Kerr v Smith [2017] TASSC 13

Judgment Number: [2017] TASSC 13

1. The respondent was charged on complaint number 768/16 with one count of breach of family violence order, one count of common assault and one count of injure property. All the charges arose out of an incident involving the respondent and his female partner on 1 February 2016. The offences were all family violence offences within the meaning of the Family Violence Act 2004, s 13. At the time the alleged offending occurred, the alleged victim was pregnant to the respondent, and the respondent was the subject of a police family violence order to protect the alleged victim, which had been in place since 9 November 2015. The allegations involved punching and grabbing the alleged victim by the jaw and banging her head against a wall.
2. The respondent appeared in an out-of-hours court on the day of the incident, and was granted bail. He next appeared before a magistrate on 10 March 2016, at which time he entered a plea of not guilty to all charges. The matter was adjourned for mention to 2 May 2016, and was then further mentioned on 11 May and 4 July. On the last date, it was adjourned for hearing to 10 October 2016.
3. The matter came on for hearing on 10 October 2016. The complainant had not been served with a summons, and another witness, who had been served with a notice to appear, failed to do so. The prosecutor sought a warrant for the arrest of the witness who had failed to appear, and sought an adjournment of the hearing, which was opposed. Magistrate Marron refused the adjournment, and dismissed the complaint. He did not deal with the application for a warrant. A review of his orders is now sought.
4. The proceedings on 10 October were brief. The matter was called on, and then the summonsed witness was called. The following exchange then occurred between the magistrate and counsel:

MS SUNDRAM: In regards to this witness he was personally served on the 11th July and was told to attend court and he has not met that obligation. I'd be seeking a warrant in regards to his arrest. His evidence, while he's not provided a statement as such, he makes disclosures to police officers who recorded in their notebook of him hearing an argument, him going over recent complaint evidence of the complainant saying that she has been hit and her distressed state and the state of the defendant, who was in a highly agitated appearance. There are those corroborations by photographs taken of the injuries and of the damage to the door. Police attend and they take a statement, as well as notebook notes, in regards to her, so prosecution does submit that this has a reasonable prospect of conviction. We do have the two police officers who will be providing evidence in regards to their observations of seeing the injuries which correspond with the alleged assault as alleged by the complainant and the damage to the door, and a video interview that has been conducted and which is twenty minutes in length. It appears that the complainant is with full knowledge of today's court date, being told by court support, even though she has not been served with her summons. I'd ask this matter to adjourn for a mention date.

HIS HONOUR: Well I think you said court support was in July, was it?

MS SUNDRAM: Court support was in July in regards to letting her know and offering her support that the matter was going ahead.

HIS HONOUR: No, no, I meant if she's not been served how does she know when the hearing date is?

MS SUNDRAM: Well she - the court support have not written down the matter it appears from an application that obviously some discussion of the hearing date must have been made with the complainant agreeing to have court support contact her closer to the hearing date, whether she knows it's today or not. I do see where you Honour comes from in regards to her knowing the exact - that today is the hearing date and that's why I mentioned it should be - well that's why I seek a mention date. We need to have a contact. This offence occurs while she is pregnant, it is a serious allegation and has some corroboration even though that witness has not attended and it is a matter that should proceed.

MS FLOCKHART: Yes, your Honour, I have instructions to formally oppose the adjournment given that the matter's been listed for hearing since July. It seems that both the key witnesses are not present at court today. I should also note before your Honour makes a decision about the application that a defence - I've only received a copy of the police officer's notes at court this morning, in any event it may be that I need to take further instructions from Mr Smith about the contents of that given that prosecution are intending to rely upon those notes instead of a statutory declaration, but from first appearance it seems that any comments that Mr Bristow makes about what the complainant has said is inconsistent with the complaint that she's made to police. But given that the matter has been listed for hearing for some time and that the complainant hasn't been served and she's not present and the other witness is not present at court the application is formally opposed after further submissions.

HIS HONOUR: Well Ms Sundram, what attempts have been made to serve?

MS SUNDRAM: Your Honour, I can't provide an answer to that, all I can show your Honour is that I have a return of the summons with a tick saying 'Left address, whereabouts unknown'. Appears it was returned to officer on the 12th July. It was attached to the file. I have no indication on that file whether any systems have been checked in regards to the matter or how that officer has gone about trying to serve that particular summons or whether they made any alternative attempts in order to find a different location or a new address for the complainant.

HIS HONOUR: Well I think given that lack of attention I really can't have any confidence that if I were to adjourn it that any more attention would be given. I'm not going to adjourn it today.

MS SUNDRAM: Your Honour, all I can say is that knowing the attention that has been given to that service I would be getting BSRT, who is the Family Violence Unit in the Tasmania Police, to assist in serving that summons.

HIS HONOUR: Well that should've happened before today and I just have no confidence that given what's happened to date that it's going to be any better prepared on the next occasion. The application to adjourn is refused. Ms Flockhart?

MS FLOCKHART: Your Honour, that just leaves the matter at index 8, which is Mr (indistinct name) sentence today. We'll be in a position to proceed to that sentence, I'm unsure of what else is in your Honour's list, whether that matter can be dealt with now whether that's to be still done until some other formal matters are dealt with.

MS SUNDRAM: Your Honour, I hate to be rude and interrupt. I've just been approached by one of the officers in the back of the court who knows something of this matter and the attempts made to serve.

HIS HONOUR: Oh so when I actually said to you before what evidence have you got of that this officer sits silently, I make my decision, doesn't like that decision, so volunteers the information? Time's over.

