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Kavali v Hoihoi [1986] PGLawRp 382; [1986] PNGLR 329 (30 October 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 329 - Thomas Kavali v Thomas Hoihoi�

[1986] PNGLR 329

SC321

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THOMAS KAVALI

V

THOMAS HOIHOI

Waigani

Kidu CJ Woods Barnett JJ

30 September 1986

30 October 1986

CRIMINAL LAW - Practice and procedure - Hearing in presence of accused - Constitutional right to - Scope of - �Except with his own consent� - When consent �waived� - When consent may be implied - Constitution, s 37(5).

APPEAL - Bias as ground for - Need for real likelihood or reasonable suspicion - Magistrate closing mind to possible defences where proceedings in absence of accused.

The Constitution, s 37(5), provides that:

�Except with his own consent, the trial shall not take place in his absence unless he conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to removed and the trial to proceed in his absence....�

Held

N1>(1)����� Section 37(5) of the Constitution entrenches the right of the person charged with an offence to be present at his trial. As it is the duty of the courts zealously to guard the rights entrenched in the Constitution, the courts must ensure, before such a right is denied, that the circumstances of the particular person come within the exceptions (if any) specifically outlined in the Constitution.

N1>(2)����� The right guaranteed by s 37(5) of the Constitution to be waived by the person charged requires special circumstances from which the court must be satisfied that the person charged elects to be absent, and absents himself through caprice, malice or for the purposes of embarrassing the trial.

R v Jones (No 2) (1972) 56 Cr App R 413 at 428, 433, followed.

Decision of Bredmeyer J in Kavali v Hoihoi [1984] PNGLR 182, reversed.

N1>(4)����� The �consent� to trial in the absence of the person charged must be the consent of that person and may be conveyed to the court on the proper instructions of that person.

N1>(5)����� �Consent� to trial in the absence of the person charged may only be implied, where, in the absence of direct consent, there is some good reason, deriving from particular and unambiguous circumstances, upon which the court can base a decision to imply consent: mere failure to appear cannot found implied consent.

Held Further

N1>(6)����� A conviction is open to review on the ground of bias only where there is a real likelihood of bias or a reasonable suspicion of bias.

Decision of Bredmeyer J in Kavali v Hoihoi [1984] PNGLR 182, affirmed on this ground.

N1>(7)����� In the circumstances, there was a real likelihood of bias where in relation to a charged of drinking liquor in a moving vehicle, the magistrate not only erred in proceeding to hear and determine the proceedings in the absence of the person charged but then closed his mind to any evidence which the person charged might have been able to bring if he had sought to do so.

Decision of Bredmeyer J in Kavali v Hoihoi [1984] PNGLR 182, reversed.

Cases Cited

Kavali v Hoihoi [1984] PNGLR 182.

R v Jones (No 2) [1972] 1 WLR 887; 2 All ER 731; 56 Cr App R 413.

Reference No 1 of 1976, In re; Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537.

Appeal

This was an appeal from a decision of Bredmeyer J on appeal from a Local Court magistrate, namely, Kavali v Hoihoi [1984] PNGLR 182.

Counsel

J Steele and B Sasu, for the appellant.

M Unagui, for the respondent.

Cur adv vult

October 1986

KIDU CJ: The appellant, Sir Thomas Kavali, was convicted of an offence under s 6(1) of the Liquor (Miscellaneous Provisions) Act (Ch No 313) by the District Court and sentenced to three weeks imprisonment with hard labour on 6 July 1982. He appealed to the National Court which disallowed his appeal. His appeal to this Court is based on the following grounds:

N2>�1.����� That the learned judge was wrong in law in finding that the trial was properly held ex parte and that a warrant for the arrest of the defendant should not have issued in accordance with s 131(b) of the District Courts Act.

N2>2.������ That the learned judge was wrong in law in finding that s 37(5) of the Constitution allows for:

(a)����� An ex parte hearing without the consent of the defendant; and

(b)����� Implied consent to an ex parte hearing.

N2>3.������ That the learned judge was wrong in law in finding that the defendant impliedly consented to the trial taking place in his absence by his failure to attend the hearing on 6 June 1982.

N2>4.������ That the learned judge was wrong in law in finding that the defendant had �absconded� during the trial.

