Macey v Cooper [1999] NTSC 65; 106 A Crim R 433; 150 FLR 476

The appeal is said to be against an "adjudication" whereby the Magistrate

refused to hear and determine the matter on complaint and instead issued a

warrant for the arrest of the defendant. The grounds of the appeal allege

that the Magistrate acted contrary to s 64 of the Justices Act.

This is the chronology of events provided by the respondent:

On 10 August 1998, a complaint was laid by the respondent charging

the appellant with the offence of trespass contrary to section 7 and 8

of the Trespass Act, on that day.

On 11 August 1998 the appellant appeared before Mr Loadman SM

at which time the matter was adjourned for hearing in the Court of

Summary Jurisdiction at Darwin on 9 February 1999. The matter

was also listed for mention in the Darwin CSJ on 25 January 1999.

On 11 August 1998 the appellant entered into a bail undertaking and

agreement in which she undertook to appear at the Court of

Summary Jurisdiction at Darwin at 10.00 o'clock on 25 January

1999. She also agreed to pay $200 to the Territory Government if

On 21 January 1999 the appellant sent a facsimile transmission to

the Court in which she stated, inter alia, I am unable to attend at

Darwin Magistrates Court for my second mention date being

25/1/99. She also stated I will however be attending for the hearing

of my matter and confirm that I have made appropriate

arrangements to travel by car to Darwin leaving Brisbane on 3/2/99.

I expect to arrive in Darwin on 8/2/99 latest date.

On 25 January 1999 the appellant failed to appear in the Court of

Summary Jurisdiction at Darwin. The appellant was represented by

a lawyer from the Northern Territory Legal Aid Commission. The

matter was adjourned for mention at 9.00 am on 27 January 1999.

On 27 January 1999 the appellant failed to appear in the Court at

Darwin. Mr Trigg SM forfeited the $200 bail and allowed one

month to pay. It was ordered that a warrant issue but to lie until

On 9 February 1999 the matter was called on in the Court of

Summary Jurisdiction at Darwin before Ms McDade A/SM together

with six other matters. Mr Pritchard from the Environmental

Defenders Office announced his appearance on behalf of all seven

defendants. Two defendants appeared in person. The appellant and

Appellant's counsel submitted that as section 64 of the Justices Act

permitted a defendant to appear through counsel, the court should

proceed to hear and determine the case against the appellant.

Appellant's counsel further submitted that the Bail Act did not

The magistrate ruled (ts 10.5 & 12.2) that the Bail Act required a

defendant who has entered into an undertaking to appear in person.

The Acting Magistrate ordered that the warrant previously ordered to

lie, issue. After further submissions from Mr Pritchard, Ms McDade

ordered that the warrants lie for a further period of 28 days to enable

instructions to be taken as to an appeal against her ruling.

Neither the magistrate nor counsel for the parties referred to section

25(5) of the Bail Act."

That chronology is not disputed by the appellant. However, she says that it

is also relevant to note that on 11 February 1999 others charged with the

same offence, arising from the same circu mstances, attended in person and

after a hearing upon their pleas of not guilty, were acquitted of the offence

charged. The same Magistrate had found that the prosecutor in those

matters had failed to prove beyond reasonable doubt that the accused were

on the land where the trespass charge was said to have occurred. In

concluding her remarks, the Magistrate said that she came to that view,

"for purely technical reasons. And that will also be because of the

fact that I denied the prosecutor the opportuni ty of an adjournment to

obtain another witness. It may well be that the witness was in a

The appellant contends that in the circumstances she lost the opportunity to

be acquitted of the charge against her. Had her Worship proceeded to hear

the evidence in the case against her in her absence, then the same result

The respondent raises an issue going to the competency of the appeal.

Assuming it is brought against an "adjudication" whereby the Magistrate

"refused to hear and determine the matter ... and instead issued a warrant for

the arrest ..." of the appellant, it is submitted that there is no right of appeal

under the Justices Act in relation to either of those matters.

