Noble v Director of Public Prosecutions & Others [2000] NSWSC 920

Reported Decision : 118 A Crim R 305

New South Wales Supreme Court

CITATION : Noble v Director of Public Prosecutions & Others [2000] NSWSC 920 FILE NUMBER(S) : SC 11390/2000 HEARING DATE(S) : 28 August 2000 JUDGMENT DATE : 20 September 2000

PARTIES : Noble v Director of Public Prosecutions & Others JUDGMENT OF : Smart AJ at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT AK Murray LCM JUDICIAL OFFICER :

COUNSEL : R Bromwich PI Lakatos SOLICITORS : JG Sloan SE O'Connor CATCHWORDS : Refusal of adjournment to call evidence - denial of procedural fairness and unreasonable exercise of discretion LEGISLATION CITED : Crimes Act 1900 Queensland v JL Holdings (1997) 189 CLR 146 Sali v SPC Ltd (1993) 67 ALJR 841 Thornberry v The Queen (1995) 69 ALJR 777 CASES CITED : Webb v The Queen (1993-4) 181 CLR 41 Grassby v The Queen (1989) 168 CLR 1 Brackenreg v Comcare Australia (1995) 56 FCR 333 Reg v Bow Street Metropolitan Stipendiary Magistrate [2000] 1 AC 119 DECISION : See para 35

