Last Friday the Supreme Court handed down DPP v Easwaralingam & Anor. The case was a request by the Director of Public Prosecutions for judicial review of the refusal by a magistrate to allow an adjournment sought by the prosecution, and refusing to allow the absent witness’s statement to be tendered.

The adjournment application

The accused faced charges of assault, indecent language, stalking and offensive behaviour. The accused and complainant were strangers. They were the only people present at the time of an alleged “road-rage” incident in Wantirna in October 2007.

An adjournment was sought by the prosecution on the date of hearing. Two days earlier the prosecutor had been advised that the principal prosecution witness had been admitted to hospital for emergency surgery. Though subsequently released, she was under the effects of medication and unavailable for court. The prosecution notified counsel of their intention to apply for an adjournment the day before the hearing. The prosecution also advised of its intention to rely upon the witness’s statement under 65 Evidence Act 2008 if the adjournment was refused, relying on the unavailability of the complainant.

The application for adjournment was refused.

Pagone J determined the magistrate had not properly considered the implications of her decision [at 11]:

11 It is well established that an appellate court may interfere with the exercise of a discretion to refuse an adjournment where its refusal may prevent a party from presenting a case in circumstances constituting an injustice. There may be many circumstances when refusing an adjournment will be justified in the exercise of a discretion even though the practical effect of a refusal to adjourn the hearing will result in the dismissal of a proceeding. However an application for an adjournment which is likely to have that effect should not be refused without considering that consequence and taking it into account as a factor to be weighed against others. In this case the only evidence against [the accused] was of the one single witness [the complainant] who was not able to give oral testimony because of unexpected surgery only a few days before. The matters put for [the accused] against the adjournment might all have been accommodated by a relatively short adjournment although the learned Magistrate did not explore or explain whether or not that was possible. The inability of [the complainant] to give oral evidence might conceivably not have been fatal to the outcome of the case if the written statement she had made had been admitted in evidence by her under s 65 of the Evidence Act 2008 (Vic), however the learned Magistrate did not consider whether the effect of ruling against the adjournment would be to insist upon a hearing in which no evidence would be called with the consequence of dismissal of the charges. The refusal of the adjournment would have had, and did have, the effect of denying the informant the opportunity to present his case (unless the written statement of [the complainant] had been admitted in evidence). The learned Magistrate did not weigh that consequence against the factors tending against an adjournment. An adjournment, all things being equal, may more readily be refused where a hearing may still be conducted meaningfully upon evidence. It may even be refused in some cases where the effect of a refusal may lead inevitably to a party not being able to present a case, but it should not be refused without taking that into account. The learned Magistrate ought to have considered whether the consequences of the refusal of the adjournment were warranted by those matters put to her as bearing against the adjournment.

The s 65 evidence

After the adjournment application was refused, the prosecution sought to rely on the statement of the complainant by putting it into evidence. Notice to the defence had been provided, but the magistrate ruled not within reasonable time. The magistrate refused to allow the statement to be tendered.

Pagone J [at 17]:

17 Section 65 of the Evidence Act 2008 (Vic) applies in a criminal proceeding if a person who made a previous representation “is not available to give evidence about an asserted fact”. The learned Magistrate erroneously concluded that what was meant by not available was not defined in the legislation. In fact, s 4(g) in pt 2 of the Dictionary defines when a person is taken not to be available to give evidence for the purposes of the Act. Amongst the circumstances in which a person is taken not to be available to give evidence is where “the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability”. The learned Magistrate simply failed to consider whether that condition had been satisfied. Her Honour seems not to have concluded that [the complainant] was available within the meaning of s 65, however, her failure to consider the definition appears to have had an impact on her Honour’s view of the underlying policy of the provision when concluding that the application for admission of the evidence under the section was an abuse. The adjournment had been sought because of circumstances which might have satisfied one of the criteria to trigger the application of the section, namely that the person who had made the statement was not available. Whether or not the facts were sufficient to enliven the application of the section, the statutory definition of a person’s availability (upon which the provision depends) ought to have been considered in deciding whether reliance upon the provision could be an abuse. The policy of the section (and in particular the definition of a witness being unavailable) might be thought to provide for situations including that with which the learned Magistrate was concerned. On that view, and given her Honour’s decision not to grant an adjournment, an attempt to rely upon the section could hardly have been an abuse. Indeed, it was not until her Honour’s decision not to grant an adjournment that the condition for reliance upon s 65 arose.

18 Putting that matter to one side, however, the learned Magistrate was in error in concluding that the notice had not been served within a reasonable time or had not given sufficient detail of the matters which were required to be provided by the legislation. Section 67(1) requires that reasonable notice be given of a party’s intention to adduce the evidence. What constitutes reasonable notice is something which must depend upon all of the circumstances of the case. In this case notice of an intention to rely upon the written statement was given to the accused’s legal representatives promptly as soon as the unavailability of the witness became known. Section 67(3) provides that the notice must state “the particular provisions” of the division “on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence”. In this case the written notice formally served on 24 February 2010, but reliance upon which was conceded to have been conveyed on 23 February 2010, identified s 65 as the section upon which reliance was placed and, on page 2 of the notice, there was express statement of an intention to rely upon s 65(2)(a) or (b) or (c) or (d), s 65(3)(a) or (b) or 65(8)(a) or (b). Some of these provisions may not have sustained the application but there was asserted the provisions on which reliance was placed. Her Honour’s conclusions to the contrary were not sustainable. Section 65 of the Evidence Act 2008 (Vic) applies in a criminal proceeding if a person who made a previous representation “is not available to give evidence about an asserted fact”. The learned Magistrate erroneously concluded that what was meant by not available was not defined in the legislation. In fact, s 4(g) in pt 2 of the Dictionary defines when a person is taken not to be available to give evidence for the purposes of the Act. Amongst the circumstances in which a person is taken not to be available to give evidence is where “the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability”. The learned Magistrate simply failed to consider whether that condition had been satisfied. Her Honour seems not to have concluded that [the complainant] was available within the meaning of s 65, however, her failure to consider the definition appears to have had an impact on her Honour’s view of the underlying policy of the provision when concluding that the application for admission of the evidence under the section was an abuse. The adjournment had been sought because of circumstances which might have satisfied one of the criteria to trigger the application of the section, namely that the person who had made the statement was not available. Whether or not the facts were sufficient to enliven the application of the section, the statutory definition of a person’s availability (upon which the provision depends) ought to have been considered in deciding whether reliance upon the provision could be an abuse. The policy of the section (and in particular the definition of a witness being unavailable) might be thought to provide for situations including that with which the learned Magistrate was concerned. On that view, and given her Honour’s decision not to grant an adjournment, an attempt to rely upon the section could hardly have been an abuse. Indeed, it was not until her Honour’s decision not to grant an adjournment that the condition for reliance upon s 65 arose.

The case was remitted back to the Magistrates’ Court.

There are similarities between this case and DPP v Nicholls discussed here last month. The cases occurred in the same general area at around the same time, and both relate to the interpretation of the new Evidence Act, specifically s 65.

I don’t know if it was the same magistrate. The practice of naming judicial officers in appeals, which came into vogue in June of 2009, isn’t being applied consistently this year.