N2>5.������ That the learned judge was wrong in law in finding that the magistrate�s statement revealed bias yet concluded that there was no real likelihood or reasonable suspicion that the magistrate convicted the defendant because of that bias.�

The offence allegedly occurred on 1 February 1982 and the charge was laid on 2 February 1982 (against the appellant and a Mr Theodore Banda). When both defendants were arraigned on 17 February 1982 they pleaded not guilty and were represented by Mr John Gawi, a lawyer. On this day the police called two witnesses (Thomas Hoihoi and Livinai Kenaia) who were examined and cross-examined at length. The case was then adjourned to 19 February 1982.

When the court resumed on 19 February 1982 the two defendants were present but their lawyer, Mr Gawi, was not and at their request the case was adjourned to 24 February 1982 at 9.30 am to enable Mr Gawi to be present.

At 9.30 am on 24 February 1982 the court resumed but once again Mr Gawi was not present. So the case was adjourned to 10.00 am and when the case resumed at 10.00 am Mr Gawi was present. He was then, quite rightly, asked to apologise for being late.

Mr Gawi did apologise but then went on and attacked the court and police prosecutors. Although the magistrate accepted Mr Gawi�s apology for turning up late he was upset by Mr Gawi�s uncalled for attack on the court and the prosecutors. And in my view the magistrate was quite correct in then adjourning the case to 26 February 1982 and barring Mr Gawi from further appearance in his court.

On 26 February 1982 the court convened again and although the defendants were present they had no lawyer to further represent them. The police then closed their case and Mr Banda made a no-case submission on his behalf and that of the appellant. The case was then adjourned to 3 March 1982. On 3 March 1982 the magistrate ruled that Mr Banda had no case to answer but the appellant had. The appellant then asked that the case be adjourned to the first week of July 1982 to enable him to find a lawyer and prepare himself for the 1982 National Elections. In his reasons for decision the magistrate states:

�The reason the case was adjourned on 3 March 1982 to 6 July 1982 was on the grounds [sic] that Mr Kavali was to prepare himself for the National Elections.�

The District Court records show that the police had no objections to the adjournment. When the court resumed on 6 July 1982 at 9.30 am the appellant was not present. So it was stood over to 9.45 am. There was still no appearance by the appellant at 9.45 am. The prosecution then applied for the appellant�s bail to be withdrawn and an arrest warrant issued, both very reasonable requests. But the magistrate thought otherwise. He said the following when he ruled that the case should proceed in the absence of the appellant:

�This case has been on from 2.3.82. There has [sic] been many adjournments, more of the adjournments were at the requests by the defence. The last adjournment was accepted on the grounds that the defendant wanted time to do his campaigning for the National Election. Now that the Election is over there is not [sic] reasons available to this Court in respect of Mr Kavali�s absence. All through the proceedings of this case the prosecution has been very helpful. This Court further considers too that if any adjournment is granted it would not be of the best of doing justice. Mr Kavali was allowed ample time to complete his electoral duties and be present today. This Court considers that it would be for the best interests for those concerned that this Court proceed without the presence of Mr Kavali.�

After this ruling the case proceeded, the prosecutor closed his case and read his written submissions. There was no judgment delivered. The court record merely shows the following:

�Upon prosecution evidence Mr Kavali is found guilty.�

The first three grounds of appeal were argued together. They are based on s 37(5) of the Constitution, which reads as follows:

�Except with his own consent, the trial shall not take place in his absence unless he conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.� (My emphasis.)

Section 37(5) can be summarised as follows:

N2>1.������ A criminal trial must not take place in the absence of the defendant.

N2>2.������ A criminal trial may take place in the absence of the defendant with his consent.

N2>3.������ A criminal trial may take place in the absence of the defendant if he so conducts himself as to render the continuance of the proceedings in his presence impracticable.

N2>4.������ Whether a defendant consents or not a law may provide that a charge against a person not involving imprisonment as a penalty may be heard summarily in his absence if it is established that he has been served with a summons in relation to the alleged offence.

In this case the appellant�s charge was for an offence which carries a penalty of K100 fine or three months imprisonment � an offence which cannot be heard summarily in the defendant�s absence without his consent unless he conducts himself in such a way �as to render the continuance of the proceedings in his presence impracticable ...�.

The National Court (Bredmeyer J) supported the action of the District Court on 16 July 1984 (see Kavali v Hoihoi [1984] PNGLR 182).

GROUNDS 1, 2 AND 3

The trial judge decided that the appellant�s failure to turn up on the date fixed for resumption (6 July 1982) amounted to an implied consent to the trial proceeding in his absence.

