RENDELL -v- DOUGLAS [2015] WASC 36 (2 February 2015)

4 At the hearing today, the grounds of appeal were amended so that they now read:

(1) that there was an error of law when the learned magistrate refused to grant an adjournment on 23 May 2014; or,

(2) there was a miscarriage of justice when the learned magistrate refused to grant an adjournment of 23 May 2014; or,

(3) there was an error of fact when the learned magistrate refused to grant an adjournment on 23 May 2014.

5 The particulars of those grounds of appeal will become clear when I detail the background to this appeal.

6 The appeal was commenced some five months out of time. It seems that the majority of the delay was due to the appellant trying unsuccessfully to have the conviction set aside in the Magistrates Court pursuant to the Criminal Procedure Act 2004 (WA), s 71. It is not clear to me why the appellant failed in that attempt, but the relevant point is that he did, and he was told by the magistrate who heard that application that he had to appeal to this court to have the conviction overturned.

7 If there is substance in the appellant's contention that his conviction was an error of law or fact or a miscarriage of justice, then I ought to grant an extension of time within which to appeal. The respondent does not oppose the appellant being granted an extension of time within which to appeal. The respondent also concedes the appeal, however, it is still necessary for me to decide the merits of the appeal for myself.

8 The appellant also requires leave to appeal on each ground of appeal. Again, if there is merit in a ground of appeal, I ought to grant leave to appeal on that ground.

9 The prosecution notice alleges that on 24 December 2013 at Cannington, the appellant, being the driver of a vehicle, registered number 1CU 005, on a road, namely Albany Highway and approaching the intersection of Liege Street where a traffic control signal applicable to him displayed the colour red, failed to comply with the said traffic control signal contrary to s 40(2), of the Road Traffic Code 2000 (WA).

10 The appellant entered an endorsed plea of not guilty and the charge was listed for hearing on 23 May 2014. On that date, the prosecutor attended court, but the appellant did not. The court had before it an email from the appellant's wife which was apparently written on or before 19 May 2014. The email said:

I am writing on behalf of my husband Michael Rendell. He has a traffic court appearance scheduled for Friday 23 May 2014 at 10 am. Unfortunately my husband was injured in a vehicle accident on Saturday afternoon when he was side swiped whilst riding his motorbike. He is currently in Royal Perth Hospital awaiting surgery. He will not be well enough to attend court on Friday as per the summons. He has asked me to contact the court and ask for an adjournment of his case as he still wants to plead his case in front of the magistrate, as he had intended before his accident. The charge number for the incident is PE 64891/2014 and the prosecutor's reference number is 12225221. Could you please reply to this email to confirm you have received this request. If I need to do anything else could you please also let me know. It is possible that you may be able to contact Michael in hospital, but he is due to have surgery tomorrow, all being well, and may not be available.

11 The email then gave Mr Rendell's mobile phone number and his wife's contact details. It was signed off: 'Thank you, Barbara Rendell JP'.

12 On 19 May 2014 at 9.02 am, the Magistrates Court replied to Ms Rendell advising her that the information in her email had been passed on to the court and an adjournment requested. She was asked to call the court after 23 May for the result.

13 On 23 May 2014 when the matter was called in court, the magistrate asked the prosecutor and the judicial support officer to ring Royal Perth Hospital to ascertain whether the appellant was, in fact, in hospital. After standing the matter down, the magistrate stated that 'according to the nurse on the ward' the appellant had been discharged from Royal Perth Hospital on 22 May 2014. The magistrate also said that the information in the email was that:

He's in hospital today having an operation when he was discharged yesterday. So that's false information.

But I'm not satisfied that he couldn't attend court today, because I have no information before me to say that he can't. So, on that basis, under s 55, I am going to proceed to conviction.

15 That is what then occurred. The magistrate granted leave to the prosecution to proceed in the absence of the appellant pursuant to s 55 of the Criminal Procedure Act. It is not in dispute that, in light of the absence of the appellant, the magistrate was entitled to grant that leave. The prosecutor shortly stated the facts. The magistrate convicted and fined the appellant $150. She also ordered court costs of $146.90.

16 I have given the appellant leave to tender an affidavit sworn 19 November 2014 in support of his appeal.

17 The respondent did not object to the tender of that affidavit, and, so, it was unnecessary for me to make any decision as to whether it was fresh evidence or not.

18 In the affidavit, the appellant says that he was injured in a motor vehicle accident on 17 May 2014 and he was admitted to Royal Perth Hospital for initial treatment. As a result of the accident, his leg was broken in three places. He was discharged from Royal Perth Hospital on 22 May 2014 and transferred to the St John of God Hospital so that he could receive surgery on his leg.

19 His leg was operated on on 26 May 2014, and he was not discharged home from hospital until 29 May 2014. During the surgery, a cage was attached to his leg and it remained on for three months. There are attachments to his affidavit which support that material.

