Cosenza v Graham
[2019] SASCFC 15
•14 February 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
COSENZA v GRAHAM & ANOR
[2019] SASCFC 15
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Hinton)
14 February 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - INITIATING PROCESS: INFORMATION, COMPLAINT, NOTICE OR CHARGE
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - PARTICULARS AND CONTENT OF INITIATING PROCESS
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - AMENDMENT OF INITIATING PROCESS
Appeal against a decision to grant an application for judicial review.
The appellant issued a complaint and summons in the Magistrates Court alleging that he was assaulted by the respondent. The complaint alleged an offence of basic assault against s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA).
The respondent brought an application to dismiss the complaint, arguing that, due to the inclusion of the words “and caused him harm” in the language of the complaint, that the complaint was a nullity. The Magistrate refused the application for dismissal and instead allowed the appellant to amend the complaint to remove the impugned wording.
The respondent sought judicial review of that decision. A single Judge of this Court held that the complaint purported to allege a minor indictable offence and was therefore a nullity, and that the Magistrate’s power of amendment did not extend to a power to allow a defect of that nature to be cured. Orders were made including an order prohibiting the Magistrates Court from hearing and determining the complaint.
The appellant appeals against the decision of the single Judge on the basis that the Judge erred in finding that the complaint was invalid and could not be amended. The appeal turns on the correct characterisation of the originating process.
Held per Vanstone, Kelly and Hinton JJ, allowing the appeal:
1. The Magistrate was correct to characterise the document as a complaint of a summary offence against s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA).
2. The complaint was not at any time incurably bad. The document complied with the relevant provisions of the legislation as it then applied. The document expressly alleges a summary offence, namely an assault contrary to s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA). The Magistrate therefore had power under s 181(2)(a) of the Summary Procedure Act 1921 (SA) to make the amendment. There was no substantial prejudice to the respondent in making the amendment.
3. The appeal is allowed. The orders made by the single Judge on 15 March 2018 are set aside. The orders made by the Magistrate on 26 June 2017 amending the complaint and dismissing the respondent’s application stand. The matter should be returned to the Magistrates Court for hearing and determination of the complaint.
Magistrates Court (Civil) Rules 2013 (SA) r 5(1); Criminal Law Consolidation Act 1935 (SA) s 20(3)(a), s 20(4); Summary Procedure Act 1921 (SA) s 5; Part 4, Division 2, s 49, s 57, referred to.
Graham v Magistrates Court of South Australia & Anor [2018] SASC 28, discussed.
COSENZA v GRAHAM & ANOR
[2019] SASCFC 15Full Court: Vanstone, Kelly and Hinton JJ
THE COURT: The appellant, Cosenza, issued a complaint and summons in the Magistrates Court alleging that he was assaulted by the respondent, Graham. The complaint sought to invoke the summary jurisdiction of the Magistrates Court. Graham brought an application to dismiss the complaint, arguing that it was a nullity due to part of its wording. Refusing that application, the Magistrate allowed Cosenza to amend the complaint to remove the impugned wording.
Upon an application to this Court for judicial review, a single Judge held that the complaint purported to allege a minor indictable offence and was therefore a nullity.[1] The Judge further held that the power of amendment did not extend to a power to allow a defect of that nature to be cured. Accordingly, orders were made including an order prohibiting the Magistrates Court from hearing and determining the complaint.
[1] Graham v Magistrates Court of South Australia & Anor [2018] SASC 28.
Cosenza now appeals against that decision. Although the Notice of Appeal contains some 16 grounds of his own crafting, the thrust of the argument is that the Judge erred in finding that the complaint was invalid and could not be amended. Therefore, this appeal turns on the correct characterisation of the originating process lodged by Cosenza.
Background
It is instructive to set out some details of the originating process. The complaint and summons follows the style and form of Form 2 of the Magistrates Court Forms (as it then was) as required by rule 5(1) of the Magistrates Court (Civil) Rules 2013 (SA). The document is headed “Complaint and Summons”. Faithful to Form 2, it refers to ss 49 and 57 of the (then applicable[2]) Summary Procedure Act 1921 (SA) (‘the Act’). These sections fall within Part 4 of the Act, headed “Summary Jurisdiction” and within Division 2 of that Part – “Complaint and subsequent proceedings”.
[2] The relevant Summary Procedure Act 1921 (SA) was re-designated as the Criminal Procedure Act 1921 (SA) by way of the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA), however the abovementioned provisions applied at the relevant time.
Under the heading “Offence details” the document contains the following:
On the 3rd day of April 2015, at Brompton in the said State of South Australia. Senior Constable Alan Graham ID: 49832 assaulted Dean Cosenza and caused him harm.
Section 20(3)(a) Criminal Law Consolidation Act (SA) 1935.
