Collis v Magistrates Court of South Australia - [2008] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application for Judicial Review)
COLLIS & ANOR v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2008] SASC 201
Judgment of The Honourable Justice Vanstone
16 July 2008
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION
Application for judicial review of Magistrate's order to dismiss information - plaintiffs jointly charged on information for taking part in the sale of cannabis - plaintiffs wishing to plead guilty - Director purporting to exercise power under s 7(1)(e) of the Director of Public Prosecutions Act to terminate the prosecution before plaintiffs required to answer charges - Magistrate foreshadowing order to dismiss information - whether the Magistrates Court would be acting beyond its jurisdiction by dismissing the information - whether Director has the power to terminate a prosecution before a defendant answers the charge - whether the Director's power to terminate is constrained by provisions of the Summary Procedure Act. Held: the Director had the power to terminate the prosecution notwithstanding the preliminary examination procedures prescribed in the Summary Procedure Act - on termination of prosecution parties no longer joined - no order of dismissal required - summons for judicial review dismissed.
Director of Public Prosecutions Act 1992 (SA), s 7; Summary Procedure Act 1921 (SA), s 69, s 103, s 104, s 105, s 106, s 107, s 109, s 181; Magistrates Court Act 1991 (SA), s 9, s 42; Justices Act 1921 (SA), referred to.
Barton & Anor v The Queen (1980) 147 CLR 75; Director of Public Prosecutions (South Australia) v B (1998) 194 CLR 566; Maxwell v The Queen (1996) 184 CLR 501, applied.
Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450, considered.

COLLIS & ANOR v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2008] SASC 201
Judicial Review
VANSTONE J:
Introduction

The plaintiffs (who are defendants in the Magistrates Court) seek judicial review of a decision by a magistrate to dismiss an information. The application raises the issue of whether a prosecution for an indictable offence may be brought to an end by the prosecution tendering no evidence prior to the defendant being required to answer the charge. The plaintiffs’ position is that they wish to enter pleas of guilty to the charges and that the prosecution must proceed to the point where they can do so.
Background
By information dated 1 November 2007 the plaintiffs are jointly charged with two counts of taking part in the sale of cannabis. That is described as a major indictable offence. It appears that the prosecution allegation is that both plaintiffs were involved in the transporting of large quantities of cannabis from this state to Queensland. Arrests of persons said to be implicated in the scheme have also been made in Queensland. Affidavit material before me demonstrates that the Queensland authorities wish to extradite the plaintiffs to Queensland, with a view to charging them jointly with the other arrested persons.
On 1 November 2007 the defendants appeared for the first time in the Magistrates Court of South Australia and were granted bail. The prosecution was represented by counsel for the Director of Public Prosecutions (the Director) and each defendant was represented by counsel. On 9 November 2007 they appeared again. At that time 18 January 2008 was fixed for the filing of prosecution statements and 15 February 2008 was fixed as the date upon which the plaintiffs would answer the charges.
On 18 January 2008 the matter was called on. Again the prosecution was represented by counsel for the Director and both defendants, whilst not present (having been excused) were represented. On this occasion the prosecution applied for an adjournment. The court record bears the endorsement:
For negotiations – prosecution to make inquiries. Vacate TAC [to answer charge] date of 15/2/08.
The matter came on again on 1 February 2008. The court record indicates that counsel then appearing for the Director applied to tender no evidence and to have the information dismissed. The affidavit filed in the current application by that counsel asserts that she also invoked s 7(1)(e) of the Director of Public Prosecutions Act 1992 (the DPP Act) and advised that the Director had “decided to terminate the prosecution”. Whatever the precise intimation or application made, it was opposed by counsel for both defendants, who argued that the court could not, at that stage, dismiss the information.
On 8 February 2008 the magistrate ruled in favour of the contrary argument. In written reasons published by the magistrate bearing that date, Magistrate Ackland made it clear that he considered that the application before him was made on the basis of the power given the Director in s 7(1)(e) of the DPP Act to “enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases”. As I understand him, the magistrate reasoned that once the preliminary examination of the charges had begun and once the defendant had been asked how he pleaded, in accordance with s 105(2)(a) Summary Procedure Act 1921 (SP Act) then the procedure outlined by the section would need to be adhered to. His Honour found, though, that the preliminary examination of the charges had not yet commenced. Therefore there was no impediment to the Director terminating the prosecution.
The court record shows that the information was dismissed and the defendants discharged. However, upon being told that the defendants would make application for judicial review, Magistrate Ackland deferred the “formal making of the order” until 22 February 2008. When the matter was mentioned on that day, the court was told that this court had granted a stay of the proceedings until further order.
In this court the principal order sought by the plaintiffs is:
An order in the nature of prohibition preventing the first defendant from acting beyond its jurisdiction by dismissing the information prior to the plaintiffs being arraigned pursuant to s 105(2) of the Summary Procedure Act 1921 (SA).
