Roberts v McPherson [2008] ACTSC 12 (29 February 2008)

Last Updated: 7 May 2008

STEPHEN HENRY ROBERTS v CRAIG McPHERSON

[2008] ACTSC 12 (29 February 2008)

Magistrates Court Act 1930 (ACT), s 218

ON APPEAL FROM THE ACT MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 4 of 2007

Judge: Gray J

Supreme Court of the ACT

Date: 29 February 2008

IN THE SUPREME COURT OF THE )

) No. SCA 4 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: STEPHEN HENRY ROBERTS

Appellant

AND: CRAIG McPHERSON

Respondent

ORDER

Judge: Gray J

Date: 29 February 2008

Place: Canberra

THE COURT ORDERED THAT:

1. The appeal be upheld.

2. The convictions and sentences imposed on the appellant in the ACT Magistrates Court on 19 January 2007 be set aside.

3. The proceedings be remitted to the ACT Magistrates Court for further hearing and decision.

1. The appellant, Stephen Henry Roberts, was convicted in the ACT Magistrates Court on 19 January 2007 in respect of offences that occurred on 10 July 2006. Those offences were being in possession of stolen property, in respect of which he was sentenced to one month imprisonment, and driving whilst his licence was suspended, to which he was also sentenced to one month imprisonment. As a consequence of the commission of those offences, which involved a breach of a recognisance of a suspended sentence of six months imprisonment, he was sentenced to three months imprisonment. Each of the sentences was made cumulative upon each other. That meant that he faced a total sentence of five months imprisonment.

2. The appellant appeals against these convictions. His appeal, which whilst formally appealing the convictions, seems to be directed towards the severity of the penalties imposed. The appeal document contains the appellant's handwritten responses to the pro forma and was filed, it appears, without legal advice. On the appeal of this matter, he was represented by Mr Sabharwal of counsel and it was proposed that the grounds of appeal be amended to reflect matters arising out of the course that the proceedings took and to maintain the appeal against the convictions.

Background

3. The incident which gave rise to these charges arose when a Falcon panel van in which the appellant was in with his brother, Michael Roberts, was seen by police to make a u-turn and cross the wide grass median strip of the Monaro Highway as it was approaching a random breath-test and vehicle inspection point. The consequence of that action was that the panel van was pursued by two police vehicles. One of those police vehicles was fitted with an in-car video recording device facing out the windscreen of the vehicle. Eventually, the vehicle in which the two brothers were, came to a stop. When stopped, the appellant was seen to throw an object into long grass adjacent to the vehicle. The object was later found to be a box containing an apparently new Sony play-station. The vehicle in which the two brothers had travelled was unregistered and uninsured. The appellant's driver's licence had been suspended.

4. Both Michael Roberts and the appellant were separately charged with unlawful possession of the Sony play-station that the appellant had been seen to throw into the long grass. It was the prosecution case that that play-station was reasonably suspected of being stolen.

5. The appellant was further charged that he had driven the vehicle whilst his licence was suspended and that he had driven it whilst it was uninsured and unregistered. The matter was set for trial in the ACT Magistrates Court and, on 19 January 2007, the matter proceeded to hearing.

The hearing

6. The appellant's brother was not represented at the hearing but a lawyer sought to represent the appellant. It is unfortunate that the lawyer attended the hearing at a later time than the magistrate thought that he should have. He appears from the transcript times to have arrived at court a minute or two after the court commenced. As will be seen, the proceedings seem to be coloured by the magistrate's annoyance at that circumstance.

7. It was a significant issue in these proceedings whether the appellant was the driver of the vehicle. At the outset, the appellant's brother announced that he wanted "to accept the charges" because he (the appellant's brother) was the person who was driving the car.

8. The hearing proceeded with the first witness being called. That witness was Constable Meyer who was the driver of the marked police vehicle which contained the in-car recording device. His evidence was that his vehicle was only a short distance behind the vehicle which he was pursuing. The vehicle stopped off the roadway and he said that the driver's door opened and the appellant "exited" the vehicle. He then saw the appellant's brother get out the passenger side of the vehicle.

9. A DVD from the in-car recording device was played and tendered in evidence through Constable Meyer. To the contrary of the evidence given by Constable Meyer, the portion of the DVD that was played appears to show his vehicle to be quite some distance behind another police vehicle which was apparently in pursuit. When the vehicle, which was apparently the subject of the pursuit, first comes into the view of the video, it is some metres off the road and, as Constable Meyer's vehicle approaches, it is seen to be at an angle to the roadway. At all times it appears to be stationary. The other police vehicle is seen in the video as pulling up on the edge of the roadway roughly parallel to the stationary vehicle. At that time, the video shows the passenger side door of the vehicle open and a person, who is later to be identified as the appellant, is seen outside the vehicle and walking towards the police vehicle that is pulling up on the edge of the roadway alongside the stationary vehicle but some metres from it. It is not until Constable Meyer's vehicle appears to be almost coming to a stop behind the stationary vehicle that the appellant's brother is seen on the video getting out of the vehicle from the passenger side. The vehicle can now be identified as a panel van.

