C, Mg v Police; C, Mg v Police - [2010] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
C, MG v POLICE; C, MG v POLICE & ANOR
[2010] SASC 268
Judgment of The Honourable Justice Kelly
27 August 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - FROM INTERLOCUTORY OR ANTECEDENT JUDGMENT OR ORDER
Appeal from decision of Magistrate - prosecution made application to withdraw information alleging indecent assault - where intention of prosecution to lay fresh information including other similar charges - Magistrate allowed application - whether order of Magistrate interlocutory or final - whether application was an abuse of process - whether Magistrate failed to exercise discretion and made an error of law.
Held: Appeal incompetent - order made by Magistrate was interlocutory - even if the appeal was competent the Magistrate implicitly recognised power to refuse application for abuse of process - no abuse of process demonstrated.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
CRIMINAL LAW - PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT - SOUTH AUSTRALIA
Judicial review - whether Magistrate failed to exercise discretion and made a jurisdictional error - whether s 69 of the Summary Procedure Act 1921 (SA) should have governed the determination of the application - whether application was an abuse of process.
Held: Application for judicial review dismissed - Magistrate implicitly recognised power to refuse application for abuse of process - no abuse of process demonstrated - unnecessary to decide whether s 69 of the Summary Procedure Act 1921 (SA) governed the application - no impact on outcome.
Summary Procedure Act 1921 (SA) s 69; Criminal Law Consolidation Act 1935 (SA) s 56; Magistrates Court Act 1991 (SA) s 9 and s 42; District Court Act 1991 (SA) s 9; Director of Public Prosecutions Act 1991 (SA) s 7, referred to.
Collis v Magistrates Court of South Australia (2008) 101 SASR 332, distinguished.
Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1975) 180 CLR 213; Rona v District Court of South Australia (1995) 63 SASR 223; R v Brentford Justices ex parte Wong [1981] QB 445, discussed.
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; Heinrich v Curtis [2006] SASC 264; Brereton v Sinclair (2000) 2 VR 424; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Dalton v South Australia (in right of the Department for Families & Communities) (No 3) [2010] SASC 179; Gray v Police (2003) 85 SASR 1; Wunsch v Police (1995) 64 SASR 203; Question of Law Reserved on Acquittal (No 3 of 1995) (1995) 66 SASR 450; Willing v Hollobone (1972) 2 SASR 434, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"interlocutory or final order", "abuse of process"

C, MG v POLICE; C, MG v POLICE & ANOR
[2010] SASC 268
Magistrates Appeal: Criminal
KELLY J:
Introduction

By a notice of appeal filed on 28 April 2010 the appellant, Mr C, appeals a decision of a Magistrate made on 31 March 2010 granting permission to the respondent, South Australia Police to withdraw an information alleging a minor indictable offence against the appellant.
The appellant complains that the Magistrate erred in law by failing to exercise the jurisdiction he was required to exercise under s 69 of the Summary Procedure Act 1921 (SA). It was submitted that the Magistrate misunderstood the task required of him in relation to the respondent’s application to withdraw the information and that in all of the circumstances the Magistrate ought to have refused the prosecution permission to withdraw the information.
By summons dated 24 May 2010 the appellant (as plaintiff) seeks judicial review of the same decision of the Magistrate. The summons filed on 24 May 2010 is filed in the alternative in the event that this Court does not have jurisdiction to entertain the appeal from the Magistrate. The appeal would be incompetent if a determination is made that the Magistrate’s order permitting the respondent to withdraw the information was an interlocutory order as opposed to a final order.
In the application for judicial review the appellant seeks an order in the nature of certiorari quashing the Magistrate’s decision and an order in the nature of mandamus directing the Magistrates Court of South Australia (named as the second defendant in the judicial review application) to hear and determine the information against the appellant.
In substance the issues which arise on the two proceedings are very similar. The grounds of appeal and the grounds on which judicial review are sought are founded on the same facts and accordingly it is convenient to consider the issues which arise in both proceedings together.
Before dealing with the legal issues which arise it is convenient to set out the factual basis on which the Magistrate was asked to proceed when the application to withdraw the information was made to him in March 2010.
To avoid unnecessary confusion I shall refer to Mr C as the appellant and to South Australia Police as the respondent throughout.
Background
The appellant was charged with one offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) in an information on 20 May 2009. The offence allegedly occurred on 11 March 2008.
