Danvers v Adamson [1967-68] PNGLR 357 (3 July 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 357 - Danvers v Adamson

[1967-68] PNGLR 357

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DANVERS

V.

ADAMSON

Port Moresby

Frost J

3 July 1968

PRACTICE - District Court - Application to set aside conviction made on ex parte hearing - Exercise of discretion to set aside conviction - District Courts Ordinance 1963-1965, s. 33^*[cdlx]1 .

The discretion conferred by s. 33 of the District Courts Ordinance 1963-1965 may be exercised notwithstanding proper service of the summons on the defendant, and is to be exercised having regard to all the circumstances of the case.

Clarke v. Bamfield [1900] ArgusLawRp 122; (1900), 6 A.L.R. 213, followed.

Appeal from District Court.

The facts appear sufficiently from the judgment.

Counsel:

O’Neill, for the appellant.

Colclough, for the respondent.

3 July 1968

FROST J:  This is an appeal brought from the order of the District Court, Port Moresby, made on 23rd May, 1968, when it refused an application made on behalf of the appellant under s. 33 of the District Courts Ordinance 1963-1965 for the re-hearing of a charge that the appellant did unlawfully lay hold of another person to wit Nora Joseph under the Police Offences Papua Ordinance 1947-1966, s. 8 (a) upon which in his absence on 9th April, 1968, he was convicted and sentenced on 11th April, 1968, to imprisonment with hard labour for four months.

The information first came before the Court on 22nd January, 1968, when the hearing was adjourned until 10 a.m. on 8th March, 1968, the appellant being granted bail. On 8th March, 1968, when the case was called the appellant was before the Court, and informed the Court that his counsel was unable to be present that day, and by consent the information was to be adjourned until a date to be fixed. The Court record shows that on that day the Court adjourned the hearing of the information and extended bail until 9th April, 1968.

Now on 9th April, 1968, when the case was called, the appellant did not appear. The Court then ordered that the appellant’s bail be forfeited and the matter was heard ex parte. Witnesses were called on behalf of the informant, and the defendant was convicted. It was ordered that the appellant should be arrested and brought forthwith before the Court for sentence. On 10th April, 1968, the defendant was arrested and brought before the magistrate. He was informed of the previous day’s proceedings, and that he was now before the Court for sentence. The appellant then stated that he had no knowledge of the listing of the case for 9th April, and claimed that when previously before the Court, the matter had been adjourned to a later date, and he was to be told of it when fixed by the Court. He said he had seen Sub-Inspector Adamson the previous week but the latter did not tell him the day only that the case might be on before Easter. At this stage, from the appeal documents, it appears that the learned magistrate was concerned whether if the defendant’s statement to the Court was true, the Court had had jurisdiction on the preceding day to hear the evidence and to convict him. Apparently the magistrate did not advert to the District Courts Ordinance, s. 33, which gave him a discretion to set aside the conviction and order a re-hearing. But the magistrate did proceed to hear the evidence of two Sub-Inspectors of Police, one of whom Inspector Campbell stated that he was certain that on 8th March, 1968, the learned magistrate did announce that the hearing of the information would be adjourned until 9th April, 1968, and that the appellant was present.

The matter was taken a little further when Sub-Inspector Adamson gave evidence because, although he was not present when the case was adjourned on 8th March, he had received information from Sub-Inspector McGrath to that effect, and he went on to say, that about a week before he had seen the appellant at the Boroko Hotel where the appellant was drinking although he was not drunk and that he the Inspector then informed the appellant that the case was to come on again on 9th April. However Inspector McGrath had no recollection of the hearing on 8th March. The appellant was then asked whether he desired to give evidence on oath in support of his allegations and on sentence generally, and he said, “Yes”. As by this time it was well after the Court’s usual time for adjournment, the magistrate adjourned the proceedings until 9 a.m. on the following day, and the appellant was granted verbal bail in the sum of $50.00, so that he could be heard in support of his contention. However on the following day when the proceedings were resumed, the defendant did not appear and in his absence the Court proceeded to convict him and sentence him to four months’ imprisonment. In his findings, the learned stipendiary magistrate stated that he accepted the evidence of the two Sub-Inspectors and thus was satisfied that the appellant was advised of the adjournment to 9th April, 1968. However having regard to the appellant’s statement on 10th April, 1968, it would have been open to the Court to find that, although the hearing of the summons had been adjourned by the Court on 8th March, 1968 in the appellant’s presence until 9th April, 1968, there was room for a misunderstanding, and perhaps the evidence of Sub-Inspector Adamson was to be qualified in view of the circumstances in which the reminder of the adjournment was given.

Subsequently on 22nd May, 1968, counsel on behalf of the appellant sought a re-hearing of the conviction under s. 33 of the District Courts Ordinance. The hearing of the application was continued until the following day, 23rd May, when the learned magistrate dismissed the application to set aside the conviction.

