Commissioner of Police v Knight; Commissioner of Police v Metters
[2025] SASC 72
•20 May 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
COMMISSIONER OF POLICE v KNIGHT;
COMMISSIONER OF POLICE v METTERS[2025] SASC 72
Judgment of the Honourable Justice B Doyle
20 May 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE
The respondents were each charged with having driven a motor vehicle whilst there was present in their oral fluid or blood a prescribed drug contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA) (‘RTA’).
In each case, a magistrate ruled that the prosecution was unable to rely upon certificates which recorded that the oral fluid or blood samples of the respondents contained prescribed drugs because the relevant certificates had not been served upon the respondents not less than seven days before the commencement of the trial, as required by s 47K(17)(a) of the RTA. Consequently, both prosecutions failed due to lack of proof of an essential element of the offence.
The appellant appeals against the decision of the magistrate in each case, contending that the magistrate erred:
1. by holding that s 47K(17)(a) of the RTA requires personal service upon a defendant;
2. by holding that s 47K(17)(a) of the RTA prevails over s 51 of the Legislation Interpretation Act 2022 (SA) (‘Interpretation Act’) and the Joint Criminal Rules 2022 (SA) (‘JCRs’); and
3. by finding that the certificate had not been served as required by s 47K(17)(a) of the RTA.
On appeal, the appellant also seeks to rely on further evidence concerning proof of service of the relevant certificates.
Held, allowing the appeals:
1. section 47K(17)(a) of the RTA does not require a certificate to be personally served on the defendant;
2. the facilitative provisions found in s 51 of the Interpretation Act and the JCRs may be relied upon to establish service;
3. service was effected in each case as required by s 47K(17)(a) of the RTA;
4. notwithstanding considerations relating to double jeopardy, the appeals should be allowed, the acquittals set aside and retrials ordered.
Observations made as to reliance by the prosecution upon fresh evidence pursuant to s 42(4) of the Magistrates Court Act 1991 (SA).
Acts Interpretation Act 1915 (SA) s 33; Bankruptcy Act 1966 (Cth) s 309(2); Bankruptcy Regulations 2021 (Cth) re 102(1); Corporations Act 2001 (Cth) s 109X; Criminal Procedure Act 1921 (SA) ss 81(1), 99E; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.28; Inheritance (Family Provision) Act 1972 (SA) s 8; Interpretation Act 1984 (WA); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18(4); Joint Criminal Rules 2022 (SA) rr 1.4(1)(a)(ii), 33.1, 33.2, 33.3, 33.4, 33.5, 33.6, 33.7, 34.2, 34.3, 39.1(d), 123.5, 186.3, 204.2(1); Legislation Interpretation Act 2021 (SA) ss 3(2), 3(3), 8, 11, 39, 51; Magistrates Court (Criminal) Rules 1992 (SA); Magistrates Court Act 1991 (SA) ss 42(4), 43A(1), 49; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 24; Road Traffic Act 1961 (SA) ss 47A, 47BA, 47E, 47EAA, 47EA, 47F, 47K, Div 5, Sch 1 cll 7(f), 7(g); Supreme Court Civil Rules 2006 (SA) r 65; Supreme Court Rules 1987 (SA) r 97.18(b); Uniform Civil Rules 2020 (SA) rr 42.1, 42.2, 42.3, 42.4, 42.5, 42.6, 42.7, 42.8, 42.9, 42.11, 43.1, 43.2, 43.4, 156.6, referred to.
Capper v Thorpe (1998) 194 CLR 342; Holder v Lewis (2003) 231 LSJS 431, applied.
St George Bank v Active Property Investment Pty Ltd (2010) 77 NSWLR 148, distinguished.Aylett v Police [2006] SASC 132; Carter v Australian Securities and Investments Commission (2019) 274 FCR 677; Commissioner of Police v Knight [2025] SASC 20; Davern v Messel (1984) 155 CLR 21; Dudley v Police (2022) 103 MVR 199; Everett v The Queen (1994) 181 CLR 295; Ex parte Portingell [1892] 1 QB 15; Gilles v Palmieri [2016] NSWCA 219; Graczyk v Graczyk [1955] ALR (CN) 1077; Holloway v Coster [1897] 1 QB 346; In re A Debtor [1939] 1 Ch 251; In re Harris [1931] 1 Ch 138; In re McGrath; Ex parte Official Receiver (1890) 24 QBD 466; In the matter of Australasian Barrister Chambers Pty Ltd [2020] NSWSC 304; Kestel v Superannuation Complaints Tribunal [2010] FCA 1300; Laurie v Carroll (1958) 98 CLR 310; Leydon v Tomlinson (1979) 22 SASR 302; Magain v Roberts (1991) 14 MVR 313; Malvaso v The Queen (1989) 168 CLR 227; Manuel v Police [2010] SASC 169; McDonald v Camerotto (1984) 36 SASR 66; Miller v Miller [2018] SASCFC 40, discussed.
COMMISSIONER OF POLICE v KNIGHT;
COMMISSIONER OF POLICE v METTERS[2025] SASC 72
Magistrates Appeal: Criminal
B DOYLE J: The respondents were each charged with having driven a motor vehicle whilst there was present in their oral fluid or blood a prescribed drug contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA) (‘RTA’).
In each case, a magistrate ruled that the prosecution could not rely upon certificates which recorded that the oral fluid or blood sample of the respondents contained prescribed drugs because the certificates had not been served upon the respondents not less than seven days before the commencement of the trial, as required by s 47K(17)(a) of the RTA. The prosecutions failed for want of proof of an essential element of the offence.
These appeals against acquittal raise a common question concerning the statutory requirement that particular evidentiary certificates must be served on the person being prosecuted if they are to be received as evidence in a prosecution.
The terms of the relevant sub-section of s 47K are as follows:
(17)A certificate referred to in subsection (4), (5) or (11) cannot be received as evidence in proceedings for an offence—
(a) unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or
(b) if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than 2 days before the commencement of the trial, served written notice on the informant requiring the attendance at the trial of the person by whom the certificate was signed; or
(c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.
The respondents contend that s 47K(17)(a) of the RTA requires personal service, meaning service by hand upon the person who is on trial.
The Commissioner contends that the provision does not require personal service, and, further, that the facilitative provisions found in s 51 of the Legislation Interpretation Act 2021 (SA) (‘Interpretation Act’) and under the Joint Criminal Rules 2022 (SA) (‘JCRs’) may be relied upon to establish service for these purposes.
In the case of Ms Knight, the evidence before the magistrate showed that the relevant certificate had been sent to an email address that she provided at a hearing at which she was self-represented. A question arises whether that amounts to service for the purposes of s 47K(17)(a), including on the basis that it satisfies s 51(2)(c) of the Interpretation Act.
On appeal, the Commissioner seeks to rely on evidence that, after Ms Knight became legally represented, a further copy of the relevant certificate was emailed to the lawyer acting for her in the proceeding. If that evidence is received on the appeal, a question arises whether that amounts to service in accordance with provisions of the JCRs and whether it suffices for the purposes of the RTA provision.
In the case of Ms Metters, the evidence before the magistrate permitted an inference to be drawn that the certificates had been emailed to the legal representative acting for her in the proceedings, but at a time before the JCRs in relation to service were in operation. A question arises as to whether the provision of a certificate to the legal representative amounts to service for the purposes of s 47K(17)(a). On appeal, the Commissioner seeks to supplement the evidence relating to the email correspondence.
For the reasons that follow, service was effected in each appellant’s case. Notwithstanding the double jeopardy considerations which are relevant to the ultimate disposition of the appeal, I would allow the appeals and remit each matter for a retrial.
The requirement of service in s 47K(17)(a) of the RTA
In requiring that a certificate which is proposed to be relied on in a prosecution be notified to the defendant prior to the trial, the sub-section invokes the concept of ‘service’.
In a legal context, service generally refers to the act of delivering a document to a party or individual who is required to receive it, with the purpose of ensuring that they are informed about the document or the legal proceeding to which it relates. There are, however, different kinds of service, and the context in which the obligation to serve the document arises may dictate the form of service that is required.
In the context of an initiating process in relation to civil proceedings, the act of service notifies the person of the commencement of the proceeding and also enables the court from which the process was issued to exercise personal jurisdiction over that person.[1] In that context, personal service is generally required. That is usually effected by leaving a copy of the process document with the intended recipient whilst they are physically present in the geographical jurisdiction of the court from which that process was issued.[2] This does not always require proof that the process was left in the actual corporal possession of the defendant; if the defendant refuses to take possession, it will suffice to inform them of nature of the process and leave it before or near them so that they have unimpeded and immediate access to it.[3] Rules of court may expand upon the usual means by which personal service is effected.[4]
[1] Graczyk v Graczyk [1955] ALR (CN) 1077, Gilles v Palmieri [2016] NSWCA 219 at [22] (Leeming JA, Basten JA and Sackville AJA agreeing).
[2] Laurie v Carroll (1958) 98 CLR 310 at 322-324 (Dixon CJ, Williams and Webb JJ).
[3] Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 360 (Gummow J).
[4] See, eg, Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 2.28.