Subject to the exceptions therein s 37(5) of the Constitution entrenches the right of a person charged with an offence to be present at his trial. Such a right should not be lightly treated. It is the duty of courts to zealously guard the rights entrenched in the Constitution, especially the National Court and the Supreme Court. Before any of these rights are denied to a person the courts must ensure that the circumstances of the particular person come within exceptions (if any) specifically outlined in the Constitution. The reason why the rights have been included in the Constitution is contained in the Constitutional Planning Committee Report:

�Although many basic rights are already set out in Papua New Guinea�s Human Rights Ordinance, this is an ordinary law. It can be changed at any time if the Government of the day passes a new law in the normal way � that is by obtaining the agreement of a majority of the members of the House of Assembly .... If these rights are included in the Constitution they would be harder for a government to change, and ought therefore to be better protected.� (CPC Report Ch 5, p 5/1/4, par 25.)

So it was for the reason of better protection that the rights were included in the Constitution and those who are entrusted with their protection must, as I have already said, zealously guard them.

In this case Bredmeyer J said the following in supporting the magistrate�s decision to proceed in the absence of the appellant (at 185):

�... In this case I consider that Mr Kavali�s failure to attend on 6 July 1982 is an implied consent to the trial proceeding in his absence. I consider that the magistrate was perfectly right in not granting a further adjournment, not issuing a warrant of arrest, and in proceeding in his absence. The trial was for a minor offence. It had already been adjourned twice at the defence request, once because Mr Gawi was not present to defend his client, and the other on Mr Kavali�s request to find a lawyer and to attend to ministerial and political matters. The latter adjournment, of four months, was inordinately long. It is rarely in the best interests of justice that the trial of a minor offence when part heard should be adjourned for more than a week or so. There is good common law precedent for the stand taken by the magistrate and that authority is relevant because the constitutional right of the defendant to be present at his trial, subject to certain exceptions conferred by s 37(5) of the Constitution corresponds to a similar common law right. In Jones (No 2) (1972) 56 Cr App R 413 the accused absconded at the same point in the trial as Mr Kavali. Jones absconded in a trial for various charges of fraudulent conversion and conspiracy to defraud before a judge and jury at the end of the prosecution evidence and after the judge had overruled his no case submission. The judge decided to proceed with the trial in his absence. Jones� counsel argued that notwithstanding the deliberate jumping of bail by his client the trial should be stopped and the jury discharged. This application was rejected. His counsel then decided not to call witnesses whom he had intended to call because of doubt as to his authority to call them in the absence of the defendant. Counsel then withdrew from the trial and the Court of Criminal Appeal said that his withdrawal was quite proper. The trial then proceeded in the absence of the defendant or counsel. Of course no final defence address was made to the jury. The jury convicted. No allocutus was given to the accused, no address on sentence was made on his behalf and he was sentenced in his absence to concurrent terms of five and three years� imprisonment. The Court of Criminal Appeal upheld the trial judge�s decision to proceed. I quote from the headnote:

�Whether a defendant be on bail or in custody, and whether he be represented by counsel or not, he has a right to be present at his trial, unless (i) he abuses that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour, in which case the judge may have him removed and may proceed with the trial in his absence, or may discharge the jury, (ii) he waives that right by voluntarily absenting himself eg by absconding during the trial. In such a case the judge has a discretion, which should be exercised with a view to the due administration of justice rather than the convention or comfort of anyone, whether to proceed with the trial in the absence of the defendant or not.�

I consider that in the circumstances of this case Mr Kavali waived his constitutional right to be present and consented to the trial proceeding in his absence.�

There are two obvious errors in the passage cited above. The first of these is the statement that as the matter involved a minor offence the magistrate was justified in not granting a further adjournment. In my view it makes no difference with what offence a person is charged as the constitutional right guaranteed by s 37(5) makes no discrimination between minor offences and serious offences. The right to be present is guaranteed in every case subject to the exceptions already mentioned.

The second error is the finding that the appellant by not turning up on the appointed day for resumption of the trial absconded and thereby waived his right to be present. There is absolutely no evidence that the appellant absconded. I should point out here that the word �abscond� means �depart secretly and flee from the law� (see the Concise Oxford Dictionary). There is no evidence that the appellant �departed secretly� or �fled from the law�. The case R v Jones (No 2) (1972) 56 Cr App R 413, relied upon by the National Court, is clearly distinguishable on its facts. In that case the evidence was that Jones actually absconded from the jurisdiction � ie, he fled from the United States and went to Denmark. He was extradited from Denmark.

