Tassell v Hayes [1987] HCA 21; (1987) 163 CLR 34 (5 June 1987)

HIGH COURT OF AUSTRALIA

TASSELL v. HAYES [1987] HCA 21; (1987) 163 CLR 34
F.C. 87/020

Criminal Procedure (S.A.)

High Court of Australia
Mason(1), Wilson(1), Brennan(2), Deane(3) and Dawson(1) JJ.

CATCHWORDS

Criminal Procedure (S.A.) - Summary jurisdiction - Minor indictable offence triable summarily - Power of court of summary jurisdiction to proceed in absence of appearance by or on behalf of defendant - Justices Act 1921 (S.A.), ss. 64, 106(1), 122.

HEARING

1987 February 4, June 5. 5:6:1987
APPEAL from the Supreme Court of South Australia.

DECISION

MASON, WILSON AND DAWSON JJ.: The respondent laid an information against the appellant, charging that on 4 April 1985 at Lower Mitcham in South Australia he entered a dwelling-house with intent to steal therein, contrary to s.171 of the Criminal Law Consolidation Act 1935 (S.A.), as amended. The offence is a minor indictable offence as defined in s.4 of the Justices Act 1921 (S.A.), as amended ("the Act"). It could therefore be heard and determined, in a summary way, by a court of summary jurisdiction in accordance with Division II of Part V of the Act.

2. The appellant was brought before a court of summary jurisdiction in Adelaide. There were several remands, leading up to the fixing of 23 September 1985 as the date on which the matter would be heard. The appellant was released on bail to appear on that date. When the matter was called on 23 September the appellant failed to answer to his bail. However, counsel appeared on his behalf. The prosecutor requested leave to proceed "ex parte" in the absence of the appellant and the special magistrate acquiesced in that course. There was no objection by counsel for the appellant. It appears from the transcript of the proceedings that the identity of the alleged offender was in issue but, as Bollen J. observed in the Full Court, it would be speculative to suppose that the appellant deliberately stayed away from the hearing so as to avoid the risk of a positive identification by the principal witness for the prosecution. The case proceeded. Witnesses for the prosecution were cross-examined by counsel for the appellant. At the close of the prosecution's case counsel submitted that as a matter of law there was no case to answer. That submission being overruled, counsel then led evidence for the defence and addressed the court. At the conclusion of addresses the magistrate indicated that he would deliver his decision on the following morning and adjourned the proceedings. The next morning the appellant was present, with a different counsel. His earlier counsel was given leave to withdraw. No application of any kind was made by or on behalf of the appellant. The magistrate convicted the appellant and remanded him in custody to 2 October 1985 for the fixing of penalty. On that day he sentenced him to imprisonment for six months.

3. The appellant appealed to the Supreme Court of South Australia and the matter came before Jacobs J. Before proceeding to deal with the merits of the appeal his Honour reserved for the consideration of the Full Court, pursuant to s.49 of the Supreme Court Act 1935 (S.A.), as amended, the following points of law:

1. Does a court of summary jurisdiction have the power
to proceed with an ex parte hearing and
determination of an information for a minor
indictable offence?
proceed ex parte properly made in the circumstances
of this case?
The members of the Full Court (Jacobs, Mohr and Bollen JJ.), while doubting whether it was appropriate to describe a hearing conducted in the presence of the appellant's legal representative as an ex parte hearing, nevertheless answered the substance of the two questions in the affirmative. It is from that decision that the present appeal is brought.

4. It is argued for the appellant that the magistrate had no power to proceed in the absence of the defendant and that in any event his decision to do so was a wrongful exercise of discretion. The substantial issue is whether, on the proper construction of Division II of Part V of the Act, a court of summary jurisdiction may hear a charge of a minor indictable offence in the absence of the defendant, notwithstanding that the absent defendant is represented by counsel. The resolution of that issue is not without difficulty because of the range and complexity of the relevant provisions of the Act.

5. The procedure attending the hearing and determination of a minor indictable offence was substantially revised by the Statutes Amendment (Jurisdiction of Courts) Act 1981 (S.A.). It is necessary, in order to appreciate fully the legislative intent expressed in that revision, to sketch briefly the procedure as it was prescribed by the Act prior to 1981. Division II of Part V of the Act, commencing with s.120, dealt with minor indictable offences. A "minor indictable offence" was defined in s.4(1) to mean an:

"indictable offence, which is capable of being, and
is, in the opinion of the justice before whom the
case comes, fit to be, heard and determined in a
summary way under the provisions of Division II of
Part V of this Act".