The appellant first appeared in court in answer to that information on 3 September 2009. On 27 October 2009 the matter was mentioned in court in the context of a subpoena application issued by the appellant’s solicitors to a third party.
There followed a number of other mention dates; 25 November 2009, 1 December 2009, and 12 December 2009, when the matter was listed for a pre‑trial conference to take place on 16 February 2010. On 16 February 2010 both parties indicated that they were ready for trial and the matter was accordingly listed for trial to commence on 7 April 2010.
A number of affidavits were filed in the hearing in this Court. Although there were some preliminary objections made by the respondent’s counsel eventually these were resolved and all affidavits were ultimately filed by consent. They were the affidavits of Shane Spence signed on 30 March 2010 and 20 May 2010 respectively and an affidavit filed on behalf of the respondent by Sergeant Simon Keane on 4 June 2010.
Sergeant Keane was the prosecutor allocated to conduct the trial of the matter on behalf of the police. He first became aware of a number of other matters pending for adjudication either by South Australia Police or the Director of Public Prosecutions (“DPP”) involving the appellant shortly after 15 March 2010 when he was allocated the file.
Some of these matters had either already been transferred to the DPP or had been referred to that office for advice in accordance with protocols set up between the DPP and the police. One file had been referred on 8 December 2009 and further files on 10 March 2010. Another matter already in the office of the DPP was in respect of a matter in which the appellant had been arrested on 20 November 2009.
Sergeant Keane examined each of the apprehension reports in relation to those matters and formed the view there was some similarity and underlying unity in each of the allegations. He therefore made a decision himself to contact the DPP and telephoned the appellant’s solicitor to advise that it was his intention to apply to the Court to withdraw the information of 20 May 2009.
That application was made before the Magistrate on 22 March 2010. The affidavits of Sergeant Keane and Shane Spence set out the history of what transpired on that date and again on 31 March 2010 when submissions were continued. There is no dispute about what was said and done at those hearings.
Sergeant Keane informed the Court that he wished to withdraw the information. In consequence the Magistrate asked him if it was the intention of the DPP to commence a joint prosecution. On 31 March 2010 he informed the Court that the file would be transferred to the DPP with the view to laying an information jointly charging the appellant with all outstanding matters.
Ms Spence, then counsel for the appellant, informed the Court that the first the appellant became aware of the application to withdraw the information was on 18 March 2010 in the telephone call from Sergeant Keane.
The appellant opposed the application. Whilst there was no suggestion made, nor could there be, that the police in making the application had behaved in a way which might be seen as “disingenuous” about the purpose of the withdrawal application, nevertheless it was the appellant’s position that the application to withdraw the information at such a late stage prior to trial amounted to an abuse of process.
After hearing argument the Magistrate ruled on 31 March 2010 that he would permit the prosecution to withdraw the information and ordered that the prosecution pay the appellant’s costs of and incidental to the information which was withdrawn.
The Magistrate gave some brief reasons in the course of which he said that he did not intend to address all of the matters addressed in submissions before him both orally and in writing. Detailed submissions by both parties had been put before the Magistrate supported by authorities.
He then said at [3] of his reasons:
In short, it is said that the defendant wants his trial, which has been properly listed in compliance with the rules of this court, to commence on 7 April 2010. It is asserted that the court is empowered to permit the complaint to be withdrawn pursuant to s.69 of the Summary Procedure Act but that the court should not exercise a discretion to allow that to occur. I am of the view that in the circumstances, before trial, it is not necessary for me to analyse the reasons of the prosecution in purporting to withdraw the complaint. In my view, in the present case that is not a concern for this court unless and until, if it should occur, a fresh complaint arising from the same facts and circumstances may be laid. If that should occur the occasion to consider whether there should be a stay of proceedings as an abuse of process might well arise.
The appellant in this Court complains that the Magistrate erred in a number of respects. It was contended that the Magistrate was required to exercise the discretion whether or not to grant the application made by the prosecution and that in so exercising that discretion the Magistrate was required to weigh up all of the matters and considerations put forward by the parties. Those matters were contained in affidavits and in submissions made to the Magistrate at the time.
The appellant contends that the Magistrate’s reasons reveal that the Magistrate failed to weigh up all relevant considerations and his reasons as a whole particularly in [3] of the judgment indicate that the Magistrate misapprehended and misdirected himself as to the nature and extent of the jurisdiction that he was called upon to exercise.