The plaintiffs seek further orders which, in essence, would declare that it was beyond the power of the Magistrates Court to dismiss the information prior to arraignment; that it is beyond the power of the Director to terminate the prosecution prior to arraignment and that upon arraignment and plea of guilty each defendant must be committed for sentence.
Jurisdiction
The plaintiffs suggest that this action for judicial review is properly brought, there being no right of appeal from the magistrate’s decision. That is correct if the order made, or to be made, by the magistrate is a “judgment arising from a preliminary examination”: s 42(1) Magistrates Court Act 1991. Whether the preliminary examination had commenced at the time the magistrate’s decision was made is open to question. However, since counsel for the second defendant, the Director of Public Prosecutions, conceded that the matter was properly before this court and in view of the decisions I have reached, I am content to proceed on the basis that in this matter no appeal lies pursuant to s 42 and that accordingly, I have jurisdiction to hear the action.
The plaintiffs’ argument
In this court each plaintiff was represented by Mr S Henchliffe. His argument, in essence, was as follows. The Magistrates Court is a creature of statute and in carrying out his or her duties a magistrate only has the jurisdiction and powers given by statute. If there is a power to dismiss a complaint, or an information, its source must be statutory. The Magistrates Court was established by the Magistrates Court Act 1991, its jurisdiction to conduct preliminary examinations of charges for indictable offences being conferred by s 9. That jurisdiction is to be exercised in accordance with the relevant provisions of the SP Act, being ss 104‑107. The SP Act, does not give a magistrate power to dismiss an information, except where it is incurably defective (s 181), or where, after consideration of the evidence in support of the charge, the magistrate finds the evidence insufficient and the information falls to be rejected: s 107(2).
Mr Henchliffe analysed the legislative history of the sections dealing with preliminary examinations in an attempt to contrast the current regime both with that provided in the Justices Act 1921 and that which prevailed following the substantial 1983 amendments to it. Common to the predecessors to the current Act was that only after an evaluation of the evidence and the finding of a case to answer was the defendant required to answer the charge. If no evidence was tendered by the prosecution – either at the preliminary examination or indeed earlier – then the magistrate would necessarily find no case to answer and, if the defendant was in custody on the charge, discharge him. In that way the proceeding could be brought to an end. Amendments to s 109(2) SP Act made in 1983 obliged the magistrate in such circumstances not only to discharge the defendant, but also to “dismiss” the information.
The 1992 amendments, introducing the current regime, were said to be aimed at increasing efficiency. Where the defendant appeared personally at a preliminary examination to “answer the charge” (s 105(2) SP Act) the defendant would be asked to plead to it and, upon a plea of guilty, would immediately be committed to the superior court for sentence. Only if the defendant denied the charge was the court required to consider the material already filed in the court by the prosecution to determine whether it was sufficient to put the defendant on trial. In that case, the prosecution would tender the filed material and call any witnesses in relation to whom the court had granted leave to cross-examine. The defendant would be able to give or call evidence. If, after all the evidence was received, the court was of the opinion that the evidence was not sufficient to put the defendant on trial for any offence, then it was required to “reject the information”: s 107(2)(a) SP Act.
Counsel did not seek to attach significance to the change of terminology, that is from the word “dismiss” in the earlier legislation to the word “reject” in the 1992 amendment.
However, counsel’s argument was that apart from the power to dismiss an information where it was found to be defective and not susceptible of being cured by amendment (s 181 SP Act), this was the only power given to a magistrate to reject or otherwise dismiss an information. As seen, that power does not accrue to the magistrate until a time subsequent to the taking of the defendant’s plea. Accordingly, it was argued that once a charge for an indictable offence was laid before the Magistrates Court, a train of events was set in motion, and it could only be halted in accordance with the specific provisions of the Act. It followed that the prosecution was not permitted to tender no evidence until a point after the defendant was required to plead.
Mr Henchliffe contrasted the sections providing a power to dismiss or reject a charge, with s 69 SP Act, which is concerned with the court’s summary jurisdiction. It provides:
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.
He pointed to the specific power given in the proviso to permit the complaint to be withdrawn and the absence of such a power where the court dealt with a charge to be the subject of a preliminary examination. He suggested that the absence meant there was no such power.
Reference was made to the wording of s 104(1) SP Act dealing with the requirement upon the prosecution to file its statements and the suggestion that it was contrary to Mr Henchliffe’s argument. Section 104(1) provides:
104—Preliminary examination of charges of indictable offences
(1) Where a charge of an indictable offence is to proceed to a preliminary examination, the prosecutor must at least 14 days before the date appointed for the defendant's appearance to answer the charge—
(a) file in the Court in accordance with the rules—
(i)statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; and
…
While it could be suggested that the words “where a charge of an indictable offence is to proceed to a preliminary examination” imply a choice to be made as to whether or not the matter is to proceed, Mr Henchliffe submitted the phrase was there to distinguish those minor indictable charges which were to be dealt with in a summary manner, in accordance with s 103(3) SP Act.
