Adjournments and alternatives

Four days before a scheduled hearing to give evidence as primary prosecution witness in a road rage incident, Ms Venner was admitted to hospital for emergency surgery. Dutifully, she notified the informant that she would not be available, who then, one day before the hearing, notified the defendant that the police would apply for an adjournment and, in the alternative, would apply under s65 of the Evidence Act for the court to receive her police statement. These are the facts underlying DPP v Easwaralingam.

Surprisingly in those circumstances, the defendant opposed both applications, the Magistrate knocking back the adjournment application because
Ms Venner had missed an earlier hearing without justification and because of prejudice to the accused. The prejudice was said to lie in the uncertainty for the accused created by the delay, and the cloud the pending charges cast over his citizenship application.

The Magistrate then proceeded to reject the application to receive the witness' police statement. The defence had argued that admitting the statement was an abuse of process that was designed to circumvent the refusal to grant an adjournment. According to the Magistrate:

This court must conduct its hearings in a just and timely way, and the fairness of the proceeding is critical. In my view, the notice is deficient. It has not been served within a reasonable time, it does not have the necessary detail that’s prescribed for in the legislation, and it would require an adjournment for those deficiencies to be addressed which would, therefore, result in the outcome that is originally sought by the prosecution. And, accordingly, I do consider that to be an abuse, and I consider that to be unfair to the accused. Accordingly, the notice of intention to adduce hearsay evidence is noted and refused.

Pagone J found this explanation erroneous, holding at [17] that:

The learned Magistrate simply failed to consider whether that condition had been satisfied. Her Honour seems not to have concluded that Ms Venner 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.

As Pagone J notes, the definition of 'unavailable' in the UEA expressly recognises that a person may be unavailable due to illness, or because the party has tried, without success, to compel the witness to attend to give evidence. Both of those grounds would apply where a witness notifies the informant that she would not attend because of emergency surgery four days before the hearing.

In my view, it is staggering that the defence would argue against an adjournment and then claim that the prosecution's attempts allowing the court to still conduct a meaningful hearing could be an abuse of process. The adjournment was opposed on the basis that the defendant should have certainty and be able to move on with his life. The opposition to an adjournment application should not be a covert application for a directed acquittal because the chief prosecution witness is recovering from surgery. As Pagone J explains at [11], the availability of alternative modes of producing evidence in the case is a relevant consideration when deciding whether to grant an adjournment:

The inability of Ms Venner 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 Ms Venner 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 (emphasis added).

The case therefore provides a valuable example of the need to balance all relevant considerations when deciding whether to grant or refuse an adjournment. That includes both the defendant's interests in the timely disposition of proceedings and the prosecution's interest in the court deciding the case before it. The case also emphasises the importance of practitioners being on top of the provisions of the Evidence Act, as counsel for the accused had argued that the informant did not provide adequate notice, as the defendant did not have adequate time to address the issues arising from the application. In these circumstances, where the defence seek to have the matter resolved on the day, it seems the onus lies on the lawyers for a party to quickly master the relevant issues and marshall any available arguments.