In support of the application for certiorari and mandamus it is contended that the Magistrate erroneously declined to exercise jurisdiction and in so doing committed a jurisdictional error founding the application for judicial review.
In light of the respondent’s submission objecting to the competency of the appeal a preliminary question arises as to the nature of the order made by the Magistrate, namely whether it was an interlocutory order only or an order in the nature of a final judgment.
The appellant’s primary submission is that this Court has the power under the provisions of s 42 of the Magistrates Court Act 1991 (SA) to entertain this appeal. Section 42 states:
42—Appeals
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a)the judgment stays the proceedings; or
(b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
…
It can be seen from subsection (1a) of s 42 that no appeal lies from an interlocutory judgment given in summary proceedings unless the circumstances set out in subparagraphs (a), (b) or (c) of s 42(1a) are established. As the appellant did not seek to rely on the provisions of s 42(1a)(c) the only live question is whether the order of the Magistrate should be properly characterised as interlocutory or final.
Was the judgment of the Magistrate a final or interlocutory order
The starting point for consideration of this question is the decision of Hall v Nominal Defendant (1966) 117 CLR 423. In an often quoted passage Windeyer J stated the test for determining whether a judgment is final or interlocutory in the following way at 443:
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation…
Later at 444 - 445 he said:
The position when there is an existing dispute between defined parties does not, I think, provide an analogy. There, as I have said, the cases shew that the determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties - does it put an end to an existing dispute or existing action?...
In Licul v Corney (1975) 180 CLR 213 at 219 the Court again clarified the nature of the test. In that case the Court was considering whether an order made by the Supreme Court in Victoria setting aside orders made in the County Court were interlocutory or final. Barwick CJ at 219 – 220 said:
The first question arising from the objection to the competency of the appeal to this Court is whether the order of the Supreme Court was a final order within the meaning and operation of s 35(1)(a) of the Judiciary Act 1903 (Cth) (as amended). To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action.
Later in the judgment Gibbs J said at 225:
…The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex & Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be…
[Footnotes omitted]
In Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248 Gibbs CJ provided further clarification of the test expounded in Hall and Licul. The test requires the Court to have regard to the legal rather than the practical effect of the judgment. He noted at the same time that to hold otherwise would render the question of whether a judgment is interlocutory or final, even more uncertain than it already is and would require in some circumstances a quite inappropriate detailed enquiry on the facts.
In the course of argument I was referred to a number of authorities which show that the practical application of the test enunciated by the High Court can be problematic depending on the statutory and the jurisdictional context in which the order is made.
I was referred to only one South Australian decision where an almost identical appeal under the former language of s 42 of the Magistrates Court Act 1991 (SA) was struck out on the basis that the appeal was incompetent because the Magistrate’s decision was interlocutory. See Heinrich v Curtis [2006] SASC 264 per David J.
The issue arose in Brereton v Sinclair (2000) 2 VR 424. In that case the Victorian Court of Appeal considered whether an order made by a County Court judge that a magistrate be restrained from further hearing a summons for unlawful assault, which the County Court judge found had lapsed by virtue of the mention date not having been validly extended, was interlocutory or final in nature. The Court unanimously held that the order made by the County Court judge was interlocutory in nature. As Tadgell JA put it, the orders complained of had the effect of getting rid of the proceedings in the Magistrates Court without determining the rights of the parties to it.
Chernov JA noted that even though the relevant Victorian legislation precluded the police from filing another like charge, it remained at least in theory, a right in the police to charge the respondent with a common law assault attracting exactly the same penalty. I consider the circumstances in Brereton broadly speaking to be relevantly similar to the circumstances in this case and I find the reasoning of the Victorian Court applies with equal force to the circumstances of this case.
Here, leaving aside for the moment the stated intention of the respondent to eventually re‑lay a further information including the same charge as the one contained in the information which was withdrawn, there is nothing in theory or in fact to prevent the police from laying a further information charging the very same offence if they so choose. To put it another way, the effect of withdrawal of the information has not finally determined the issue between the police and the appellant. There has been no adjudication of the appellant’s guilt or innocence in respect of the matter charged. The very wording of the Magistrate’s order expressed as “leave to the prosecution to withdraw the information” implies, or at least contemplates, the capacity of the police to re‑lay a further charge.
As the substantive merits of the charge were not adjudicated upon I conclude that the order made by the Magistrate on 31 March 2010 is properly characterised as interlocutory in nature.

