Supreme Court of Tasmania|1995-03-31|Before: Zeeman J

Rodney Charles Lillico v Leonard Angus McKenna, Robert Rae Strickland and Robert James Marshall [1995] TASSC 32; (1995) 5 Tas R 147 (31 March 1995)

RODNEY CHARLES LILLICO v LEONARD ANGUS McKENNA, ROBERT RAE STRICKLAND and

Magistrates - the hearing - Dismissal - General matters - Power to dismiss - Exceptional remedy - Unfair trial if matter proceeds to a hearing - Long delay - Substantially caused by the defendant - Prejudice to defendant by supervening event. Justices Act 1959, s74A(5)(c). Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, applied. Aboud v Attorney-General (NSW) (1987) 10 NSWLR 671; R v O'Loughlin, ex parte Ralphs (1971) 1 SASR 219, referred to.

Appeal allowed as it concerns complaint 2181/1985 but otherwise dismissed.

ZEEMAN J During the course of 1985 the applicant was charged with various offences on complaints laid by the first and third respondents. Particulars of those complaints are as follows:

1 By complaint 1597/1985 the applicant was charged with

having committed, on 29 March 1985, a breach of the Traffic

(General and Local) Regulations 1956 ("the Regulations"),

reg18.

2 By complaint 1598/1985 the applicant was charged with

having committed, on 5 April 1985, a breach of the

Regulations, reg5(1)(f)(i).

3 By complaint 1827/85 the applicant was charged with having

committed, on 8 April 1985, a breach of the Road Safety

(Alcohol and Drugs) Act 1970 ("the Act"), s6(1) and a breach

of the Traffic (Miscellaneous) Regulations 1968,

reg69(1)(a)(ii).

4 By complaint 1956/1985 the applicant was charged with

having committed, on 19 July 1985, a breach of the Act,

s6(1) and a breach of the Regulations, reg7(1).

2. It would appear that the applicant was summoned to answer the first two of those complaints and that he was arrested and bailed in respect of the others. On various occasions he appeared before a magistrate in connection with the complaints. The proceedings were adjourned from time to time without any pleas being taken. He was due to appear before a magistrate at Ulverstone on 27 August 1985 in relation to all four complaints, having been directed to appear in connection with the first two complaints and bailed to appear in connection with the other complaints. The applicant did not appear on that day. The hearing of the complaints did not proceed in his absence. On the third and fourth complaints an order was made that a warrant issue for his arrest. That warrant was not executed until on or about 27 May 1994.

3. On 29 August 1985 the second respondent made complaint 2181/1985 by which the applicant was charged with having committed a breach of the Justices Act 1959, s35 in that he failed to appear at the Ulverstone Court on 27 August 1985 in breach of the terms of a bail order. The applicant did not appear before a court in connection with that complaint until 27 May 1994. There is no suggestion that at any time prior to that date he was under any obligation to do so or even made aware of the existence of that complaint.

4. On 27 May 1994 the applicant was brought before a magistrate at Ulverstone on all five complaints, having been arrested on or about that day. The hearing of the complaints was adjourned from time to time. On 9 August 1994 the applicant, in purported reliance on the Justices Act, s74A(5)(c), pleaded that further proceedings ought not to be had on each of the complaints. As required by s74A(6) he stated the grounds for making the pleas. Those grounds may be summarised as being:

(a) the long delay from the time of the alleged commission

of the offences; and

(b) the prejudice which the applicant would suffer if the

complaints proceeded by reason of the applicant having no

memory of relevant events, that absence of memory being the

result of severe head injuries suffered by him in a motor

vehicle accident in about 1990.

5. Those pleas having been entered, there were some inconclusive discussions between the learned magistrate, counsel for the applicant and the prosecutor. The proceedings then were adjourned. On 17 October 1994 the complaints came back before the learned magistrate when counsel for the applicant made a series of assertions of fact and tendered reports from a medical practitioner and from a psychologist. The prosecutor also made some assertions of fact, none of which were inconsistent with the assertions made by counsel. Neither side challenged any of the material put forward by the other. The prosecutor's submissions proceeded upon the implicit assumption that he accepted the facts asserted by counsel. I do not consider that it was appropriate for the question before the learned magistrate to be determined on this material. The nature of the jurisdiction invoked and the factual material relied upon were such that the learned magistrate should have declined to deal with the "pleas" of the applicant except on the basis of sworn evidence. That is not to say that it would have been inappropriate for the learned magistrate to have received, in addition to sworn evidence, the reports which were tendered.

