Supreme Court of Tasmania|1995-02-14|Before: Cox J

Graham Taylor v Geoffrey Voss [1995] TASSC 9 (14 February 1995)

Justices - Appeal from and control over justices - Tasmania - Admissibility of photostat copies of extracts from Gazette printed by Government Printer - Refusal of adjournment to proper authenticate copies - Wrongful exercise of discretion. Evidence Act 1910, ss29 and 73.

Solicitors for respondent: Walsh Day and FitzGerald

2. The complaint in this matter was made by the appellant as general manager of the Burnie City Council on 21 June 1994. The respondent pleaded not guilty by endorsement and on 15 August 1994, without the necessity for any appearance by him, the complaint was adjourned to 7 October, on notice, for hearing. On the latter date it was again adjourned in the absence of the respondent to 16 November at 2.15pm for hearing, on notice. On that day he appeared, pleaded not guilty and the prosecution proceeded. Having briefly opened, counsel for the complainant tendered the relevant by-laws "pursuant to section 29 of the Evidence Act". The Evidence Act 1910 is hereafter referred to as "the Act". Section 29 provides:

certificate in the form set forth in subsection (4)

written or printed on any such copy as aforesaid, shall

be sealed with the common seal of the corporation.

(2) In the case of any municipal corporation the seal

shall be affixed in the presence of and attested by the

mayor and town clerk, or warden and council clerk, as

the case may be.

(3) In the case of any other corporation, the seal

shall be affixed in the presence of and attested by any

two of the board of directors, or managing or governing

body, by whatsoever designation or title they may be

called or known.

(4) The certificate referred to in subsection (1) shall

be in the following form:

THIS is to certify that the matter above written (or

printed, as the case may be) contained on (two) sheets

(or pages) of paper, is a true copy of a (by-law) of

'The ', and that we have informed ourselves of the

legislative requirements necessary to the giving

validity to such by-law, and as to their observance,

and believe that such requirements have been fulfilled;

and we further certify that such (by-law) came into

force on the day of , in the year of our Lord

one thousand nine hundred and

Sealed in our presence, this day of , in the

year of our Lord one thousand nine hundred and

(LS)

(Signature), Mayor (or as the case may be.)

(Signature), Town Clerk (or as the case may be.)

(Signature)

(Signature)

Two of the Board of Directors '"

3. Counsel for the defence objected, claiming that the certification thereon was not in accordance with that section. For the purposes of ruling, the learned magistrate asked to see the documents. During the course of the hearing before me I granted the appellant leave to call evidence identifying what documents had been sought to be tendered, the Court of Petty Sessions not having retained them in its custody.

4. The documents in question are, it is common ground, photostat copies of documents the first of which (a two page document) is headed "Extract from 'Tasmanian Government Gazette' Wednesday 13 September 1989, p1287" and contains what purports to be the contents of "City of Burnie - By-law No 131 - Cartage of Timbers and Minerals" as sealed by the Corporation and confirmed by the Minister and at the foot of the second page of which is the printed notation "M C Reed, Government Printer, Tasmania", while the second copy document is of one page only, has a similar heading for an extract dated 30 January 1991, p97 and is similarly subscribed with the notation as to its provenance. The latter document contains what purport to be the contents of City of Burnie By-law No 135 - Cartage of Timber and Materials (Amendment) 1990. Each page of these photostat copies bore an undated certificate "I certify this to be a true copy. The original document has been sighted. Signed (indecipherable) J P".

5. Upon perusing these documents the learned magistrate expressed agreement with the submission of counsel for the defence that the certification was not in accordance with s29(4) which requires that authentication of by-laws under the facilitating provisions of that section must include the signature of the Mayor or (as the case may be) Warden of the Corporation which made the by-law. It is common ground that the documents did not contain a sealed certificate which complied with s29. Initially counsel for the complainant asked that the matter be stood down to enable them to be marked in the prescribed form, indicating that this course might take 15 or 20 minutes. The learned magistrate reminded him that he did not have to tender the by-laws until the close of his case and thereupon counsel for the complainant said, "Well for present purposes I'd ask that your Worship have those documents before you for purposes of reference but that they not be tendered and before the close of the prosecution case I will endeavour to provide copies which are properly certified". It seems he then despatched a clerk to the council chambers to obtain a certificate which did comply with s29.