HIS HONOUR Now I'll just stand that plea down 'til later. In relation to this other matter there being no appearance by the complainant I've refused an adjournment, as I said, having no confidence that at the next date there'll be any better position based on the information that was made available to me at the time I was asked to make a decision and there doesn't seem to be any evidence as to why it was that no actual statement's been taken from Mr Bristow between the time of the event and the time - and since this matter's been set for hearing. I'm very reluctant in the circumstances or at any time in a family violence matter to create a situation that ends up in the matter being dismissed, but it's just not - it wasn't prepared to an appropriate standard for hearing today. Those charges are dismissed. I'll stand the other matter down 'til later in the list. Thank you."

1. Two things arise from the magistrate's very brief reasons. Firstly, although it is not formally part of any ground of review, an application made to the magistrate for the issue of a warrant appears to have been ignored. Secondly, the basis for the magistrate's decision to refuse the adjournment and dismiss the charges appears to be his perception that the case had not been prepared to an appropriate standard for hearing by police prosecution.

1. In Hamilton v Littlejohn [2006] TASSC 109, Underwood CJ dealt with the issue of an application for an adjournment of proceedings before a magistrate. His Honour said the following at [17]-[22]:

"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 ...'."

1. The summary of the law outlined by his Honour has been adopted by judges of this Court on several occasions.

1. The witnesses to be called at the hearing of the charges were the alleged victim, a neighbour, Mr Bristow, and two police officers. The transcript does not reveal whether the alleged victim was called, although it is apparent from what the prosecutor told the magistrate that she was not at court. Mr Bristow, the neighbour, was the witness who had been served and who had not appeared. The magistrate was provided with a copy of the summons to Mr Bristow and a copy of the facts for the prosecutor. The prosecutor sought that a warrant be issued to compel Mr Bristow to attend, but that application was not dealt with. There was no application to proceed part heard.
2. Counsel for the respondent opposed the application for an adjournment. In doing so, she told the magistrate that, before he made any decision, he should be aware that she had just received some notes of a police officer and may need to take some further instructions from the respondent. She did not formally seek any adjournment for that purpose. The principal reason advanced for the opposition to the request for an adjournment was that the matter had been listed for hearing since July. No submission was made which suggested any particular prejudice would be caused to the respondent were the adjournment granted.
3. Mr Bristow had been served with notice to appear on 11 July 2016, shortly after the matter was listed for hearing. I infer no further contact was made with him by the police prosecution service, but that it had no reason to believe he would not appear. He had made no formal statement but a police officer had made some notes of a discussion with him at the time of the alleged offending. As to the alleged victim, a note of an enquiry in relation to her revealed she had left the address which police originally had for her. The prosecutor told the magistrate from the bar table that "court support" had had contact with the alleged victim in July 2016 and she had agreed to court support contacting her closer to the hearing date. The prosecutor had no information about what other attempts had been made to establish the alleged victim's whereabouts.
4. His Honour, with that information, refused the application for an adjournment. His reason for so doing was initially stated as follows:

"Well I think given the lack of attention I really can't have any confidence that if I were to adjourn it that any more attention would be given. I'm not going to adjourn it today."

The prosecutor then referred to the family violence unit within Tasmania Police and that she would be having them assist in serving the summons on the alleged victim. His Honour responded:

"Well that should've happened before today and I just have no confidence that given what's happened to date that it's going to be any better prepared on the next occasion. The application to adjourn is refused."

His Honour then called on counsel for the respondent. Counsel made no application for a dismissal of the complaint.

1. The police prosecutor sought to interrupt at that point. She indicated that she had just been approached by one of the officers in the back of the court who knew something of the matter and attempts to serve. The magistrate responded:

"Oh so when I actually said to you before what evidence have you got of that this officer sits silently, I make the decision, doesn't like that decision, so volunteers the information? Time's over."

1. His Honour then made a decision to dismiss the charges without seeking any submissions in relation to that course of action.
2. In my view, the magistrate, in dealing with the matter as he did, was in error and should not have refused the adjournment and then dismissed the charges against the respondent.
3. In relation to his refusal to grant the adjournment sought:
   • while the magistrate said he was reluctant in a family violence matter to create a situation where a matter was dismissed, there is no evidence his Honour took into account the serious nature of the particular charges he was dealing with, namely that they involved alleged violence towards a domestic partner and were said to have been committed while a police family violence order was in force;
   • this was the first occasion that the matter had been listed for hearing;
   • there was no evidence that an adjournment of the hearing would have seriously interfered with the ability of the court to effectively manage its workload;
   • there was no suggestion that the respondent would suffer any particular prejudice if the hearing was adjourned;
   • counsel for the respondent had indicated that she in effect was not immediately ready for a hearing in that she needed to take instructions about some material just disclosed;
   • the only reason given for the refusal appears to be that the magistrate was unhappy with the way in which the police prosecution service had prepared the matter.
4. In relation to the dismissal of the charges against the respondent:
   • the magistrate, having refused the adjournment, did not seek any submissions as to what should follow from that refusal;
   • the police prosecutor did not, for example, in the face of the refusal of the adjournment, tender no evidence but stood by her application for an adjournment and for a warrant for the arrest of Mr Bristow;
   • neither the police prosecutor nor counsel for the respondent sought the dismissal of the charges;
   • the dismissal, while there was a comment about reluctance to create a situation where a family violence matter was dismissed, occurred because the matter "wasn't prepared to an appropriate standard for hearing today".
5. There can be no doubt in my mind that the interests of justice were not served by the manner in which the magistrate dealt with this matter. The orders of the magistrate whereby he refused the application of the police prosecutor for an adjournment of the hearing and the order dismissing the charges against the respondent on complaint 768/16 are quashed. The charges on the complaint are remitted to the Magistrates Court of Tasmania for hearing on a date to be fixed before a magistrate other than Magistrate Marron.