There are other contexts in which personal service is or has been required. For some time, unless a court otherwise ordered,[5] a bankruptcy notice had to be personally served.[6] In this State, legislation specifically provides for personal service in a number of circumstances, such as:
·a non-association or place restriction order, which ‘must be served on the defendant personally’ and is not binding until it has been so served;[7]
·a restraining order which, unless a defendant is present in Court when the order is made, or the Court orders otherwise with respect to service, must be ‘served personally on the defendant’;[8] and
·an interim intervention order issued by a police officer, which only comes into force against a defendant when ‘served on the defendant personally’.[9]
[5] Bankruptcy Act 1966 (Cth), s 309(2) empowers a court to make an order for substituted service.
[6] See the Bankruptcy Rules considered in Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 358 (Gummow J), but see now Bankruptcy Regulations 2021 (Cth), reg 102(1).
[7] Criminal Procedure Act 1921 (SA), s 81(1).
[8] Criminal Procedure Act 1921 (SA), s 99E.
[9] Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 18(4).
Returning to the context of legal proceedings, the rules of court in this State, in common with applicable rules in many other jurisdictions, generally do not require personal service of subsequent documents once the initiating process has been served and jurisdiction over the named parties has been established.
The service of documents in the course of proceedings is not necessary for jurisdictional purposes. The purpose is essentially to ensure procedural fairness, but with a recognition that the parties to a proceeding have some responsibility for monitoring communications during the course of the proceeding.[10] Having regard to considerations of cost and practicality, service will usually be satisfactorily effected by taking steps which are apt to result in the document coming to the attention of the intended recipient or their legal representative, or at least will result in the document coming to their attention if they are reasonably diligent in monitoring the means by which the other parties might be expected to communicate with them. Of course, courts generally have powers to avoid practical unfairness and prejudice if a party, although taken to have been served with a document, has not in fact received it or had a sufficient opportunity to consider their position.
[10] Zuckerman et al, Zuckerman on Australian Civil Procedure (Lexis Nexis Butterworths, 1st ed, 2018) at [5.9], [5.24].
Under the Uniform Civil Rules 2020 (SA) (‘UCRs’), particular requirements apply to the service of an originating process[11] and subpoenas, which ‘must be served personally on the addressee’.[12] But unless the Court otherwise orders,[13] any other document required to be served may be served at an ‘address for service’ or by ‘original service’. ‘Original service’ may be achieved by a variety of methods,[14] including but not limited to personal service – service may also be achieved by ‘post service’, ‘electronic service’, ‘portal service’, ‘solicitor service’, ‘agent service’, ‘agreed service’ or, where the Court is satisfied it is not practicable to serve a document by another means, ‘substituted service’.[15]
[11] UCRs, r 43.1
[12] UCRs, rr 43.2, 156.6.
[13] UCRs, r 43.4.
[14] UCRs, r 42.11.
[15] UCRs, rr 42.1-42.9
Under the JCRs, whilst ‘a subpoena must be served personally on the addressee’,[16] other documents that are to be served on a person in a proceeding must be served:[17]
·if the person is to be regarded as represented by a law firm or office which has an address for service in the proceeding – by service at that address;
·if the person otherwise has an address for service in the proceeding – by service at that address; or
·in any other case by ‘original service’,[18] which encompasses ‘personal service’, ‘delivery service’, ‘email service’, ‘post service’, ‘electronic service’ and ‘portal service’.[19]
[16] JCRs, rr 34.2, 123.5.
[17] JCRs, r 34.3.
[18] JCRs, r 33.7.
[19] JCRs, rr 33.1-33.6.
As will be explained, the JCRs apply only to steps taken in a criminal proceeding taken on or after 29 August 2022.[20] The Magistrates Court (Criminal) Rules 1992 (SA), which applied before that time, did not contain similar provisions.
[20] JCRs, r 1.4(a)(ii).
In South Australia, as in other jurisdictions, there are facilitative provisions with respect to service located in the Interpretation Act. Section 51 of that Act provides as follows.
51—Service of documents
(1)This section applies if an Act or a legislative instrument requires or permits a document to be served on a person (whether the expression "serve", "give", "provide", "deliver" or "send" or any other expression is used).
(2)The document may be served on an individual by—
(a) delivering it to the individual personally; or
(b) leaving it at, or posting it to—
(i)the physical address designated by the individual for the service of documents of that kind; or
(ii)if such an address is not so designated, the place of residence or a place of business of the individual last known to the server; or
(c) sending it electronically to the individual in a manner designated, or agreed to, by the individual for the service of documents of that kind.
(3)The document may be served on a body corporate by—
(a) leaving it at, or posting it to—
(i)the registered office of the body corporate; or
(ii)another physical address designated by the body corporate for the service of documents of that kind; or
(iii)if such an address is not so designated, a place of business of the body corporate last known to the server; or
(b) sending it electronically to the body corporate in a manner designated, or agreed to, by the body corporate for the service of documents of that kind.
(4)A document is posted to an address by properly addressing, prepaying and posting the document as a letter.
(5)Unless the contrary is proved, service of a document by posting it to an individual or a body corporate is taken to be effected at the time at which the document would be delivered in the ordinary course of post for the postal service used.
Note—
The time and place of service of a document sent electronically is to be determined in accordance with the Electronic Communications Act 2000.
The Interpretation Act, which became operative from 1 January 2022, applies both to legislation made before and after that date,[21] ‘subject to a contrary intention’.[22] The predecessor legislation did not contain an equivalent of s 51(2)(c).[23]
[21] Interpretation Act, s 3(2).
[22] Interpretation Act, s 3(3).
[23] Acts Interpretation Act 1915 (SA), s 33.
The non-exhaustive modes of service described in s 51(2) apply where a section of an Act requires a document to be served on a person.
On the face of things, s 47K(17)(a) is a provision which requires that a document be served on a person. Section 51 of the Interpretation Act therefore applies unless a contrary intention can be discerned. Good cause for such a conclusion needs to be shown.[24]
[24] Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [73](1)’ (Leeming JA, Gleeson and Payne JJA agreeing).
The Commissioner accepted that a statute which in terms requires personal service would be a statute which manifests a contrary intention, with the result that s 51 would not augment the available means of service in such a case. It was submitted that s 47K(17)(a) does not require personal service and that, further, it does not purport prescriptively to lay down the means by which service may be effected. Not only are the means of service in s 51(2) available, but other methods of service, including, where applicable,[25] under the JCRs, may be effective.
[25] In Ms Knight’s case reliance is placed upon an email to her solicitor on 24 April 2023, and thus after 29 August 2022, the date from which the JCRs apply to steps taken in a proceeding (see JCR r 1.4(1)(a)(ii)). In Ms Metters’ case, each of the acts of service relied upon was before that date.
The real question is whether as a matter of statutory construction s 47K(17)(a) reveals an intention that service must be upon the defendant personally and, if so, whether that entails only service by hand. In resolving the question of construction, it does not greatly assist to say that s 47K(17) of the RTA is the ‘more specific’ section. The very premise for operation of s 51 of the Interpretation Act is that it is a general provision that will apply to requirements of service that arise in specific contexts under particular statutes or statutory provisions. Like all questions of statutory construction, the focus must be on the text, context and purpose of the provision.[26]
[26] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).
Text
Commencing with the text, the respondents sought to emphasise the reference in that provision to ‘that person’, and the absence of a reference to any other person. The respondents submitted that this speaks against service being effected otherwise than by personal service in hand upon that person.
However, contrary to the submission, the mere fact that the provision identifies the person the subject of the prosecution as the object of the service is not, standing alone, a sufficient indication that personal service is required. In Capper v Thorpe,[27] Gaudron, McHugh, Kirby, Hayne and Callinan JJ observed:[28]
Where a statutory provision, such as s 6, requires a document to be ‘served’, the statutory command is ordinarily perceived as requiring the contents of the document to be delivered to the person to be served.[29] However, unless the statute says so, a document may be ‘served’ although it is not personally served.[30] Thus, it may be served by posting it to the person required to be served.[31] In many statutory contexts, a document may also be ‘served’ when it is brought to the notice of the person who has to be served.[32] At all events, it will be ‘served’ in such contexts if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document. Thus, in Ex parte Portingell, the English Court of Appeal held that a notice of objection had been ‘served on’ the applicant for renewal of a licence when it was handed to a boy of fourteen on the licensed premises and the magistrates inferred that ‘the notice had in fact come to the hands of the applicant’.[33]
[27] (1998) 194 CLR 342.
[28] (1998) 194 CLR 342 at [21].
[29] Ex parte Portingell [1892] 1 QB 15 at 17.
[30] In re McGrath; Ex parte Official Receiver (1890) 24 QBD 466 at 467.
[31] In re McGrath; Ex parte Official Receiver (1890) 24 QBD 466 at 467; cf In re 88 Berkeley Road, NW 9 [1971] 1 Ch 648.
[32] Holloway v Coster [1897] 1 QB 346; In re Harris [1931] 1 Ch 138; In re A Debtor [193] 1 Ch 251.
[33] Ex parte Portingell [1892] 1 QB 15 at 16.
The Court held that a statutory provision requiring service of a notice on the purchaser under a contract attracted the operation of provisions of the Interpretation Act 1984 (WA).[34]
[34] (1998) 194 CLR 342 at [23].
