Lamositele v Arnold[2007] QDC 362

[2007] QDC 362

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RYRIE

No 738 of 2007

BRISBANE 

DATE 10/12/2007

ORDER

HER HONOUR: This is a matter in respect of the appeal before the Court under The Justices Act, section 222, brought on behalf of the appellant, and I will spell it into the record, K-A-P-E-L-I-E-L-E, surname, L-A-M-O-S-I-T-E-L-E, against the respondent, Constable Jason Arnold.

Notice of appeal against conviction and sentence was filed in this Court on the 15th of March 2007. The notice sets out the grounds of the appeal, one of which is then set out in greater detail in the outline of the submissions that have been filed on behalf of the appellant in respect of conviction. Those outlines, both in relation to conviction and sentence imposed, was filed in this Court on the 4th of April 2007. In essence, ground 1 is set out as:

"The learned Magistrate by refusing an adjournment application by my solicitor to allow sufficient time for delivery to me and adequate consideration of, the brief of evidence against me, irreparably prejudiced my ability to receive a fair hearing of the charge against me."

The submission that is made on behalf of the appellant by Mr Wynne, who appears today, is that the Magistrate in essence, under that ground at least, denied the appellant natural justice in that he had pre-judged the issue without giving any due or proper consideration to the merits of the application for the adjournment even before the application was made. Mr Wynne goes on further today to submit that, pursuant to the obligations as contained in statute, namely, The Criminal Code, as they appear, more specifically under section 590AI, subparagraph (2), sub (a), and further obligations under section 590AM, which sets out the time for the disclosure, contained the obligation to provide under section 590AI has not been adhered to by the prosecution.

In essence, what happened was that on the date of the hearing that was set down Mr Galler who appeared on behalf of the appellant had made an adjournment both in writing initially to the Registry Office of the Court some days earlier indicating that he needed his appellant client to have an interpreter present for the purpose of the summary hearing and subsequently that he also needed time to prepare because they were not, indeed, at that point solicitors on the record but had received some instructions from the appellant regarding the hearing date.

There is a note on the Lower Court file written in handwriting that I can only understand to be a reply which fits, as it were, with the affidavit that has been filed in support of the applicant's case on the 17th of April 2007 under the hand of Donald John Gunn, more particularly at paragraph 4, that that entry on the Lower Court file on the letter that I have referred to that was received by the Registry from the solicitors suggests that the communication was given back to the solicitor not on the record but that the interpreter had been booked by the Court, the matter had been listed for hearing for two months, and the parties should be ready to proceed on the trial date. Indeed, in the relevant affidavit that I referred to of Mr Gunn at paragraph 4 he indicated that he had indeed received a telephone call in reply to the letter he had sent to the effect that he was advised even at that point that the Magistrate would not be granting any application.

It seems that Mr Gunn then turned up at the relevant date set for summary hearing and made an oral application further to the written letter he had given to the Court to that effect. That oral application was and is set out in transcript form at page 2 of the hearing before the relevant Magistrate that took place on the 20th of February 2007. In essence, Mr Gunn had indicated again on the record that day of a formal note that he had made an oral application again as indicated in relation to the letter that had already been sent to the Registry. In addition, Mr Gunn said that a vital defence witness had not been able to be located; that they were only supplied with a copy of the brief of evidence as late as this morning from the prosecution.

It is noted that Mr Gunn then says that he understood that his Honour had indicated that he, in any event, had wished the matter to proceed. Mr Gunn was bold enough at least to say at that point that he believed there may well be grounds for a mistrial if in fact that happened but was willing to accept that his Honour had wished to proceed and that they were proceeding.

There was an opportunity given by the Bench on the morning of the summary hearing to Mr Gunn for about 30 minutes to read the brief. Indeed, the relevant Magistrate also seemed to take the view that because the defence have had amply opportunity for over two months to be able to get in touch with the prosecution and get a copy of the brief that the obligation therefore seemed to lay with the defence and that that in itself afforded him, as the Magistrate, the right to say that the matter should proceed regardless.

