Ferdinands v Commissioner of Police No. Scciv-02-1797

[2003] SASC 6

FERDINANDS v COMMISSIONER POLICE
[2003] SASC 6

Magistrates Appeal

1. BESANKO J: This is an appeal by Mr Ferdinands pursuant to s 42 of the Magistrates Court Act 1991 against a decision of a Magistrate.

2. Mr Ferdinands purported to lay an Information charging the Commissioner of Police in South Australia (Mr M Hyde) with various offences under the Criminal Law Consolidation Act (“CLCA”). The Information alleges that the Commissioner:

   “1. Committed the offence of acting improperly s 238 of the CLCA 1935.

   2.Committed the offence of abuse of public office s 251 of the CLCA 1935.”

3. Particulars of the offences are attached to the Information and consist of some 23 paragraphs.

4. Despite the fact that the defendant named in the Information is the Commissioner of Police, the Crown Solicitor was the person named as the person required to appear at the Adelaide Magistrates Court on 18 November 2002.

5. On 18 November 2002 the Information came on before a Magistrate.  Counsel appeared on behalf of the Crown Solicitor, and was given leave to appear as a friend of the Court.  The Commissioner of Police did not appear.

6. The Magistrate made an order striking out the proceedings and an order that Mr Ferdinands pay costs of $200 to the Crown Solicitor.  Mr Ferdinands appeals against those orders.

7. As I understand it, the effect of the Magistrate’s order was to dismiss the Information (see s 181 of the Summary Procedure Act 1921).

8. The Magistrate held that s 238 of the CLCA does not create an offence. It was simply a “definition and enabling section”. I will not set out the terms of the section. In my opinion, the conclusion of the Magistrate is plainly right. The section defines the meaning of “acting improperly” for the purposes of Part VII of the CLCA. It does not create an offence.

9. The second count alleges an offence under s 251 of the CLCA. That section provides:

   “A public officer who improperly-

   (a) exercises power or influence that the public officer has by virtue of his or her public office; or

   (b) refuses or fails to discharge or perform an official duty or function; or

   (c) uses information that the public officer has gained by virtue of his or her public office,

   with the intention of-

   (d) securing a benefit for himself or herself or for another person; or

   (e) causing injury or detriment to another person,

   is guilty of an offence.

   Penalty: Imprisonment for 7 years.”

10. The Magistrate struck out count 2 on the ground that there had not been strict compliance with service of the summons on the Commissioner of Police.  Counsel for the Commissioner appeared before me and after some debate he abandoned reliance on this ground as a reason justifying the order of the Magistrate.

11. However, there are significant difficulties with the Information.

12. The particulars of the alleged offence(s) are set out in 23 paragraphs.  It is difficult to follow what is being alleged in the particulars.  The first ten paragraphs contain allegations relating to the background and the history of the matter.  Paragraph 1.14 contains an allegation about the nature of the evidence and may be put to one side.  The other twelve paragraphs (ie., paragraphs 1.11 – 1.23), subject to one possible exception, contain separate allegations to the effect that the Commissioner acted improperly or abused his office by various acts and omissions.  The one possible exception is that paragraphs 1.13 and 1.17 may be referring to one act.

13. The Information is plainly defective in a number of respects. First, the count alleging an offence under s 251 CLCA when read with the particulars is duplicitous in that it appears to charge the Commissioner with having committed two or more distinct offences. Clearly that is not permissible (Walsh v Tattersall (1996) 188 CLR 77 per Kirby J at 104 – 110). Secondly, at least one essential element of the offence under s 251 is not alleged. To be guilty of an offence under the section a defendant must have had an intention to secure a benefit for himself or to cause injury or detriment to another person. The particulars contain no allegation concerning the Commissioner’s intention. Thirdly, a number of the particulars are inadequate in terms of specifying the date of a particular act or omission and the precise nature of the act or omission.

14. Having regard to these defects which are both numerous and significant, I do not think the Magistrate erred in dismissing the Information.

15. There is a further defect in the Information, although counsel for the Commissioner seemed to accept that it is probably one that can be cured by amendment.  The Information does not state the appropriate classification of the offence (s 5 Summary Procedure Act 1921; rule 19.08 Magistrates Court Rules 1992).

16. Counsel for the Crown Solicitor sought to support the Magistrate’s order that the informant pay costs of $200 to the Crown Solicitor.  He referred me to s 189 of the Summary Procedure Act 1921.  I think the power contained in that section is sufficiently wide to authorise the order for costs made in this case.  I am not persuaded that the Magistrate erred in exercising his discretion to award costs.

17. The appeal is dismissed.