6. On 21 November 1994 the learned magistrate ordered that the applicant's "plea is overruled and that he be required to plead further to the complaints". The applicant now seeks to have that order of the learned magistrate reviewed. The grounds upon which the review is sought are as follows:

"1 The learned Magistrate erred in Law and in fact in

ordering that further proceedings should be had on the

complaints.

2 The learned Magistrate erred in Law in finding that delay

in the complaints being dealt with was not such as to

require that further proceedings on the complaint should be

stayed.

3 The learned Magistrate erred in finding that prejudice

suffered by the Applicant as a result of medical injuries

suffered by him between the laying of the various complaints

referred to and those matters being finally disposed of was

not such as to require further proceedings in relation to

those complaints should be stayed.

4 The learned Magistrate erred in Law and in fact in finding

that 'on a plain reading of the medical report particularly

pages 3-5 inclusive, the information came from the

(applicant) himself' when there was no evidence to support

such a finding.

5 The learned Magistrate erred in Law and in fact in

determining that there was not sufficient prejudice without

first making findings of fact upon which to base that

determination."

7. Section 74A (which quite inappropriately bears the heading "Procedure where defendant not represented") relevantly provides as follows:

"(3) If a defendant, whether represented by counsel or not,

does not require an adjournment or, if the proceedings are

adjourned, on the resumption of the proceedings

(a) the charge shall be read to the defendant unless the

defendant waives that requirement; and

(b) the defendant shall be called upon to plead to the

charge.

(4) Notwithstanding subsection (3), the justices may at any

time adjourn the proceedings to another date without calling

upon the defendant to plead to the charge.

(5) The defendant may plead

(a) guilty of the offence charged or, with the consent of

the justices and the prosecutor, of any other offence of

which the defendant might be convicted on the complaint; or

(b) not guilty; or

(c) that further proceedings ought not to be had on the

complaint; or

(d) that the defendant has cause to show why he or she

should not be convicted of the charge.

(6) A defendant who pleads as provided in subsection (5)

(c), shall state the grounds for making the plea and the

justices shall, before proceeding further, hear and

determine the plea and

(a) amend the complaint; or

(b) dismiss the complaint; or

(c) overrule the plea.

(7) If the complaint is amended or the plea is overruled,

the defendant shall be asked to plead to the amended

complaint or to plead further, as the case requires."

8. I have considerable reservations about the proposition that what the applicant raised before the learned magistrate amounted to a plea under s74A(5)(c). I tend to the view that that provision is concerned with pleas in bar properly so described. For an erudite discussion of the subject matter, reference may be had to the judgment of Wells J in R v O'Loughlin, ex parte Ralphs (1971) 1 SASR 219 at 237ff. In reality, what the learned magistrate was asked to do was to dismiss the complaints on the basis that to proceed further with them would result in trials unfair to the applicant which is different from a submission that proceedings should be dismissed amounting to an abuse of process (Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 96). Although the submissions made by counsel did not acknowledge the distinction, I note that the learned magistrate correctly identified the nature of the jurisdiction which he was being asked to exercise.

9. For the reasons expressed by Bray CJ in R v O'Loughlin, ex parte Ralphs (supra) at 231, a court of petty sessions does not have the power to stay proceedings by reason of the fact that to permit them to continue would be unfair or that they constitute an abuse of process. Nevertheless a court of petty sessions is competent to grant relief in such circumstances by way of dismissing the complaint. In accordance with the view expressed by Bray CJ such a dismissal is the appropriate procedural way in which a court of summary jurisdiction may give effect to a conclusion that the continuance of proceedings would be unfair or that the proceedings amount to an abuse of the process of the court.

10. Counsel were not able to refer me to any case where it had been held that a court of summary jurisdiction could grant a stay. The question was left open in Holmden v Bitar (1987) 47 SASR 509. As a matter of principle, any court has the power to take appropriate steps which will prevent injustice or an abuse of its process. One possible step is to prevent the proceedings continuing. A superior court may prevent this by ordering a stay of proceedings. By reason of the nature of a court of petty sessions, which only comes into existence when justices or a magistrate sit in petty session and has no independent existence, it is inappropriate for such a court to grant a stay.

11. The learned magistrate concluded that the complaints ought not to be dismissed. It is that conclusion and the reasons expressed by the learned magistrate for coming to that conclusion which are challenged by the grounds of appeal.

