Gregory James Harding v Graham Charles Willshire No. SCGRG 92/2736 Judgment No. 3893 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 3893

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ON APPEAL FROM THE MAGISTRATES COURT SITTING AT ADELAIDE DUGGAN J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - miscellaneous powers of courts and judges - Dismissal of complainant by justice by reason of non-attendance of defendant at trial - defendant in custody and not brought to court in time for hearing - held no power to dismiss complaint in these circumstances - Summary Procedure Act, 1921ss.62 and 63 discussed - R in Hendon Justices and Others ex parte The Director of Public Prosecutions (1993) l AER 411 and R in Sutton Justices ex parte The Director of Public Prosecutions (1992) AER 192 referred to.

HRNG ADELAIDE, 5 April 1993 #DATE 5:4:1993
Counsel for the appellant:        Mr B Illingworth
Solicitors for the appellant:     Crown Solicitor
Counsel for the respondent:     Mr G Barrett
Solicitors for the respondent:    Mr D Alcock

ORDER
Appeal allowed.

JUDGE1 DUGGAN J This is an appeal from a decision of a magistrate who dismissed a complaint against the respondent when the respondent, who was in custody at the time, had not been brought to the court at the time appointed for the hearing of the matter. 2. The respondent was charged with an offence of unlawful possession. He was bailed to appear in the Adelaide Magistrates Court for a hearing on 2 November 1992. It would appear that the matter was to be contested. On the morning of the trial the prosecutor was advised by the investigating police officers that the respondent had been arrested on other matters on 29 October 1992 and, to the best of their knowledge, he was then an inmate of the Yatala Labour Prison. The prosecutor asked the officers in charge of the investigation to make enquiries at the Yatala Labour Prison and it was ascertained that the respondent was still in custody. 3. According to the prosecutor's affidavit filed in this court, he discussed the matter with the respondent's counsel, Mr Barrett, at 9.40 a.m. and was advised by Mr Barrett that an order had been issued for the respondent to be brought to the court and that he was at that time on his way to court. At 10.45 a.m. the learned magistrate expressed concern at the respondent's non-attendance and adjourned the hearing until 11.30 a.m. The prosecutor, with the assistance of the investigating officers, confirmed that an order had been served on the authorities at the 2 prison. I should mention that throughout this period, the prosecution witnesses were in attendance ready to give evidence. 4. At 11.30 a.m. the respondent had not arrived and the magistrate adjourned the matter to 2.15 p.m., intimating that he was considering dismissing the complaint. The prosecutor then requested the senior listings clerk at the court to do what he could to secure the attendance of the respondent. However, the respondent did not arrive in the afternoon and the charge was dismissed. 5. The learned magistrate reported to this court as follows:
    "I have perused the copy affidavit of Mark Faggoter (the
    prosecutor in the matter) and confirm that it correctly
    sets out the sequence of events in court on 2 November
    1992. The incidents of defendants in custody arriving
    late for a court hearing or not arriving at all have
    been occurring with increasing regularity, resulting in
    a significant waste of valuable court time, not to
    mention the inconvenience and cost to prosecution,
    defence and witnesses. I feel that in a situation such
    as the case in point, the defendant's rights pursuant to
    s.28 of the Correctional Services Act are being negated
    and since there was no cogent justification or
    explanation advanced for the failure to bring the
    defendant to court I took the unprecedented step of
dismissing the charge against the defendant." 6. S.28(1) of the Correctional Services Act, 1982 referred to by his Honour provides that: "A prisoner is entitled to attend before a justice or a court for the purpose of preliminary examination, trial or sentence for the offence in respect of which the prisoner is being detained or for any other offence with which he or she has been charged." 7. The section goes on to provide for an order to be made by the justice, court or coroner directing the manager of the 3 correctional institution in which the prisoner is being detained to cause the prisoner to be brought before the court. 8. It is not clear under what authority the learned magistrate purported to dismiss the complaint. The only provision in any relevant legislation dealing with the failure of a defendant to appear is to be found in s.62 of the Summary Procedure Act 1921. Pursuant to that section the court may issue a warrant for the defendant's appearance or, in appropriate circumstances, proceed ex parte. As the defendant in this case was in custody neither of these alternatives was appropriate. S.63 of the Act confers the power to dismiss a complaint for what is commonly called "want of prosecution". It provides as follows: "If the defendant appears in obedience to the summons, or is brought before the court by virtue of any warrant, then if the complainant, having had due notice, does not appear in person or by his counsel or solicitor, the court shall dismiss the complaint unless for some reason it thinks proper to adjourn the hearing." 9. That power could not be used in the circumstances of the present case where the prosecutor had attended with the prosecution witnesses. 10. My attention was not directed to any other statutory provision under which the learned magistrate might have dismissed the complaint by reason of the non-attendance of the defendant. Mr Barrett has suggested that the magistrate would have had power to order a permanent stay of proceedings because of an abuse of the process of the court. However the learned magistrate did not purport to exercise that power and, in any event, he did not conduct a hearing appropriate to a consideration of the matters relevant to such a course of action. 11. In my view, therefore, there was no power to dismiss the complaint on the grounds relied upon by the learned magistrate. But even if the magistrate had jurisdiction to dismiss the charge, I am firmly of the view that he should not have done so. The prosecution was ready to proceed. As I have said, the witnesses for the prosecution were in attendance throughout. The fact that the respondent was in custody came to the prosecutor's attention on the day of the proposed hearing and only a short time before the court was to sit. It would seem that the prosecutor did all that he could to secure the respondent's attendance. 12. I can understand the learned magistrate's frustration. Unfortunately many cases in the Supreme Court have been delayed because of the difficulty of securing the attendance of prisoners at short notice from Yatala Labour Prison. If the purpose of the dismissal was to act as a disciplinary measure directed to the Director of Prosecutions, then I think that such drastic action was unjustified. It would seem that the public interest in the prosecution of alleged offenders was either overlooked by the learned magistrate or given too little weight by him. 13. In R v Hendon Justices and Others ex parte The Director of Public Prosecutions (1993) 1 AER 411, it was held that justices had acted unreasonably in dismissing a charge when the prosecutor failed to arrive at court on time. The facts of that case are not important for present purposes, but the court stressed the importance of the prosecutor's right to be heard and held that it was in the public's interest that it should not be deprived of that right, save in exceptional circumstances. (See also R v Sutton Justices ex parte The Director of Public Prosecutions (1992) AER 192.) 14. For these reasons I am of the view that the appeal should be allowed, the order dismissing the complaint set aside and the matter remitted to the Adelaide Magistrates Court for hearing according to law.