The effect of the Court’s analysis was that:
·on its own terms, the statutory requirement could be met by proof that the document had come to the attention of the party by a number of means — personal service or service by hand was not required; and
·further, the provisions of the Interpretation Act 1984 (WA) expanded upon the ways in which service could be effected.
There is no suggestion in the Court’s reasons that the mere fact that the statutory requirement referred to service on the party in question (and did not in terms contemplate service on others) was sufficient to connote a requirement of personal service by hand, or to exclude the operation of the Interpretation Act 1984 (WA) provision.
The respondents also emphasised the word ‘cannot’ in the chapeau to sub‑s 47K(17). But that unequivocal (or, as the respondents sought to characterise it, emphatic) mandate operates only when service has not been effected; it sheds no particular light on how the service requirement itself is to be construed.
Accordingly, there is nothing in the text of s 47K(17)(a) that suggests either that personal service is required or that the facilitative provisions of s 51 of the Interpretation Act should not apply.
Context and purpose
Turning to the immediate context of the provision, it may be observed that s 47K(17)(b) contemplates that a written notice requiring the attendance at trial of the person by whom the certificate was signed must be served on the informant. It is highly improbable that personal service upon the informant was intended by the legislature. Accordingly, unless the word ‘served’ is used differentially within s 47K(17), this tends against giving s 47K(17)(a) the construction contended for by the respondents.
In considering the broader context and purpose of the provision, it is appropriate to consider its function and effect in Division 5 (‘Drink Driving and Drug Driving’), which forms part of Part 3 (‘Duties of Drivers, Passengers and Pedestrians’) of the RTA.
That Division creates a number of offences. Focusing upon drug driving, s 47BA(1) creates the offence of driving a motor vehicle while a prescribed drug is present in the person’s oral fluid or blood. The offence may be proved by any number of means. Most commonly, however, the prosecution will seek to rely on the results of analysis of oral fluid or a blood sample taken from a person who has been driving. The Division contains a scheme with a number of sequential elements (attended by various safeguards) that must ordinarily have occurred before an oral fluid or blood sample will have been taken for the purpose of drug testing.
Putting to one side testing in the context of ‘prescribed circumstances’, and focusing upon the exercise of ‘random testing powers’,[35] and working backwards, the steps that are involved in the taking of a sample for oral fluid analysis, or the taking of blood for the purposes of drug testing from the driver of a vehicle, are as follows.
·There will have been a drug screening test that has indicated the presence of a prescribed drug in the person’s oral fluid.[36]
·For that to have occurred, the person must have submitted to an alcotest or breath analysis under s 47E.[37]
·For those powers to have been exercised, the police officer will need to have been in uniform and is required, amongst other things, to have had in their possession apparatus of a kind approved by the Governor in relation to the test they require to be undertaken.[38]
[35] These are defined by s 47A(2a) of the RTA by the absence of ‘prescribed circumstances’.
[36] RTA, s 47EAA(2).
[37] An officer must have believed on reasonable grounds that the person had been driving or attempting to drive a motor vehicle: RTA, s 47E(1).
[38] RTA, s 47EA.
If these steps or requirements are not complied with, evidence of the outcome of an oral fluid analysis or a blood test to which a driver has been required to submit may be excluded on public policy grounds.[39]
[39] Police v Dunstall (2015) 256 CLR 403 at [37], [44] (French CJ, Kiefel, Bell, Gageler and Keane JJ). Exclusion of evidence on public policy grounds and also on the grounds of unfairness was discussed in this context in Dudley v Police (2022) 103 MVR 199 at [44]-[63] (Kimber J).
That is not to say that proof that those requirements were met comprises a necessary part of the prosecution case, or that proof of those matters is a precondition to the admissibility of the evidence of the oral fluid analysis or the analysis of the blood sample taken. If there is a question as to the lawfulness of the requirement purportedly imposed on a driver to submit to an oral fluid analysis or to provide a blood sample, the onus is on the accused to demonstrate, on balance, the relevant unlawfulness.[40] In such a case, it will usually be appropriate for that question to be dealt with on a voir dire.[41] The position may be different where, properly construed, proof of a matter is an essential precondition to the admissibility or presumptive effect of an item of evidence.[42]
[40] Police v Modra (2000) 32 MVR 326; [2000] SASC 328 at [14]-[16] (Prior J), [49], [51]-[55] (Lander J), [72] (Bleby J).
[41] In the case of a self-represented litigant, they may need to be informed about the right to seek a voir dire directed to that issue: Police v Lochner [2018] SASC 99 at [37], [48], [58] (Peek J). The procedural context in which the issue arises may be of more than academic significance. On a voir dire, the accused may choose to give evidence, without that comprising a decision whether to give evidence in the trial: Police v Lochner [2018] SASC 99 at [49]-[51], [53] (Peek J).
[42] See, in respect of what was then s 47G(1) of the RTA, Magain v Roberts (1991) 14 MVR 313 (Duggan J), referring, inter alia, to Ross v Smith [1969] VR 411.
If it becomes necessary to establish the outcome of a drug screening test, there are certificate provisions that the prosecution may be able to rely upon.[43]
[43] RTA, sub-ss 47K(9a) and (10).
Assuming, however, that no questions arise relating to the steps leading to the requirement that the driver submit to an oral fluid analysis or blood test, the RTA makes provision for how the samples are to be collected and analysed.
Section 47F provides that Schedule 1 of the RTA makes further provision regulating oral fluid and blood sample processes for the purposes of the Division. Part 3 of that Schedule contains provisions that apply if a sample of oral fluid is taken under s 47EAA(2). Amongst other requirements, the police officer who takes the sample must place the sample of oral fluid (and any reagent or other substance required by the regulations to be added to the sample) in two separate containers and seal them. The person must be given notice in writing advising that the sample has been taken under the relevant section and that a container containing part of the sample will be available for collection at a specified time and place and any other information prescribed by the regulations. The officer must complete and sign a certificate containing information about the identification number of the sample, the name and address of the person whose sample was taken, the police officer’s identification number, the date, time and place at which the sample was taken and the police officer who gave the person the notice.
One of the containers containing the sample must be taken as soon as reasonably practicable by the officer or an approved courier to the place specified in the notice. An analyst who analyses the sample in the container must sign a certificate containing information set out in cl 7(f) of the Schedule. This includes the information required by the regulations in relation to any prescribed drug or drugs found to be present in the sample[44] and any factors relating to the sample or analysis which might, in the analyst’s opinion, adversely affect the accuracy or validity of the analysis.
[44] The required information is information identifying the drug or drugs: Road Traffic (Miscellaneous) Regulations 2014 (SA), reg 24.
The certificate of the analyst must be retained on behalf of the Minister and copies provided to the Commissioner of Police and the person from whom the sample was taken.[45]
[45] RTA, Sch 1, cl 7(g)(ii).
Again, if there is a question whether these various aspects of the statutory scheme have been complied with, it will be necessary for there to be a consideration of whether that is the case, and if there is relevant unlawfulness, the power to exclude evidence of the oral fluid analysis or analysis of the blood sample may be enlivened. In considering whether the statutory requirements were met, it may be possible for the prosecution to rely upon certificates.[46] Certificates of that kind do not attract the service requirement which is contentious in the present case.
[46] RTA, sub-ss 47K(3a), 47K(9).
If there is no issue arising that results in the exclusion of evidence relating to the outcome of an oral fluid analysis or a blood test, the results of the analysis or test may be proved in order to establish guilt of the drug driving offence.
Section 47K contains provisions which facilitate the proof of the outcome of the resulting analysis. Where the certificates are received into evidence, they establish, subject to proof to the contrary, that any drug indicated in the certificate as having been detected was present in the sample taken. Further still, assuming there is no proof to the contrary, so that the drug is taken to have been present in the oral fluid or blood sample taken, there is then a further conclusive presumption that the drug in question was present in the person’s oral fluid or blood (as the case may be) for the three hours preceding the taking of the sample.
The certificates that operate at this stage attract the service requirement in s 47K(17)(a). The relevant sub-sections referring to those certificates and the sub‑sections explaining their evidential consequences are as follows:
(4)Subject to subsection (17) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
…
(11)Subject to subsection (17), an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by a police officer, medical practitioner, registered nurse or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.
…
(14)If a certificate of an analyst relating to a sample of oral fluid or blood taken under section 47EAA, or a sample of blood taken under section 47E or 47I, is received as evidence in proceedings before a court and states that a prescribed drug has been found to be present in the sample of oral fluid or blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the prescribed drug stated in the certificate was present in the sample when the sample was taken.
(15)If it is proved by the prosecution in proceedings for an offence that a prescribed drug was present in the defendant's blood or oral fluid at the time at which a sample of oral fluid or blood was taken under section 47EAA, or a sample of blood was taken under section 47E or 47I, it will be conclusively presumed that that prescribed drug was present in the defendant's oral fluid or blood (as the case may require) throughout the period of 3 hours immediately preceding the taking of the sample.
(16)If certificates of a police officer and analyst, or a medical practitioner and analyst, or a registered nurse and analyst, under Schedule 1 are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.