It was common ground between the parties that prior to 1981 the hearing of an information charging a minor indictable offence by a court of summary jurisdiction commenced as a preliminary examination preparatory to committal for trial. In our opinion, that view is clearly correct. Section 106a of the Act was central to the legislative scheme. This section, until its repeal in 1981, formed part of Division I of Part V of the Act which was concerned with committal proceedings. So far as material, the section read as follows:

"106a.(1) Where the defendant appears before a
special magistrate ... and the information charges
the defendant with an offence cognizable by a
special magistrate ... under section 120, the
defendant at any stage of the proceedings, and
whether any statement has been taken from any
witness or not, may plead guilty to the offence ...
charged against him, and the magistrate ... shall
at the commencement of the proceedings inform the
defendant of his right so to plead.

(2) If the defendant pleads guilty to any
such offence -

(a) the magistrate ... shall, in
relation to that offence, be a court
of summary jurisdiction within the
meaning of this Act;

(b) the procedure and powers of the
court shall be the same, and the
provisions of this Act shall apply,
as if the charge were a complaint
for a simple offence under this
Act;

(c) ...

(d) ...

(3) If after the defendant has so pleaded
guilty to an offence, the magistrate ... is ... of
opinion that the time for taking the plea should be
postponed -

(a) he ... may order that the plea of
guilty be withdrawn;

(b) thereupon all further proceedings in
respect of the offence shall be
conducted in accordance with this
Part;

(c) ...."

Division II of Part V contained further provisions dealing with the exercise of the jurisdiction conferred on a court of summary jurisdiction by s.120. Those provisions included the following:

"122.(1) The jurisdiction conferred upon a court
of summary jurisdiction under section 120 of this
Act shall be exercisable subject to the provisions
of this section.

(2) At any time in the course of proceedings
in respect of a minor indictable offence up to and
including the completion of the case for the
prosecution, the defendant may elect to be tried
upon indictment and upon the making of that
election the court shall not proceed to convict the
defendant but may commit him for trial upon
indictment.

(3) If it appears to the court that the
offence, by reason of its seriousness, the
intricacy of the facts in issue, the difficulty of
any questions of law likely to arise at the trial,
or for any other reason, ought to be tried upon
indictment, it shall not proceed to convict the
defendant but may commit him for trial upon
indictment.

(4) Where a defendant appears before a court
of summary jurisdiction charged with a minor
indictable offence, the court shall, if the
defendant does not elect to be tried upon
indictment, inform him, at the completion of the
case for the prosecution, whether or not it
proposes to deal with the case in a summary way.

(5) If the defendant duly elects to be tried
upon indictment, or the court determines not to
deal with the case in a summary way, the court
shall complete the preliminary examination.

125. (1) When justices or a special magistrate
proceed to dispose of any case as a minor offence
the charge shall, in the case of a parol
information, be reduced into writing, and the
defendant shall be asked whether he is guilty or
not guilty of the charge.

(2) Thereafter the justices or special
magistrate shall be a court of summary jurisdiction
within the meaning of this Act, and (subject as
hereinafter appears) the procedure and the powers
of the court shall be the same, and the provisions
of this Act shall apply, as if the charge were a
complaint for a simple offence under this Act.

126. When the evidence of any witness has been
taken before the justices constituting the court,
such evidence need not be taken again, but any such
witness shall, if the defendant so requires, be
recalled for the purposes of cross-examination."

6. It is clear from ss.106a(2) and 125 that before the 1981 amendments the hearing of a minor indictable offence by a court of summary jurisdiction proceeded in all respects as a preliminary examination unless and until a defendant pleaded guilty and the court accepted the plea, or alternatively, in the absence of a plea of guilty the court resolved at the completion of the case for the prosecution to deal with the case in a summary way. It was only when either of those events occurred that the procedure and powers of the court were thenceforth to be the same as if the charge were a complaint for a simple offence under the Act.

7. It was also not contested by the parties that before 1981 the procedures outlined in Division I of Part V for a preliminary examination, procedures which undoubtedly required the attendance of a defendant in person (see, in particular, ss.106(1) and 110), also applied to the hearing by a court of summary jurisdiction of an information charging a minor indictable offence. The question is whether the amendments enacted in 1981 have the effect of allowing the hearing and determination of a minor indictable offence to proceed in the absence of the defendant.

8. The answer to the question we have just propounded depends primarily on the construction of the new s.122(1) which was substituted in the 1981 legislation for the repealed s.122(1). That sub-section now reads:

"122.(1) Subject to this Act, the procedure and
powers of a court of summary jurisdiction in
relation to the hearing and determination of a
charge of a minor indictable offence shall be the
same as if the charge were a complaint of a simple
offence."

Other significant changes which were made in 1981 include:

(a) Sections 106a, 125 and 126 were repealed;

(b) Section 122(5) was repealed and re-enacted with the
phrase "the proceedings shall continue as a
preliminary examination" being substituted for the
phrase "the court shall complete the preliminary
examination";

(c) Section 122(6) was inserted, reading as follows:

" (6) In proceedings before a court of summary
jurisdiction relating to a minor indictable
offence, the deposition of any witness for the
prosecution -

(a) shall be recorded in writing;

(b) shall be read over by, or read over
to, the witness; and

(c) shall be signed by the witness and
the special magistrate."

