Director of Public Prosecutions (State) v Cottle - [2011] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
DPP (STATE) v COTTLE
[2011] SADC 82
Reasons for Ruling of His Honour Judge Beazley
2 June 2011
CRIMINAL LAW - PROCEDURE - JURISDICTION
COURTS - RULES OF COURT - VALIDITY - CRIMINAL APPLICATIONS - LEAVE OF COURT
Application by accused to set aside a summons issued pursuant to section 57(1) of the Criminal Law (Sentencing) Act, 1988.
Applicant asserts that as he had no right to appear or to make submissions upon the application to issue a summons, he was denied natural justice.
Accused contends that the application for leave for the court to issue a summons for the enforcement of a breached bond must be heard in open court, and that notice of such an application by the DPP must be served upon the probationer, the subject of the proposed summons. Whether summons issued by the court in private and without notice to the probationer ought be set aside. Whether this court has jurisdiction to determine the issue.
Held: The preliminary procedure pursuant to section 57(1) of the Act, as contrasted with the hearing and determination pursuant to section 57(5) thereof, may be heard in private.
District Court Act 1991 (SA) ss 5 and 23; Criminal Law (Sentencing) Act, 1988 (SA) s 57; District Court Civil Rules, 2006, 6 DCR 9; District Court (Criminal and Miscellaneous) Rules 1992 Part IV Rules 6 and 7; Criminal Law (Sentencing) Regulations 2000 Reg. 7., referred to.
Hogan v Hinch [2011] HCA 4; R v Coulter (1988) 164 CLR 350; Craig v State of South Australia (1994) 184 CLR 163; Dimitropoulos v District Court of South Australia [1998] SASC 6836; Police v Korber [2003] SASC 69; Lang v Warner (1975) 10 SASR 289; JN Taylor Holdings Ltd (2007) SASC 1993; Roads & Traffic Authority v Wood [2005] NSWSC 554; Kirkland v Tippett [2000] TASSC 94; R v Parenzee [2008] SASC 245, considered.

DPP (STATE) v COTTLE
[2011] SADC 82
Introduction

On 16 March 2011, pursuant to an application endorsed by a Judge of this Court, a summons was issued, directing the respondent Jake Dylan Cottle, (“the probationer”), to appear before this Court on 27 April 2011, for the hearing of the application by the Director of Public Prosecutions, (“the Director”) for the enforcement of a breached bond pursuant to s 57 of the Criminal Law (Sentencing) Act 1988 (“the Act”).
The summons was duly served upon the probationer on 29 March 2011. It was purportedly issued pursuant to an order of the Court made pursuant to s 57(1) of the Act.
The probationer contends that the summons was improperly issued and seeks an order setting aside the summons. The legal issues raised in this application are different from those raised, in respect of s 57(1) of the Act, in R v Moffat [2001] SADC 29; and DPP (State) v Shaw [2011] SADC 40.
Although it was not immediately apparent, I assume that the probationer, is, in effect, submitting that this Court, in subsequently determining whether a breach had occurred, and whether any order ought be made in respect thereof, on a hearing pursuant to s 57(5) of the Act, has an inherent jurisdiction, to consider whether the summons was properly issued.
Insofar as it is an application to set aside the summons, in my opinion this Court does not have jurisdiction to grant such relief.[1]
[1] District Court Act, 1991 (SA) Section 8. See also DJL v Central Authority (2000) 201 CLR 226; and Cavanagh-Lang v O'Callaghan [2000] SASC 187
On its face there is a valid order of a Judge of this Court, made on 16 March 2011, permitting the issue of the summons. The Supreme Court alone has the power to judicially review that decision, or to set aside the summons.[2]
[2] Craig v State of South Australia (1994) 184 CLR 163; Dimitropoulos v District Court of South Australia [1998] SASC 6836
I do not however need to consider the jurisdictional question further, as in my opinion, even if the application to set aside the summons was properly made, it must be dismissed for the reasons which follow.
The Act
57—Non-compliance with bond
(1)If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer's bond, the court may—
(a)—
(i)issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or
(ii)issue a warrant for the probationer's arrest; and
(b)issue a summons to any guarantor.
(2)If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person's arrest.