12. Grounds 4 and 5 assert specific errors in the reasoning process of the learned magistrate. Ground 4 concerns observations made by the learned magistrate as to a detailed report from a psychologist, Bernard Healey, which was placed before him. In particular, the learned magistrate made the following observations:

"I have considered the reports, there is no indication of

where Mr Healey obtained the historical information on the

defendant but it is reasonably detailed. (Counsel for the

applicant) submits that the defendant himself has no

recollection of telling Mr Healey of his work in Queensland,

but is not able to advance the matter any further. However

on a plain reading of the report, particularly pages 3-5

inclusive, the information came from the defendant himself.

This is a factor which causes me some disquiet in trying to

assess the level of prejudice which could flow to the

defendant if the matters proceed further."

13. It seems that the point sought to be made by the learned magistrate by those observations was that he had reason to doubt the applicant's assertion that he was unable to recall relevant events by reason of the injuries which he had suffered because the applicant had been able to furnish Mr Healey with a detailed personal history. I infer that the learned magistrate did not wholly accept that assertion. In approaching the case in this way the learned magistrate erred in the following respects:

1 Having regard to the way in which the case was conducted

he was required to accept the applicant's assertion that he

suffered from an impaired memory by reason of which he was

unable to recall any of the facts relevant to the matters

with which he was charged.

2 There was no justification for the conclusion that "a

plain reading of the report" indicates that the relevant

information was provided to Mr Healey by the applicant. It

may well have been. The report is equivocal on this

question.

15. The learned magistrate said that he found it difficult to assess "the level of prejudice" which the applicant would suffer if the hearing of the complaints were to proceed to a hearing. I infer from that statement that the learned magistrate found it difficult to determine what, if any, memory loss was suffered by the applicant. He made no findings on this issue. For the reasons I have expressed in relation to ground 4, the learned magistrate had no option but to accept the undisputed assertions made by the applicant on this issue, the magistrate not having indicated that he was not prepared to act on such assertions unless satisfied upon the basis of sworn evidence of the existence of the facts asserted. The learned magistrate failed to make findings of fact on a crucial issue and made it clear in his reasons that he did not accept as established the undisputed assertions of fact relating to that issue. Those failures constitute error. Ground 5 is made out.

16. Counsel for the applicant accepted that grounds 1, 2 and 3 amount to an assertion that, upon the basis of the material before him, the learned magistrate could not but have dismissed the complaints by reason of the prejudice which would be suffered by the applicant if they were to be permitted to proceed to a hearing. That proposition is untenable insofar as the complaints other than complaint 2181/1985 are concerned. The applicant was the primary contributor to the delay through his failure to attend at court at a time when he was obliged by the terms of a bail order, or had been to directed to appear. That failure is a most relevant consideration and militates against the grant of the relief sought by the applicant (Aboud v Attorney-General (NSW) (1987) 10 NSWLR 671 at 698). It was at least open to the learned magistrate to decline to dismiss the complaints in the proper exercise of his discretion. Grounds 1, 2 and 3 must fail.

17. Although grounds 4 and 5 are made out, that is not necessarily determinative of the appeal. It is appropriate to consider whether any miscarriage of justice has resulted from the errors made by the learned magistrate. If none occurred then I consider that I should dismiss the appeal notwithstanding those errors (Justices Act 1959, s110(2)(ab)). The errors identified by grounds 4 and 5 come down to one simple proposition. The learned magistrate should have found that the applicant had no memory of the events the subject of the complaints and that his lack of memory was the result of injuries suffered by him in about 1990 but proceeded upon the basis that those facts had not been established. If I conclude that, even if the learned magistrate had made the findings of fact which he should have made, it would not have been a proper exercise of his discretion to dismiss the complaints it cannot be said that any miscarriage of justice has resulted from the learned magistrate's error.

18. Counsel for the applicant principally relied on the judgment of McHugh JA in Aboud v Attorney-General (NSW) (supra) but neither counsel adverted to the fact that the basic premise upon which his Honour proceeded, namely that there is a common law right to a speedy trial, was rejected by the High Court in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. The right is to a fair trial as distinct from a speedy trial, although in particular circumstances a trial which is long delayed may cease to be capable of being a fair trial.

19. The test of unfairness which is relevant involves a balancing process between the interests of the applicant on the one hand and the interests of the community, which has an interest in seeing that those who commit offences are brought to trial, on the other hand (Jago v District Court of New South Wales (supra) at 33, 49-50). To dismiss a complaint because any subsequent trial would be unfair is to provide a defendant with an extreme remedy and one which should only be provided in very limited circumstances. I find it difficult to conceive of circumstances where that remedy ought to be provided in a case such as the present where, at least in relation to the complaints other than complaint 2181/1985, delay and prejudice have arisen in circumstances where they would not have arisen had the applicant not sought to evade the criminal process.