10. At this time, the appellant's brother is seen to walk slowly to Constable Meyer's vehicle and then return to the vicinity of the panel van. It is then that the video shows the appellant walking back from the vicinity of the roadway and across the front of the panel van into the long grass where Constable Meyer said in his evidence that he saw him throw an object into the grassland (although the video does not show that action).

11. The video was tendered in evidence. The initial first few minutes were shown to the court. The portion of the video that was shown I take to be that which I have described. The balance of the video showing what happened after the incident described by Constable Meyer was not. The prosecution then tendered evidentiary certificates showing that the appellant's licence had been suspended and that the panel van was not insured for third party insurance.

The application for an adjournment

12. At this point, the lawyer acting for the appellant requested a "brief" adjournment. The following exchange took place:

HIS HONOUR: Did you want to speak to Ms McMullan, in respect of your client, not Ms McMullan?

[LAWYER]: Your Honour, I've come to court in relation to this matter - - -

HIS HONOUR: Yes.

[LAWYER]: - - - at short notice, without the opportunity of speaking to my client. The situation is this, that I do not even have a statement of facts. It's probably under those circumstances, and there's the short notice, that unless I withdraw from this matter, I'm not in a position to adequately represent my client at this stage.

HIS HONOUR: Well, looking at the video I don't know how you are, but anyway.

13. The magistrate's last remark is unfortunate. Both Mr Doig, who appeared as counsel for the Director of Public Prosecutions, and Mr Sabharwal agreed that the DVD does not show what the magistrate appears to assume that it showed. Both counsel were agreed that the DVD certainly did not show that the appellant had, in fact, exited from the driver's side door.

14. At that stage of the proceedings, it was highly inappropriate of the magistrate to suggest that the lawyer had no grounds for continuing his representation of his client based on what was shown on the video. Nevertheless, the magistrate did grant a 25 minute adjournment. After that time the following exchange took place:

[LAWYER]: Your Honour, I've taken the opportunity to speak to my friend in relation to the progress of today's hearing. You have indicated earlier my friend is prepared to proceed, witnesses are present in court. I've also taken some brief instructions from my client in relation to why legal advice wasn't obtained earlier in relation to this matter. He instructs me that he was under the impression - - -

HIS HONOUR: What's your application?

[LAWYER]: My application, your Honour, is for an adjournment of this hearing, a brief adjournment, to allow me to look at the evidence to make representations to the [sic] my friend's office - - -

HIS HONOUR: No, disallowed. You have accepted the brief, [lawyer]. Whenever you accepted it, you accept a brief on the basis that you will appear on behalf of the defendant. Your conduct is inappropriate. If you are unable to be properly instructed, you should not have accepted the brief.

[LAWYER]: Yes.

HIS HONOUR: You have come to this court, you're late, you were not here at 10 o'clock, you've come here, you now ask for an adjournment because you're not properly instructed. I refuse your adjournment. Next. Your conduct is inappropriate. You should not have accepted a brief if you could not be properly instructed. Next.

15. The magistrate's conduct in requiring the matter to proceed immediately does not appear to me to be at all defensible. No proper opportunity was given for the lawyer to explain his, or his client's, position as to why the lawyer did not have adequate instructions. In any event, for a criminal matter to proceed in a circumstance where a lawyer maintains that he does not have adequate instructions to enable him to understand and, if necessary, to challenge the evidence that is to be given, that circumstance has the consequence of potentially denying a fair trial to an accused.

16. There are steps that a court can take both professionally or by way of costs in respect of a lawyer's conduct in the event that the application for an adjournment is the fault of lawyer and not the client. I am, however, far from saying that this was such a case. Whatever be the case in that regard, in my view, it is not appropriate to disadvantage an accused person because of a judicial officer's dissatisfaction with a lawyer's conduct.

17. In the present case, the matter is compounded by the misapprehension that the magistrate had as to what the video showed. If the lawyer had been permitted, as he had requested, the opportunity to look at the evidence, he could have given careful consideration to the content of the video. As it turned out, he was obliged to cross-examine the police witnesses without that benefit and knowing that the magistrate had taken a certain view with respect to what the video showed. The conduct of the case for the appellant was adversely affected as a consequence and the case should not have proceeded at that point.

18. This matter came on for hearing before me on 20 December 2007. After hearing counsel, I considered that the proceedings had miscarried in the way that I have set out. Because the matter was not properly heard in the Magistrates Court, and rather than this court attempting to rehear the matter, I considered that it would be appropriate to exercise the court's power on appeal provided by s 218(1) of the Magistrates Court Act 1930 (ACT). That sub-section provides:

(1) On an appeal to which this division applies, the Supreme Court may--

...

(c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.

19. On 20 December 2007, I upheld the appeal, set aside the convictions and sentences imposed on the appellant in the ACT Magistrates Court on 19 January 2007 and remitted the proceeding to the Magistrates Court for further hearing and decision.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 29 February 2008

Counsel for the appellant: Mr J Sabharwal

Solicitor for the appellant: Slater & Gordon incorporating

Gary Robb & Associates

Counsel for the respondent: Mr A Doig

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 20 December 2007

Date of judgment: 29 February 2008