REGINA v. ST. ALDER [2005] NSWCCA 95

New South Wales Court of Criminal Appeal

CITATION: REGINA v. ST. ALDER [2005] NSWCCA 95

HEARING DATE(S): Monday 14 March 2005

JUDGMENT DATE: 14 March 2005

JUDGMENT OF: Adams J at 1/29; Bell J at 38; Hall J at 2

DECISION: The application for extension of time to bring an appeal is dismissed.

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986

House (1936) 55 CLR 499 O'Meara [2001] NSWCCA 195 CASES CITED: BWM (1997) 91 A. Crim. R. 260 Basha (1989) 39 A. Crim. R. 337

REGINA v. PARTIES: ST. ALDER, Kevin Leslie

FILE NUMBER(S): CCA No. 2004/2729

Crown: D. Woodburne COUNSEL: App: In person

Crown: S. Kavanagh SOLICITORS: App: In person

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT JUDICIAL OFFICER: Syme, LCM

IN THE COURT OF CRIMINAL APPEAL 2004/2729 CCAP

ADAMS, J. BELL, J. HALL, J.

MONDAY 14 MARCH 2005 REGINA v. KEVIN LESLIE ST. ALDER Judgment 1 ADAMS, J: I will ask Hall, J. to deliver the first judgment. 2 HALL, J: In this matter, Kevin St. Alder makes application to the court for an extension of time to file a s.5F notice of appeal in respect of a decision of the Local Court Deputy Chief Magistrate Ms. Syme made on 17 September 2004. It is claimed that on that date the learned magistrate refused an application to adjourn committee proceedings at which the applicant was not present, notwithstanding that he was represented by his solicitor on that date at the proceedings. 3 If this court were to grant an extension of time for the bringing of an appeal under s.5F, Mr. St. Alder has indicated he would seek to rely upon a ground of appeal which claims error in the court below allowing evidence to be taken in his absence. 4 He was been charged pursuant to s.195(b) of the Crimes Act 1900 with an offence that:- "On 9 February 2003 at Edgecliff the accused maliciously damaged by means of fire a dwelling house at 47 Cameron Street, Edgecliff". 5 The Crown case in part is built upon evidence related to an apparent point of entry in the early hours of 9 February 2003, namely a front window which had been smashed and blood found on the broken glass and on curtains and the floor surrounding the window. The Crown also relies upon DNA evidence taken at the scene of the fire and it is not necessary for the purposes of this application to detail further the factual matters concerning the offence alleged against the applicant or the evidence available to the Crown to establish it. 6 The proceedings were listed on Thursday 10 June 2004 before the Deputy Chief Magistrate, on which date an application was made to the court on Mr. St. Alder's behalf by his then solicitor, Ms. Bannister, for leave to cross-examine certain Crown witnesses who were expert witnesses as distinct from witnesses as to fact. The Crown opposed the application contending that the matter should proceed as a paper committal. 7 The outcome of that application was that the Deputy Chief Magistrate did make a number of rulings including the granting of leave to cross-examine Detective Senior Constable Ingram with respect to particular issues, Inspector Ross Broughan as to the cause of the fire and related matters and Sergeant Callister (in relation to the evidence pertaining to blood that was found). 8 On Friday 17 September 2004, the Deputy Chief Magistrate was informed by the legal representative for the informant that the applicant had been bail refused in relation to other maters and was therefore not present at the Local Court, Downing Centre. No orders had been made for his attendance on 17 September. 9 Mr. Donnelly, a solicitor from Ms. Bannister's office, advised the court that whilst he had personally been unaware of these matters his "office did know" and he added:- "I guess it was an oversight on our part, just to be fair to the court, it is not the court's fault." 10 The court was informed by Mr. Donnelly that the applicant had been taken into custody on either 29 or 30 August 2004. 11 The Deputy Chief Magistrate indicated that she proposed to proceed with the taking of evidence on 27 September and indicated to Mr. Donnelly she proposed to do so:- "… only so far as taking of evidence, that will give you an opportunity to get any last minute instructions if you need to …" 12 The matter was stood in the list to determine whether the applicant could be brought to court at short notice. The Deputy Chief Magistrate stated that she could not see a disadvantage to the applicant if it could not be done and the evidence was taken. 13 It is important for the present application to observe three matters. 14 The first is the evidence to be taken on 17 September 2004 was, as indicated, in the nature of expert evidence and evidence concerning particular aspects of the investigation. It did not relate to factual evidence of lay witnesses pertaining to incidents or observations in the nature of eye witness evidence. 15 The second was that no application was expressly made by the applicant's solicitor for an adjournment. 16 Thirdly, subject to one matter, there is no evidence of any specific or identifiable evidence of disadvantage or detriment to the applicant in the court below by allowing the matter to proceed. 17 The matter to which I just referred to pertains to Mr. St. Alder's document that has been handed up by way of submission containing a history of the matter in which he records certain matters. He refers to the fact that Ms. Bannister asked him to make a list of questions that he wished to be asked and he said he made a list of 72 questions. Although he says reading from the transcript one can see that some of the questions were asked, he says his presence would have led to further questions being put based upon the witness' answers and further questions "by my lawyer". What is not stated – and I am not being critical – is that there were no particular issues identified by the applicant that were not pursued or matters, whether in the nature of questions or otherwise, that, not having been raised, produced some particular disadvantage to him in terms of issues not being raised with one or other of the expert witnesses. 