Rose v Commissioner of Police
[2018] QDC 226
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- Unreported Judgment
- Rose v Commissioner of Police[2018] QDC 226
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Rose v Commissioner of Police[2018] QDC 226
Rose v Commissioner of Police[2018] QDC 226
DISTRICT COURT OF QUEENSLAND
CITATION: | Rose v Commissioner of Police [2018] QDC 226 |
PARTIES: | GARY VICTOR ROSE (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 851/18 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Richlands |
DELIVERED ON: | 14 September 2018 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 September 2018 |
JUDGE: | Farr SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant was convicted after trial of various drug offences – where the brief of evidence was disclosed one working day before the trial – where the magistrate refused two adjournment applications by the appellant’s solicitors – where the appellant then represented himself at trial – whether the appellant was denied procedural fairness and natural justice – whether the magistrate erred in exercising his discretion to refuse the adjournment applications Dietrich v R [1992] 177 CLR 292 |
COUNSEL: | J P Wallace (sol) for the appellant S Sherrie (sol) for the respondent |
SOLICITORS: | Wallace O'Hagan Lawyers for the appellant Director of Public Prosecutions (Qld) for the respondent |
- [1]The appellant was convicted in the Magistrates Court at Richlands on the 20th of February 2018 to one charge of possession of a dangerous drug on the 9th of September 2017, possession of a thing for use in connection with a dangerous drug on that date, and possession of property suspected of having been used in connection with the commission of a drug offence on that date. He was convicted after trial and fined $1000 and convictions were recorded. He has appealed against those convictions and submits that he was denied procedural fairness and natural justice as a result of three things. The first being the late disclosure of material by the Crown. Secondly, the refusal of the presiding magistrate to grant an adjournment. And thirdly, the subsequent withdrawal of the appellant’s legal representatives. The respondent to this matter concedes the appeal and agrees and joins in the submission that the learned magistrate’s failure to grant an adjournment was an error in the exercise of discretion, resulting in unfairness to the appellant.
- [2]Notwithstanding that concession, I should place details of the matter on the record in the course of this decision. And briefly, the facts related to the following: while patrolling residential streets in Darra in the early hours of the 9th of September 2017, police observed the appellant pull up to an address. They pulled up beside his car and spoke to him. And after conducting a name and licence check, detained him for the purpose of a search. During that search, they located a sunglasses case in a backpack. Inside that, they found a glass ice pipe, a small clipseal bag, containing a quantity of white crystalline substance, four empty clipseal bags, a cut plastic straw and a white sponge. The appellant denied all knowledge of the items when questioned by police. They were seized, and he was issued with a notice to appear. The appellant’s trial was listed for Tuesday, the 20th of February this year.
- [3]The brief of evidence was only made available for collection on Wednesday the 14th of February, and only obtained by the appellant’s solicitors on Friday the 16th of February. There being, therefore, only one clear working day between receipt of the brief and the commencement of the trial. That brief was received, notwithstanding the appellant’s solicitor’s attempts to obtain the full brief of evidence at least 14 days prior to the hearing, pursuant to Practice Direction number 13 of 2010. An application to adjourn the matter was made by solicitors for the appellant prior to the day of trial for the reason – pardon me – that the brief of evidence had been received late in the preceding week, and that due to the appellant’s full time employment and the late receipt of that brief, that the matter had been unable to be prepared for trial in time.
- [4]The magistrate refused the adjournment on the basis that five days was more than enough time to prepare for trial. I note that his Honour made that comment notwithstanding the fact that he would have had no knowledge whatsoever of the evidence relevant to the matter or the legal issues that might have arisen. On the morning of the trial, legal representatives for the appellant again applied for an adjournment, for similar reasons. The appellant’s solicitor advised the court again of the delay in disclosure, and of the resultant inopportunity that he had to take the appellant through the brief of evidence, to resolve funding issues and to consider issues of law arising from the manner in which the search was conducted. Again, the application was refused and the magistrate remarked that this was a “very, very simple matter” and that “four days was sufficient time to prepare the matter for trial”.
- [5]Once again, it is quite apparent that the magistrate had no knowledge as to the nature of the evidence to be presented in the trial at the time. The magistrate offered to stand the matter down for a short period, to enable the solicitor to take the appellant through the brief of evidence. But after standing the matter down, the solicitor then sought leave to withdraw on the basis that he was not in a position to represent the appellant at trial for the reasons that he had advanced in the adjournment application. Leave was granted. The trial was not adjourned and the appellant was then required, against his wishes, to represent himself.
- [6]A decision not to grant an adjournment is, of course, a decision made in the exercise of discretion. In deciding whether to grant an adjournment, the court may consider the effect an adjournment would have on the interests of both parties, the competing claims by the litigants, if relevant to the cost to the court and the prosecution resources as well as the issue of the timely finalisation of matters. In this matter, of course, the court should also have had due and proper regard to the prosecution’s failure to comply with the relevant practice direction. An appellant’ court should interfere if a refusal to grant an adjournment would result in a denial of justice to the appellant, in circumstances where granting the adjournment would not have resulted in an injustice to the other party. As was said in Haset Sali v SPC Limited (1993) ALR 625 at 629:
“An adjournment which, if refused, would result in a serious injustice to the appellant should only be refused if that is the only way that justice can be done to another party in the action.”
- [7]There are, therefore, two questions that arise: whether the refusal to grant an adjournment was an error of discretion, and whether the refusal to grant an adjournment resulted in any injustice to the appellant. Counsel for the respondent submits that no injustice would have been occasioned to the respondent had the matter been adjourned. And that deals with that particular issue. The magistrate’s only discernible reason for refusing the adjournment application was his view that the matter was inherently straightforward and required, therefore, only a short time to properly prepare. However, absent any knowledge on his part of the facts relating to the matter, and the evidence that was to be relied upon by the prosecution, it is difficult, albeit impossible, to ascertain the basis upon which this assessment was made. As I read the transcript, it appears to be that he has simply made this assessment based upon some undisclosed, unnamed matters that he appeared in as counsel in years past.
- [8]That, of course, is most inappropriate, is of no assistance to anyone and does not fulfil the requirements of a reasonable judicial officer. The respondent has also conceded that this is not a case in which the refusal to grant an adjournment resulted in no unfairness to the appellant. The very late disclosure of the brief of evidence meant that the appellant proceeded to trial without the opportunity to obtain proper legal advice on the state of the evidence. The withdrawal of his legal representatives meant that he was forced to represent himself, when he clearly had little familiarity with trial procedure, only a very basic knowledge of the law and had no basis – had no opportunity to prepare for the very onerous task of representing himself. The issue that was raised by the appellant at the trial; that is, the basis upon which reasonable suspicions were formed by the arresting officer, is not an error – is not an area of law that is without complexity.
- [9]Despite his best endeavours, it was an area that, by and large, went untested by his cross-examination, and it must be noted that he was offered little assistance in that regard by the magistrate, who demonstrated a lack of patience throughout the course of these proceedings. The mere fact that he was forced to represent himself in this matter in such circumstances, in and of itself, results in an injustice to the appellant, worthy of the success of this appeal. I refer, of course, to the well-known decision of Dietrich v R (1992) 177 CLR 292 in that regard.
- [10]Accordingly, the orders of the court are as follows:
- The appeal is allowed;
- The conviction imposed on the appellant on the 20th of February 2018 is set aside;
- The matter is remitted to the Magistrates Court at Richlands for re-hearing before a different magistrate.