Accordingly, whilst the outcome of the analysis of oral fluid or a blood test might be proved by other ways, s 47K permits this to be done by the tender of a certificate and, where that is done, the certificate will establish the presence of any detected drug in the oral fluid or blood of the driver at the time of the taking the sample (and, consequently, for the preceding three hours), unless the driver is able to prove that the sampled oral fluid or blood did not contain the detected drug.
These significant consequences evidently inform the reason why the procedural safeguards contained in s 47K(17) were considered appropriate.
Under s 47K(17)(b), the accused driver may effectively veto reliance upon a certificate which states that a drug was detected in the oral fluid or blood sample by the service of a notice upon the informant that the person who signed the certificate must attend at trial. Presumably, that person would then give evidence, if they can, of the outcome of the analysis, and they may be cross-examined about it. Whether the court ultimately makes a finding, having regard to that and any other evidence, that the accused’s oral fluid or blood contained the alleged drug, will be a matter to be determined in the ordinary way. If that finding is made, s 47K(15) would still be available to establish, conclusively, that the drug was present in the person’s oral fluid or blood for the preceding three hours.
The service of a copy of the certificate proposed to be ‘put in evidence’ is required to facilitate the accused’s election whether to veto reliance upon that certificate.[47] The accused will likely have received the relevant certificate at a much earlier time, shortly after the analysis was undertaken. The service required by s 47K(17)(a) occurs in the context of criminal proceedings. It must be effected not less than seven days prior to the trial, and its purpose is to notify the accused that reliance upon the certificate at trial is proposed. The requirement to serve a copy of the certificate is to inform (or possibly remind) the accused person that reliance upon the certificate(s) is proposed.
[47] Police v Fountaine (1999) 74 SASR 26 at [122] (Lander J).
Reflecting its different context, s 47K(2), which imposes a requirement that arises as soon as practicable after a person has submitted to a breath analysis, and thus before any criminal proceedings are instituted or even in prospect, uses the verb ‘deliver’ rather than ‘serve’.
Having regard to these observations about the role and function of s 47K(17)(a) in the broader scheme of prosecutions under the Division, it can be accepted that the service requirement fulfils an important function in facilitating the right to veto reliance upon a certificate which itself may have very significant consequences for the person who is the subject of the prosecution.
At a general level, that might be said to militate in favour of an interpretation of the service requirement that minimises or removes the risk that a person loses the chance to exercise that right. But that does not, in my view, suggest that the legislature must be taken to have intended personal service upon the accused person (as distinct from their lawyer), or by hand (as distinct from other methods which are, or are likely to be, effective in bringing the material to their attention).
In a case where a defendant does have a lawyer acting for them, service upon the defendant in person may be less likely to result in advice being given, and an informed election being made, in relation to the veto right. In addition, it is generally recognised in the authorities that even where personal service is required, it may be effected by service upon a lawyer acting for a defendant and whose authority extends to the receipt of legal documents of the kind in question.[48]
[48] In Carter v Australian Securities and Investments Commission (2019) 274 FCR 677 at [16], Greenwood, Kerr and Burley JJ said that even where personal service is required, it will ordinarily be established if a party to be served expressly acknowledges that he or she has both received a document required to be served and has become aware of its contents. The Court went on to observe: ‘So too will a document be personally served if it is served on a solicitor who has authority to receive it on his or her behalf’. See also the observations of Jagot J in Kestel v Superannuation Complaints Tribunal [2010] FCA 1300 at [15] to the effect that the doctrine of agency operates in the context of service.
Further, I do not consider that the purpose of the provision, understood in the relevant context, demands that service be by hand (either on the person or their instructed lawyer), as opposed to by other means which may result in the content of the document coming to the attention of the defendant or their lawyer.
Indeed, I do not consider that the statutory context demands that service may not be taken to have been effected by means identified either in s 51 of the Interpretation Act or the JCRs, each of which are apt to result in the relevant information coming to the attention of the defendant or their lawyer, even if that cannot be guaranteed in every case.
First, it is relatively routine that important steps taken within legal proceedings are notified to the other parties by such means. Secondly, s 47K(17)(c) should be kept in mind. It confers upon the trial court a discretion to require the maker of the certificate to be called (in which case the certificate may not be put in evidence). If, by operation of a rule of court, a certificate is taken to be served, for example, by emailing it to the email address given by an unrepresented party for the purposes of the proceeding, or to a solicitor acting in the matter, but, for one reason or another, the document does not in fact come to the party’s attention in sufficient time for them to consider exercising the right of veto, or at all, that may be a good ground for the exercise of the court’s discretion. That is to say, the court retains a practical ability to relieve against any unfairness in relation to the exercise of the veto right in s 47K(17)(b).
Section 47K(17)(a) and its interaction with other laws
In my view, an analysis of the text, context and purpose of s 47K(17)(a) therefore leads to the following conclusions:
(1)there is no requirement that the certificate be served personally upon the person being prosecuted;
(2)service may be effected within the meaning of that provision if the efforts of the informant have resulted in the person being prosecuted becoming aware of the contents of the certificate and that it is proposed to be relied upon in the prosecution;
(3)there is no reason to conclude that principles of agency do not apply in this context, at least where the agent is a lawyer acting for the person being prosecuted, with the result that if the efforts of the informant have resulted in the lawyer acting for the person being prosecuted becoming aware of the contents of the certificate and that it is proposed to be relied upon, that suffices;
(4)the section does not manifest any intention that s 51 of the Interpretation Act not apply. Accordingly, service may be effective under those provisions even if, for some reason, that does not result in the contents of the certificate and the fact that it is proposed to be relied upon coming to the attention of the person being prosecuted or their solicitor. In such a case, there may be grounds for the exercise of discretion under s 47K(17)(c);
(5)finally, there is no reason not to give effect to any applicable court rules concerning service of documents (apart from originating or initiating processes) in the context of proceedings.
The last proposition requires some further elaboration. Section 51 of the Interpretation Act applies of its own force because s 47K(17)(a) does not reveal an intention that it should not. It might be thought that rules of court stand in a slightly different position. Rules are subordinate to legislation, in the sense that they cannot operate inconsistently with legislation. But the rules of court are, of course, themselves authorised by legislation. Relevantly to this case, in their application to proceedings in the Magistrates Court, the JCRs are authorised by s 49 of the Magistrates Court Act 1991 (SA) (‘MC Act). That provision empowers the making of rules with respect to the regulation of the business of the Court, the practice and procedure of the Court and any other matter necessary for the effective and efficient operation of the Court. Accordingly, rules with respect to the service of documents which have a status in a court proceeding are, on the face of things, authorised by the MC Act.
To the extent that the rules (as authorised by the MC Act) might facilitate forms of service of a kind which, standing alone, might not be found to satisfy the requirements of s 47K(17)(a), a question arises as to whether the rules can apply to service under that section. Where two laws having the same legislative source appear to make provision with respect to the same subject matter, a question arises as to whether there is truly a conflict between them. Where possible, they will be given a harmonious construction. Where there is an irreconcilable conflict, it will be necessary to identify the leading or dominant provision.[49]
[49] See the discussion in Leeming, Resolving Conflicts of Law (2011), Chapter 3.
In my view, there is no real conflict here. Section 47K(17)(a) contemplates the service, in the course of a criminal proceeding, of a document that is to be relied upon in a criminal proceeding. In enacting such a provision, the legislature must be taken to have appreciated that, pursuant to Acts establishing the Magistrates Court and other Courts, there will be rules, from time to time, regulating or facilitating the manner of service of documents required to be served in the course of proceedings.
A contrast may be drawn with the position in St George Bank v Active Property Investment Pty Ltd,[50] where a party sought an order for substituted service under the uniform civil procedure rules applicable in New South Wales in respect of the service of a statutory demand under the Corporations Act 2001 (Cth). Section 109X of that Act describes the way in which documents can be served on a company, whilst leaving scope for other laws to make additional provision with respect to such service.
[50] (2010) 77 NSWLR 148.
Barrett J held that the relevant court rules could not be relied upon for this purpose because the service of a statutory demand did not involve the service of a document ‘that is required or permitted to be served on a person in connection with any proceedings’. As his Honour observed, statutory demands are created, served and take effect without resort to any process of a court, and it is generally only when service of a demand gives rise to an application by the company served for an order setting aside the demand or when a winding up application founded on non-compliance with the demand is made that the demand comes to play a part in any proceeding before the court.[51]
[51] (2010) 77 NSWLR 148 at [9].
In Capper v Thorpe, it was held that service under the statute was not achieved by a form of deemed service agreed under the parties’ contract which could have the practical effect of truncating the statutorily required time of service. That ruling is also distinguishable. First, what was in question was the application of a contractual arrangement, not the operation of a rule of court made by the same legislature responsible for the service requirement. Secondly, there was no reason to consider that the legislature contemplated that ad hoc or consensual arrangements of that kind would apply to curtail the statutory right, particularly where they were only apt to bring the notice in writing to the attention of the purchaser.[52]
[52] (1998) 194 CLR 342 at [24]-[25] (Gaudron, McHugh, Kirby, Hayne and Callinan JJ).