18 An examination of the transcript of 17 September 2004 reveals, indeed, that the cross-examination of the three witnesses I have referred to by Mr. Donnelly was consistent with the rulings made on 10 June 2004 as to what evidence could be probed by way of cross-examination including the presence and location of blood, the issue of blood dilution, blood pattern, the source and possible causes of the fire, patterns of burning and intensity and duration of burning. 19 The transcript examination provides confirmation that Mr. Donnelly had been briefed on the relevant issues and pursued them in conformity with what one would expect. 20 Additionally, at no point does the transcript reveal any difficulty in Mr. Donnelly proceeding without the applicant being present and no application for an adjournment or of any other kind was made by Mr. Donnelly to the court during the cross-examination of the witnesses. 21 Today, the applicant has put before the court an affidavit of Mr. Mark Donnelly of 9 March 2005. It is not necessary to refer to the detail contained in the affidavit other than to say it records some history of the matter but those matters do not bear upon questions of prejudice or possible detriment from the circumstances that arose on 17 September. 22 The Crown has filed written submissions and they raise issues including whether there was any interlocutory order or judgment actually made by the Deputy Chief Magistrate and whether there was a refusal by the Deputy Chief Magistrate to grant an adjournment. The respondent says that the applicant's application assumes there was a refusal and that fell within the scope of s.5F. Authorities have been referred to in the submissions and I need not repeat or identify those authorities. 23 Assuming for the purposes of this application that the provisions of s.5F are satisfied, the important issue is whether there is a basis for an assertion of error in this case in, what was at the end of the day, was an exercise of discretion by the Local Court. It is fundamental that an appellate court such as this will only intervene to correct a discretionary decision concerning, as for example, a decision whether or not to grant an adjournment in rare cases only (see House v. The King (1936) 55 CLR 499, 504-505; Regina v. O'Meara [2001] NSWCCA 195. The court has been referred in the Crown's written submissions to the principles stated by Hunt, CJ. at CL. in Regina v. BWM (1997) 91 A. Crim. R. 260 at 266. 24 It may be assumed for present purposes that there was an effective refusal to adjourn on 17 September and further that this constituted an interlocutory judgment or order within the provisions of s.5F of the Criminal Appeal Act. However, assuming those matters, the applicant must establish that the Deputy Chief Magistrate's decision to proceed on 17 September in his absence was affected by a relevant error and, moreover, that by reason of such error a question of miscarriage of justice has arisen. 25 A question has been raised in the Crown's submissions as to the provisions of s.71 of the Criminal Procedure Act 1986 which relates to the presence of an accused when evidence is taken in committal proceedings and whether or not that is an absolute requirement. It is not necessary to finally resolve the question of interpretation of s.71. At the end of the day, the fundamental question becomes whether, even assuming that there was an application for an adjournment, and an error in a refusal of the adjournment, it resulted in a miscarriage of justice. This court is particularly concerned about that issue in determining the merits of the present application. 26 The Deputy Chief Magistrate had to balance a number of factors. Those have been identified in the written submissions alleged on behalf of the Crown including cost and delay occasioned by the adjournment and that, of course, is not of itself determinative. Additional matters such as inconvenience of witnesses, one of whom travelled from Albury and another in an advanced state of pregnancy were also considered. 27 The fact that no particular prejudice or detriment had been claimed or identified, the fact that the applicant was represented by Donnelly, who it seems from the transcript, was in a position to cross-examine on all relevant matters falling within the areas the court permitted, the history of this matter both before 17 September 2004 and before the events of that date, I consider that there is no basis whereby the appeal for which the applicant seeks for extension of time has any arguable prospects of success. It is on this ground that I consider it is not an appropriate case for the court to grant an extension of time to bring an appeal in respect of the decision of the Deputy Chief Magistrate. 28 Accordingly, in my opinion, this application for extension of time to bring an appeal should be dismissed. 29 ADAMS, J: The requirement that a person who is subject to criminal process should be present at proceedings in which his or her rights may be affected is a very important independent right. The fact that the hearing in question is a committal proceeding does not lessen its significance. It is one of the fundamental elements of criminal justice. This principle is reflected in s.71 of the Criminal Procedure Act 1986 which states:- "The accused person must be present when prosecution evidence is taken, unless this Division or any other Act or law permits the evidence to be taken in the accused person's absence." 