9. Ms Branson, who appeared as counsel for the respondent, argued that the effect of these changes was to convert, from the beginning, the hearing by a court of summary jurisdiction of an information for a minor indictable offence from a preliminary examination to a summary hearing as if the charge were a complaint of a simple offence. The proceedings will become a preliminary examination only if the defendant elects, in accordance with s.122(2), to be tried upon indictment or if, failing an election, it appears to the court at the completion of the case for the prosecution that the offence ought to be tried upon indictment (ss.122(3) and (4)).

10. In our opinion, the submission thus far should be accepted, notwithstanding that the implications which flow from the new s.122(1) are not altogether clear. The repeal of ss.106a, 125 and 126 and the insertion of s.122(6) are legislative steps which are consistent only with an intention to change the nature of the jurisdiction being exercised by a court of summary jurisdiction when it embarks on the hearing of an information for a minor indictable offence from a preliminary examination to a summary trial. The difficulty arises when one comes to work through the implications of that fundamental change. Ms Branson argued that for so long as the proceedings retain the character of a summary hearing the procedure and powers of the court are those contained in Division III of Part IV of the Act (commencing with s.61) dealing with the exercise of summary jurisdiction. The provisions of Division I of Part V relating to a preliminary examination have no application. To some extent, this submission must be correct. Thus it has been held by the Full Court of the Supreme Court of South Australia in Tepper v. Di Francesco (1984) 38 SASR 256 that failing an election to be tried upon indictment a defendant must be required, at the commencement of the hearing, to plead whether he is guilty or not guilty. But is the magistrate empowered to proceed with the hearing in the absence of the defendant? Ms Branson, in arguing for an affirmative answer to that question, observed that there are a number of provisions in Division III that authorize a magistrate to proceed "ex parte" in the absence of the defendant (ss.62(1), 62a and 65(7)) and there is also s.64 which in her submission applies to the present case. Section 64 reads:

"64. If both parties appear before the court,
either in person or by their respective counsel or
solicitors, then the court shall proceed to hear
and determine the matter of the complaint."

As we have seen, the appellant was represented at the hearing by counsel.

11. However, it may not follow that the summary hearing of a minor indictable offence will exhibit all the features of a hearing of a simple offence. Both s.120, which confers the jurisdiction, and s.122, which outlines the procedure to be followed, are conditioned by the words "subject to this Act". On the other hand, unless there is something in s.122 or elsewhere in the Act that militates against the application of s.64 the section provides ample warrant for the course taken by the magistrate.

12. Mr Tilmouth, counsel for the appellant, argued that s.64 had no application to the hearing of a minor indictable offence for the reason that, on its proper construction, s.122 precluded any resort to s.64. He argued that it was implicit throughout s.122 that the defendant should be present in person.

13. We have come, although not without difficulty, to the conclusion that in substance the submission is correct and should be accepted. Section 122(2) confers on a defendant in express terms an unencumbered right to be tried by a jury. The election may be made at any time in the course of the proceedings up to and including the completion of the case for the prosecution. This right ought not be diminished save by language which is reasonably capable of no other construction: Sargood Bros. v. The Commonwealth [1910] HCA 45; (1910) 11 CLR 258, per O'Connor J. at p 279, and see the other cases referred to in Pearce, Statutory Interpretation in Australia 2nd ed. (1981), par.103. It is implicit in sub-s.(2) that, even though represented by counsel, a defendant will be present to exercise his right in the light of the case made by the prosecution. Even if it be assumed that counsel for an absent defendant is entitled to make an election on behalf of his client, it does not follow that the mere presence of counsel, without any opportunity to take instructions as the prosecution case unfolds, sufficiently protects the right. However, we do not agree with Mr Tilmouth that it is obligatory upon the magistrate to inform the defendant of this right. It may, of course, in many cases be appropriate for such an intimation to be given, for example, where a defendant is not represented. But there is nothing in the section to oblige the magistrate, as a matter of law, to do so.

14. Again, we think that s.122(4) supports an implication that a defendant must be present in person at the hearing of a minor indictable offence. It requires the court to inform the defendant, at the completion of the case for the prosecution, whether or not it proposes to deal with the case in a summary way. The decision is one which may have serious consequences touching the liberty of a defendant and require decisions to be made by him concerning the further conduct of the proceedings. There should not be imputed to the legislature an intention that such a decision should be announced in the absence of the defendant and without his personal knowledge. The magistrate is obliged to inform the defendant.