Before her Worship counsel then appearing for the appellant submitted that

notwithstanding the absence of the appellant because he was appearing on

her behalf, her Worship was obliged by s 64 of the Justice Act to proceed to

hear and determine the charges. In the same vein it was put that the

appellant was not in breach of her bail undertaking since she had appeared

through counsel. After hearing the submissions on behalf of the appellant

and the respondent, her Worship ruled that personal appearance was required

of an accused bailed to appear on a particular day, and she was not obliged

to proceed to hear and determine the charges in the appellant's absence. An

order having been previously made for the issue of a warrant for the

appellant's failure to attend before the Court in accordance with the bail

undertaking, which was to lie unexecuted until that day, her Worship

directed that it be issued. She indicated that in the usual course of events a

date would be fixed for further proceedings in the Court when the appellant

had been brought before it. Execution of the warrant has been stayed

Bail is an authorisation for a person to be at liberty instead of in custody

(Bail Act 1982 (NT), s 3). When bail is granted to an accused person in

respect of an offence and he enters into a bail undertaking, then subject to

the Act, he is required to appear before a court in accordance with his

The undertaking given by the appellant on 11 August 1998 was to appear at

the Court of Summary Jurisdiction at Darwin at 10 o'clock on 25 January

1999. She failed to do so in accordance with that undertaking. The

Magistrate then constituting the Court ordered forfeiture of the sum of $200

which she had agreed to pay if she did not appear in accordance with her

undertaking. That Magistrate gave her the opportunity to remain at large

until 9 February by adopting a common practice, that is, by issuing a

warrant of apprehension (s 39), but suspending its operation until a later

date. A person who is bailed to appear and fails to comply with his

undertaking is effectively thereby given a second chance. The appellant did

not take that opportunity to avoid being apprehended pursuant to the Court's

coercive power. No reason was given to her Worship as to her failure to

attend other than the argument that appearance of counsel sufficed. Her

The prescribed manner of seeking to have a decision in relation to bail

considered in this Court is by way of the review procedure provided for in

s 35 of the Bail Act and regulations under that Act No 6 of 1990. That is a

beneficial procedure since the review of a decision is by way of a rehearing

(s 36(3)). The appeal provisions of the Justices Act do not apply to

decisions under the Bail Act which has been described as a code governing

all matters relating to bail (Birdwood v Murphy [1997] NTSC 107; (1997) 6 NTLR 200). I

The bail question is not properly before this Court, but even if it were, the

As to her Worship's declining to proceed to hear and determine the matter of

the complaint, I am of the view that it does not give rise to a right of appeal

under s 163 of the Justices Act (NT). That provision is taken from s 163 of

the Justices Act, South Australia, and it has long been held in that Court that

the right of appeal only lies from an order determining the subject matter of

the complaint, that is, from a final and not from an interlocutory order. The

South Australian authorities go back to a review of the history of the appeal

provisions undertaken by Poole J. in Stuart v Allchurch [1923] SAStRp 41; (1923) SASR 333

and progress through The Queen v O'Loughlin; ex parte Ralphs (1971) 1

SASR 219; Gray v Steele (1973) 4 SASR 291; Daddow v French (1975) 12

SASR 440 and Dubois v Lovegrove (1987) 45 SASR 309. Reference might

also be made to Commissioner of Police v Bradey (1954) SASR 314. I see

no good reason to depart from that long line of authority upon legislation

emanating from that State and which is indistinguishable fo r present

The appeal is incompetent. However, I am of the view that it must fail in

any event. Section 64 of the Justices Act provides that if both parties appear

before the Court, either in person or by their respective counsel or solicitors,

then the Court shall proceed to hear and determine the matter of the

complaint. It was put on behalf of the appellant that she having appeared by

her counsel (s 29), the Court was compelled to proceed as directed by s 64.

I note that s 64 does not direct the Court as to when it shall proceed to hear

and determine the matter of the complaint. Section 65 provides that the

hearing of any complaint may be adjourned from time to time, but more to

the point, the express provisions of s 62A overcome the general provisions

of s 64. They provide that if a defendant who has been apprehended and

released on bail fails to appear in accordance with his bail undertaking, the

Court may in addition to issuing a warrant under s 39 of the Bail Act adjourn

the hearing until the defendant is apprehended, or proceed ex parte to hear

the complaint. Her Worship proceeded by way of adjournment until the

appellant was apprehended. It is not a ground of appeal that her Worship

erred in the discretion which she exercised as between adjournment and

proceeding ex parte. It was said that by reason of the operation of s 64 she

In so far as the appeal is incompetent, it is struck out and in so far as it may

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