(3)Where a person is arrested pursuant to a warrant issued under this section, the person must be brought before the probative court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings.
(4)If a probationer is found guilty of an offence by a court of a superior jurisdiction to that of the probative court, being an offence committed during the term of the bond, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction.
(4a) If a probationer is found guilty of an offence by a court of an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must—
(a)sentence the probationer for the offence and remand him or her to the probative court to be dealt with for breach of the conditions of the bond; or
(b)remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond.
(5)The court dealing with a probationer for breach of condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply.
(6)In this section—
court of an inferior jurisdiction means—
(a)if the probative court is the Supreme Court—the District Court, the ERD Court or the Magistrates Court;
(b)if the probative court is the District Court or the ERD Court—the Magistrates Court;
court of a superior jurisdiction means—
(a)if the probative court is the Magistrates Court—the Supreme Court, the District Court or the ERD Court;
(b)if the probative court is the District Court or the ERD Court—the Supreme Court.
It is appropriate to refer also to Regulation 7 of the Criminal Law (Sentencing) Regulations 2000, (“the Regulations”), which provides:
7—Enforcement of bonds and guarantees (section 57)
(1) If, pursuant to section 57(1) of the Act, a probative court decides to issue a summons or a warrant of arrest to bring a probationer before the court on a written application made by the Crown alleging breach of bond, the court must endorse the application accordingly.
(2)The court should first issue a summons to a probationer alleged to have breached a bond unless the court has reasonable grounds to believe—
(a)     that service of a summons is not likely to be effected; or
(b)     that the probationer is not likely to comply with a summons.
(3)     A summons must be served on the probationer—
(a)     personally; or
(b)    if personal service is not practicable or the probationer cannot, after reasonable enquiries, be found, in such other manner as the court may direct,
not later than 2 clear working days before the date specified in the summons for the hearing of the matter.
(4)    If a probationer fails to appear before the probative court in compliance with a summons and the court is satisfied that the summons was duly served on the probationer, the court may, instead of issuing a warrant, deal with the application in the absence of the probationer.
(5)If a guarantor fails to appear before the probative court in compliance with a summons and the court is satisfied that the summons was duly served on the guarantor, the court may make orders in relation to enforcing the guarantee in the absence of the guarantor.
(6)If a probationer is found guilty of an offence committed during the term of a bond by a court that has jurisdiction to deal with proceedings for breach of the bond, the court may, on an oral application by the Crown, proceed to hear and determine the application forthwith if it is satisfied that the probationer has had adequate notice of the intention of the Crown to make such an application.
Application by the Probationer
The application was raised in an informal manner. It is contained in a letter from the probationer’s solicitor dated 21 April 2011, in which it is asserted that the summons was not obtained in accordance with the requirements of the District Court Act.
The application came on before me initially on a directions hearing after the probationer had appeared by Counsel but not in person, at the arraignment hearing fixed for 27 April 2011. Neither oral nor affidavit evidence was adduced by the probationer to be placed before the Court, however both parties proceeded on the agreed basis that on 9 March 2011, the Office of the Director of Public Prosecutions filed various documents pursuant to s 57(1)(a) of the Act, in the Criminal Court Registry, and subsequently an order permitting the issuing of the summons was made by a Judge of the Court in Chambers.
The probationer seeks an order dismissing the Director’s application on the ground that the order for the issue of the summons was invalid.
The Application for Enforcement
The documents filed by the Director were as follows:
·Two copies of an Application for Enforcement of a Breached Bond pursuant to s 57 of the Act.
·An Affidavit sworn on 13 July 2010 by Trudie Robinson, a Community Corrections Officer, detailing the alleged breach of bond.
·A bond response sheet signed by the said Trudie Robinson.
·Two copies of a summons directed to the probationer for issue pursuant to s 57(1) of the Act.
Annexed to the said application were:
·a copy of a suspended sentence bond entered into by the probationer on 19 February 2010.
·An acknowledgement of supervision conditions executed by the probationer on 19 February 2010.
·Copies of the results of the testing of samples obtained from the probationer on 27 May 2010 and 11 June 2010.