Here, the service of the certificate required by s 47K(17)(a) is in the context of and for the purposes of a criminal proceeding. There is no reason why the legislature should not be taken to have intended that the rules relating to service within those criminal proceedings would be applicable, so long as the rules can in substance be characterised as concerned with service, and would not operate in a way that would be repugnant to the scheme of the RTA.
So, conceivably, a rule might, whilst on its face purporting to provide for a means of service, designate as service an act which is not designed to result in the communication of relevant information to a person (or at least to afford a reasonable opportunity for the person to access and consider that information should they be interested to do so). The consequence would be that the rule of court would be inoperative. Likewise, a rule that purported to deem service to have taken place at a time before the information could conceivably have come to the person’s attention at that time, might be inapplicable in this context.[53] But in my view, none of the JCR provisions relied upon as applicable in this case could be so characterised.
[53] Whilst the context differs, in Miller v Miller [2018] SASCFC 40, it was held that even if the relevant rule (Supreme Court Civil Rules 2006 (SA), r 65) allowed permission to be given to serve a proceeding on an agent retrospectively, delivery of documents before obtaining that permission could not be effective for the purposes of s 8 of the Inheritance (Family Provision) Act 1972 (SA).
Subject to limitations of that kind, I consider that s 47K(17)(a) should be given a construction that is harmonious with the existence of legislation that empowers courts to make rules with respect to the service of documents relevant to legal proceedings.
Against that background, I now turn to the particular facts and circumstances, the magistrates’ rulings, and the ultimate disposition of the two appeals.
Ms Knight’s case
By the Information and Summons filed on 18 November 2020, it was alleged that on 1 March 2020 at Clarence Gardens, Ms Knight drove a vehicle on South Road whilst there was present in her oral fluid methylamphetamine, a prescribed drug. The matter proceeded to trial before a magistrate on 30 November 2023.
The trial proceeding
The transcript records that the prosecutor tendered by consent various certificates and a statement of Senior Constable Smith.
The material included:
·Exhibit P1, being an extract from the Gazette designating Senior Constable Smith as an authorised officer to conduct oral fluid analysis;
·Exhibit P2, being a certificate of Senior Constable Smith pursuant to s 47K(3c) of the RTA, certifying that a driver testing station was established pursuant to s 47DA of the RTA on the relevant road between late on the evening of 28 February 2023 and 1.30 am on 1 March 2023;
·Exhibit P3, comprising an affidavit of Senior Constable Smith to the effect that the apparatus Securetec Drugwipe II Twin used to screen Ms Knight at 12.23 am on 1 March 2020 was of a kind approved under the RTA for the purpose of performing drug screening tests and certifying pursuant to s 47K(10) of the RTA that Ms Knight submitted to a drug screening test at that time which indicated a prescribed drug may then have been present in the oral fluid of the person;
·Exhibit P4, comprising a certificate pursuant to s 47K(9a) of the RTA, by which Senior Constable Smith certified that the apparatus used to conduct the drug screening test was in proper order and that the test was properly conducted;
·Exhibit P5, comprising a certificate pursuant to s 47K(3a) of the RTA, by which Senior Constable Smith certified that a sample of oral fluid for the purposes of an oral fluid analysis was taken and that the provisions of the Act with respect to the taking of samples for those purposes were complied with;
·Exhibit P6, comprising a Certificate in form PD651 by which Senior Constable Smith certified that at about 12.41 am on 1 March 2020, a sample of oral fluid taken from Ms Knight was given the identification number D013434 and that Ms Knight was given the required notice in writing;
·Exhibit P7, comprising a ‘Certificate of Oral Fluid Analysis for Drugs’ which stated that a sample with identification number D013434 contained methylamphetamine, certified that the oral fluid analysis was properly conducted and stated that there were no factors that adversely affected the accuracy or validity of the analysis;[54]
·Exhibits P8, P9 and P10 comprising two affidavits of Senior Constable Smith and an affidavit of Andrew Blaskett (the Chief Recovery Officer of the Fines Enforcement Recovery Unit);
·Exhibit P11, an election to be prosecuted.
[54] The Commissioner accepts that although the certificate on its face is described as a certificate ‘Pursuant to s 47K(9) and Schedule 1’ of the RTA, it comprises a certificate of a kind referred to in s 47K(11) of the RTA, being an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by an analyst.
The transcript and the magistrate’s reasons record that in respect of Exhibits P5, P6 and P7, some qualification was sought to be made by Ms Knight’s counsel in respect of the tender. In the case of Exhibit P5, counsel said that ‘the admission ... would be the subject of the further evidence’. In response to the magistrate saying ‘but you don’t object to its tender’, counsel answered ‘no’. Similar exchanges occurred in relation to Exhibits P6 and P7.
Senior Constable Smith was called and there was some brief examination and cross-examination. The magistrate’s reasons record that the prosecution then closed its case and the magistrate found a case to answer.
It appears that Ms Knight’s counsel then submitted that Exhibit P7, being a certificate of a kind referred to in s 47K(11) of the RTA, could not be received as evidence because the prosecution had not complied with s 47K(17)(a). It was submitted that no evidence had been led to prove that Ms Knight had been served with the certificate at least seven days before the commencement of the trial as required by that section.
The prosecutor said that she was taken by surprise by the submission as she had previously been informed the certificates would be by consent and had not been informed that it would be necessary to call the makers of the certificates. The prosecutor applied to re-open to call evidence on the topic of compliance with s 47K(17)(a).
Following some argument (referred to but not fully reproduced in the transcript), the matter was adjourned, initially until 15 December 2023, but ultimately until 27 March 2024.
The prosecution tendered (as Exhibit P13) a recording of an earlier hearing in the proceeding before a different magistrate on 26 August 2022. On that occasion, Ms Knight, who was in custody having been refused bail on an unrelated matter, appeared by audio visual link.
The magistrate explained that the trial was due to be heard that day but acknowledged that due to her arrest she may not be in a position to proceed. He asked Ms Knight what she wanted to do and she confirmed she would like the matter adjourned. The magistrate asked if she had sought legal advice and she responded she could not comment on anything at that time.
The prosecutor told the Court she did not have a physical address for Ms Knight but that she had tried to send an email to her the prior week to an email address. The prosecutor said she wished to have some contact details for Ms Knight so that she could liaise with her in relation to the matter. The magistrate inquired of Ms Knight as to how she might be contacted by the prosecution, observing that the court encourages the parties to discuss the matter, including with a view to seeking to agree issues, before it goes to trial. Ms Knight said that phone or email were the easiest ways to contact her. She gave a mobile number and an email address. It was that email address to which the prosecutor subsequently sent the certificate. The magistrate set a trial date some months subsequently and, at the request of Ms Knight, indicated that the Registrar would send details of those dates to Ms Knight at the address she had given.
Finally, the prosecutor tendered (as Exhibit P14) the email sent by the prosecutor later on the day of that hearing which, amongst other things, attached the relevant certificate noting that it was to be tendered at trial. The prosecution contended that this amounted to service by the means described in s 51(2)(c) of the Interpretation Act.
Ms Knight’s counsel did not oppose the prosecution having permission to re‑open. In any event, the magistrate’s reasons set out the basis upon which he considered it appropriate to permit the prosecution to re-open.
On the question of compliance with s 47K(17)(a) of the RTA, the magistrate reasoned as follows:[55]
(1)as Lander J identified in Police v Fountaine,[56] service is important to make the accused aware of the proposed reliance on the certificate at trial. Otherwise, they could not know whether to serve notice to require the attendance at trial of the maker of the certificate;[57]
(2)that legislative purpose indicated that personal service, meaning service on the defendant in person, was required by s 47K(17)(a);[58]
(3)the initial provision to Ms Knight by Forensic Science SA of the certificate in March 2020 (Exhibit P12) did not amount to service for the purposes of s 47K(17)(a);[59]
(4)the prosecutor’s email to Ms Knight of 26 August 2022 did not amount to personal service because:
(a)first, s 47K(17) of the RTA ‘prevailed over’ the general provisions of the Interpretation Act and provided that what is required is service on the individual personally;[60]
(b)secondly, and in any event, Ms Knight had not, in the course of the exchange in court on 26 August 2022, agreed to service of any kind of document, let alone the kind contemplated by s 47K(17)(a), by way of email.[61]
[55] Police v Knight [2024] SAMC 33 (Magistrate Nitschke) (‘Knight reasons’).
[56] (1999) 74 SASR 26 at [122].
[57] Knight reasons [37]-[39].
[58] Knight reasons [40]-[42].
[59] Knight reasons [44]-[47]. That conclusion, which was said to follow from an observation made by Lander J in Police v Fountaine, is not challenged by the Commissioner on appeal, and I need not consider it further.
[60] Knight reasons [55].
[61] Knight reasons [59].
The appeal
By his notice of appeal,[62] the Commissioner argues that the magistrate erred:
(1)in finding that s 47K(17)(a) of the RTA requires personal service;
(2)in finding that the provision prevails over s 51 of the Interpretation Act;
(3)in finding that Ms Knight had not been served with the certificate and consequentially in refusing to receive the certificate into evidence.
[62] The Commissioner’s appeal was discontinued because the Commissioner was not able to locate Ms Knight with a view to effecting service of the appeal papers. After Ms Knight was located and served with the papers, I granted the Commissioner’s application to withdraw its discontinuance: Commissioner of Police v Knight [2025] SASC 20.
