Curtis v City of Salisbury

[2010] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CURTIS & ANOR v CITY OF SALISBURY

[2010] SASC 208

Judgment of The Honourable Justice Duggan

7 July 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS - IN GENERAL

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES - OTHER CASES

Appeal against sentence imposed by Magistrate – appellants convicted in their absence at status conference – upon rehearing on penalty the Magistrate imposed lesser penalties – whether grounds exist to set aside fines imposed on first appellant – whether convictions properly recorded against second appellant.

HELD: First appellant’s appeal dismissed – second appellant’s appeal allowed by consent – orders made by Magistrate against second appellant set aside and finding of not guilty on all charges substituted.

Summary Procedure Act 1921 (SA) s 76A, referred to.

CURTIS & ANOR v CITY OF SALISBURY
[2010] SASC 208

Magistrates Appeal:  Criminal

1. DUGGAN J:         The appellants (“Mr and Mrs Curtis”) previously resided at 7 McKinlay Court, Mawson Lakes.  The house is part of an extensive development which was landscaped by the developers.  Adjacent to the house was an area of landscaped vegetation which included trees, shrubs and ground covers.  The land is owned by the respondent, the City of Salisbury (“the Council”).

2. The Council commenced proceedings in the Elizabeth Magistrates Court against Mr and Mrs Curtis for the unauthorised removal of vegetation from the area between 6 April 2007 and 7 December 2007.  The complaint alleged that Mr and Mrs Curtis had committed various offences including the unauthorised removal of vegetation and paving.  They were also charged with failing to comply with Council orders to reinstate vegetation and remove vegetation they had planted as well as a retaining wall which the Council alleged was constructed by them on the land.

3. The matter has a long history since the time when the Council first became involved.  After two adjournments of the matter in the Elizabeth Magistrates Court Mr Curtis appeared on 10 April 2008 and pleaded guilty to Count 1, which alleged the unauthorised removal of two Plane trees.  The matter was then listed for a pre-trial conference.

4. On 20 June 2008 Mr Curtis attended the pre-trial conference and agreed to undertake certain reinstatement works.  The Council undertook to withdraw the prosecution if the works were completed by 18 September 2008.  The Council asserts that the reinstatement works were not completed by Mr and Mrs Curtis.

5. Mr and Mrs Curtis did not attend at a Magistrates Court hearing on 18 September 2008.  It is difficult to trace the history of the matter through the records of the Court but it appears that the hearing was intended to be a status conference.  It is unclear whether the nature of the hearing changed, but the Council applied to proceed ex parte against Mr and Mrs Curtis and convictions were recorded against them on each of the six counts in the complaint.  Fines of $15,000 and $10,000 were imposed on Mr and Mrs Curtis respectively.

6. Mr and Mrs Curtis then made an application for a rehearing of the matter pursuant to s 76A of the Summary Procedure Act 1921 (SA).

7. The matter came before the Magistrate again on 22 December 2008.  There is a suggestion that at this hearing Mr Curtis indicated that it was not the convictions that were in issue, but rather the penalties imposed.  The Magistrate appears to have taken what was said as a concession by Mr Curtis that he was not contesting the charges.

8. The Magistrate granted the rehearing application and stated that he gave Mr Curtis credit for pleading guilty.  Mr Curtis had pleaded guilty to only one count, on 10 March 2008, and I think it must be inferred that the Magistrate was giving him credit for not challenging the convictions which had previously been recorded in the absence of Mr and Mrs Curtis.  The Magistrate set aside the previous penalties and fined Mr Curtis $11,000 and Mrs Curtis $6,000.

9. Neither Mr Curtis nor Mrs Curtis has been represented throughout the proceedings before the Magistrate and this Court.  Mr Curtis has spoken for Mrs Curtis throughout the proceedings.

10. The present appeal is expressed to be against:

    All remaining fines to both Stephen and Donna Curtis and community order against Stephen Curtis.

    There are no proper grounds of appeal.  Mr Curtis claims that he has already served an extensive period by way of community service which was ordered when he could not pay his fine.  He states in the grounds of appeal that this period of service should “finalise this matter”.  In relation to Mr Curtis I take this to be an appeal against sentence only.

11. The Council has now accepted that convictions should not have been recorded against Mrs Curtis on Counts 5 and 6.  Those counts allege that Mr and Mrs Curtis failed to carry out actions set out in an order made by an authorised person of the Council.  However, it is clear that no such order was issued to Mrs Curtis.  Furthermore, in the light of the apparent acceptance by Mr Curtis that he was responsible for the unauthorised works the Council has indicated that it will consent to an order allowing the appeal by Mrs Curtis, setting aside the orders made by the Magistrate in relation to her and substituting a finding of not guilty on all charges alleged against her in the complaint.

12. Mr Curtis has not put forward any argument which would justify setting aside the fines which have been imposed on him.

13. The appeal by Mr Curtis will be dismissed.

14. The appeal by Mrs Curtis will be allowed, the orders of the Magistrate in relation to her will be set aside and, in lieu thereof, the charges alleged against her in the complaint will be dismissed.