed with substantial written submissions, and he had informed the Magistrate at some length about the explanation for, and the likely impact of, his offence and about his views on the seriousness of his offence, as well as about his various physical and emotional problems. All of those matters had been adequately taken into account by the Magistrate having regard to their relevance in the sentencing hearing, and there is no reason to believe that expert evidence about those matters, to essentially the same effect as was put by Mr Ede to the Magistrate, would have made any difference in the Magistrates Court or should make any difference in the Supreme Court.

83. The appeal is accordingly dismissed, and the conviction and sentence imposed in the Magistrates Court are confirmed.

I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.