On the appeal, the Commissioner seeks permission to rely on evidence that was not before the magistrate, concerning the question of service.
The evidence comprises an affidavit of the prosecutor, Sergeant Samra. Relevantly, Sergeant Samra:
(1)deposes to the history of legal representation in the matter including that Mr Lloyd of Koerner Lloyd filed a notice of acting on 28 March 2023 and again on 27 November 2023. Those documents were on the Magistrates Court file; and
(2)deposes to an email sent by the applicant to Mr Lloyd on 24 April 2023 which attached the relevant certificate and advised that it was intended to rely on the document at trial. That email was in response to an email from Mr Lloyd in which he advised that he acted for Ms Knight in the matter and requested to be furnished with ‘all documents and certificates Police intend to rely on to prove the charge’.
It is the email, considered in the light of the notice of acting, that constitutes further evidence relevant to service. Ms Knight’s counsel objected to the Commissioner being permitted to rely upon the evidence.
The basis for opposition was that the material was not ‘fresh’ in the sense that it must have been available to the prosecution both at trial and, more importantly, at the time the trial resumed in March 2024 for the purpose of the prosecution re-opening to address the question of service. Whilst there was no suggestion of any deliberate forensic decision to withhold reliance upon the email, there had been a significant opportunity to consider what further evidence should be relied upon. In Ms Knight’s submission, it was not appropriate for the Commissioner to be allowed to rely upon the material on appeal. Counsel for the Commissioner accepts that the explanation for not relying upon this additional evidence of service at trial was oversight.
Both counsel on appeal were content for me to resolve the question whether to receive the further evidence as part of my reasons for deciding the appeal. It was not suggested that if the evidence were to be received, Ms Knight wanted the opportunity to adduce any responding evidence. There was no application to cross-examine the deponent of the affidavit containing the further evidence.
Consideration
It follows from my conclusion that s 47K(17)(a) does not mandate personal service, and my conclusion that, where applicable, service for the purposes of s 47K(17)(a) may be effected in accordance with the facilitative provisions in s 51 of the Interpretation Act, that the magistrate erred in his construction of the provision. The legislative purpose did not dictate that personal service be effected and nor did it prevail over s 51 of the Interpretation Act.
The question remains, however, whether service was in fact effected in this case, either by the prosecutor’s email to Ms Knight on 26 August 2022 or, if further evidence is received on the appeal, by the email to Ms Knight’s legal representative on 24 April 2023.
The email to Ms Knight
Section 51(2)(c) of the Interpretation Act provides that an individual may be served by sending the document electronically to the person ‘in a manner designated, or agreed to, by the individual for the service of documents of that kind’. This aspect of the provision did not form part of the equivalent section in the predecessor Acts Interpretation Act 1915 (SA). The Interpretation Act makes other provisions with respect to electronic communication.[63]
[63] Interpretation Act, ss 8 and 39.
The question is whether, by providing her email address during the hearing on 26 August 2022, Ms Knight designated or agreed to that that form of communication for the service of documents of ‘that kind’, within the meaning of those concepts in s 51(2)(c). This provision does not yet appear to have been judicially considered.
In my view, a person may designate or agree to service by a particular means without the need for any particular formality. There is no requirement of writing – something may be designated or ‘agreed to’ orally and, potentially, by conduct.[64] The words ‘agreed to’ in this context does not connote a binding contract or agreement. In context, it simply connotes that the person has indicated that they consent to the particular form of communication as constituting a means of service. It is not necessary to show that the person designated or agreed to the receipt of the particular document by the relevant electronic means; the matter is framed at a level of generality by referring to documents ‘of that kind’.
[64] See, in a related context, In the matter of Australasian Barrister Chambers Pty Ltd [2020] NSWSC 304 at [15] (Rees J).
What is the class of documents to which RTA certificates proposed to be relied upon at trial belong? In my view, the relevant category is simply documents required to be served during the course of or in connection with the prosecution. The question then is whether Ms Knight designated or agreed to email as a form of service for documents to be served during the course of or in connection with the prosecution.
It is true that in the exchange with the magistrate Ms Knight did not state that she accepted that documents emailed to her would be taken to be served, but I do not consider that is essential. As noted earlier, service is simply the act of delivering a document to a party or individual who is required to receive it, with the purpose of ensuring that they have a reasonable opportunity to inform themselves about it and take such steps as they may consider appropriate. Outside the special context of personal service of initiating process and other particularly consequential steps, there is no magic in the concept of serving a document. Whilst the purpose of providing her email address was undoubtedly broader than receiving documents relating to the proceeding by way of service, and there was likely an expectation that there might be informal and practical communications potentially extending to exploring a basis for resolving the matter, in my view, on an objective characterisation of the exchange, it included the delivery of documents required to be provided to her for the purposes of the proceeding.
If that conclusion is correct, it is not necessary finally to resolve whether the subsequent email to Mr Lloyd constituted service for the purposes of s 47K(17)(a), and, if so, evidence of that fact should be received for the first time on appeal. It is desirable, however, to express some conclusions about those matters.
The email to Mr Lloyd
Prior to the email sent on 24 April 2023, a notice of acting had been filed by Koerner Lloyd Lawyers which nominated the relevant email address in the field ‘Address for service’.
The consequence is that the prosecutor’s email amounted to service at Ms Knight’s address for service consistently with JCR r 34.3(b). It also amounted to ‘email service’ on the basis specified in r 33.3(1)(b), which is a permissible form of ‘original service’ as defined in r 33.7.
I also consider that service was effective within the natural meaning and scope of s 47K(17)(a) itself, as there is an evidentiary basis upon which to infer that the information actually came to the attention of Ms Knight’s authorised agent.
If it were necessary to show that it came to her attention, and insufficient to show it merely came to the attention of her agent, I would be less inclined to make that finding. Whilst many lawyers adopt a practice of forwarding all relevant communications to their client, that is not invariably the case. If it were critical to decide whether a finding of actual notice can be made in this regard, it might also be necessary to resolve some deeper questions about proof of service in this context, namely: must the prosecution furnish proof at trial of proof of compliance with s 47K(17)(a) or is the question of compliance only relevant if and when objection is taken to receipt of the certificate; and, in that case, which party bears the ultimate onus of persuasion? It is not necessary for me to resolve these questions.
If I had not concluded that the earlier email sent to Ms Knight was effective service in this matter, the outcome of the appeal would turn on whether I am prepared to receive the additional evidence relating to the email sent to Mr Lloyd.
Section 42(4) of the MC Act provides that the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence. Ms Knight’s counsel submitted that the evidence sought to be relied upon by the Commissioner on the appeal was not ‘fresh’ because it had been available at the trial.
Whilst the expression ‘fresh’ is defined for the purposes of s 43A(1) (which concerns second or subsequent appeals) to be evidence which could not, even with the exercise of reasonable diligence, have been adduced at trial, the power to receive ‘fresh evidence’ in s 42(4) has not been treated as being so confined.
In Manuel v Police,[65] Kourakis J said that even though s 42 uses the expression ‘fresh evidence’ it should be understood in its context as meaning ‘further evidence’. He continued:[66]
In the exercise of the discretion given by that provision, this Court must balance the interests of justice in the particular case. The diligence, or lack thereof, of the parties and their legal representatives are relevant considerations. They are, however, not determinative.
[65] [2010] SASC 169.
[66] [2010] SASC 169 at [28].
That approach has been referred to subsequently with apparent approval,[67] and was consistent with the effect of earlier Full Court authority. In Holder v Lewis,[68] Doyle CJ (with whom Prior and Perry JJ agreed) said:
That provision should not be read as permitting the receipt of evidence only if that evidence was not reasonably available at trial. In some circumstances that will be the only justification for admitting further evidence. However, that should not be taken as the sole basis for the admission of evidence on appeal. I consider that the provision should be read as enabling the court to permit an oversight or mistake of the kind in question here to be corrected, if that can be done without causing any injustice. In short, the reference to “fresh evidence” should not be read as referring only to one kind of evidence of the type that appeal courts are often able or empowered to receive.
[67] See, eg, RB v Police [2022] SASC 77 at [32] (McDonald J), Sandeman v Commissioner of Police (2023) 104 MVR 45; [2023] SASC 53 at [11] (McIntyre J), Peters v Commissioner of Police [2025] SASC 33 at [86]-[87] (Hughes J).
[68] Holder v Lewis (2003) 231 LSJS 431; [2003] SASC 397 at [15].
Doyle CJ went on to refer, in addition, to r 97.18(b) of the then-current Supreme Court Rules 1987 (SA), which gave the court hearing the appeal power to receive ‘further evidence upon any question of fact’. He said there was no doubt that that provision empowered the judge to receive further evidence.[69] Rule 204.2(1) of the JCRs now provides that subject to any statutory provision to the contrary, an appeal is by way of rehearing and the Court may hear further evidence in its discretion. Section 42(4) of the MC Act cannot be said to be a statutory provision to the contrary.
[69] (2003) 231 LSJS 431; [2003] SASC 397 at [16]. See also Aylett v Police [2006] SASC 132 at [11]-[12] (Doyle CJ).