- 6 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SMART AJ

20 September 2000

11390/2000 - Noble v Director of Public Prosecutions & Others

JUDGMENT 1 Richard Warnock Noble was charged with the offence of larceny as a bailee contrary to s 125 of the Crimes Act 1900. The charge concerned the sale of certain steers and the disposition of the proceeds. The magistrate sitting in the Local Court at Albury found the offence proved. 2 Mr Noble seeks an extension of time within which to apply for leave to appeal and leave to appeal against an interlocutory order made by the Magistrate about 4.25pm on 27 March 2000 refusing an application made on Mr Noble's behalf to adjourn the hearing to enable him to attend court and give evidence. At that stage the prosecution case had just been completed and a submission of no case to answer rejected. The magistrate proceeded and found the offence proved. The summons seeks an order setting aside the order refusing the adjournment and an order quashing the finding that Mr Noble was proved to have committed the offence of larceny as a bailee. The extension of time and leave to appeal were not opposed and those orders were made at the hearing on 28 August 2000. 3 The Director of Public Prosecutions, who took over the conduct of the prosecution from the informant, a police officer, did not oppose the orders setting aside the order refusing the adjournment or the quashing of the finding that the commission by Mr Noble of the offence of larceny as a bailee was proven. 4 The Director of Public Prosecutions opposed the remaining order sought, namely, an order remitting the matter back to the Local Court for re-hearing by a differently constituted court according to law. 5 Mr Noble complained that the magistrate had denied him procedural fairness and that his decision to refuse the adjournment application was so unreasonable that no reasonable person could have made the decision. 6 The facts may be briefly stated. On 27 September 1999 the plaintiff was served with a court attendance notice in respect of the charge of larceny as a bailee. On 11 January 2000 at Albury the matter was set down for hearing on 27 March 2000 and marked "not before 10.30am". On 27 March 2000 Mr Noble did not attend a conference with his solicitor prior to court as arranged. His diary had been destroyed in a fire with the result that he forgot that the hearing was on that day. He was 800km away and could not attend court that day. At 9.30am and 12 noon applications were made on behalf of Mr Noble to adjourn the hearing of the matter. The magistrate refused those applications. During the day Mr Noble's solicitor had been in contact with Mr Noble and supplemented his instructions so that the solicitor could conduct Mr Noble's defence and cross examine the Crown witnesses. The hearing of the charge against Mr Noble did not commence until about 2.40pm. Evidence was given by the informant, the detective in charge and Mr Saunderson, the principal prosecution witness. 7 The background to the prosecution was that Mr Noble (or possibly his company) purchased some 107 steers for $34,948 at the Gundagai weaner sale. Because of the default of his "partner" he was unable to pay for them. An agreement was reached between Mr Saunderson from the stock and station agent (a company) and Mr Noble's company whereby the stock and station agent re-purchased the cattle for the sale price paid by Mr Noble (or his company) with property in the cattle passing to the stock and station agent. This agreement was reduced to writing. Mr Noble was to let the stock and station agent know as the steers grew and fattened and became ready for market. He did so in respect of two lots of steers which were sold to Coles being 28 steers for which $11,505 was received and 33 steers for which $14,752 was received. As to the remainder of the steers Mr Noble sold these and did not pay the proceeds (or any part thereof) to the stock and station agent. 8 In cross examination Mr Saunderson denied that he or his company had consented to Mr Noble or his company selling the steers except through the stock and station agent. Mr Noble or his company had not been given permission to have the remaining steers (which had grown too large to sell to Coles) slaughtered and sent to a boning room. Mr Saunderson insisted that Mr Noble had not even suggested this. Mr Saunderson denied that Mr Noble had suggested that the steers be sold through the Murray River Prime Boning Room. Mr Saunderson agreed that he and Mr Noble had discussed the possibility of finding some buyer or outlet other than Coles. Mr Saunderson agreed that his company had proved in the liquidation of Mr Noble's company, Rash Cattle Company Pty Ltd for the amount due to the stock & station agent. Mr Saunderson said that he had spoken to Mr Noble on quite a few occasions about the remaining steers and their sale. Mr Saunderson was chasing up payment of the debt. It was some time before Mr Noble told him that the steers had been sold and that the proceeds of sale had been applied elsewhere. 9 During the cross examination of Mr Saunderson some time was spent trying to establish that there was a transaction between the company of Mr Saunderson and his fellow director and Mr Noble's company. That evidence did not lead anywhere as Mr Noble was the principal actor. 10 I return to the chronology of events. About 4.20pm on 27 March 2000 a no case to answer submission was made and rejected. An application was next made for an adjournment to enable the accused to be called to give evidence in circumstances where: (a) a central issue in the prosecution was that of consent or authority. The cross examination foreshadowed that Mr Noble's instructions were contrary to Mr Saunderson's evidence on this issue; (b) Without Mr Noble's evidence there was nothing to contradict the prosecution evidence; (c) Without such evidence it was virtually inevitable that the accused would be convicted; (d) The maximum penalty is 2 years imprisonment where the magistrate deals with the matter and over $5000 is involved. (e) The police prosecutor opposed the adjournment. 11 About 4.25pm the Magistrate refused the adjournment on the basis that the court had set aside a part of the day to hear the matter and conclude it and had "sat on" to do so and there was no satisfactory explanation why the accused was not at the court. 12 In his reasons for decision the magistrate made it clear that the principal issue was whether Mr Noble had the requisite fraudulent intent. 13 Although the Crown evidence was completed, the prosecution would probably have needed to have Mr Saunderson present to give instructions when Mr Noble gave evidence. There could also be a question of evidence in reply. I do not agree that there was no prejudice to the Crown in granting an adjournment. However, it was relatively minor. 14 In his reasons finding the offence proved the magistrate indicated that his conclusion may have been different if the accused had given evidence. 15 After finding the offence proved the police handed up a document stating that Mr Noble had no previous record. His solicitor confirmed that that was the position. The magistrate was not satisfied with this and adjourned the hearing for sentence and directed that Mr Noble be fingerprinted. 16 I can understand the desire of the magistrate to bring matters to a timely conclusion and to manage the lists efficiently. The wasting of time or not using it efficiently when there are heavy lists and the incurring of additional expense are legitimate matters for consideration. The hearing of other cases will consequently be delayed. 17 However, matters of good list management, prompt disposition of matters and good use of court time are generally of lesser importance than taking a course which deprives a party of the opportunity to give evidence. This was not a case of persistent non-attendance or conduct designed to prolong or thwart the proceedings. 18 In Queensland v JL Holdings (1997) 189 CLR 146 at 154 Dawson, Gaudron and McHugh JJ (with whom Kirby J agreed) held that while case management was important, "the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim." 19 In Sali v SPC Ltd (1993) 67 ALJR 841 at 845, Brennan, Deane and McHugh JJ said: "… it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case … where the practical effect of the refusal is to terminate the proceedings." 