6. The prosecution called two witnesses as to the substance of the complaint. Their evidence was relatively short, occupying less than fourteen pages of transcript and counsel told the court he was still waiting for the certified by-laws subject to production of which he would close his case. He asked for the matter to be stood down briefly and was told by the learned magistrate he would be given "five minutes, no longer". After a short adjournment counsel informed the court that telephone enquiries to the council chambers indicated that his apprentice was there having the documents certified and he again asked for a few minutes' indulgence. After initial opposition from counsel for the defence to any further delay, the latter agreed that the prosecution should close its case subject to production of the by-laws and should have leave to re-open it for the purpose of doing so on the apprentice's return. He then made a submission that his client had no case to answer on a basis unrelated to the failure to prove the by-laws and indicated that even if his submission were over-ruled, his client would not give evidence and would submit that the case had not been proved beyond reasonable doubt. Both submissions were then argued together by both counsel. Again relatively little time appears to have been occupied in doing so, but before the learned magistrate delivered any ruling, the apprentice arrived with other copies of the by-laws bearing a different certificate to that of the Justice of the Peace. Counsel for the complainant sought leave to reopen and tender them and was given leave to reopen for that purpose. Counsel for the defence maintained his objection, observing that the certificates did not bear the seal of the Corporation and the signature of the Mayor. They had been signed, it appears, by somebody purporting to sign on behalf of that official. Counsel for the complainant said he was instructed that the Mayor was not available and, acknowledging that the certificate did not bear the Corporation's seal, said "I have no alternative but to ask that there be another adjournment for the purposes of enabling that". Although counsel did not stipulate the length of time for which he sought an adjournment, I infer that it was to a future day as the Mayor was not available that day. He submitted that the respondent would not be prejudiced by an adjournment to enable formal proof of the by-laws to be given, both parties having otherwise closed their cases. He conceded that the defendant might be inconvenienced.

7. In refusing the application the learned magistrate said:

"He will suffer prejudice because if I terminate it now

the proceedings are dismissed. If I let you go on they

may not be so he could suffer prejudice, couldn't he?"

8. With respect, it is not appropriate to categorise as prejudicial to the defence the circumstance that the grant of an adjournment will facilitate formal proof of some fact necessary to establish the prosecution case, whereas a denial of it will lead to the dismissal of the complaint. Prejudice in this context means prejudice in the fair conduct or presentation of the defendant's case. As to inconvenience, it should be noted that this had been the respondent's only appearance in court on the complaint to that date, the matter was being heard within six months of the alleged commission of the offence, it was alleged to have been committed in Burnie and he was, according to the address given on the complaint, a resident of nearby Wynyard. He had indicated through counsel that he did not wish to give or call evidence and in view of the minor nature of the alleged infringement it is difficult to see how any further attendance by him in person would have been necessary at any adjourned hearing, the purpose of which was to enable formal tender only of properly authenticated by-laws. Any inconvenience could have been amply compensated by an order for costs (Justices Act, s77(7)).

9. The first ground of appeal relied upon is that the learned magistrate erred in law in not granting the appellant's request for an adjournment of the hearing of the complaint, while the second is that in any event the documents produced did not require authentication under the Act, s29 as they were admissible under s73 thereof. I will deal with the second ground first, for although I think it must fail, it does so on a highly technical ground and the circumstances surrounding it are, I think, relevant to the merits of the first ground.

"73 (1) Where by any Act of the Commonwealth or of

any State, power to make by-laws, rules, regulations,

or orders is conferred upon any person or body

corporate or unincorporate, any printed paper

purporting to be or contain such by-laws, rules,

regulations or orders, and to be printed by the

Government Printer, or by the authority of the

Government of the Commonwealth or of the State, shall

be evidence

(a) that by-laws, rules, regulations, or orders in the

words printed in such paper were duly made by such

person, or body corporate or unincorporate; and

(b) that such by-laws, rules, regulations, or orders

have been approved of, certified to, and confirmed, as

required by law, and that all things necessary to give

validity to the same have been duly done, and that the

same are in force."