20. It is not possible to lay down any all embracing test by which to judge whether to proceed with a prosecution would be so unfair to the defendant as to require that the proceedings be stayed or dismissed. Some relevant factors were referred to by various members of the High Court in Jago v District Court of New South Wales (supra). Whilst the members of the court adopted various approaches to the issues which fell for determination, it is possible to distil from the judgments of Mason CJ at 33-34, Deane J at 60 and Brennan J at 70-71 the common view that the following factors are relevant in cases where delay is an element of the alleged unfairness:

1 The length of the delay.

2 The reasons for the delay.

3 The defendant's responsibility for asserting his rights.

4 Any prejudice suffered by the defendant.

5 The interests of the community in having the trial proceed

to finality.

21. A consideration of these factors has led me to the view that it would not be reasonable to conclude that to proceed with the complaints, other than complaint 2181/1985, would be so unfair to the applicant that those complaints should be dismissed. My reasons for that view are as follows:

1 The fundamental reason for the delay in having the

complaints heard is to be found in the applicant's failure

to attend at Court when he was required to do so.

2 No explanation was offered for the applicant's failure to

attend at court. Whilst it might be said that his lack of

memory meant that he could not recall why he failed to

attend, this question was not directly addressed by the

material placed before the learned magistrate. It was said

that at the relevant time the applicant was residing with

his mother and she might have been able to give relevant

evidence.

3 More than four years passed from the time that the

applicant should have appeared in court until he suffered

his injury and for most of this time he continued to reside

in Ulverstone. He made no attempt to surrender himself and

took no other step with a view to having the complaints

heard.

4 No explanation was offered for the applicant doing nothing

after his initial failure to attend at court and the

irresistible inference is that there can be no explanation

other than that the applicant had determined to do nothing

and hoped that the matters might just be forgotten by the

police.

5 Once the applicant failed to appear the complaints might

have been heard and determined in his absence as provided

for by the Justices Rules 1976, r32. No application that

the complaints be dealt with under that rule appears to have

been made, but by failing to appear the applicant put

himself in the position that he might well be convicted and

sentenced in his absence.

6 It is only because the procedure provided for by r32 was

not employed and the applicant did not suffer the

disadvantage, to which he had made himself liable, of having

the complaints determined in his absence that the applicant

was in a position to advance the argument which he put to

the learned magistrate.

7 The absence of any explanation for the non-execution of

the warrant which was issued for the arrest of the applicant

in August 1985 until May 1994 is of little moment because

the prima facie duty rested with the applicant to present

himself to answer the charges.

22. Different considerations apply to complaint 2181/1985. That complaint was made on 29 August 1985. There was no material before the learned magistrate as to what then happened in relation to that complaint. In any event nothing was done to bring it to the notice of the applicant until he was arrested and brought before a magistrate on 27 May 1994. No explanation was offered for that delay. On the face of it, the delay was inordinate. The material before the learned magistrate indicated that there should have been no difficulty in serving the applicant with a summons to answer that complaint or in arresting him on it at any time until about 1989. The applicant continued to reside at the address shown in the complaint for more than four years after it was made. The matters which I consider required that the other complaints not be dismissed do not apply to this complaint.

23. The long delay in the taking of any action on this complaint coupled with the substantial difficulties which the applicant now faces in answering it by reason of his loss of memory, are circumstances which make it impossible to say that on a proper exercise of the discretion by reference to the relevant factors identified in Jago v District Court of New South Wales (supra), the only reasonable conclusion open to the learned magistrate was that this complaint ought not to be dismissed. By reason of the errors identified in grounds 4 and 5 the appeal ought to succeed as to this complaint.

24. I allow the appeal insofar as it concerns complaint 2181/1985 but otherwise dismiss it. I will hear counsel as to what consequential orders are appropriate.

(General and Local) Regulations 1956

(Alcohol and Drugs) Act 1970

Traffic (Miscellaneous) Regulations 1968

Rodney Charles Lillico v Leonard Angus McKenna, Robert Rae Strickland and Robert James Marshall [1995] TASSC 32;

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Rodney Charles Lillico v Leonard Angus McKenna, Robert Rae Strickland and Robert James Marshall [1995] TASSC 32; (1995) 5 Tas R 147 (31 March 1995)

Parties

Legislation Cited (5)

Cases Cited (6)