Magistrates - Procedure - The hearing - Adjournment and remand - General principles - Proper exercise of the discretion - Application for adjournment by consent refused.

Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, applied.

James v Williams; Ex parte James [1967] Qd R 496, followed.

Judgment Number: [2006] TASSC 109

SERGEANT GARRY HAMILTON v ADRIAN JAMES LITTLEJOHN

1 By a complaint made on 4 October 2005, the respondent was charged with two breaches of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. Both offences were alleged to have been committed on 30 June 2005. The allegations concerned approximately 2,500 computer images and 100 computer videos, being child abuse products, and 24 computer videos, classified as bestiality products. The charges are serious. The penalties are a fine and/or imprisonment.

2 The progress of the proceedings was slow. Mr G Richardson was engaged to act for the respondent. The first court appearance was on 31 January 2006. At that hearing no plea was entered. As a result of discussions between Mr Richardson and the prosecutor, an order was made that within 28 days "the prosecution identify the images upon which it intends to rely". The hearing was adjourned to 23 March 2006. However, prior to that day, pursuant to the Justices Act 1959, s50B, the clerk of the court of petty sessions adjourned the hearing at the request of both the prosecution and the defence and set a new date for 12 May 2006.

3 It appears that on 12 May 2006, the presiding magistrate was told that "discussions were being held" and, by consent, the hearing was further adjourned to 15 June 2006. A "direction" was given that a plea must be entered on that hearing. However, pleas were not entered on that day. The presiding magistrate voiced concern about the delay in bringing the complaint to a hearing. He was told that a "video disc" was being prepared, and that that might shorten the proceedings. There was an adjournment to 27 July 2006.

4 On that day, Mr Richardson appeared for the respondent and pleas of not guilty were entered. It was said that a full day would be required for the hearing and that the disc was available for viewing. Mr Richardson suggested that a date for trial be fixed and also a pre-trial mention date so that if there were any difficulties about proceeding on the allotted date, the difficulties could be discussed on the day fixed for a pre-trial hearing.

5 The trial date was fixed at 2 October and 16 August as the mention date. On 16 August 2006, defence counsel told the learned magistrate that he had not yet seen the disc but would do so in time for trial. Accordingly, 30 August 2006 was set as the next mention date. All that is known about the hearing on that date is that the matter was "merely adjourned across for its hearing" on 2 October 2006.

6 On 27 September, almost one month after the last mention date, an email was received from the offices of Mr Richardson indicating that an adjournment for the hearing scheduled for 2 October 2006 was sought. The learned magistrate listed the application for an adjournment of the hearing for 29 September 2006. Mr Richardson appeared in person and Mr Miller, counsel for the prosecution, appeared by telephone from Hobart. The learned magistrate was understandably annoyed by the application and said that as it was made only five days before the scheduled hearing date, another case could not be found to use up the time if an adjournment was granted. Mr Richardson said that he understood that Mr Miller was not in a position to proceed and that he, Mr Richardson, had "a complex matter on the mainland" to attend to in the week commencing 2 October 2006. Mr Miller said that due to a breakdown in communications between certain members of Tasmania police and himself, he was not able to proceed with the prosecution on the following Monday. No witness summonses had been issued.

7 The learned magistrate rehearsed the history of the proceedings and said:

"I am not concerned about a breakdown in communication between prosecution and Hobart. There is an obligation that matters proceed diligently through the system. There is no basis upon which I should grant this adjournment whatsoever on Monday. Whether the defence counsel is available or not, defence counsel has had full notice of this ... ah notice of this matter proceeding to a trial on the 2nd of October. I do not intend to waste court time by adjourning it once more at the whim of either defence or prosecution. I intend to refuse the adjournment. The matter will proceed to trial on the 2nd of October."

8 The learned magistrate was in error to say that he was not concerned about a breakdown in communication. He ought to have been concerned, because it was the reason for Mr Miller's inability to proceed on 2 October and therefore a relevant fact to consider in the exercise of his discretion whether or not to grant the adjournment. The learned magistrate was also in error to refer to an adjournment "at the whim of either defence or prosecution". The application for the adjournment was not capricious, whimsical or fanciful on the part of either counsel.

9 On Monday 2 October 2006, the complaint was called on for hearing. Mr Miller appeared for the applicant and Ms Edwards appeared for the respondent. Mr Miller again applied for an adjournment. Ms Edwards made it clear that her instructions were limited to that application and that she was instructed "not to oppose" it. She said that Mr Richardson was in Victoria.

10 Again, understandably, the learned magistrate was more than a little annoyed. Unfortunately, it appears that he let his annoyance cloud good judgment. At an early stage of the application, the learned magistrate suggested that Mr Miller was not telling him the truth when he asserted that it was not until 27 September that he first became aware that the complaint was listed for a hearing on 2 October. There was no proper basis for making that suggestion. Mr Miller explained that although the file had been in his possession since February, he did not know that a hearing date had been fixed. He said that by error, the "prosecution systems" recorded that 2 October was "for mention". Mr Miller told the learned magistrate that the police officer who examined the respondent's computer had left the force. As soon as Mr Miller learned of the hearing date, he unsuccessfully tried to contact this witness. He also tried, without success, to contact this officer's replacement who had been assisting Mr Miller with respect to the evidence. Accordingly, Mr Miller told the learned magistrate that he had no witnesses at court that day. Mr Coates SC, counsel for the applicant, told me without objection, that as soon as Mr Miller realised he would not be able to proceed on the scheduled day, he so advised Mr Richardson and hence the latter did not return from Melbourne and Ms Edwards was instructed to appear in his place.