15. Sub-sections (5) and (6) of s.122 are also relevant. The substitution in 1981 of the word "continue" for the word "complete" in sub-s.(5) envisages that at some point in the hearing the defendant may elect to be tried on indictment or the magistrate may himself conclude that the defendant ought to be so tried. If either of those developments occur, the proceedings shall continue as a preliminary examination. They must continue in the presence of the defendant: s.106(1) of the Act. Yet there is no recognition in the section that the defendant may not have been present during the proceedings to that point. In our opinion the underlying implication is that the defendant will have been present. If it were not so there would have to be an adjournment of the proceedings and steps taken to bring the defendant before the court. Given the meticulous ordering of procedure that is evident in other parts of the Act, we find it unlikely that the legislature would not have furnished the magistrate with specific guidance as to the procedure to be followed had it contemplated that the defendant might not be present throughout the hearing of a minor indictable offence.

16. Furthermore, with respect to sub-s.(6), it is to be expected that the depositions that are taken in accordance with that sub-section will be taken in the presence of the defendant. If it were not so, and the proceedings continue as a preliminary examination as envisaged by s.122(5), the consequence is that a defendant may be committed for trial in accordance with the provisions of Division I of Part V of the Act (which deals with the procedure leading to committal for trial of an indictable offence) in circumstances where there has been a failure to comply with s.106(1). That sub-section reads as follows:

"Where a defendant appears before a justice charged
upon an information with an indictable offence, the
justice, before he commits the defendant to trial,
or admits him to bail, shall, in the presence of
the defendant, take the statements of witnesses for
the prosecution."

Harmony between the two divisions is achieved only by construing the procedure set out in s.122 as requiring the hearing of a minor indictable offence to proceed in the presence of the defendant.

17. Finally, before leaving s.122, it may be observed that sub-ss.(2), (3) and (4), which represent the core of the special procedures attending the exercise of summary jurisdiction with respect to minor indictable offences, were not amended in 1981. They operated, prior to 1981, in the context of a hearing at which a defendant was present in person. It would be surprising if, being unchanged, they were not intended to continue to operate in a similar context after 1981. This consideration makes it unlikely that the opening words of sub-s.(4) - "Where a defendant appears before a court of summary jurisdiction charged with a minor indictable offence" - were intended to mean that a defendant may choose whether or not to appear on the hearing. In the context of the section and its legislative history, the words must be taken to be descriptive of the circumstances which give rise to the obligation imposed on the court by the sub-section.

18. Some confusion has been introduced into the consideration of this case by references to an ex parte hearing. The magistrate considered that by virtue of s.122(1) he was to hear and determine the charge as if it were a complaint of a simple offence. He obviously did not regard the presence of counsel for the defendant as the presence of the defendant because he paid no attention to s.64. He founded his authority to proceed with the hearing in the absence of the defendant on s.65(7) of the Act. That provision authorizes a court, in circumstances where a defendant who has been released on bail does not appear at the time and place appointed for the hearing of a complaint, to hear the complaint ex parte "and adjudicate thereon as fully and effectually to all intents and purposes as if the defendant had personally appeared before it at that time and place". With all respect - assuming, contrary to the fact, that the magistrate was correct in adopting in its entirety the procedure outlined in Division III of Part IV of the Act - we do not understand why it was thought necessary to rely on s.65(7) when s.64 would seem to be more appropriate in the circumstances, the defendant being represented by counsel. It may be that the prosecutor, by seeking leave for the hearing to proceed ex parte, focused attention on s.65(7) to the exclusion of other provisions.

19. It should be mentioned that Ms Branson also sought to call in aid the common law principle that confers on a trial judge a discretion in some circumstances to continue a trial in the absence of an accused person where that person has absconded whilst on bail during the course of the trial: Reg. v. Jones (No.2) (1972) 2 All ER 731. It suffices to say that the principle has no application in the context provided by Part V of the Act.

20. For these reasons, therefore, we conclude that the procedures prescribed by Division II of Part V for the hearing and determination in a summary way of a minor indictable offence do require the defendant to be present in person. In so far as the legislation is lacking in clarity we are obliged to resolve any ambiguity in a way which will preserve rights rather than destroy them. Our conclusion makes it unnecessary to consider a further submission that Mr Tilmouth advanced in reliance on s.29 of the Act.

21. We would allow the appeal. The first of the questions reserved for the consideration of the Full Court should be answered in the negative. The second question relating to discretion does not then arise. The matter should be remitted to the Supreme Court of South Australia for the consequential orders to be made.

BRENNAN J.: The appellant was charged on information with an offence under s.171 of the Criminal Law Consolidation Act 1935 (S.A.) in that he broke and entered a dwellinghouse with intent to steal. The circumstances were such that the offence charged was a "minor indictable offence" within the meaning of that term in s.4 of the Justices Act 1921-1981 (S.A.) ("the Act"). Subject to the Act, s.120 confers on a court of summary jurisdiction constituted by a special magistrate "jurisdiction to hear and determine, in a summary way, a charge in respect of a minor indictable offence". Section 122(1) of the Act provides:

" Subject to this Act, the procedure and powers
of a court of summary jurisdiction in relation to
the hearing and determination of a charge of a
minor indictable offence shall be the same as if
the charge were a complaint of a simple offence."