The submission made by the respondent that the appeal brought under s 42 of the Magistrates Court Act 1991 (SA) is incompetent must therefore be upheld.
However as both parties have acknowledged that the substantive legal argument in respect of both the application for judicial review and the issues that arise on an appeal under s 42 of the Magistrates Court Act 1991 (SA) are on the facts of this case almost identical, I consider it practical and sensible to determine the issues which arise on the appeal, as well as on the judicial review, on their merits in any event.
Analysis
The starting point when considering the issues which arise either on the application for judicial review or the appeal under s 42 of the Magistrates Court Act 1991 (SA), must be to consider the nature and extent of the powers and functions of the Magistrates Court with respect to a prosecution of this nature. The appellant was prosecuted for a minor indictable offence. He did not elect for trial in a superior court but chose to submit to the summary jurisdiction of the court. The provisions of the Summary Procedure Act 1921 (SA) therefore governed the procedure to be followed.
The Magistrates Court’s powers are conferred by statute, namely s 9 of the Magistrates Court Act 1991 (SA). That jurisdiction relevantly includes the hearing and determination of summary and minor indictable offences.
The appellant’s counsel articulated the basis for the application for judicial review as a complaint in essence that the Magistrate in permitting the prosecution to allow the withdrawal of the information made a jurisdictional error by misunderstanding both the nature and the extent of the jurisdiction he was required to exercise. It was said that this conclusion followed from the Magistrate’s reasons when he expressed the view that he did not need to analyse the reasons the police articulated for wanting to withdraw the complaint; whereas he was obliged to consider, as the appellant contended, whether in all of the circumstances, the application amounted to an abuse of process. The Magistrate either misapprehended the matters about which he was required to be satisfied or failed altogether to embark on the necessary inquiry. Mr Peek QC submitted that the Magistrate thereby made an error which amounted to a jurisdictional error in the sense identified by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. See also Doyle CJ at [47] in Dalton v South Australia (in right of the Department for Families & Communities) (No 3) [2010] SASC 179.
The appeal under s 42 of the Magistrates Court Act 1991 (SA) essentially relies on exactly the same facts, namely that the Magistrate misinterpreted and misunderstood the task he was required to carry out under the provisions of the Summary Procedure Act 1921 (SA). It was said in particular that in failing to consider all of the circumstances in which the application by the police was brought the Magistrate made an error of law and this Court should intervene to make the orders sought.
It is accepted and neither party argued to the contrary, that the Magistrates Court has the implied power to control its own proceedings in order to prevent an abuse of process. See Gray v Police (2003) 85 SASR 1, Wunsch v Police (1995) 64 SASR 203.
Accordingly the observations of King CJ in Rona v District Court of South Australia (1995) 63 SASR 223 apply with equal force to a magistrate exercising the powers under the Magistrates Court Act 1991 (SA).
In Rona King CJ observed that the power to stay criminal proceedings permanently, if necessary to prevent an abuse of its process, was undoubted whether that power was to be regarded as inherent in the court by reason of it being a court of justice or whether it is implied by the grant of jurisdiction in the enabling legislation (s 9 of the District Court Act 1991 (SA)).
It is also well established that the categories of abuse of process are not exhaustively stated in the cases. The remedy may be granted where the prosecutor can be said to have manipulated or misused the rules of procedure. One example of such a case was in R v Brentford Justices ex parte Wong [1981] QB 445. In that case the English Court of Appeal considered the powers of a justice under the provisions of the United Kingdom legislation governing summary justice, to decline to hear a case in the exercise of its jurisdiction. The Court held that it could. In that case the Court observed at 450:
For my part, I think that it is open to justices to conclude that it is an abuse of the process of the court for a prosecutor to lay an information when he has not reached a decision to prosecute. The process of laying an information is, I think, assumed by Parliament to be the first stage in a continuous process of bringing a prosecution. Section 104 of the Magistrates' Courts Act 1952 is designed to ensure that prosecutions shall be brought within a reasonable time. That purpose is wholly frustrated if it is possible for a prosecutor to obtain summonses and then, in his own good time and at his convenience, serve them. Of course there may be delays in service of the summonses due perhaps to the evasiveness of the defendant. There may be delays due to administrative reasons which are excusable, but that is not so in this case.