The Judge in this case was satisfied, on the above material, that there was evidence on oath which indicated at the preliminary stage envisaged in s 57(1) of the Act, as contrasted with the hearing of the substantive rights in s 57(5) thereof that:
·The accused had been sentenced on 19 February 2010 to imprisonment for 18 months with a non-parole period of 12 months for the offence of selling a controlled drug. That sentence was suspended on that day upon the accused entering into a bond in the sum of $500 for a period of 2 years, to inter alia, be of good behaviour; to be under the supervision of a Community Corrections Officer for a period of 12 months and abstain from using illicit substances and to undertake such testing as may be required by a Community Corrections Officer.
·The accused may have breached the terms of the suspended sentence bond by having allegedly failed to abstain from using illicit substances – in this case amphetamines on or about 27 May 2010.
On 16 March 2011, that Judge determined only that a summons ought issue, and, accordingly, pursuant to Regulation 7 of the Regulations, endorsed the same. There was no record of any determination of the said Judge save for that endorsement.
The Probationer’s submissions
Mr Mancini, counsel for the probationer, submitted that an application pursuant to s 57(1) of the Act involved the exercise of a “judicial function” as contrasted with an “administrative function”.
He referred to the decision of the Full Court of the Supreme Court in the case Lang v Warner[3] which involved an appeal from a conviction by a Court consisting of two Justices of the Peace sitting in a police station, there being no other convenient place to be used as a courtroom. Bray CJ at page 290 said:
When a complaint was laid the appellant was under arrest and no question arose as to the issue of any summons to him. There is undoubtedly authority for the proposition that, in deciding whether or not to issue any summons or other process after he has taken a complaint, a Justice of the Peace is exercising a judicial function or at least an administrative function requiring the exercise of a judicial discretion (authorities omitted) ….without exploring that question in depth I am prepared for the purposes of this case to assume that even then he is required to exercise a judicial discretion. He has to listen to the complaint if it oral, or read it if it written, and to apply his mind to it: he has to consider whether process should be issued on it even though the immediate answer is that none needed to be issued because the defendant is in custody.
[3] (1975) 10 SASR 289
I did not understand Mr Mancini to be suggesting that the grounds raised a question of any compatibility with Chapter III of the Commonwealth Constitution so as to raise the application of the decision of the High Court of Australia in Kable v Director of Public Prosecutions (NSW).[4] Had such a submission been raised it would have been necessary for Notices required by s 78B of the Judiciary Act 1903 (Commonwealth) to be issued.
[4] (1996) 189 CLR 51
In essence he submitted that, pursuant to s 57(1) of the Act, it was necessary for the application for the issue of a summons to be argued in open court; that notice of the application must be given to the probationer so that he may attend and make submissions as to why the summons ought not be issued; and that there must be some determination, pronouncement or record of the Judge indicating that an adjudication had been made and directing that the summons issue.
Mr Mancini noted that no express rules had been made pursuant to the Act. He referred to Rules 6 and 7 of Part IV of the District Court (Criminal and Miscellaneous) Rules 1992 which expressly provided for, inter alia, directions hearings to be held in Court as in Chambers.
Mr Mancini referred to s 23 of the District Court Act which provides that:
Subject to any Act or Rule to the contrary, the courts proceedings must be open to the public.
He also referred to Rule 6R9 of the 2006 District Court Civil Rules which provides:
9(1)All proceedings before the court are, as a general rule, to be held in a place open to the public.
(2) The general rule is, however, subject to the following exceptions –
(a) a non contentious interlocutory proceeding may be heard in private.
(b)a contentious interlocutory proceeding may, if the Judge or Master who is to hear it thinks fit, be heard in private.
(c)the court has a general discretion to direct, if there is good reason to do so, that a proceeding be heard wholly or partly in private and that the public be excluded from whole or a particular part of a hearing.
Mr Mancini submitted that these provisions entrenched the principle of open Court hearings, and dictated that all criminal court matters, save for directions hearings, and other matters expressly excluded by Statute, must be held in open Court.[5] He submitted that as the order for the issuing of the summons by the Judge of this Court, was made in private, in Chambers, it had infringed the principle of open Court hearings.
[5] See JN Taylor Holdings Ltd (2007) SASC 1993, per Debelle J
He submitted that the failure of the Judge to give reasons constituted an error of law which also had the effect of vitiating the proceedings.