The further declaration sought by application to amend the summons made a few days before the hearing, was that:
2.4The second defendant [the Director of Public Prosecutions] would act ultra vires if it attempted to terminate the prosecution on the Information before the plaintiffs were arraigned pursuant to section 105(2) of the Summary Procedure Act 1921 (SA).
Mr Henchliffe submitted that even if I were prepared to grant the principal order sought, that of prohibition, this declaration would still be necessary. It was suggested that the order of prohibition, standing alone, might not suffice for the plaintiffs’ purposes, because even if the Magistrates Court was prevented from dismissing or rejecting the information until a time after a plea had been entered, that of itself would not oblige the Director to maintain the prosecution. Mr Henchliffe put the argument in this way:
… [I]f your Honour accepts and makes the order for prohibition that is sought, it is apparent that the next step will be the prosecution attempting to say ‘We don’t need to tender no evidence, we won’t do that. We won’t ask you to dismiss it but we just say it is withdrawn’. That is a live issue and an issue that is in dispute between the parties. In my submission it is an issue which a declaration should be made about so that the parties know what the law is as to whether the Director has that power. As I say, we are not asking your Honour to review whether it should be exercised or not, simply whether it exists.
Mr Henchliffe accepted that he was, in effect, asking the court to hypothesise as to how the matter might develop once my orders were made, but he suggested that the interpretation of the Director’s powers to bring a prosecution to an end was, in effect, raised by the orders sought and a declaration of this nature was necessary to give efficacy to the order of prohibition.
His argument on this issue related to s 7(1)(e) DPP Act. That provision gives to the Director the power to “enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases”.
Mr Henchliffe argued that in the context of the Magistrates Court, that power had to be read subject to the provisions of the SP Act, so that the Director was precluded from terminating a prosecution until the defendant had been asked, pursuant to s 105(2)(a) SP Act, how he or she pleaded.
Analysis
Implicit in Mr Henchliffe’s argument is the notion that some sort of order of the court is required where a prosecution is terminated. I consider that this premise is incorrect and that, accordingly, the plaintiff’s argument is flawed. The fact that the appellant sought, at the eleventh hour, to amend the inter partes Summons, so as to seek an additional declaration as against the Director, is a telling recognition that the order of dismissal foreshadowed by the magistrate was in any event otiose. Because, however the Director’s counsel expressed herself on 1 February 2008, it was clear that the Director intended to bring the prosecution to an end. If that was the case, then the Magistrates Court would have no more power than it had interest in forcing the Director to prosecute.
It is a fundamental tenet that the court will exercise its jurisdiction only where an issue is joined between parties before it. The court has no role in forcing a party to continue with a suit which it abandons. For reasons which are analogous, the court cannot refuse to accept a plea of guilty: Maxwell v The Queen (1996) 184 CLR 501, per Dawson and McHugh JJ at 511-512 and Gaudron and Gummow JJ at 533. As Dawson & McHugh JJ said at 512:
Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.
Just as the Director is given, by s 7 DPP Act, the power to lay charges of indictable or summary offences and to prosecute such charges, so he is given by s 7(1)(e) the power to terminate a prosecution. Decisions made in the exercise of his powers are acts of the executive and are not reviewable by the court: Barton & Anor v The Queen (1980) 147 CLR 75 at 90-91; Director of Public Prosecutions (South Australia) v B (1998) 194 CLR 566 at [22].
It is for this reason that when a nolle prosequi is entered by the Director in a superior court, the court makes no order in response. It merely notes the event. (See Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450 per Debelle J at 457.)
There is no suggestion in this case of a valid exercise of the Director’s power to terminate resulting in an abuse of the court’s process. Rather, the suggestion is that the Director had no power to terminate in the first place. The words in s 7(1)(e) “in appropriate cases” should not be read as implying any right in the courts to review a decision made by the Director; unless perhaps in an exceptional case.
There is no reason to read down s 7(1)(e) so that it is subservient to provisions of the SP Act. Its terms are, for these purposes, absolute. The grant of power is not conditioned by a requirement that the court before which the charge is being heard, grant leave to terminate.
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 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.
Conclusion
For these reasons I find that it would be inappropriate to make any order in the nature of prohibition. It is immaterial whether or not the magistrate does as he has foreshadowed and purports to dismiss the information. It is immaterial because the prosecution has been brought to an end by the intimation by counsel that the Director was not further prosecuting the matter in the Magistrates Court.

I also decline to make the declarations sought. For reasons already given, it is inappropriate to make any order in relation to any purported dismissal of the information by the Magistrates Court. Such an order by that court is of no utility, as no issue is any longer joined before it.
For the same reasons it would be wrong for the Magistrates Court to now follow the procedure laid down in ss 104-107 and to require a plea of the plaintiffs. It would further be wrong for the court to commit them for sentence, were they to enter pleas of guilty. Declarations requiring such orders would be inappropriate.
I decline to make any declaration in relation to the Director’s powers to terminate a prosecution. I consider that on the plain terms of the DPP Act, the power to terminate this prosecution is given.
For these reasons the summons is dismissed.