Tassell v Hayes

Tassell v Hayes - [1987] HCA 21 - HCA 1985 case summary — Zoe

[61]

At any time in the course of proceedings in respect of a minor indictable offence up to and including the completion of the case for the prosecution, the defendant may elect to be tried upon indictment and upon the making of that election the court shall not proceed to convict the defendant but may commit him for trial upon indictment. The sub-section speaks of an election by "the defendant", not by the defendant or his counsel. It was submitted that, as the section deals with the waiver of a defendant's right to be tried by jury for an indictable offence, the sub-section requires the presence of the defendant in person so that he may elect to waive the right. If that submission be right, the absence of a defendant at any time during the period when the right to elect subsists - i.e., "up to and including the completion of the case for the prosecution" - would deprive the court of power to proceed. I do not construe sub-s. (2) in that way. Sub-section (2) is an exception to the general prescription of sub-s. (1) which assimilates the procedure in minor indictable offences to the procedure in summary offences. To bring the exception into operation, a defendant must make his election to be tried by jury, and he must make it in time. If he fails to make his election in time, the operation of sub-s. (1) is unaffected, and the loss of the right to trial by jury which sub-s. (1) ordains goes unrelieved. The structure of s. 122 is different from the structure of the statutes considered in Reg. v. Cockshott [2] and Reg. v. Rochow [3] . In those cases, as in this, the defendant was entitled to elect to be tried by jury but the statutes there under consideration prescribed a procedure to be followed by the court to inform the defendant of his entitlement. It was held that the prescribed procedure had to be followed by the court if the court was to be empowered to determine the matter summarily. Section 122(2) prescribes no procedural step which the court is required to follow in order to protect the defendant. The making of the election is a matter entirely for the defendant. If he chooses not to appear either personally or by counsel or solicitor he is unable to elect, and his failure to elect leaves s. 122(1), which takes away the right to trial by jury, to operate. 1. [1898] 1 Q.B. 582. 2. [1983] 1 Qd R. 184.

[75]

That conclusion does not however suffice to dispose of the present matter since the present appellant was represented by counsel throughout the proceedings before the court of summary jurisdiction and was himself present at the time when he was convicted and sentenced. Section 64 of the Act expressly 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" (emphasis added). The effect of that provision is that a defendant who is legally represented is spared the sometimes heavy burden of being personally present throughout the whole of summary proceedings. He may "appear" by his counsel or solicitor. Section 122(1) of the Act provides that, subject to the Act, the procedure and powers of a court of summary jurisdiction in relation to the hearing and determination of a charge of a minor indictable offence shall be the same as if the charge were a complaint of a simple offence. Prima facie, the effect of that sub-section is that s. 64 applies to the summary trial of a minor indictable offence pursuant to s. 120. The question which arises is whether the provisions of the subsequent sub-sections of s. 122 of the Act, which were essentially designed to introduce safeguards for the protection of a defendant, should be construed as depriving a defendant of the benefit of s. 64 by requiring, even in a case where he "appears" by his legal representative, that he be personally present throughout the summary proceedings at least up to the conclusion of the case for the prosecution. In my view, the provisions of those subsequent sub-sections of s. 122 should not, in the circumstances, be construed as having that effect. Read in the context of s. 64 of the Act, those sub-sections should be read as requiring no more than that the defendant be present either in person or by counsel or solicitor. It is true that s. 122(4) speaks of the case where "a defendant appears before a court of summary jurisdiction" and requires the court to "inform him" whether or not it proposes to deal with the case in a summary way. There is, however, no difficulty in reading those provisions as encompassing the case where, pursuant to s. 64, a defendant "appears" by his legal representative. In such a case, the obligation to inform the defendant that it is proposed to proceed summarily can be discharged by so informing him through that legal representative.

[79]

The mandatory provisions of s. 122(4) were designed to ensure that, at the conclusion of the prosecution case, the question whether the matter is appropriate to be dealt with summarily should be expressly raised and ruled upon. That time represents the last occasion on which an election can be made by the accused. It also represents the critical stage at which the magistrate is required to direct his mind to the question whether the offence "ought to be tried upon indictment". If it appears to the magistrate that it should, the court is precluded from proceeding to a summary conviction: "the proceedings shall continue as a preliminary examination" (sub-s. (5)) on which the court "may commit [the defendant] for trial upon indictment": sub-s. (3). Moreover, the fact that a defendant is represented by counsel while not himself being present does not mean that the important function served by s. 122(4) is rendered nugatory. The fact that a defendant is not personally present does, of course, mean that the question of trial by jury will not be directly brought by the court to his personal attention. Even in such a case, however, the sub-section ensures that, at a critical stage in the proceedings, namely, at the end of the prosecution case, both magistrate and the defendant (or his legal representative) direct their attention to the question whether the trial should proceed summarily and that the trial does not proceed summarily beyond that stage if the magistrate, when he directs his mind to that question, is of the view that the case is not one appropriate to be so dealt with. It also ensures that the question of the desirability of trial by jury is expressly raised immediately before expiry of the time in which the accused is entitled to elect for trial by jury. In that regard, I am of the view that the right (under s. 122(2)) of an accused to elect to be tried by jury may, in a case where he is represented by counsel, be exercised by counsel acting on his behalf.

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Judgment (81 paragraphs)

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