11 Mr Miller apologised profusely to the learned magistrate for the inconvenience that had been caused to the court and referred to many authorities concerning the proper exercise of the judicial discretion upon an application for an adjournment.

12 At the end of the submissions, the learned magistrate retired to consider his decision and returned to deliver lengthy reasons. In them he again rehearsed the sluggish history of the prosecution of this complaint and referred to the authorities that Mr Miller had cited. He then said:

"It is quite clear in my mind that although defence counsel has consented to the adjournment, that is not the sole issue before this court. It is clear that the courts do have the right to properly run their own courts. It is quite clear that case management is an important factor. It is not the only factor. One has to look at the totality of it."

13 In his reasons, the learned magistrate went on to refer to "the interests of justice" and the court having "the right to control the orderly disposition of matters". He said that in this case "justice demands that justice should not in fact be delayed", even though neither prosecution nor defence had made any suggestion that either would suffer an injustice if the application for an adjournment was granted. The learned magistrate concluded his reasons by saying:

"However, the timely disposition of matters is very important. When the Court has made every step it can take to ensure a matter is dealt with expeditiously, it has put into effect orders to ensure that is done, to find out that only a short time prior to the hearing an adjournment is sought by consent with a hope that that will obviate the hearing, I find that is somewhat tantamount almost to a contempt of the Court."

14 Of course, it was quite erroneous to describe the unfortunate events as "tantamount almost to a contempt of the Court".

15 The application for an adjournment was refused. Mr Miller said he could not proceed. The learned magistrate asked Ms Edwards if she sought dismissal of the complaint. She replied that she did not make any application. The learned magistrate then said:

"On that basis I believe I am left with no other alternative. The interests of the defendant should in fact be protected in those circumstances. I intend to dismiss the ah ... both charges on the complaint. They are dismissed accordingly and you are free to go."

16 The applicant seeks a review of the order of dismissal made in consequence of the order refusing the application for an adjournment.

17 It is, of course, trite law that courts are reluctant to entertain appellate review of an order made in the exercise of the judicial discretion. It suffices to simply refer to Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 and House v R [1936] HCA 40; (1936) 55 CLR 499. With respect to the exercise of the discretion to grant or refuse an application for an adjournment, the New South Wales Court of Appeal expressed the view in Cucu v District Court of New South Wales (1994) 73 A Crim R 240 at 246 that, "It is rare that a court such as this - either in appeal or in judicial review - will disturb the decision to grant or refuse an adjournment". However, it is clear that this is such a rare case and that error infected the exercise of the learned magistrate's discretion.

18 The principles which should govern appellate review of the exercise of a discretion to grant or refuse an adjournment, were stated in these terms by Brennan J (as he then was), Deane and McHugh JJ, in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628 - 629:

"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 a 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. (See, for example, Walker v Walker [1967] 1 WLR 327, at 330 ; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch [1981] HCA 56; (1981) 55 ALJR 701, at 703; [1981] HCA 56; 37 ALR 55, at 558-9). 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 Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties."

19 At 631, their Honours added, "It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings".

20 Those passages must be read in the light of two matters. First, the appellant Sali was in a financially embarrassed position and attempting to stave off proceedings for the sequestration of his estate. Second, in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, Dawson, Gaudron and McHugh JJ, said at 154:

"It may be said at once that in the passage which we have cited from Sali v SPC Ltd [relating to case management] Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd 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 a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

21 James v Williams; Ex parte James [1967] Qd R 496 was a case of appellate review of a refusal to grant an adjournment of the hearing of a complaint in circumstances very similar to the present matter, except that in James, the defendant sought an order that the case be dismissed when the prosecution was not ready to proceed. Hart J said, at 501 - 502:

"If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged."

22 As Bowen LJ observed in Cropper v Smith (1884) 26 Ch D 700 at 710, "Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy ...". It is apparent that in the present case that is just what the learned magistrate was attempting to do by refusing the application for an adjournment and by dismissing the complaint, namely, discipline the prosecution. It is clear that his discretion miscarried when he refused to grant the application for an adjournment and this miscarriage resulted in the order of dismissal being made. He fell into error in that he failed to take into account, or adequately take into account:

(i) the public interest in the prosecution and trial of charges such as those brought against the respondent;

(ii) the reason for Mr Miller's inability to proceed with the hearing was due to inadvertent error;

(iii) the application for an adjournment was not opposed by the respondent;

(iv) the respondent did not claim that he would suffer any prejudice if an order of adjournment was made, nor was any such prejudice apparent;

(v) the order of dismissal was not sought by either of the parties to the litigation before the learned magistrate.

23 The learned magistrate also erred in placing too much weight upon:

(ii) the right of the courts to "properly run" the business in the courts; and

(iii) the need to achieve timely disposition of the complaint.

24 No magistrate acting reasonably and properly instructed as to the law would have refused the application for an adjournment in the circumstances of this case and consequently would not have made the order of dismissal. The motion to review succeeds. The order of dismissal is quashed. The complaint should go to hearing before another magistrate, but before making final orders, I will give counsel an opportunity to be heard.