Unfortunately, the Magistrate, in making those statements, fell into error. First of all, simply having it communicated that an adjournment would not be granted by the Registry staff in the manner in which it was communicated to Mr Gunn after he had sent a letter is not the way that any application for an adjournment of any matter before the Court, particularly as it relates to any traffic or criminal matter, should be dealt with. The matter should be properly aired in the Court by way of a proper application and any subsequent reasons for any granting or refusal should be stated in Court in the record.

Notwithstanding that fact, again the Magistrate, even after an oral application was again made by Mr Gunn at the summary hearing, once again had formed an incorrect view. It seems that he thought the obligation fell on either the applicant himself and/or his legal representatives to obtain a copy of the brief from the prosecution. Clearly, that is not the case.

The applicant in this matter, it was well known to both police and, indeed, to the Magistrate hearing the oral application, as was put to the Court because of the fact that there was the need for an interpreter, was well aware that the applicant himself would have had difficulties in any event even understanding even if he did go and get his own brief to prepare his own case. Secondly, the solicitors that had been engaged by the applicant, who were not actually up until that point even solicitors on the record, had no obligation whatsoever to get the brief off the prosecution until indeed they are notified in accordance with what is required under The Criminal Code, the relevant sections of which I have already stated under section 590.

The prosecution have the obligation, clearly, under The Criminal Code to provide to the accused person as soon as practicable once it becomes into the possession of the prosecution those matters that relate to any in this case summary trial that was going to take place. The obligation in terms of time is that if it is going to be provided, then it must be done so within fourteen days or at a time that the Court considers is appropriate. Neither of those took place, as I understand it.

There is no contest that the police brief was only given prior to the hearing taking place that morning. Indeed, thirty minutes, as I have said, was allowed for Mr Gunn to read it and to proceed. It seems that Mr Gunn went ahead with the matter and cannot be criticised. He initially, perhaps, should have been more forthright but probably realised after the communication had been received from the Registry office, together with, once again, the impression he was getting in respect to any oral application and the fact that he had been given 30 minutes to read the brief that he had got that morning, that any application by him to have the matter further delayed to obtain the elusive witness that seemed to not be available for the actual summary hearing at the relevant time, would be fruitless. That, to me, was not an unrealistic expectation from Mr Gunn.

The fact that the brief from the police was only provided to the defence on the morning, not within the relevant statutory requirements, and indeed that is not in itself fatal; but the fact that there was only 30 minutes afforded to Mr Gunn to prepare the matter without the benefit of any witness even though it should be said that the Magistrate did give Mr Gunn the opportunity to have the matter delayed, as it were, for a period of time that Mr Gunn felt so to allow him to get that witness there, that that, in my view, is not reasonable to allow a fair hearing in respect of the matter that then took place.

Those reasons alone satisfy me that there has been a denial of natural justice afforded in the circumstances to allow the appellant in this case to have conducted the hearing.

As to whether he has any merit even with the presence of the witness that was not available to be called in his case on any further summary date hearing, is yet to be seen. It is not a matter that this Court can determine or predict. It is also not a matter not necessary to be determined at this point by this Court in light of the fact of the decision and ruling I have just made where I consider that this matter, therefore, needs to be remitted back to the Magistrates Court to allow in fact the hearing to take place with or without the witness who was not available at the summary hearing before the relevant Magistrate when it was set down to be heard.

It is for those reasons that I consider that the ground 1 relating to procedural fairness as it relates to the delivery of the lateness of the brief of evidence against the appellant for the purpose of any summary hearing that then took place was, in all the circumstances, denied the appellant the right to have his case heard both procedurally in a fair way and denied him natural justice.

It is for those reasons that I consider the matter should be remitted back to the Magistrates Court as Richlands in order that the matter shall be heard by way of summary hearing, and I also direct as part of that order in accordance with the provisions of The Justices Act that allows me to do so as an appeal Judge hearing this matter that the proceeding be sent back to that Court but with the direction that the summary hearing proceedings, if it goes ahead, ought to be heard by a Magistrate other than Magistrate Austin. That is not being critical of Magistrate Austin but rather I consider it appropriate, as does both counsel who appeared in relation to the parties today, that it would be better if the Magistrate who made the decision on this matter in the first place, be not the one to hear the summary hearing if it ultimately does proceed.

Those are my reasons.