30 Leaving aside the common law concerning circumstances where an accused person himself or herself makes it practically impossible for them to be present, s.72 of the Act provides the following exception:- "(1) The Magistrate may excuse the accused person from attending during the taking of prosecution evidence if satisfied that the accused person will be represented by a barrister or solicitor while the evidence is taken or if satisfied that the evidence is not applicable to the accused person. (2) A period during which the accused person is so excused is taken to be an adjournment for the purposes of dealing with the accused person." 31 In this case it is obvious from what has already been said by Hall J. that the applicant, being the relevant accused person, was indeed represented by a solicitor whilst the evidence was taken. Moreover, that solicitor was able to and did in fact cross-examine the relevant witnesses. The other exception does not apply. One real difficulty which s.72 presents in the present context is the meaning of the phrase "may excuse the accused person" from attendance (my emphasis). Prima facie, that language suggests that the application must come from the accused person, so that the presence of an accused person from a proceeding cannot be excused merely because, for example for reasons of convenience to witnesses the Crown Prosecutor seeks to proceed in his or her absence, at least where that absence is not in any way due to the fault of the accused person. Here, the application of s.72 is complicated by the fact not only that Mr. Donnelly continued to represent the applicant (to which I turn next) but also appeared to concede that s.72 either did not apply to prevent the proceedings continuing or else did not prevent the Deputy Chief Magistrate from so proceeding. 32 It is very unclear from the transcript of what occurred below whether indeed Mr. Donnelly was instructed to proceed in the circumstances. It is clear from things said by him to the Deputy Chief Magistrate that he perceived that his client would be most unhappy, at the least, at being absent whilst this evidence was being called. He attempted to contact his client but was unsuccessful and thus had no explicit instructions to continue his representation. It may be that Mr Donnelly was in truth in a position where he was not retained to represent the applicant if the applicant was not present. If so, he should have withdrawn, in which event s.72, if it applied, must have had the consequence that the hearing could not proceed. However, from the point of view of the Deputy Chief Magistrate, the fact that Mr. Donnelly continued to represent the applicant must have been taken and rightly taken by her to imply that he was instructed to continue even in the unfortunate absence of his client and despite his expression of reluctance to do so while his client was absent. 33 It seems clear that, aside from the fact that the applicant was not present, no miscarriage of justice occurred. The evidence was taken in a public hearing. It was taken in the presence of his solicitor, who was armed with the questions which the applicant wished to be asked and also his professional judgment as to which questions it was appropriate to ask. Furthermore, in the event of any shortcoming that may be demonstrated in that questioning, there is no reason why further questions cannot be directed to the witnesses through the Crown in writing and answers obtained well before the trial, if there is to be one, or an application may be made to the trial judge consistent with the decision in Basha (1989) 39 A. Crim. R. 337 to ensure that the evidence which was taken on 17 September is adequately explored before trial. 34 I feel bound to say that the Deputy Chief Magistrate acted quite peremptorily in apparently insisting, before giving Mr. Donnelly an opportunity to make an application, that the matter was going to proceed and that she did not intend to adjourn it. However, that language, though strong, would not have prevented Mr Donnelly from making an appropriate application for adjournment and submitting, if he thought appropriate, that s.72 did not arise on the ground that his client was not seeking to be excused. 35 In the result, however, it seems to me that the matter was permitted to proceed upon the basis that the Deputy Chief Magistrate had jurisdiction to to take the evidence and, although it appears reluctantly, Mr. Donnelly did not make it clear to Her Worship that either he was unable to proceed because he did not have proper instructions or that the matter ought not to proceed for any other articulated reason. 36 In this Court it has not been suggested by the applicant that Mr Donnelly did not have a sufficient retainer to enable him to represent him at the hearing in question. It is clear, however, that the application to proceed with taking the evidence was not made by the applicant or on his behalf but by the prosecution. Whether such an application is within s.72 is a doubtful question of some difficulty. However, as it was not the subject of submissions below, I would be reluctant to permit it to be raised in this application to extend time. 37 In light of the fact that I cannot discern any substantial miscarriage of justice, apart from the applicant's non-appearance on the day in question, I am prepared to accede with some real doubt to the order proposed by Hall J that leave to extend time for this application should be refused. 38 BELL, J: I agree with the order proposed by Hall, J. for the reasons that his Honour gives. 39 ADAMS, J: Accordingly, the order is that the application is dismissed. **********