In deciding whether to admit fresh evidence, it may be necessary to balance the public interest in finality against the desirability of achieving justice in the particular case. Allied to the importance of finality, but conceptually distinct from it, is the idea that having regard to the power imbalance between the State and the citizen, the repeated exercise of the state’s power to subject an individual to the risk of loss of liberty may be contrary to notions of fairness and decency which underlie the common law’s approach to double jeopardy.[70] As Deane J said, in a passage referred to by Peek J in his comprehensive review of the authorities in this area:[71]
… at least in common law countries and apart from the exceptional case of a private prosecution, both the prosecutor and the court in a criminal case are essentially emanations of the same entity. Regardless of whether it be seen or described in terms of the sovereign or the people, that entity is the State. It is the State that establishes and maintains the judicial system. It is the State that brings an accused person before that judicial system on a charge of an offence against the law of the State. It is in the State’s favour that the overwhelming balance of power and resources will ordinarily lie. If, in that context, a competent court in the State’s own system rules that the State charge should be dismissed and makes an order that the person against whom the State has brought proceedings is acquitted and discharged, there is plainly much to be said for the view that, as a matter of ordinary fairness, that person should be entitled to be released both from custody and jeopardy on that charge. Put another way, the citizen who is told by a competent court of the State that the State’s proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the State of new proceedings against him or by reason of an appeal by the State against its own court’s decision.
[70] Malvaso v The Queen (1989) 168 CLR 227 at 234 (Deane and McHugh JJ), Everett v The Queen (1994) 181 CLR 295 at 305 (Brennan, Deane, Dawson and Gaudron JJ), Munda v Western Australia (2013) 249 CLR 600 at 628 (Bell J).
[71] Davern v Messel (1984) 155 CLR 21 at 67-68, referred to in R v Brougham (2015) 122 SASR 546 at [36] (Peek J, Gray and Nicholson JJ agreeing).
Accordingly, where it is the Commissioner, rather than the defendant, who seeks to rely on further evidence on appeal, the Court should approach the consideration of the interests of justice with an eye towards the values reflected by or underlying double jeopardy, whilst recognising that it is a concept rather than a definitive legal principle according to its own terms.[72]
[72] Pearce v The Queen (1998) 194 CLR 610 at [66] (Gummow J).
That said, the decision in Holder v Lewis illustrates that there will be cases in which it is appropriate to permit the prosecution to lead additional evidence on appeal. Double jeopardy considerations can be overcome by other public policy or interests of justice considerations.[73] They may also weigh less heavily where the nature of the offending is of a kind which, if established, will not lead, or not likely lead, to imprisonment. They may also weigh less heavily where the acquittal which is challenged was secured on the basis of a contentious point of law, as distinct from a finding as to a reasonable doubt having regard to the evidence.[74] In the context of an application to lead further evidence, if the evidence relates to an uncontentious matter of fact that is relevant to a question of law, again, double jeopardy considerations may be less influential.
[73] In the context of appeals against acquittals, see, eg, R v Donovan [2025] SASCA 7 at [23]-[25] (Livesey P, Bleby and David JJA). In the context of appeals against sentence, see, eg, R v Ametovic [2024] SASCA 153 at [60]-[64], [76]-[101] (S Doyle and Bleby JJA, B Doyle AJA).
[74] See Police (SA) v Murphy (Unreported, Supreme Court of South Australia, Debelle J, No S5421, 9 January 1996), Police v W, BC (2006) 160 A Crim R 278 (White J), and the other authorities referred to in R v Brougham (2015) 122 SASR 546 at [51]-[53] (Peek J, Gray and Nicholson JJ agreeing).
All of the circumstances must be considered. These include the nature of the evidence, the circumstances which called for it to be relied upon or presented and the reason for not advancing it before.[75] Consideration will also be given to the consequences of its receipt and, in particular, whether it could only fairly be received on the basis that the other party or parties to the proceeding should have the opportunity to lead further evidence and, if so, the implications of permitting that to occur.
[75] Aylett v Police [2006] SASC 132 at [13] (Doyle CJ).
In this case, Ms Knight emphasises that the prosecution had a significant opportunity at trial to present the evidence about service by email. The explanation for not doing so is, essentially, oversight. Because that is not a particularly good explanation, when considered in the context of double jeopardy considerations, the Court should therefore be slow to receive the evidence.
In the end, however, and not without some hesitation, I conclude that, had it been critical to the disposition of the appeal, I would be prepared to receive the evidence for the following reasons in combination. First, the evidence has also been in the possession of Ms Knight’s legal representatives at all relevant times. Whilst they of course had no obligation to proffer it, equally, it does not come as a surprise. Secondly, the evidence is in a narrow compass. Thirdly, there is no suggestion that it is unreliable, or that there is any other evidence that, in fairness, Ms Knight should be able to rely upon by way of response to it. Fourthly, it concerns a legal matter (being a condition of the admissibility of the certificate) rather than a matter of fact comprising an element of the offending. Fifthly, the offence with which Ms Knight is charged, whilst serious, is not one which carries with it a severe penalty such as a lengthy term of imprisonment.
Disposition
I have concluded that the magistrate erred in refusing to admit the certificate and that the further evidence relied upon on the hearing of the appeal also supports a conclusion that the certificate was admissible. It does not follow automatically that the appeal should be allowed. Although a prosecution appeal is as of right under s 42 of the MC Act, double jeopardy considerations dictate that the Court should give anxious consideration to whether the appeal should be allowed. It may be less prepared to do so where the error relates to a question of fact leading to a reasonable doubt,[76] and where the likely penalty or sentence is significant. Drug driving is a matter of concern to the community. Ms Knight’s acquittal was achieved on the footing of a technical argument. I do not say that critically of her counsel. But it seems to me that a defendant in her circumstances has less cause for complaint, and the double jeopardy considerations are less weighty when, on appeal, it is concluded that the technical argument fails.
[76] SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996), Davern v Messel (1984) 155 CLR 21, Police v Baker [2015] SASC 110.
In all the circumstances, I consider that the Commissioner’s appeal should be allowed and the relevant orders of the magistrate set aside. The Commissioner does not seek the substitution of a verdict of guilty. Instead, he seeks an order that the matter be remitted for a retrial. That is the order I will make. I will hear the parties as to costs.
Ms Metters’ case
By Information and Summons filed on 23 February 2022, Ms Metters was charged with having driven a motor vehicle on Onkaparinga Valley Road on 20 November 2021 whilst there was present in her blood a combination of methylamphetamine and THC.
The trial proceeding
The matter proceeded to a trial on 13 September 2024. The prosecution called Brevet Sergeant O’Rourke. In the course of her evidence the following documents were tendered:
·Exhibits P1 and P2, comprising an affidavit of Brevet Sergeant O’Rourke to the effect that the apparatus Securetec Drugwipe II Twin used to screen Ms Metters at about 3.00 am on 20 November 2011 was of a kind approved under the RTA for the purpose of performing drug screening tests and certifying pursuant to s 47K(10) of the RTA that Ms Metters submitted to a drug screening test at that time which indicated a prescribed drug may then have been present in the oral fluid of the person;
·Exhibit P3, comprising a certificate pursuant to s 47K(9a) of the RTA, by which Brevet Sergeant O’Rourke certified that the apparatus used to conduct the drug screening test was in proper order and that the test was properly conducted.
The prosecutor then sought to tender:
·a certificate of a medical practitioner which stated that a blood sample had been taken at the direction of a police officer under s 47EAA of the RTA, placed in two separate containers and given the identification number G126798; and
·a ‘Certificate of Blood Analysis for Alcohol and Drugs’ which stated that a sample with identification number G126798 contained THC and methylamphetamine, in particular concentrations, and that there were no factors that adversely affected the accuracy or validity of the analysis.[77]
[77] The Commissioner accepts that both certificates are of a kind referred to in s 47K(11) of the RTA.
Ms Metters’ counsel indicated that he objected to the admissibility of those documents ‘subject to the evidence and further submissions’. He said that they could be marked for identification. They became MFI P4 and MFI P5. There was some brief cross-examination of Brevet Sergeant O’Rourke and the prosecutor then closed the case for the prosecution. The following exchange occurred:
MR LLOYD: … [A]t this stage prosecution haven’t supplied any compliance in regard to the precondition for their submission for the admissibility of the certificate of analysis and that’s under s 47K.
APP GOTTSCHUTZKE: Sorry, if I go back to those items being marked for identification, prosecution submit that the documents have been served on the defendant and they’re therefore admissible. If your Honour requires evidence of that, I have business records I would seek to tender.
MR LLOYD: That is a precondition, they haven’t been put to the court so I don’t know about that but there are preconditions before your Honour can receive those certificates of analysis and also the doctor’s certificate.
In the discussion that followed, Ms Metters’ counsel emphasised that the prosecution had closed its case. The prosecutor relied upon a case file enquiry log that showed that on 6 April 2022 the certificate of analysis (MFI P5) had been emailed to Mr Lloyd. She also sought to tender an email sent to Mr Lloyd on 7 June 2022 by Brevet Sergeant Symons which enclosed the doctor’s certificate (MFI P4). She contended that there was service in accordance with rr 33.3 and 33.4 of the JCRs.