Also the principles stated in Jones (No 2) do not support what the magistrate did. I reproduce substantially the judgment of Roskill LJ at 419-420:

�The position is admirably stated in a late nineteenth-century case in the Victorian Courts: R v Abrahams [1895] ArgusLawRp 62; (1895) 21 VLR 343. I would quote from two of the judgments, one of Williams J at 347, the other of Hood J at 353. Although Mr Lloyd-Eley sought to find comfort from what those learned judges had said, it appears to this Court that, so far from supporting his submission, these passages are consistent only with the view this Court takes and not with his submissions. Williams J said:

�In cases of felony, not capital, and of misdemeanours where the accused in custody, but represented by counsel, elects to waive his right to be present, the discretion would probably be exercised in the same way; but, on the other hand, in cases both of felony and misdemeanour where the accused is not represented by counsel, the judge would, in all probability, refuse to proceed with the trial in the absence of the accused, notwithstanding that he waives his right, unless the judge be satisfied that the prisoner elects to be absent, and absents himself through caprice or malice, or for the purpose of embarrassing the trial.� � (My emphasis.)

Pausing there for one moment, it is not necessary to decide in the instant case whether the applicant�s absence was due to caprice, malice or for the purpose of embarrassing the trial. It would certainly seem to have been one of them; it is not impossible that it was all three. The learned judge continued (at 420):

�It will thus be seen that in my opinion in all cases whether of felony or misdemeanour, whether the accused be on bail or in custody, whether he be represented by counsel or not, he has a right to be present, subject only to one qualification, and that is, that he does not abuse that right. If he abuses that right for the purpose of obstructing the proceedings of the court by unseemly, indecent, or outrageous behaviour, the judge may have him removed and proceed with the trial in his absence, or he may discharge the jury, but subject to that qualification the right of being present remains with the accused as long as he claims it. When he waives it, then the discretion of the judge comes into play. To take an extreme case by way of illustration: suppose an accused person to be out on bail, to appear and take his trial for either a felony or misdemeanour, and that when his trial comes on he is found to have absconded. By so doing, I take it, the accused has clearly waived his right to be present, and the Crown might elect to go on with the trial in the prisoner�s absence, but then the presiding judge has to exercise his discretionary power; if in such a case the accused was not represented by counsel in court, or even if he were so represented, his presence was necessary for the proper conduct of his defence by his counsel, the judge would, I apprehend, certainly exercise his discretion by postponing the trial. In short, it seems to me that the judge�s discretion is very much at the root of the whole matter subject to the accused�s right, when he has not forfeited the right, does nothing to forfeit it, or does not waive it, to be present.

Hood J [in Abrahams] (at 421) said:

I wish to say that while agreeing that as a matter of law trial for misdemeanour may proceed in the absence of the defendant, it must not be understood that such course would in these days meet with approval. I think that not only has an accused person a right to be present during the hearing of any proceedings against him, but as a rule, which should never be departed from except under special circumstances, he is also bound to be there.�

The learned judge later went on (at 421):

�All that we are here deciding, in my opinion, is that the presiding judge may in misdemeanours proceed without the presence of the prisoner, where the absence is voluntary. He has in law a discretion, but that discretion should be exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone.

This Court respectfully adopts that language as correctly stating the position. The only question this Court has to decide is whether Judge Gillis exercised this discretion properly. In the view of this Court, he plainly did so exercise it.�

Very clearly the case does not say that mere failure to turn up on the fixed date amounts to waiver of the right to be present or implied consent. There must be more than that and Williams J as quoted by Roskill LJ states it quite clearly:

�The court must be satisfied that the defendant elects to be absent, and absents himself through caprice, malice or for the purpose of embarrassing the trial.�

And absconding is mentioned as an extreme example of waiving the right.

In the appellant�s case there was no evidence on which the magistrate and the National Court could have decided that he elected to absent himself through malice, caprice or for the purpose of embarrassing the trial. For all the magistrate knew the appellant could have been absent because he was seriously ill in hospital! I have already alluded to the fact that the appellant did not abscond.