That is the governing provision when an information charges a minor indictable offence. Section 105a(1)(a) provides:

" Where a person is charged, upon information,
with a minor indictable offence but with no major
offence -

(a) the charge shall be dealt with by a court of
summary jurisdiction in the manner
prescribed by Division II".

Division II is headed "Minor Offences", and contains ss.120 and 122. The present case was therefore to be heard and determined as if the complaint were a complaint of a simple offence unless some other provision of the Act overrode or qualified the general direction given by s.122(1).

2. When a court of summary jurisdiction is hearing and determining a complaint of a simple offence, its "procedure and powers ... in relation to the hearing and determination" are prescribed by Div.III of Pt IV of the Act, the key provisions of which (for present purposes) are ss.64, 68 and 69. Section 64 provides:

" If both parties appear before the court,
either in person or by their respective counsel
or solicitors, then the court shall proceed to
hear and determine the matter of the complaint."

Section 68 provides for the procedure to be followed in hearing the matter if the defendant "does not admit the truth of the complaint" and s.69 provides for the determination of the matter when the matter has been heard: a matter is determined by convicting or making an order against the defendant or by dismissing the complaint. The Act thus prescribes a summary trial for simple offences and, subject to the qualifications presently to be mentioned, that is the mode of trial for charges of minor indictable offences. When a defendant fails to appear, whether in obedience to a summons (s.62(1)(b)) or in answer to bail granted after arrest (s.62a) or on an adjourned hearing (s.62(1)(ba) and (2) and s.65(7)), the court may, subject to certain conditions prescribed by those respective provisions, proceed to hear and determine the matter "as fully and effectually, to all intents and purposes, as if the defendant had appeared".

3. In the present case, the defendant (the appellant) at first appeared personally before the court, and he was remanded on recognizance to appear on 23 September 1985 when the hearing was to proceed. On that day the defendant failed to appear personally but his counsel appeared. The prosecution sought leave to proceed ex parte under s.65(7) and leave was given. The hearing of the matter proceeded. The prosecution called its evidence and counsel for the defendant called evidence on his behalf. The magistrate reserved his decision overnight. Next morning, when the magistrate determined the matter, the defendant was in fact before the court. The magistrate convicted the defendant and sentenced him to six months imprisonment. He appealed to the Supreme Court. Jacobs J. stated two questions of law for the opinion of the Full Court:

" (i) Does a Court of Summary Jurisdiction have
the power to proceed with an ex-parte
hearing and determination of an information
for a minor indictable offence?

(ii) If yes to question (i) was the determination
to proceed ex-parte properly made in the
circumstances of this case?"

The Full Court answered both questions in the affirmative. An application for special leave to appeal to this Court was granted.

4. The case was considered by the Full Court on the footing that the hearing in the presence of the defendant's counsel but in the absence of the defendant personally was an ex parte hearing for which leave to proceed under s.65(7) or s.62a was required. Their Honours were mistaken in considering s.65(7) or s.62a, for the court's power to proceed did not depend on those sections: as the defendant had appeared by counsel, the case fell within the express terms of s.64. The court was required to proceed to hear and determine the matter whether or not the defendant was personally present, unless the procedure and powers of the court in relation to the hearing and determination of a complaint of a minor indictable offence are not "the same as if the charge were a complaint of a simple offence". Two sub-sections of s.122 were relied on as showing that a different procedure should be followed.

5. The first was sub-s.(2) of s.122 which provides:

" (2) At any time in the course of proceedings
in respect of a minor indictable offence up to
and including the completion of the case for the
prosecution, the defendant may elect to be tried
upon indictment and upon the making of that
election the court shall not proceed to convict
the defendant but may commit him for trial upon
indictment."

The sub-section speaks of an election by "the defendant", not by the defendant or his counsel. It was submitted that, as the section deals with the waiver of a defendant's right to be tried by jury for an indictable offence, the sub-section requires the presence of the defendant in person so that he may elect to waive the right. If that submission be right, the absence of a defendant at any time during the period when the right to elect subsists - that is, "up to and including the completion of the case for the prosecution" - would deprive the court of power to proceed. I do not construe sub-s.(2) in that way. Sub-section (2) is an exception to the general prescription of sub-s.(1) which assimilates the procedure in minor indictable offences to the procedure in summary offences. To bring the exception into operation, a defendant must make his election to be tried by jury, and he must make it in time. If he fails to make his election in time, the operation of sub-s.(1) is unaffected, and the loss of the right to trial by jury which sub-s.(1) ordains goes unrelieved. The structure of s.122 is different from the structure of the statutes considered in Reg. v. Cockshott (1898) 1 QB 582 and Reg. v. Rochow (1983) 1 QdR.184. In those cases, as in this, the defendant was entitled to elect to be tried by jury but the statutes there under consideration prescribed a procedure to be followed by the court to inform the defendant of his entitlement. It was held that the prescribed procedure had to be followed by the court if the court was to be empowered to determine the matter summarily. Section 122(2) prescribes no procedural step which the court is required to follow in order to protect the defendant. The making of the election is a matter entirely for the defendant. If he chooses not to appear either personally or by counsel or solicitor he is unable to elect, and his failure to elect leaves s.122(1), which takes away the right to trial by jury, to operate.