20 Although the magistrate said that the material in Mrs Rendell's email was false, it does not appear as if any of that material was false. When the date of the email is taken into account, the email was correct in that, as of 19 May 2014, the appellant, was in Royal Perth Hospital awaiting surgery. Further, the assertion that he would not be well enough to attend court on Friday as per the summons was also correct.

21 An appeal may be brought on the grounds that the magistrate made an error of law or fact or on the ground that there has been a miscarriage of justice, Criminal Appeals Act 2004 (WA), s 8.

22 Even if a ground of appeal might be decided in favour of an appellant, the court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred, Criminal Appeals Act, s 14(2). This proviso may be invoked, for example, if, despite an error of law being made by the magistrate, a conviction was inevitable. The respondent does not make such a submission in this case and there is no evidence before me which would justify me finding that a conviction is inevitable, thus, if I am satisfied that the magistrate made an error or there was a miscarriage of justice, I should allow the appeal, quash the conviction and remit the charge to the Magistrates Court to be reheard.

23 Whether an adjournment should be granted is a matter for the discretion of, in this case, the magistrate. An appeal court will not interfere with the exercise of that discretion, unless it can be shown that an error has been made in the exercise of it: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 505. Error may be shown by establishing that the magistrate acted on a wrong principle, took into account an irrelevant consideration or failed to take into account a relevant consideration.

24 Error may also be shown where, although there is no express error, the result is so plainly unjust that it can be inferred that an error in the exercise of discretion must have occurred.

25 In this case, there is evidence to indicate that an express error occurred in the exercise of the discretion to refuse an adjournment. That is because the magistrate acted on the basis that there was no material before her to establish that the appellant was unable to attend court, when, in fact, there was such material before her, but she rejected it because of incomplete information supplied to her.

26 Further, she acted on the basis that the information in Ms Rendell's email was false, when, in fact, it was not.

27 Those errors would be enough to dispose of this appeal. However, the appeal also raises issues about inferred error, and I will deal with this aspect of the appeal also.

28 Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted, unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this type, unless there is strong reason for believing that an injustice has resulted: Myers v Myers [1969] WAR 19, 21.

29 In determining whether such an injustice occurred, the appeal court will often focus on whether the appellant had a realistic prospect of an acquittal if an adjournment had been granted. Appeals brought against a refusal of an adjournment by a magistrate have failed in the past, because the appellant was unable to establish that the refusal gave rise to an injustice, because the refusal did not deny the appellant a realistic opportunity of securing an acquittal: Pallett v Paul [2007] WASC 290. However, as I have already said, the respondent does not oppose this appeal on the basis that a conviction was inevitable. Thus, it is sufficient in this case for the appellant to satisfy me that a miscarriage of justice occurred because the refusal to grant the adjournment denied him the opportunity to present his case for trial, which is what occurred here.

30 An accused person must be given full opportunity to present his or her defence, and an adjournment should be granted if it is necessary to enable the accused person to properly present that defence.

31 In the exercise of a discretion to grant or refuse an adjournment, the magistrate must also take into account the public interest in the orderly and expeditious disposition of cases in busy courts. There is a strong public interest in the timely disposition of all criminal cases. The effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing need to be taken into account. However, those considerations will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused person of the opportunity to present a case which has a reasonable prospect of success: The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [37].

32 For the reasons I have already given, I am satisfied that the magistrate erred in fact.

33 Further, error in law can be inferred, because the magistrate's refusal to allow the adjournment was plainly unjust, for the reasons articulated by the respondent in his written submissions. These reasons are:

(1) There was material before the magistrate that suggested that the appellant had recently suffered a significant accident, which required admission to hospital and surgery;

(2) The inquiries made by the magistrate confirmed the appellant's basis for making an application for an adjournment, namely, that he had been recently admitted to hospital, albeit apparently discharged the day prior to the hearing;

(3) The offence was not a serious one, and this was the first hearing date for the charge. The nature and seriousness of the offence the subject of the charge was relevant to the exercise of the magistrate's discretion: Saad v Baron [2012] WASC 507 [25];

(4) No inquiry was made of the prosecutor to see if the police opposed an adjournment or if they claimed any prejudice would arise from such a course. Indeed, I infer from what the prosecutor did say that there was no opposition, or no significant opposition, to an adjournment of the charge;

(5) The appellant had indicated, both through his plea of not guilty and by the terms of his wife's email, that he still wished to contest the charge. Accordingly, there was a serious prejudice to be suffered by the appellant if the application to adjourn was refused; and

(6) As a result of the magistrate's refusal to grant an adjournment, a miscarriage of justice occurred, because the appellant was unreasonably denied the right to defend the charge.

34 As a result of these matters, I grant the extension of time within which to appeal. I grant leave to appeal on each of the three amended grounds of appeal. I allow the appeal and set aside the conviction, the sentence imposed and the costs order. I remit the charge to be dealt with again by the Magistrates Court in Perth, by a different magistrate.