Written by Bill Doogue. Partner, Doogue & O’Brien Criminal Defence Lawyers
- Courts want their business to go ahead so have a genuine reason for your application.
Reducing delays in Victorian Courts has become a major focus of the Courts. That focus has created real tension between an accused’s ability to fully defend his matter and the Judiciary’s desire to process cases.
- Notify parties involved as soon as you are aware you will be applying for an adjournment.
Listing the matter early enough allows the Court to use the time allocated to your case to run another case. This is a factor they will consider in exercising their discretion as to whether to adjourn or not.
- Back up your application with useful evidence.
If you are applying on the basis that your client is unwell, then procure a proper letter from a medical doctor detailing the nature of the illness. This is not the same as a medical certificate where a doctor writes in the person’s name and checks a box declaring the patient “unfit to attend work” .
- An adjournment is discretionary.
The decision to grant an adjournment is discretionary. The accused’s concerns are not the be all and end all of the application. Unfortunately for the accused this has been well articulated before;
“The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a different matter” R v Cox  VR 665
Basically, providing the decision to not adjourn is not wrong in law or not reasonably open to the Magistrate then you are stuck with the outcome.
- Have a backup plan in case the application fails.
Be prepared to run the case as you can not guarantee that the Judge/Magistrate will grant your application.
- Run the application past the prosecutor first.
If the prosecutor demonstrates that they are not in opposition of the application, it will generally be better received. Get them to confirm in writing or email them to confirm your conversation so there can be no misunderstanding, or backsliding, once you are in Court .
It is important that you do not tell the Court that the application for adjournment is “consented to”. Some Judicial Officers reject this notion as a Prosecutor cannot “consent” they can merely “not oppose”.
- If the application is in your client’s absence make sure you are able to contact them on the day
Ensure your client understands they must be available for contact until you call them and advise that matter has been adjourned.
The client must also be aware that if the adjournment application fails, a warrant for their arrest may be issued. At this point of the conversation, a client’s mood can tip very quickly to outraged. Open and frank communication is the best approach, they must be prepared and aware that an adjournment is not a certainty, so they will need to be ready to come – if at all possible.
- Judicial Review – Practice Court of the Supreme Court.
You can go to the Supreme Court and have a matter brought before the Practice Court for judicial review on the same day.
A game young Barrister did this recently when a Magistrate would not adjourn a matter. In this situation, the Barrister believed the client had a complete defence and that an adjournment would result in the charges being discontinued. The adjournment was sought in order to provide more material to the prosecution. The initial adjournment application was not opposed by the Prosecution.
Keep in mind that there is a filing fee of $1100, although there can be an application for that to be waived.
The process that the Barrister followed was to contact the Supreme Court where she was put through to the Practice Court Judge’s Associate. She went to the Supreme Court and made some oral submissions, then went back to the Magistrate’s Court and again made the application which was again refused. So, back to the Practice Court where an order adjourning was made. In a case such as this, the temporary order to stay is effectively a final order (because you have got your adjournment).
It is wise to be wary with this course as you can open your client to costs orders if you are unsuccessful and as it is discretionary the Judge would have to believe the Judge erred at law in the exercise of their discretion. See point number 10 for more on that discretion.
- Legislation regarding adjournments.
Granting an adjournment is a discretionary power contained in s331 of the Criminal Procedure Act part of which detailed below:(1) A court may adjourn the hearing of a criminal proceeding before the court-
(a) to any time and place; and
(b) for any purpose; and
(c) on any terms as to costs or otherwise-
that it considers appropriate.(2) If at any time a court adjourns the hearing of a criminal proceeding, the
(a) allow the accused to go at large; or
(b) remand the accused in custody; or
(c) grant the accused bail or extend his or her bail.
- Read Recent Case Law on Adjournments in particular as to refusal on the basis of case management.
A good starting point is the judgement of SM v The Queen  VSCA 332, from which these 3 passages are takeni) “At the time of the appellant’s application to adjourn, the refusal to adjourn was not reasonably open to the trial judge and demonstrated an exercise of discretion that bespoke appeallable error.It is well established that the decision to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision. An appellate court’s review of such a discretion is governed by the principles in House v The King. It is not for the reviewing or appellate court to consider whether it would have exercised the discretion to adjourn differently, but rather to consider whether the exercise of the discretion was wrong in law or reasonably open to the judge below.The guiding principles for exercising the discretion to refuse an adjournment are set out by Kaye J in Brimbank Automative Pty Ltd v Murphy:The guiding principle for the exercise of the discretion is that a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise. Thus, in Walker v Walker Simon P stated:“… Where the refusal of an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should only be refused if that is the only way that justice can be done to the other party…“
This case also refers to two other concepts of great interest to would be adjourners-
ii) … the refusal of the application for the adjournment prevented the applicant from seeking documentary evidence which his counsel anticipated might have been material to his defence, and his counsel was precluded from obtaining what he considered to be sufficient instructions to enable him to present properly the defence. There were, therefore, proper and adequate grounds upon which the Magistrate might have exercised his discretion, and by refusing the application he failed to exercise his discretion properly or at all. As a consequence there was a real risk that justice was denied to the applicant.
iii) The trial judge also justified the refusal to adjourn on the grounds of case management issues, including the appellant’s tardiness in bringing the application and the practical outcomes caused by granting the adjournment. With respect, these issues did not demonstrate that an adjournment would occasion irreparable prejudice to the Crown and did not warrant a refusal to adjourn.
A court must, particularly in a criminal case, prioritise the considerations of justice over those of efficiency and case management in exercising its discretion to adjourn proceedings: it is not an opportunity to punish parties for delay or tardiness in raising a material issue. In Brimbank Automotive Pty Ltd v Murphy, Kaye J said: 
In determining whether to grant an adjournment, a court is entitled to take into account, as a relevant circumstance, the exigencies of case management. However, that consideration should not be permitted to prevail over the rights of the parties before the court, and in particular it should not predominate over the right of a particular party to be able to present its case properly to the court. The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties. The point was stated in authoritative terms in the joint judgment of Dawson J, Gaudron J and McHugh J in The State of Queensland & Anor v JL Holdings Pty Ltd, as follows:
“In our view the matters referred to by the primary judge were insufficient to justify her Honour’s refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.”
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