11. As it is common ground that the documents initially tendered to the learned magistrate were photostat copies of printed papers purporting to contain the by-laws and purporting to be printed by the Government Printer, they were not themselves, nor did they purport to be, printed by the Government Printer. They were not admissible as such. The advent of the means of very accurate photographic reproduction of various documents has not relieved the court of the need, when admitting documents into evidence, for compliance with the rules of evidence. They may only be admitted, notwithstanding their apparent verisimilitude, if the rules of evidence or any relevant statutory provisions allow. Some detailed amendments relating to the reproduction of documents were inserted into the Act in Division 5A by Act No 65 of 1976, but none of the sections in that Division assists the appellant. Reliance was sought to be placed on the certificate of the Justice of the Peace and I was referred to s47 which requires me to take judicial notice of the official signature of such a functionary. I do so, but although I take notice that the indecipherable signature on the certificate is that of a Justice of the Peace, there is no statutory provision enabling me or the learned magistrate to give effect to his or her certificate and to accept it as evidence of the truth of what it purports to certify. Perhaps such a provision is desirable, but neither counsel nor I have been able to locate one. I accordingly reject the latter ground of appeal.

12. Turning to the ground that the learned magistrate erred in refusing the adjournment, it is of course trite to observe that an Appellate Court will seldom feel justified in upsetting the exercise of the primary judicial officer's unfettered discretion in this regard. In Bloch v Bloch [1981] HCA 56; (1981) 55 ALJR 701 at 703 Wilson J, in a judgment with which Gibbs CJ, Murphy and Aickin JJ expressed their concurrence said:

"The decision whether to grant or refuse an adjournment

lies in the discretion of the trial judge, and it is

indeed seldom that an appellate court will feel

justified in reviewing such a decision. In Maxwell v

Keun, (1928) 1 KB 645, at p 653, Atkin LJ stated the

rule in terms which have won general acceptance: 'I

quite agree the Court of Appeal ought to be very slow

indeed to interfere with the discretion of the learned

judge on such a question as an adjournment of a trial,

and it very seldom does do so; but, on the other hand,

if it appears that the result of the order made below

is to defeat the rights of the parties altogether, and

to do what which the Court of Appeal is satisfied would

be an injustice to one or other of the parties, then

the Court has power to review such an order, and it is,

to my mind, its duty to do so.' cf, also, Hayes v

Hayes (No 1), (1934) StRQd 219; Myers v Myers, (1969)

WAR 19; Walker v Walker, (1967) 1 All ER 412."

13. See also Rodgers v Rodgers [1964] HCA 25; (1964) 114 CLR 608 at 619-620 where the High Court stated the principle which governs an Appellate Court when hearing an appeal from the exercise of a discretion in these terms:

"... it must be borne firmly in mind that the order

complained of was made in the exercise of a judicial

discretion and that it is not for us, merely, to review

the case and make such an order as we would have made,

or, which we think we would have made, if we had been

seised of the case in the first instance. The

principles applicable in appeals from orders involving

discretionary judgments have been stated and restated

in a multitude of cases and a convenient summary is to

be found in the reasons of Kitto J in Australian Coal

and Shale Employees' Federation v The Commonwealth

[1953] HCA 25; (1953) 94 CLR 621, at p 627: 'I shall not repeat the

references I made in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513,

at pp 532-534 to cases of the highest authority which

appear to me to establish that the true principle

limiting the manner in which appellate jurisdiction is

exercised in respect of decisions involving

discretionary judgment is that there is a strong

presumption in favour of the correctness of the

decision appealed from, and that that decision should

therefore be affirmed unless the court of appeal is

satisfied that it is clearly wrong. A degree of

satisfaction sufficient to overcome the strength of the

presumption may exist where there has been an error

which consists in acting upon a wrong principle, or

giving weight to extraneous or irrelevant matters, or

failing to give weight or sufficient weight to relevant

considerations, or making a mistake as to the facts.

