Cosenza v Graham - [2019] SASCFC 15

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cosenza v Graham

Details

AGLC: Cosenza v Graham [2019] SASCFC 15
Case: [2019] SASCFC 15
Decision Date: 14 February 2019

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an appeal by Cosenza against a decision of a single Judge. The dispute concerned the validity of a complaint and summons issued in the Magistrates Court, which Cosenza argued was invalid and could not be amended. The respondent, Graham, contended that the single Judge's characterisation of the complaint as valid was correct.

The central legal issue before the Full Court was the correct characterisation of the originating process lodged by Cosenza. Specifically, the court had to determine whether the complaint, as initially drafted, was valid and, if not, whether it could be amended under the relevant provisions of the Summary Procedure Act 1921 (SA). This involved considering the nature of the offence charged and its classification as either a summary or minor indictable offence.

The Full Court reasoned that the complaint, by referencing s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA), purported to charge a basic assault, which is a summary offence. However, the inclusion of "and caused him harm" suggested an offence under s 20(4) of the Criminal Law Consolidation Act 1935 (SA), which carries a maximum penalty exceeding two years imprisonment. Under s 5 of the Summary Procedure Act 1921 (SA), an offence with a maximum penalty of imprisonment exceeding two years could not be a summary offence and would have to be charged as a minor indictable offence. Therefore, the court found that the complaint, on its face, was defective as it attempted to charge a minor indictable offence as a summary offence. The court also considered the power to amend the complaint under s 181 of the Summary Procedure Act 1921 (SA).

The Full Court allowed the appeal, finding that the single Judge erred in holding that the complaint was valid and could be amended. The court concluded that the originating process was invalid and could not be amended to rectify the fundamental defect in its characterisation.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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