6. The second sub-section relied on is sub-s.(4) of s.122. It provides:

" (4) Where a defendant appears before a court
of summary jurisdiction charged with a minor
indictable offence, the court shall, if the
defendant does not elect to be tried upon
indictment, inform him, at the completion of the
case for the prosecution, whether or not it
proposes to deal with the case in a summary way."

7. If "defendant" in sub-ss.(2) and (4) refers to the defendant personally to the exclusion of the defendant's counsel or solicitor, sub-s.(4) would simply have no application in a case where the defendant was not personally present. Although comparison with other provisions of the Act may suggest that the term "defendant" in s.122 is not intended to include a defendant who appears by counsel or solicitor, such a construction would preclude a person who appears only by counsel or solicitor from electing under sub-s.(2) to be tried by jury. That would diminish the protection given by the sub-section to a person charged with a minor indictable offence. A person who has been so charged can make his election by counsel or solicitor though he chooses not to appear personally.

8. Therefore I would hold that if "a defendant appears" either personally or by counsel or solicitor before the court, the duty of the court is to "inform him ... whether or not it proposes to deal with the case in a summary way". That duty would have to be performed before the court could proceed to convict, but the duty may be performed by informing the counsel or solicitor by whom the defendant appears of the proposal to deal with the case in a summary way. Where a defendant does not appear, the condition on which s.122(4) depends is unfulfilled and the sub-section does not operate. Therefore, if it were right to say that "a defendant appears" before the court for the purposes of sub-s.(4) only when he so appears personally, a defendant who is merely represented by his counsel or solicitor would not "appear" and the sub-section would impose no duty on the court to inform the defendant of its determination. However, for the reasons stated, I construe sub-s.(4) as operating when a defendant appears by counsel or solicitor.

9. Sub-section (5) prescribes the effect of an election under sub-s.(2) or of a determination not to deal with the case in a summary way:

" (5) If the defendant elects to be tried on
indictment, or the court determines not to deal
with the case in a summary way, the proceedings
shall continue as a preliminary examination."

If the proceedings continue as a preliminary examination, the court thereafter follows the procedure prescribed by Div.I of Pt V of the Act: "Procedure to Committal".

10. It is erroneous, in my opinion, to regard the hearing of a complaint for a minor indictable offence as a committal proceeding prior to the time when the defendant elects to be tried on indictment under s.122(2) or the court determines not to deal with the matter in a summary way. I would respectfully agree with the opinion of King C.J. in Tepper v. Di Francesco (1984) 38 SASR 256, at p 267, where he said:

" When such an election (that is, an election under
s.122(2)) is made the hearing ceases to be a
summary trial and becomes a preliminary hearing.
But until and unless such an election is made, the
proceedings are a summary trial."

The same observation may be made with respect to the making of a determination not to deal with the matter in a summary way. The words of s.122(5) that the proceedings "shall continue as a preliminary examination" do not imply, contrary to the provisions of s.122(1), that the proceedings which are continued were previously carried on as a preliminary examination. The effect of an election under s.122(2) or of a determination not to deal with the matter summarily is to change the character of the proceedings. The fact that the proceedings are a summary trial unless an election is made under s.122(2) or a contrary determination is made by the court explains the provisions of sub-s.(6) of s.122. If the proceedings were committal proceedings from the beginning, the witnesses' depositions would have to be taken pursuant to s.106; it is only because the proceedings are a summary trial that sub-s.(6) is needed to ensure that the depositions are taken in case the proceedings "continue as a preliminary examination". Section 106 is inapplicable to a summary trial.