Mr. O’Neill has argued that the learned magistrate’s decision not to set aside the conviction and grant a re-hearing, was wrong because the magistrate was in error in limiting the discretion which s. 33 conferred upon him. The section is in these terms:

“A conviction or order made when one party does not appear may, on application to the court, be set aside on such terms as to costs or otherwise as the court thinks just, and the court may, upon service upon the other party of such reasonable notice as the court directs, proceed to hear and determine the information or complaint in respect of which the conviction or order was made, or it may adjourn the hearing and determination thereof to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party.”

For the interpretation of this Section, Mr. O’Neill relied upon Clarke v. Bamfield[cdlxi]² a decision of the Victorian Supreme Court upon a section of the Victorian Justices Act which is in substantially the same terms as s. 33 of the Ordinance. In that case a court of petty sessions had made an order in favour of the complainant for a sum upon a civil complaint. The defendant did not appear, and subsequently applied to have the judgment set aside upon the ground that the summons was not properly served, and that it had not been brought to her notice. The application was refused on the ground that the summons had been properly served. Hodges J. referred to the relevant provision of the Victorian Justices Act and said with regard to that section:

“I think it is discretionary, and as long as the magistrates exercised their discretion according to law, or in a reasonable manner,I could not disturb it, or substitute my discretion for theirs. That would be utterly wrong. But, in my opinion, the magistrates have not exercised their discretion. In my opinion, they have arrived at the conclusion that the summons was correctly served, and that that was an end of it, and that they could not disturb it”[cdlxii]³.

His Honour then went on to refer to the reasons why he had come to that conclusion, and then proceeded,

“Therefore, I think that they have never exercised their discretion at all, but that they arrived at the conclusion that they had no discretion because the plaint had been served in the manner prescribed. I think that, notwithstanding the proper service, they had jurisdiction, and that they have made a mistake”[cdlxiii]⁴.

In my opinion, the same interpretation is to be placed upon s. 33 of the District Courts Ordinance. It too confers a discretion upon the Court to set aside a conviction upon such terms as the Court think just. The question is whether the learned magistrate in exercising his discretion used words, which Mr. O’Neill submitted, indicated that he had unduly limited his discretion.

The learned magistrate referred to the submissions of appellant’s counsel before him that the application was made on the grounds that the defendant had a substantial defence to the charge of which he had been convicted, and also upon the serious nature of the charge. Counsel raised no issue as to the absence of notice to the defendant of the hearing date. The learned magistrate went on to say that after considering the evidence taken at the hearing, and the record of proceedings and taking into account the defendant’s failure to appear when the matter was listed for hearing, and his failure to appear on 11th April, when the Court had indicated that it was prepared to bear evidence from him on the question of notice and his non-appearance, that he had decided to refuse the application. He considered that an order under s. 33 should be made in cases where there is some doubt as to whether the defendant was aware of the hearing date, or where some reasonable explanation is given for the defendant’s failure to appear. From the record, he was satisfied that the defendant for reasons known only to himself failed to appear on the day of the hearing, and again failed to appear on 11th April, when his own appearance on the date of hearing was the subject of inquiry.

The words used by the magistrate have raised a doubt in my mind that the learned magistrate properly construed the nature of the discretion conferred upon him. He seems to have considered that the section gave him power to grant a re-hearing only where there was doubt as to whether the defendant was aware of the hearing date, or where some reasonable explanation was given for his failure to appear.

However the discretion conferred upon the Court by s. 33 cannot be limited to the considerations referred to by the learned magistrate. The Court’s discretion is to be exercised having regard to all the circumstances of the case. Whether the defendant was aware of the return date and whether there was any reasonable explanation for his failure to attend were two relevant considerations, but so also were the considerations whether the defendant had, as he claimed, a good defence, and also the serious nature of the charge, which in this case appeared from a term of imprisonment of four months being imposed in respect of a charge of unlawfully holding. In certain circumstances, such as when the defendant failed to attend mistakenly supposing that any default on his part was not likely to be regarded with gravity, the two latter considerations might well prevail. I do not proceed to list other relevant considerations which will depend on the circumstances of each case.

For these reasons, it seems to me that the Court proceeded on a wrong view of the discretion conferred by s. 33, and it is therefore open to me to send the case back to the magistrate to exercise according to law the discretion which the section confers upon him. It has been submitted to me that I myself should exercise the power conferred on the District Court (District Courts Ordinance, s. 236 (e)). But under the circumstances of this case, what I propose to do is to remit the case for the learned magistrate to exercise his discretion under s. 33, according to law, and I so order.

Ordered accordingly.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

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[cdlx]* Section 33 of the District Courts Ordinance 1963-1965 provides as follows:

“A conviction or order made when one party does not appear may, on application to the court, be set aside on such terms as to costs or otherwise as the court thinks just, and the court may, upon service upon the other party of such reasonable notice as the court directs, proceed to hear and determine the information or complaint in respect of which the conviction or order was made, or it may adjourn the hearing and determination thereof to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party.”

[cdlxi](1900) 6 A.L.R. 213.

[cdlxii](1900) 6 A.L.R., at pp. 214, 215.

[cdlxiii](1900) 6 A.L.R., at p. 215.