Mr Mancini submitted that, in the subject case, the probationer had been given no right to appear upon the application or to make submissions as to why the summons ought not issue, and he thereby was denied natural justice. He noted that s 57(1)(a)(ii) of the Act, also vested in the Court, at this preliminary stage, a power to issue a warrant for the arrest of a probationer. He submitted that in such a case it was inconceivable that a Court would make such an order in private, or without giving a probationer the opportunity to be heard.
Submissions of the DPP
Counsel for the DPP, Mr Petraccaro, submitted that there was no need, at this preliminary stage, for a Judge to give any reasons at all, as the signing of the summons is a sufficient record of the judicial discretion that the summons be issued.[6]
[6] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279
As to whether the application must be heard in open Court, Mr Petraccaro noted that s 23 of the District Court Act was restricted to “proceedings” which must be open to the public. He submitted that there is a clear distinction between matters dealt with under s 57(1), which was a “machinery provision”, and those under s 57(5) which, by contrast, constituted, a “proceeding”. He referred to Roads & Traffic Authority v Wood,[7] in which, in a different statutory context in New South Wales, Hall J. had noted that a “summons” is the process by which a “proceeding” is commenced, namely a notice of proceedings, rather than a “proceeding” in itself.
[7] (2005) NSWSC 554
Mr Petraccaro submitted that the application under s 57(1) for the issue of a summons was not “a proceeding”, and thus s 23 of the District Court Act, had no application to it.
Discussion
The Act and the Regulations are silent as to whether permission for the issue of a summons pursuant to s 57(1)(a)(i) thereof may be made in Chambers.[8] There are no rules of Court specifically referring to applications under the Act. It is apparent from s 57(1)(a)(ii) of the Act that the Court may be requested to issue a warrant for the arrest of an individual.
[8] Contrast the rule in R v Coulter (1988) 164 CLR 350
The probationer argues that it would be unfair if the Court were permitted to issue a warrant for an individual’s arrest without notice being given to that individual and permitting him to appear and make submissions. He submitted that s 57(1) (a)(i) ought be construed similarly.
I note that the perceived unfairness in respect of the issue of a warrant for arrest in s 57(1)(a)(ii) thereof, was ameliorated in Regulation 7(2) of the Regulations, which provides that a Court should at first instance issue a summons, inferentially before any warrant for the arrest, unless it is clear that a probationer will not be served, or not comply with it, if served.
I will deal briefly with the other specific submissions of counsel.
· Whether the determination of the Court that a summons ought issue is an administrative act, or one involving a judicial discretion
In Lang v Warner[9] the Full Court was concerned with the pre 1992 provisions of the Summary Procedure Act,[10] and the two stage process leading to the issuing of a complaint.
[9] (1975) 10 SASR 289
[10] Contrast, Police v Korber (2003) 85 SASR 472
The Court made it clear that at the second stage when a justice came to consider whether a summons ought issue, that function involves an exercise of judicial discretion.
While the 1992 amendments altered the position in the Magistrates Court so that the issue of the summons is now an administrative act and no longer involves a judicial discretion, in my opinion the principles expressed in Lang v Warner apply to the decision as to whether a summons ought be issued pursuant to s 57(1)(a)(i) of the Act.

In my opinion the Court is obliged to exercise a judicial discretion to ensure that there is evidence on oath to justify the issue of a summons.
· Whether the application under s 57(1)(a)(i) for the issue of a summons is a “proceeding”, which must be heard in public.
It is trite, irrespective of the provisions of s 23 of the District Court Act, that Courts generally ought sit in public. It is equally clear that this Court has, at the least, an implied power to regulate its procedure to secure the efficient and proper administration of justice. The “open court principle” was recently discussed in a different context, by the High Court of Australia in Hogan v Hinch[11] where French CJ said:
[11] (2011) HCA 4
The open-court principle
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer’s victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection.” So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was “parental and administrative, and the disposal of controverted questions … an incident only in the jurisdiction.” Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal, can also be determined without a public hearing. (my emphasis)
… Beyond the common law, it lies within the power of parliaments, by statute, to authorise courts to exclude the public from some part of a hearing or to make orders preventing or restricting publication of parts of the proceeding or of the evidence adduced…. There are many other examples of such provisions enacted by State parliaments. Where it is left by statute to a court’s discretion to determine whether or not to make an order closing part of a hearing or restricting the publication of evidence or the names of parties or witnesses, such provisions are unlikely to be characterised as depriving the court of an essential characteristic of a court and thereby rendering it an unfit repository for federal jurisdiction. Nevertheless, a statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle.