11. I see no incongruity in construction of the Act nor any anomaly in practice if ss.120 and 122 operate according to their natural meaning. Minor indictable offences are equated with simple offences, but the defendant is given a right to elect to be tried by jury if he chooses to exercise it and the court cannot proceed to conviction without informing the defendant, if he appears, that it proposes to deal with the matter summarily. If the defendant chooses not to appear personally, he is at liberty to do so; if he chooses to appear by counsel or solicitor only, the person by whom he appears can exercise his right to elect under s.122(2) and may be the person through whom he is informed under s.122(4). Perhaps I should add that, if a defendant charged with a minor indictable offence does not appear either personally or by counsel or solicitor, so that no election is made under s.122(2) and the court is unable to inform him of the court's determination not to deal with the case in a summary way, the court cannot commit him for trial until it addresses him in the manner prescribed by s.110. It is open to the magistrate in such a case to issue a warrant to secure the attendance of the defendant and then to address him as s.110 requires. When a defendant is committed for trial, a warrant of commitment is issued or he is admitted to bail: see ss.112,145. A defendant who has not appeared personally before the magistrate can thus be brought before the court in order to be committed for trial and his custody and attendance at the trial can be secured.

12. Although the first question does not truly arise on the facts of this case, it is a question of law only and an answer can be given to it. That answer should be: Yes. The second question should not be answered as the matter did not in fact proceed ex parte; it proceeded under s.64 of the Act. It may be argued that the magistrate did not comply with s.122(4) by informing the defendant through his counsel at the end of the prosecution case that he proposed to deal with the matter summarily. That argument does not arise on this appeal and, if it had to be decided, the fact that counsel for the defendant appears to have conducted the proceedings as a summary trial would have to be considered.

13. I would allow the appeal in part. I would answer question (i): Yes; and question (ii): Unnecessary to answer; and I would remit the matter to Jacobs J. to hear and determine the appeal conformably with those answers.

DEANE J.: Important though they be, the questions involved in this appeal are ultimately questions of the construction and effect of particular provisions of the Justices Act 1921 (S.A.) ("the Act"). Since I have come to a different conclusion from that reached by a majority of the Court about the precise effect of those statutory provisions in the circumstances of the present case, it is unnecessary that I do more than indicate in essentially summary form the conclusions which I have reached and the reasons for them. I shall refrain from unnecessary repetition of the relevant facts and statutory provisions.

2. Legislative provisions modifying or abolishing the traditional common law right of criminal trial by jury should be strictly construed in favour of the accused. The overall effect of ss.120 and 122 of the Act is to confer jurisdiction to deal summarily with a "minor indictable offence" subject to the important safeguards of sub-ss.(2), (3) and (4) of s.122. Those safeguards are designed to ensure two things. The first is that, regardless of whether the offence is appropriate to be dealt with summarily, a defendant will enjoy an effective opportunity of electing to be tried upon indictment before a jury, and not summarily, at any time up to and upon the completion of the case for the prosecution (sub-ss.(2) and (5)). The second is that, even if the defendant does not so elect, the defendant will not be tried summarily for an offence which "ought to be tried upon indictment" (sub-ss.(3), (4) and (5)). The first of those safeguards could be rendered nugatory if the summary trial of a minor indictable offence pursuant to s.120 could proceed ex parte. Moreover, the wording of the provisions in which both safeguards are contained seems to me to indicate an assumption by the legislature that the defendant will be participating in the proceedings at relevant times. The conclusion which I have reached is that there is to be discerned in the relevant sub-sections of s.122 a legislative intent that the jurisdiction to deal summarily with a minor indictable offence be not exercised ex parte, that is to say, in the absence of any appearance by or on behalf of the defendant.

3. That conclusion does not however suffice to dispose of the present matter since the present appellant was represented by counsel throughout the proceedings before the court of summary jurisdiction and was himself present at the time when he was convicted and sentenced. Section 64 of the Act expressly provides that if "both parties appear before the court, either in person or by their respective counsel or solicitors, then the court shall proceed to hear and determine the matter of the complaint" (emphasis added). The effect of that provision is that a defendant who is legally represented is spared the sometimes heavy burden of being personally present throughout the whole of summary proceedings. He may "appear" by his counsel or solicitor. Section 122(1) of the Act provides that, subject to the Act, the procedure and powers of a court of summary jurisdiction in relation to the hearing and determination of a charge of a minor indictable offence shall be the same as if the charge were a complaint of a simple offence. Prima facie, the effect of that sub-section is that s.64 applies to the summary trial of a minor indictable offence pursuant to s.120. The question which arises is whether the provisions of the subsequent sub-sections of s.122 of the Act, which were essentially designed to introduce safeguards for the protection of a defendant, should be construed as depriving a defendant of the benefit of s.64 by requiring, even in a case where he "appears" by his legal representative, that he be personally present throughout the summary proceedings at least up to the conclusion of the case for the prosecution. In my view, the provisions of those subsequent sub-sections of s.122 should not, in the circumstances, be construed as having that effect. Read in the context of s.64 of the Act, those sub-sections should be read as requiring no more than that the defendant be present either in person or by counsel or solicitor. It is true that s.122(4) speaks of the case where "a defendant appears before a court of summary jurisdiction" and requires the court to "inform him" whether or not it proposes to deal with the case in a summary way. There is, however, no difficulty in reading those provisions as encompassing the case where, pursuant to s.64, a defendant "appears" by his legal representative. In such a case, the obligation to inform the defendant that it is proposed to proceed summarily can be discharged by so informing him through that legal representative.