Again, the nature of the error may not be discoverable,

but even so it is sufficient that the result is so

unreasonable or plainly unjust that the appellate court

may infer that there has been a failure properly to

exercise the discretion which the law reposes in the

court of first instance: House v The King (1936) 55

CLR 499, at pp 504, 505."

14. In Allen v Dornauf's Pty Ltd and Anor Serial No10/1973 Nettlefold J observed at 15:

"It should be borne in mind, too, that there is a

number of cases which show that an appellate tribunal

will be more reluctant to interfere with the exercise

of a discretion on a point of practice than it will be

to interfere with the exercise of discretion given to

the court below by the substantive law and enabling it

to directly affect the substantive rights of the

parties. (See Maxwell v Keun (1928) 1 KB 645 at p653;

Watson v Watson (1968) 70 SR(NSW) 203)."

15. In Duffin v Markham and Anor (1919) 88 LJKB 581 a prosecution for breach of a Bread Order allegedly made under a Defence of the Realm Regulation failed because of the omission through oversight to produce a stationer's copy of the relevant order and regulation. The prosecutor, after a submission of no case to answer had been made by the defence, unsuccessfully applied to reopen the case to remedy the omission. The Kings Bench Division overruled the Justices' decision and ordered a rehearing, regarding the failure to produce those documents as "a technical triviality" and holding the Justices to have been in error in refusing the application. Here the situation is very similar, although the application was adjourned to enable production of a missing piece of evidence which counsel, before the close of his case, had appreciated was necessary to it and had made every effort to procure before doing so. When his efforts to remedy the situation were frustrated by the non-availability of a necessary signatory, he applied for an adjournment in circumstances involving no prejudice and very little, if any, inconvenience to the defendant.

16. This case differs from that considered by Nettlefold J in Allen v Dornauf's Pty Ltd (supra) in that the missing material the prosecutor sought to adduce (in that case also by way of reopening on the spot and recalling a witness rather than adjourning) was oral evidence of compliance with certain statutory procedures by a police officer. There was a possibility that the learned magistrate there may have thought there was a risk that he would tailor his evidence to meet the evident need of the prosecution.

17. While recognising that I am not entitled to intervene merely because I consider that had I been confronted with the same circumstances I would have adopted a different course, I have reached the view that the learned magistrate's discretion was wrongly exercised. His characterisation of the consequences of granting an adjournment as a matter of prejudice to the respondent was incorrect and there were no good reasons why, save for authentication of by-laws which both parties had anticipated would be achieved that day (the entirety of the evidence relied on by both prosecution and defence having been taken), the matter should not have been adjourned to enable that technicality to have been complied with. The defendant was entitled to put the prosecution to proof but there was no controversy as to the facts deposed to nor any suggestion that the by-laws were ultra vires or defective (cf Marriott v Hulme Cosgrove J Serial No64/1977 and The Queen v Broughton (1976) Tas SR 145). The failure to prove the by-laws was not an oversight by counsel for the prosecution. He attempted to do so but found the authentication inadequate and attempted to remedy the defect before the end of his case and again after it, having foreshadowed an application to reopen for that purpose. The absence of the Mayor frustrated that attempt, while reliance on the photostat copies of the by-laws printed by the Government Printer rather than stationer's copies thereof was technically insufficient proof. In all these circumstances the proper exercise of the learned magistrate's discretion called for him to grant the adjournment and the dismissal of the complaint on the ground that the prosecution had failed to prove the by-laws amounted to an injustice. The fact that the matter of complaint is relatively minor is not to the point.

18. The motion will be allowed and the order dismissing the complaint set aside. The matter is remitted to the learned magistrate with a direction that after giving the appellant a further hearing for the purposes of adducing evidence of the by-laws he determine it according to law.

Graham Taylor v Geoffrey Voss [1995] TASSC 9

At a glance

Court

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Source

Judgment (26 paragraphs)

Graham Taylor v Geoffrey Voss [1995] TASSC 9 (14 February 1995)

Parties

Legislation Cited (1)

Cases Cited (4)