The term “proceedings” has been considered by various courts in quite different situations and contexts. See the decision of Gray J in Maguire v Pankiewicz[12] in the context of Part 4 of Division 2 of the Summary Procedure Act. I have already referred to the decision of Hall J. in Roads & Traffic Authority v Wood.
[12] [2009] SASC 169
The purpose of the summons is to give notice, and, thereafter, to bring the probationer before the court, so as to enable the later application for enforcement under s 57(5) to be determined. It is clearly a machinery provision, as contrasted with the “proceeding” under s 57(5).
I do not need to consider whether the application to issue a summons is a “proceeding” under s 23 of the District Court Act; or Rule 6R9. Even if it were a “proceeding”, then in my opinion the subject application would fall within that category of proceeding identified by French C.J. as “not in the ordinary course of litigation”, and one which can be determined without a public hearing.
In my opinion s 57(1)(a)(i) involves a simple procedure whereby the court must satisfy itself that there is, on the face of the application, evidence on oath sufficient to justify the issue of the summons.
· Whether there is any distinction between applications pursuant to s 57(1)(a)(i) and s 57(5) of the Act
There is a clear distinction between considering an application to issue a summons pursuant to s 57(1)(a)(i) of the Act, and a hearing as to whether the probationer had breached any condition pursuant to s 57(5) of the Act.
In Coulter v The Queen[13], in upholding the validity of a rule which required all applications for leave to appeal to be considered in private, the High Court determined that such applications were not “proceedings in the ordinary course of litigation”, but akin to a filtering process. It said that “it is a preliminary procedure recognized by the legislature as a means of enabling the court to control in some measure, the volume of work requiring its attention”.
[13] (1988) 164 CLR 350
It is, with respect, obvious that Parliament intended that the s 57(1)(a)(i) application be a filtering process as to whether a summons ought issue. No finding is to be made as to whether there has in fact been a breach. It is not until the hearing in s 57(5) of the Act that the Court is obliged “to hear any evidence addressed tending to establish” the breach, and is called upon to make a finding whether a condition on the bond has been breached.
The earlier procedure is no more than a preliminary filtering exercise to ensure that there is, on the face of the application, sufficient evidence on oath to justify the issue of the summons.
Conclusion
Consistent with the respective decisions of the High Court of Australia, the open justice principle may be limited in the proper exercise of this Court’s implied powers, inter alia, to deal with various preliminary matters. In the subject matter there is no obligation upon the Court to hear applications for leave to issue a summons in open court. In contrast with the Rule of Court considered in Coulter v The Queen, there is no rule of practice that such s 57(1)(a)(i) applications must be in private. In my opinion it is in the discretion of the Court as to how it deals with s 57(1)(a)(i) applications. For the most part one would expect them to be considered in private because of the very nature of the application. There is no denial of natural justice in not hearing from a probationer prior to the issue of a summons. The purpose of the summons is to bring him before the court. He will be heard upon the s 57(5) hearing as to whether there has in fact been a breach of condition.
The High Court in Hogan v Hinch, supra, also affirmed that while, in general, the failure of a judicial officer to give reasons, would be an error of law, not every judicial decision attracts a duty to give reasons. It affirmed the decision in Soulemezis v Dudley (Holdings) Pty Ltd[14]. In my opinion there is no need for the Judge at the s 57(1)(a)(i) stage to give any reasons.
[14] (1987) 10 NSWLR 247 at 279. See also R v Douglass [2010] SASCFC 66
It is apparent from the endorsement on the application that the Court was satisfied on the affidavit material that the summons should issue.
It is also appropriate to repeat the remarks in Re: the Will of F.B. Gilbert (dec):[15]
There is a material difference between an exercise of discretion on a point of practice or procedure, and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a court of appeal.
[15] (1946) 46 SR (NSW) 318 at 323
The probationer’s application, in so far as it is competent, must be dismissed.
I will hear the parties as to the convening of the s 57(5) enforcement hearing.