Mr Steele, for the appellant, submitted that there can be no implied consent under s 37(5) of the Constitution. The provision of course does not say this. In fact, as has been emphasised earlier in this judgment, the provision says, inter alia, that there can be no trial in the absence of a person charged with an offence �Except with his own consent�. One thing it emphasises is that the consent must be of the person charged and not a friend or relative or anyone else. But the consent may be, in my opinion, conveyed on his instructions by other persons such as his lawyer so long as it remains his own consent. This must be so as there are various reasons and circumstances which make giving consent personally difficult and sometimes even impossible. For instance a person might be in hospital after a motor vehicle accident and incapable of conveying his consent personally either orally or in writing. His failure to attend at the court cannot be treated as consent that his trial proceed in his absence. I consider that in the absence of direct consent there must be some reason on which a court can base a decision to imply consent. Whether or not consent is implied will depend on particular facts and circumstances of each case. No hard and fast rule should be set down.

As to the question of bias, I have read the judgments of my brothers Woods and Barnett JJ and I concur with them that the ground has been made out by the appellant.

I would allow the appeal and quash the conviction and sentences of the District Court.

WOODS J: This is an appeal from a judgment of the National Court dismissing an appeal from a decision of the District Court convicting the appellant of an offence under the Liquor (Miscellaneous Provisions) Act.

The incident which led to the original charge took place on 1 February 1982. The trial of the matter commenced on 17 February when State witnesses presented their evidence. The hearing was adjourned and at the adjournment the defendant appeared without his lawyer. Following a further adjournment when the defendant lawyer arrived late and was called to apologise a conflict arose between the lawyer and the magistrate. This resulted in the defendant appearing at another adjournment without a lawyer and obtaining an adjournment from 2 March to 6 July to present his defence. On 6 July when there was no appearance by the defendant or his lawyer the prosecutor asked for a warrant to arrest the defendant. The magistrate refused and proceeded with the case in the absence of the defendant and duly convicted him.

The defendant appealed to the National Court and included in the grounds of appeal were grounds related to the way the trial was conducted and basically saying that the magistrate erred in proceeding with the trial on 6 July in the absence of the defendant.

The judge found (see Kavali v Hoihoi [1984] PNGLR 182) that the absence of the defendant on 6 July was an implied consent to the trial proceeding in his absence. He found that the trial was for a minor offence and that s 37(5) of the Constitution allows for an implied consent to an ex parte hearing. His Honour in his decision referred to cases where a defendant appeared to abuse his right to be present by absconding and then his Honour said that in this case the defendant waived his right. His Honour found that there were good and proper reasons for proceeding with the trial on 6 July in the absence of the defendant. After considering other grounds of appeal, his Honour dismissed the appeal.

The appellant has appealed to the Supreme Court and his first four grounds of appeal relate to the ex parte nature of the hearing and to the finding that the defendant had absconded, and the fifth ground of appeal relates to an allegation of bias by the magistrate.

The appellant�s submissions turn principally on s 37(5) of the Constitution. It is submitted that this section does not permit of an interpretation which is subject to an implied consent; there can be no implied consent and the section must be interpreted with the words �express consent�.

Whilst s 131 of the District Courts Act (Ch No 40) does provide for ex parte hearings before the District Court this section must be read down in view of s 37(5) of the Constitution; see Reference No 1 of 1976, In re; Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537 where the Supreme Court held that s 131 is to be read down so as to permit an ex parte hearing, but only in as far as it relates to an offence punishable on summary conviction before a court the maximum penalty for which does not include imprisonment (except in default of payment of a fine). The case before us now does not come within that interpretation as it is an offence which can incur a penalty of imprisonment.

Can therefore the defendant�s absence be deemed to be by consent?

I am satisfied that consent can be implied by actions as well as by express consent, however such actions must be capable of unambiguous interpretation. Thus one must look at the circumstances at the time. A mere failure to appear would not necessarily imply consent, it must be something more deliberate than that. A person who walks out of a hearing with no explanation could be deemed to be absconding or saying �I do not care if you carry on without me�. However a failure to appear on a day, some weeks after an adjournment could be for a variety of reasons and it would be an error for a court to jump immediately to the conclusion that the defendant has absconded or consented.

In the case before us now the police prosecutor quite properly asked that a warrant to arrest be issued on the failure of the defendant to appear. I find that the magistrate erred in not following that procedure and instead implying the defendant to have absconded. Further the words of the magistrate, �had defence evidence were [sic] available it could not have caused any doubt�, must be read as being his thinking when he made the decision, and quite clearly suggest a blocking out by the magistrate in his mind of any possible defence the defendant could produce thereby suggesting that the defendant would not get a fair and unbiased hearing.

I find the magistrate has erred by finding a consent where there was no clear action from which such consent could be inferred, and further he has erred in closing his mind to any evidence the defendant may have been able to bring if he had sought to do so.

I allow the appeal and quash the conviction and sentence of the District Court.