This is a summary offence.
The reference to s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) is a reference to the section which provides the offence of assault, which, for a basic offence – as opposed to an aggravated one – carries a maximum penalty of two years imprisonment. Section 20(4) of the CLCA provides the offence of assault causing harm, the basic form of which carries a maximum of three years imprisonment. Under s 5 of the Act an offence carrying a maximum penalty of imprisonment of more than two years could not be a summary offence. Accordingly, any offence against s 20(4) of the CLCA would have to have been charged as a minor indictable offence.
The Magistrate held that it was clear on the face of the complaint that the charge laid was one of basic assault, a summary offence. Therefore, an amendment to delete the words “and caused him harm” could be made pursuant to s 181 of the Act without prejudice to Graham.
The single Judge took a different view on the judicial review. It is not suggested that the principles he applied were not the correct ones.
Upon the appeal Mr Abbott QC for the respondent argued that the appeal should be dismissed on the basis that the single Judge’s characterisation of the complaint was correct. The question of whether the initiating process was valid is a matter of law. It is only if that question is answered adverse to the respondent that consideration must be given to the propriety of the exercise of the discretionary power to amend the complaint contained in s 181 of the Act.
Preliminary issue – affidavit sworn by the appellant 29 January 2019
Upon the hearing of the appeal the appellant sought to tender an affidavit sworn by him on 29 January 2019 on the basis that it contained fresh evidence. Mr Abbott QC opposed the tender of that affidavit on the grounds of relevance.
In our view, none of the material sought to be tendered by the appellant in that affidavit is relevant to the issue which arises on appeal and for that reason the Court declined to receive the affidavit.
Discussion
The outcome of this appeal turns upon the correct characterisation of the originating document filed by the appellant in the Magistrates Court on 24 February 2017.
It is common ground that the nature and meaning of the charge is to be determined objectively having regard to the document which purports to initiate the process.
We respectfully disagree with the view the single Judge took that the document on its face is ambiguous.
In our view, the document complied with the relevant provisions of the legislation as it then applied, namely the Summary Procedure Act 1921 (SA).
Section 49 of the Act provides:
49—Complaint
(1) Where a person is suspected of having committed a summary offence, a complaint may be made in accordance with the rules charging that person with the offence.
(2) A complaint may be made by the complainant personally or by a legal practitioner or other person duly authorised to make the complaint on the complainant's behalf.
(3) If the complaint is made orally, it must be reduced to writing.
(4) A complaint need not be made on oath unless—
(a) some Special Act requires the complaint to be made on oath; or
(b) a warrant for the arrest of the defendant is to be issued.
(5) A complaint must be filed in the Court as soon as practicable after it is made.
The document expressly alleges a summary offence, namely an assault contrary to s 20(3)(a) of the CLCA. It is true that the particulars alleged included the words “and caused him harm” however the characterisation of the document must be assessed on the basis of the whole of the document, not just those four words. In that respect, we are unable to agree with the single Judge’s characterisation of those words as critical to the characterisation of the document.
The title of the document and the form used, the section number of the offence alleged and the identification of it as a summary offence are in our view the critical features of the document. The document, which we described earlier, plainly complies with the requirements of s 49. The document charges the summary offence of assault. Against that background the words added to the particulars are surplus.
A complaint is not invalid because of a defect of substance or form. The relevant provision of the Act provides as follows:
181—Charges
(1) An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may—
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
Thus the Court had the power to amend the complaint.
In our view, it is arguable that no amendment was in fact necessary. The words “and caused him harm” arguably do no more than provide further particulars of the type of assault alleged here, namely an assault which involved battery. In that sense the adding of those words might be seen to do no more than provide some further details of the assault alleged, in the same way as do the particulars of the date and place of the alleged offence.
However, it is unnecessary to determine this matter finally as on the view we take the complaint was not at any time incurably bad and the Court had the power under s 181(2)(a) of the Act to make the amendment.
The power to amend is conditional upon there being no substantial prejudice to the defendant. Here the amendment was sought at an early stage of the trial. It is evident that the respondent was a police officer, then and now, represented by experienced counsel and no relevant prejudice, let alone substantial prejudice, was ever identified.
As the complaint always alleged a summary offence, the respondent cannot complain that he has been prejudiced by being denied the right to make an election as if he had been charged with an indictable offence.
For these reasons, we consider that the Magistrate was correct to characterise the document as a complaint of a summary offence against s 20(3)(a) of the CLCA. He was acting within jurisdiction when he made the orders complained of.
For these reasons, the orders made by the single Judge on 15 March 2018 are set aside. The consequence of that is that the orders made by the Magistrate on 26 June 2017 amending the complaint and dismissing the respondent’s application stand. The matter should be returned to the Magistrates Court for hearing and determination of the complaint.
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