In Rona, after referring to the Brentford Justices case King CJ went on to observe that in Australia a deeper understanding of the inherent power of the criminal courts to prevent abuse of their processes leads to the conclusion that the courts have the power to act in a way which achieves what is now achieved by practice in England by refusing to act on a nolle prosequi where to do so would permit an abuse of process. In that regard King CJ foreshadowed what the Full Court later decided in Question of Law Reserved on Acquittal (No 3 of 1995) (1995) 66 SASR 450.
The power is to prevent proceedings which amount to an abuse of process, not to punish noncompliance with case management procedures and directions. Finally in Rona King CJ cautioned at 230:
…it is important to make the point that the existence of the power to stay resulting from the abuse of process, does not imply that the power must be exercised. A judgment has to be made as to what the interests of justice require. There must be a balancing process taking into account the interests of fairness to the accused in having the basis upon which his trial was to take place adhered to, the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business and "the community's expectation that persons who are charged with offences are properly brought to trial"…
Thus it can be seen that the power of the Magistrate in relation to the application for withdrawal of the charge is essentially the same as the power of a District Court judge under the District Court Act 1991 (SA).
The authorities show that the power of the court with respect to preventing an abuse of process is a power to be exercised sparingly. In Question of Law Reserved on Acquittal it was said that the power to prevent an abuse of process, unfairness or injustice, would only be exercised in rare or exceptional circumstances; see Debelle J at 472.
In Question of Law Reserved on Acquittal the Court was considering the circumstances in which the District Court might refuse to permit the entry of a nolle prosequi. The scenarios contemplated by the Court in Question of Law Reserved on Acquittal, as constituting circumstances where the Court might exercise the power to refuse, all involved circumstances where the trial had already commenced and the entry of the nolle prosequi was sought to, in effect, preserve the position of the prosecutor thus denying the defendant the benefit of an acquittal at a late stage after the trial had commenced.
Here the appellant submitted that the respondent’s application to withdraw the information at such a late stage of proceedings, namely 16 days prior to the trial, amounted to a belated application for an adjournment which in all the circumstances amounted itself to an abuse of process. It was said that the application to withdraw at that stage flew in the face of case management principles in such an egregious way that the application in itself amounted to an abuse of process. It was said that the Magistrate should have refused the application accordingly.
In support of its argument that the Magistrate could have and should have refused the application to withdraw the information, the appellant relied on the provisions of s 69 of the Summary Procedure Act 1921 (SA). It was submitted that s 69 governed the procedure to be followed before the information could be withdrawn. That section states:
69—After hearing the parties court to convict or dismiss
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.
The argument on the appellant’s behalf was that because s 69 governed the procedure to be followed, the Magistrate was required to consider whether in the exercise of the discretion under s 69 in all of the circumstances the police should be given permission to withdraw the information.
The respondent submitted that s 69 does not confer a general power to regulate the withdrawal of informations or complaints and that it only empowers imposition of terms by a court when the information or complaint is to be withdrawn after the parties and their evidence have been heard. Reliance was placed on a decision of a single judge of this Court in Collis v Magistrates Court of South Australia (2008) 101 SASR 332.
In Collis a defendant sought judicial review of a decision by a magistrate to dismiss an information. Vanstone J held that the Director of Public Prosecutions under s 7(1)(e) of the Director of Public Prosecutions Act 1991 (SA) had the power to terminate the prosecution and that the provisions of s 69 of the Summary Procedure Act 1921 (SA) did not apply. In the course of the judgment her Honour reasoned at [29]:
It is true that a court created by statute might be given power to impose conditions on the termination of a cause, including a prosecution. Section 69 of the SP Act provides an example of such a power. But the proviso to s 69 does not amount to the conferral of a general power to regulate the withdrawal of complaints. Rather, it is a conferral of a power upon the court to impose conditions upon the withdrawal of a complaint after all the evidence has been taken. As Mr Hinton QC, for the respondent, argued, as a matter of statutory construction, the proviso to a clause only qualifies that which precedes it. Apart from giving the court the power to adjudicate the evidence given in support of a complaint, the wording of s 69 recognises that a party may withdraw at any time, but gives the court the power to hedge the exercise of that right, after a point where all the evidence has been heard.
Mr Peek QC contended that the reasoning employed by Vanstone J in Collis is incorrect. It was said that the inclusion of the words “at any time before the matter has been finally determined” in the proviso is a clear indication that the Court has the power to refuse or permit withdrawal at all stages after the defendant’s first appearance.