4. In the present case, the record of proceedings at first instance and the judgments of the members of the Full Court of the Supreme Court of South Australia indicate that little, if any, reliance was placed by the prosecution either at first instance or in the Full Court upon the fact that the appellant appeared by his counsel. Indeed, at first instance, the prosecution sought and obtained leave to proceed "ex parte" and, at the conclusion of the prosecution case, belatedly objected to the appearance of counsel for the appellant and to the calling of evidence on behalf of the appellant on the ground that the appellant was not personally present. In those circumstances, little attention seems to have been paid to the apparent failure of the magistrate to comply with the requirements of s.122(4). In terms, that sub-section provides:

"Where a defendant appears before a court of
summary jurisdiction charged with a minor
indictable offence, the court shall, if the
defendant does not elect to be tried upon
indictment, inform him, at the completion of the
case for the prosecution, whether or not it
proposes to deal with the case in a summary way."

As I have said, I consider that the requirements of that sub-section can be satisfied in a case where the defendant appears by his counsel or solicitor by the court informing the defendant through his legal representative whether or not it proposes to deal with the case summarily.

5. The transcript of proceedings in the Adelaide Court of Summary Jurisdiction indicates that the learned magistrate failed to say anything, at the completion of the case for the prosecution, about the question whether the case should be dealt with in a summary way. In view of the fact that little attention appears to have been paid to this aspect of the matter in the Supreme Court, I would not treat the question whether there was such a failure by his Worship as concluded. It is, however, convenient to consider the matter on the basis that there was such a failure. It was not argued on behalf of the Crown that there was not, in the circumstances of the present case, any need to comply with the requirements of s.122(4) by reason of the fact that the defendant was present through his counsel but not present in person. It should be apparent from the foregoing that I consider any argument to that effect should, in any event, be rejected. As I have indicated, the basis on which I am of the view that the matter could be dealt with summarily was that the defendant appeared and was present by his counsel.

6. The mandatory provisions of s.122(4) were designed to ensure that, at the conclusion of the prosecution case, the question whether the matter is appropriate to be dealt with summarily should be expressly raised and ruled upon. That time represents the last occasion on which an election can be made by the accused. It also represents the critical stage at which the magistrate is required to direct his mind to the question whether the offence "ought to be tried upon indictment". If it appears to the magistrate that it should, the court is precluded from proceeding to a summary conviction: "the proceedings shall continue as a preliminary examination" (sub-s.(5)) on which the court "may commit (the defendant) for trial upon indictment" (sub-s.(3)). Moreover, the fact that a defendant is represented by counsel while not himself being present does not mean that the important function served by s.122(4) is rendered nugatory. The fact that a defendant is not personally present does, of course, mean that the question of trial by jury will not be directly brought by the court to his personal attention. Even in such a case, however, the sub-section ensures that, at a critical stage in the proceedings, namely, at the end of the prosecution case, both magistrate and the defendant (or his legal representative) direct their attention to the question whether the trial should proceed summarily and that the trial does not proceed summarily beyond that stage if the magistrate, when he directs his mind to that question, is of the view that the case is not one appropriate to be so dealt with. It also ensures that the question of the desirability of trial by jury is expressly raised immediately before expiry of the time in which the accused is entitled to elect for trial by jury. In that regard, I am of the view that the right (under s.122(2)) of an accused to elect to be tried by jury may, in a case where he is represented by counsel, be exercised by counsel acting on his behalf.

7. The conclusion which I have reached is that a failure to comply with the requirements of s.122(4) aborts any purported summary proceedings subsequent to the completion of the prosecution case. The result is that, on the basis that there was a complete failure to comply with the requirements of s.122(4), the conviction cannot stand.

8. It follows that I would vary the answers given by the Full Court so that their effect was that a court of summary jurisdiction does not have the power to proceed with an ex parte hearing and determination of an information for a minor indictable offence but that the learned magistrate did not, in the present case, proceed ex parte for the reason that the appellant was, as he was entitled by s.64 to be, present through his counsel. I would remit the matter to the Supreme Court to enable the defendant, if he be so advised, to take advantage of the apparent failure of the magistrate to comply with the requirements of s.122(4).

ORDER

Appeal allowed.

Questions in the case stated for the Full Court of the Supreme Court of South Australia answered as follows:

(i) Does a Court of Summary Jurisdiction have the power
to proceed with an ex parte hearing and determination
of an information for a minor indictable offence?

No.

(ii) If yes to question (i) was the determination to
proceed ex parte properly made in the circumstances
of this case?

Does not arise.