In light of the objection of Ms Metters to the receipt of these emails they were marked as MFI P6 and MFI P7 and the magistrate went on to hear submissions about the matter generally. The magistrate reserved her decision.
In her reasons delivered on 13 November 2024, the magistrate:[78]
(1)noted that Ms Metters had not provided notice to the prosecution that she intended to dispute the admissibility of evidence, nor filed an appropriate application in accordance with the JCRs. The magistrate decided that it was appropriate to grant the prosecution leave to re-open for the purpose of tendering documents in response to the defence argument on admissibility;[79]
(2)observed that the JCRs govern Court proceedings but did not, in the magistrate’s view, relate to documents served under the RTA;[80]
(3)referred to the decision in Ms Knight’s case and observed that there was no provision under s 47K(17) for the certificates to be served on anyone other than the person charged;[81]
(4)concluded that the wording of s 47K(17)(a) was specific in using the words ‘served on that person’ and prevailed over the general provisions of the Interpretation Act;[82]
(5)concluded that s 47K(17)(a) required personal service upon the defendant and that there was no evidence before her that indicated that Ms Metters had been so served. Because the magistrate did not consider that MFI P6 and MFI P7 amounted to proof of service under s 47K(17)(a) they were not to be admitted as evidence;[83]
(6)concluded that the prosecution had not established all the elements of the offence and that it was necessary to make a finding of not guilty and dismiss the charge.[84]
[78] Police v Metters (Unreported Judgment, Magistrate Browne, 13 November 2024) (‘Metters Reasons’).
[79] Metters reasons [5].
[80] Metters reasons [17].
[81] Metters reasons [19].
[82] Metters reasons [20].
[83] Metters reasons [21].
[84] Metters reasons [21].
The appeal
By his notice of appeal, the Commissioner argues that the magistrate erred:
(1)in finding that s 47K(17)(a) of the RTA requires a certificate to be personally served;
(2)in finding that the provision prevails over s 51 of the Interpretation Act;
(3)in declining to admit the certificates into evidence and in dismissing the charge.
By her cross-appeal,[85] Ms Metters argues that the magistrate erred in granting the prosecution leave to re-open its case.
[85] Nothing turns on this, but this argument could and should have been made by a notice of alternative contention pursuant to r 186.3 of the JCRs.
On the appeal, the Commissioner seeks to rely on further evidence in the form of an affidavit sworn by the prosecutor, Sergeant Danielle Lisa Gottschutzke. Relevantly, Sergeant Gottschutzke:
(1)explains that when she appeared at trial and the question of service arose the only documents that she had with her on her brief were the two documents that became MFI P6 and MFI P7;
(2)exhibits the actual email of 6 April 2022 summarised in the case enquiry log (MFI P6) in a form that shows that the certificate comprising MFI P5 was emailed to Ms Metters’ solicitor on that date, and in response to an email from Mr Lloyd in which he stated that he acted for Ms Metters and requested that the prosecutor furnish the facts of charge, police officer’s notes, any body worn footage of the testing and any exculpatory evidence;
(3)exhibits the email of 7 June 2022 from Brevet Sergeant Symons to Ms Metters’ solicitor that had been marked MFI P7 together with the attachment comprising MFI P4.
Ms Metters opposes the receipt of this further evidence, arguing that it is not ‘fresh’ evidence because it cannot be said it was not reasonably available at the time of the trial. As was the case in Ms Knight’s appeal, there was no objection to me deciding whether to receive the further evidence in the course of my substantive reasons on the appeal.
Consideration
In my respectful view, the magistrate erred in her construction of s 47K(17)(a) of the RTA, and in her conclusion that neither s 51 of the Interpretation Act, nor the JCRs, was able to be relied upon to establish service within the meaning of s 47K(17)(a).
As it happens, the error respecting the JCRs is immaterial. The emails sent to Ms Metters’ legal representative in April and June 2022 were sent before the relevant provisions of the JCR became operative.
The question therefore is whether service was effective having regard to s 47K(17)(a) of the RTA and s 51(2)(c) of the Interpretation Act.
Although it appears that Mr Lloyd had not filed a notice of acting prior to his email to the prosecutor which preceded the prosecutor’s email of 6 April 2022, I would find, on the basis of Mr Lloyd’s email, that he was instructed to act as Ms Metters’ legal representative in connection with the criminal proceeding. When he requested to be furnished with documents, he did so as her agent, because the request was plainly within the ordinary authority of a solicitor retained to represent a defendant to a criminal proceeding.
The question is whether in the circumstances what occurred could be characterised as designating or agreeing to the service of court documents relevant to the prosecution being effected by email to Mr Lloyd. As explained in my reasons in relation to Ms Knight’s case, I do not consider that in order to meet this requirement it is necessary explicitly to state that service may be effected by the identified means. In this case, however, the email is somewhat equivocal, because it is a request to be provided with particular classes of documents. In all the circumstances, I am not persuaded that s 51(2)(c) of the Interpretation Act was engaged.
I am, however, persuaded that the relevant certificates, and the prosecution’s intended reliance upon them at trial, actually came to the notice of the applicant’s duly authorised agent, her solicitor. There is no fine question of timing involved here; the emails were sent more than two years prior to trial. There is an irresistible inference that the material was received by and known to Ms Metters’ legal representative.
As observed in Capper v Thorpe, a document which is not required to be personally served will ordinarily be validly served if the efforts of the person who is required to serve the document have, by one means or another, resulted in the person to be served becoming aware of the contents of the document.[86] Because I consider that service on a duly authorised agent is, for these purposes, sufficient, I would conclude that service was effected in fact within the natural meaning, in this context, of the service requirement in s 47K(17)(a).
[86] (1998) 194 CLR 342 at [21].
If, contrary to my view concerning service upon an agent, it were necessary to show that the relevant contents became known to Ms Metters herself, the position would be more difficult to resolve and the questions identified by me earlier in the context of Ms Knight’s appeal, might need to be resolved. That is because the approach to proof, and the question whether anything may properly be made of the absence of evidence from Ms Knight, may be affected by those matters.
In reaching the views expressed above, I have had regard to the additional evidence sought to be relied upon by the prosecution on appeal. That material provided more detailed evidence with respect to the acts of service relied upon before the magistrate. The case for receiving this evidence is stronger, or clearer, than it is in the context of Ms Knight’s appeal, because the prosecution did not enjoy the benefit, at trial, of an adjournment in order to pursue proof of service. Rather, it was dealt with ‘on the run’ and, on the evidence, by relying on the only documents available to the prosecutor when the issue of compliance with s 47K(17)(a) was, from the perspective of the prosecutor, unexpectedly raised. As in the case of Ms Knight, there is no suggestion of any challenge to the evidence, nor that, had it been relied on at trial, Ms Metters would have wished to rely on any additional evidence. Notwithstanding double jeopardy considerations, to which I have had regard, it is in the interests of justice to permit the Commissioner to rely on the additional evidence.
The cross-appeal
Ms Metters submits that none of the evidence relating to service should have been considered by the magistrate, and that she erred by permitting the prosecution to re-open its case to rely upon the documents that were marked MFI P6 and P7.
In my view, this contention must be rejected. As explained in McDonald v Camerotto,[87] in the context of a certificate which was necessary to show a breath analysis instrument was in good working order and had been operated correctly, the court will usually allow a prosecutor to re-open to make good an omission where it results from an oversight or misunderstanding and there is no question of the defendant’s case thereby being prejudiced.[88] And, as is illustrated by the decision in Leydon v Tomlinson,[89] where an issue is in the nature of a technicality and comes to the attention of the prosecutor only at the end of the Crown case, that is very different from a situation where the prosecutor has been on notice of an essential matter in dispute from the outset of a matter.
[87] (1984) 36 SASR 66.
[88] (1984) 36 SASR 66 at 70 (Cox J).
[89] (1979) 22 SASR 302 at 309 (Zelling J).
It may be debated whether, by reason of JCR r 39.1(d), Ms Metters was obliged to give notice, prior to trial, of the proposed objection to the receipt of the certificates. Of course, no such notice could be given more than seven days prior to trial because, until that time, the question of compliance could not have crystallised into a ground of objection. I do not need to resolve that question, nor what I have earlier described as the deeper questions relating to whether, even absent objection, the prosecution must attend to proof of service as part of the evidence led in the trial. On the assumption most favourable to Ms Metters, which is that proof of compliance with s 47K(17)(a) must be attended to as part of the prosecution case even absent any notified objection, I would decline to hold that the magistrate erred in permitting the prosecutor to re-open in the circumstances in which she did. Ms Metters had not gone into evidence or taken any step to her prejudice by reason of the prosecution case having been closed, albeit without have attended to the tender of the relevant certificates or the material relevant to service of them. In those circumstances, there was no error of principle committed by the magistrate in permitting the prosecution to re-open, and the discretion did not otherwise miscarry. I therefore reject the argument which is the basis for the cross‑appeal.
Disposition
For reasons similar to those I have given in relation to Ms Knight, I am satisfied that it is appropriate to allow the appeal and set aside the relevant orders of the magistrate. The matter will be remitted for a retrial. I will hear the parties as to costs.
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