In support of the appellant’s argument Mr Peek QC cited earlier authority of this Court which he said supports the appellant’s position that s 69 of the Summary Procedure Act 1921 (SA) governs all applications for withdrawal of a complaint or an information after the defendant’s first appearance in court. See Hannan’s Summary Procedure of Justices (4^th Edition, 1975) at 99, Willing v Hollobone (1972) 2 SASR 434.
I note in passing that in none of the authorities to which I was referred in support of the appellant’s position was the contrary argument ever agitated. Indeed Collis appears to be only case in which the interpretation of s 69 has been the subject of detailed argument and analysis.
Even if s 69 did govern the application, the respondent submitted that the considerations which would govern the exercise of the discretion under s 69 would mirror those identified in Question of Law Reserved on Acquittal. Namely, the respondent was entitled in accordance with the proper exercise of the prosecutorial discretion to withdraw the information prior to the trial, subject only to the courts implied power to prevent an abuse of its process.
In the circumstances of this matter I do not consider it necessary to answer the question whether s 69 of the Summary Procedure Act 1921 (SA) did or did not govern the application. Either way it would not make any difference to the outcome. As I have noted, it cannot be disputed that the Magistrate has the power to refuse an application in cases where it is necessary to prevent an abuse of process of the kind referred to in Rona and Question of Law Reserved on Acquittal. That is to say that permission would only be refused in the rare and exceptional circumstances to prevent an abuse of process, unfairness or injustice. Here the appellant says that the application was such an abuse of process. That is the real issue in this matter.
In Collis at [27], Vanstone J was careful to note that it was not suggested in that case that there had been a valid exercise of the power to terminate a prosecution resulting in any abuse of process. On the contrary it was argued in that case that the prosecution had no power to terminate in the first place. That case turned on the powers of the Director of Public Prosecution under s 7 of the Director of Public Prosecutions Act 1991 (SA) to terminate the prosecution of a minor indictable offence where a defendant has elected for trial in a superior court and for that reason I do not consider that it has particular relevance to the resolution of the issue which arises in this case.
In my view the Magistrate did direct himself to the relevant question and concluded that at that stage of proceedings there was no abuse of process in permitting the respondent to withdraw the information. He had the benefit of full argument which he acknowledged. All of the relevant facts and the history of the matter was before him. The prosecution were frank as to the reason for withdrawal at that stage. The Magistrate’s reasons implicitly recognise that the principle discussed in Question of Law Reserved on Acquittal applied in the circumstances before him. I do not consider that any more was required.
On any view of the matter I consider that the characterisation of the application by the police to withdraw the information as a disguised application for an adjournment is misconceived. Perhaps in a perfect world, a decision whether or not to join the other matters pending against the appellant might have been made at an earlier stage. Even so the delay was not inordinate and the reasons advanced by the prosecutor before the Magistrate for wanting to withdraw the complaint reflected an entirely proper approach to the prosecution. Those reasons revealed that the prosecution desired to have all of the outstanding charges, which were all of a very similar nature to the current matter, to be dealt with as a joint trial. The application was not made at the eleventh hour. It was made some 16 days prior to trial. Any prejudice in the nature of costs and expenses thrown away could be met (and in fact were met) by an appropriate order as to costs.
The appellant asserts that he has a right to have a trial on the information, however I consider that the appellant’s right is to have a fair trial on the information which the prosecution ultimately chooses to lay. The appellant identified no prejudice other than the inevitable delay, which has resulted from the withdrawal of the current information, in resolving the outstanding charges against him. In that respect, both parties, including the alleged victim or victims of the other matters pending, might also to some extent be prejudiced. Nevertheless as I have earlier noted the delay has not been inordinate. It is in any event open to the appellant if and when further charges are laid to make any application as he sees fit should he consider there to be a proper basis for doing so, arising out of the issue of delay or any other prejudice which might be suffered by him.
For these reasons I do not consider that the appellant has indentified any error on the part of the Magistrate such as to justify the intervention of this Court. Nor do I consider that the Magistrate has misapprehended the task he was required to perform as to found a successful application for judicial review in this Court.
Even if the appeal under s 42 of the Magistrates Court Act 1991 (SA) was competent, I would dismiss the appeal.
For the same reasons I decline to make the declaration sought by the appellant and dismiss the application for judicial review.