20 Effectively, what has happened in the present case is that the refusal of the adjournment terminated the proceedings as to the proof of the offence and resulted in Mr Noble being found to have committed the offence. The offence alleged, while not of the gravest kind had an element of seriousness. On the facts presently known and in the absence of further explanation a full time custodial sentence could not be ruled out although the absence of any prior convictions would militate against such a sentence. There may be other subjective factors of some weight. 21 4.25pm is past the usual hour for concluding court business. In the normal course an application at that hour for an adjournment to call a major witness would have been granted. While the Crown would have experienced some expense and inconvenience to witnesses it would not have experienced any injustice as a result of the adjournment. I agree with the submissions of Mr Noble that there had to be some compelling reason in the interests of justice to go past the completion of the prosecution case once it was past the court's ordinary sitting time. No such reason appears. Concluding the case that day was not such a reason. The course taken by the Magistrate resulted in a denial of procedural fairness to Mr Noble. 22 The magistrate's refusal of the adjournment was a decision which could not reasonably be reached. The magistrate's discretion miscarried. In Thornberry v The Queen (1995) 69 ALJR 777 the High Court in a joint judgment said: "Of course, the refusal of an adjournment is an exercise of a discretion and the respondent submits that no ground exists for reviewing the trial judge's decision. The principles governing the review of the discretionary judgment are well established. One ground for review is: 'that the result is so unreasonable or plainly unjust that the appellate court may infer that there had been a failure properly to exercise the discretion which the law reposes in the court at first instance: House v The King. ' That is taken from the judgment of Kitto J in Australian Coal & Shale Employees' Federation v The Commonwealth. See also R v McGill . In this case the refusal of the adjournment resulted in the appellant's being unable adequately to present his case. The discretion miscarried." 23 Applying those remarks to the present case, the decision of the magistrate must be quashed. 24 I come to the main point at issue, namely, whether the matter should be re-heard by another magistrate or remitted to the magistrate who found the offence proved. The Crown submitted that there was no indication that the magistrate brought anything but an open mind to the consideration of the evidence before the court and that it was he who raised the question of the admissibility of a conversation which the police had with him and ultimately held it to be inadmissible. The magistrate acknowledged that the result may have been different if evidence had been taken from the defendant. 25 The Crown submitted that the test to be applied was that in Webb v The Queen (1993-4) 181 CLR 41 at 47, namely, "whether fair minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case." At 50 Mason CJ and McHugh J said "Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done." The Crown submitted that there were no facts in the present case which would satisfy that test. Reliance was also placed upon R v Masters (1992) 26 NSWLR 450 at 471 where the court said: "The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party." 26 The Crown submitted that this reasoning applied a fortiori, to the present case where the magistrate has given indications that he might decide the case differently if there is appropriate evidence before the court. 27 During the discussions with counsel reference was made to the position which arises on a Case Stated by a magistrate or District Court judge and the court is of the opinion that an error or law has been made and remits the matter to the same magistrate or judge to be further dealt with according to law. Usually, before the case is stated the magistrate or judge has made all necessary findings of fact. Mostly, in these circumstances the resolution of the question of law resolves the case and no further hearing of evidence is necessary. However, in some instances, particularly where evidence has been wrongly rejected (or perhaps wrongly admitted) a further hearing on the evidence will be necessary. If the magistrate or judge has made findings of credibility it may be difficult for him to continue to hear the matter if there are sound complaints of apprehension of bias. 28 Mr Noble relied on the decision in Grassby v The Queen (1989) 168 CLR 1. At 20 Dawson J (with whom Mason CJ, Brennan and Deane JJ agreed on this point) stated that the test to be applied when bias is raised is: "… whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him …, that is a matter which must be determined objectively …" 29 In Brackenreg v Comcare Australia (1995) 56 FCR 333 Sheppard J extensively criticised the decision of a Tribunal. One question was whether the Tribunal should be differently constituted when the matter was re-heard or further heard. Sheppard J at 352 F said: "I think it would be quite wrong to send a matter back to a tribunal such as the Tribunal here after a lengthy criticism of the way in which its decision has been arrived at and ask it to give additional reasons for its conclusions. I am not suggesting for a moment that the Tribunal did not or would not act in good faith. But, in the administration of justice, appearances are as important as actualities. It would be very difficult to persuade a reasonable person observing what had happened that justice had necessarily been done if it turned out that the decision remained as it is. In my opinion, the matter should be remitted to the Tribunal for rehearing before a different member." 30 In Reg v Bow Street Metropolitan Stipendiary Magistrate [2000] 1 AC 119 at 139 Lord Nolan said: "… in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality." 31 Lord Hope of Craighead also stressed the importance of justice being seen to be done. 32 In the present case the magistrate, in order to find the offence proved had to accept the evidence of Mr Saunderson and reject the attack made in cross examination upon him, namely, that Mr Noble had been given authority to dispose of the remainder of the steers or had the consent of the stock and station agent via Mr Saunderson to do so. Further, the magistrate had to be satisfied beyond reasonable doubt principally upon Mr Saunderson's evidence of Mr Noble's intention to steal and his lack of authority or consent or his lack of belief that he had any authority or consent. In practical terms the magistrate had to be satisfied beyond reasonable doubt of the truth of Mr Saunderson's evidence. This is not a case of simply receiving additional evidence. 33 Both Mr Noble and fair minded members of the public might entertain a reasonable apprehension that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the present case for these reasons: (a) The magistrate has already found the offence proved. (b) Such finding entails the acceptance of the evidence of Mr Saunderson to a high degree and proof of each of the elements of the offence beyond a reasonable doubt. (c) The magistrate has been found to have denied procedural fairness and to have acted unreasonably in refusing the application for an adjournment to call the evidence of Mr Noble. The magistrate had, inter alia, attached too much importance to resolving the case in the late afternoon of 27 March 2000 and too little weight to the injustice he was about to cause. He had proceeded to conviction with unseemly haste. 34 To use the language in Webb v The Queen, supra, I conclude that fair-minded people might reasonably apprehend or suspect that the magistrate his prejudged or might prejudge the case. It should be heard before another magistrate. 35 I make the following orders: (a) Set aside the order of the magistrate refusing to adjourn the hearing of the charge of larceny as a bailee on 27 March 2000 so as to enable Richard Warnock Noble to attend and give evidence; (b) Quash the finding of the magistrate that the offence of larceny as a bailee was proven; (c) Remit the matter to the Local Court for re-hearing before another magistrate. (d) The Director of Public Prosecutions pay the costs of Mr RW Noble of this application.