BARNETT J : This appeal concerns the very important question of when a court is entitled to continue hearing a criminal trial if the defendant fails to appear from bail after an adjournment. It also concerns the question of judicial bias.

The appellant was, at the time of the trial before the District Court in 1982, a Minister of the Government. He was defending himself against a charge of consuming alcoholic liquor in a moving motor vehicle contrary to s 6 of the Liquor (Miscellaneous Provision) Act (Ch No 313).

In his full and detailed judgment, his Honour the Chief Justice, has described the unfortunate history of events which occurred during the many-times adjourned proceedings in the magistrate�s court and it is not necessary for me to repeat it. Suffice it to say that on 2 February 1982, at the close of the prosecution case, the magistrate ruled that the appellant had a case to answer. He adjourned the case for four months to 6 July 1982 at the request of the appellant who wished to contest the National Elections during that period. At this stage of the trial the appellant was not represented, as his lawyer had been barred from further appearance for unreasonably criticising the court and its officers during the course of the trial.

When the trial resumed on 6 July the appellant did not appear nor did counsel appear on his behalf. The prosecutor then applied for bail to be forfeited, a warrant of arrest to be issued and the matter to be adjourned so that the appellant could be arrested and brought in to complete the trial. The magistrate however took the view that as the matter had already been adjourned several times at the appellant�s request a further adjournment �would not be of the best of doing justice�. So the trial went ahead in the appellant�s absence. He was convicted and sentenced to three weeks imprisonment in hard labour. His appeal to the National Court against both conviction and sentence was dismissed.

The five grounds of his appeal from that National Court ruling are set out in the Chief Justice�s judgment. Before this Court they were argued as two substantive grounds:

N2>1.������ That the National Court erred in law in finding that the mere failure to appear amounted to consent for the trial to proceed in his absence.

N2>2.������ That in deciding to proceed ex-parte and in deciding to convict the magistrate was biased.

The District Courts Act (Ch No 40), s 130, provides as follows:

�Hearing in Absence of Both or Either of the Parties

If, at the time and place to which a hearing or further hearing of an information for a simple offence is adjourned, either or both of the parties does not or do not appear personally or by his or their legal representative or representatives, as the case may be, the court may proceed to the hearing or further hearing as if the party or parties were present or, if the complainant does not appear, the court may dismiss the information with or without costs.�

This section is however subject to the overriding authority of s 37(5) of the Constitution which says:

�Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.�

The learned appeal judge found that those words did reveal bias but that:

�... there was no real likelihood or reasonable suspicion that the magistrate convicted the defendant because of that bias�.

Mr Steele for the appellant says these remarks not only raise the suspicion of bias but also actually disclose the existence of a real bias against the appellant. He further says that the bias must have affected the magistrate�s decision to proceed ex parte in the absence of the defendant as well as the decision to convict him.

Mr Unagui for the respondent supports the appeal judge�s reasoning and also says that, as those remarks were written after the trial, they should not necessarily be accepted as a true picture of the magistrate�s state of mind during the trial.

At the time he decided to reject the prosecutor�s application to adjourn and to issue a bench warrant the magistrate had already been exposed to all the facts on which the state of mind disclosed in his reasons was based. It indicates a significant bias and certainly gives rise to a suspicion of bias (as actually found by the National Court judge on appeal). I cannot agree with the learned appeal judge that such bias did not raise a real likelihood or reasonable suspicion that the magistrate convicted the appellant because of that bias. Once the appellant failed to appear, the magistrate had first to decide if he was consenting to the trial proceeding in his absence. If so, the magistrate had then to decide if he should proceed ex parte or adjourn and have him arrested and brought in. If he had already decided that no defence the appellant might bring forward could possibly raise a doubt in the magistrate�s mind then that mind is closed, and that is bias. In those circumstances the decision to proceed ex parte was not a proper exercise of discretion as it was influenced by bias and, of course, it did lead to conviction.

For these reasons this appeal is allowed. The learned appeal judge�s decision is reversed and the magistrate�s decision must be quashed.

Having found that the learned magistrate was biased against the appellant�s case it would be inappropriate for this Court to order him to reopen the trial and hear the appellant�s defence. To order a rehearing of this charge before a new magistrate after a four year delay would not be in the interests of justice. My order therefore is that the conviction of the appellant be quashed and he be acquitted of this charge.

Appeal allowed Conviction quashed

Lawyer for the appellant: Steeles.

Lawyer for the respondent: State Prosecutor.