Heinrich v Curtis - [2006] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HEINRICH v CURTIS & ORS
[2006] SASC 264
Judgment of The Honourable Justice David
30 August 2006
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against a decision of a Magistrate in respect of a matter charging offences on indictment but prior to determination of whether the offences would be tried summarily - held, appeal incompetent. Whether the reasons given by the Magistrate for the decision were insufficient so as to amount to an error of law - held, as no appeal lies from the decision, the Magistrate was not obliged to give reasons.
Magistrates Court Act 1991 s 42; Summary Procedure Act 1921 s 69, referred to.
Mountford v Magistrates Court of SA & Anor [2006] SASC 184; Tzeegankoff v Magistrates Court (1998) 199 LSJS 296, applied.

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT
Application for declarations and leave to serve a summons for judicial review on the Magistrates Court - applicant initially charged on Complaint with driving with the prescribed concentration of alcohol in his blood - Information laid charging the applicant with three offences, the third of which was the same as the offence already charged on Complaint - Magistrate allowed an amendment of count 1, withdrawal of count 2 and the withdrawal of the Complaint - whether the Magistrate had power to amend the Information pursuant to s 181 of the Summary Procedures Act 1921 - held, orders were within power. Whether the Information was sufficiently particularised pursuant to s 22A of the Summary Procedures Act 1921 - held, the Information complies with s 22A. Whether an Information laid in the Magistrates Court that states "The undersigned member of the police force" where the form calls for the informant's name, and is signed by a police officer, complied with s 101 of the Magistrates Court Act and Magistrates Court Rule 19.1 - held, Information complies with the requirements of s 101.

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - JUDICIAL REVIEW
Consideration of nature of declaratory relief - held, inappropriate to grant superfluous declarations - given findings as to merits, no declarations made or injunctions granted. Consideration of availability of relief in proceedings seeking judicial review of a decision made in the course of criminal proceedings - principle that relief is only available in rare cases affirmed.
Mountford v Magistrates Court of South Australia & Anor [2006] SASC 184; Polley v Bright & Anor (1995) 79 A Crim R 562, applied.

HEINRICH v CURTIS & ORS
[2006] SASC 264
Magistrates Appeal
DAVID J.
Introduction

This decision concerns two actions challenging a decision of the Chief Magistrate of the Adelaide Magistrates Court made on 8 May 2006. The first action is an appeal pursuant to s 42 of the Magistrates Court Act 1991. The second action seeks declaratory relief pursuant to s 31 of the Supreme Court Act 1935,

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 Heinrich v Curtis

Details

AGLC: Heinrich v Curtis [2006] SASC 264
Case: [2006] SASC 264
Decision Date: 30 August 2006

CaseChat Overview and Summary

In the matter of Heinrich v Curtis, the appellant, Dr Christopher Dean Heinrich, appealed against a decision of a Magistrate concerning charges on indictment, which had not yet been determined to be tried summarily. The charges related to driving a motor vehicle while having more than the prescribed concentration of alcohol in his blood, falsifying a document, and attempting to pervert the course of justice. The appellant argued that the Chief Magistrate had no power to allow the withdrawal of the Complaint, that the Information was invalid, and that the Chief Magistrate had no power to amend the Information as he did. The court was required to decide whether the appeal was competent, whether the Magistrate's reasons for the decision were sufficient, and if the Magistrate was obliged to provide reasons for his decision.

The court held that the appeal was incompetent as it was against a decision of a Magistrate in respect of charges on indictment before the determination of whether the offences would be tried summarily. The court found that as no appeal lies from the decision, the Magistrate was not obliged to give reasons for his decision. The court found that the Chief Magistrate had the power to allow the withdrawal of the Complaint, to amend the Information, and to dismiss the charge of attempting to pervert the course of justice. The court found that the Information was valid and that the Chief Magistrate's reasons for his decision were sufficient.

The appeal was dismissed, and the notice of appeal was struck out. The court refused leave to serve a summons for judicial review and the applications for declarations and injunctions. The court held that the Chief Magistrate had the power to make the orders he did, and that the appellant's arguments were without merit. The court found that the Information was valid and that the Chief Magistrate's reasons for his decision were sufficient.

Orders

Orders of the court

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Background

Background to the litigation

Christopher Heinrich, whom I will refer to as “the appellant”, was charged with driving a motor vehicle while there was present in his blood more than the prescribed concentration of alcohol. A Complaint was laid in relation to that matter. After further investigations police alleged that the appellant in exercising his right to have a blood test, falsified a document in order to give an incorrect reading. Consequently the police charged the appellant on Information with an offence contrary to s 140 of the Criminal Law Consolidation Act 1935, and also attempting to pervert the course of justice contrary to s 256 of the same Act and added to that Information a third count which was the original count of driving while there was present in his blood more than the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961. In other words count 3 on the Information charged the appellant with the same offence that had been laid by way of Complaint. The prosecuting authorities then sought to withdraw the Complaint so that there would not be concurrent proceedings charging the same offence. They also sought to amend the Information by changing the alleged offence contrary to s 140 of the Criminal Law Consolidation Act 1935 to an offence which is contrary to s 243 of the Act. They sought to have the charge of attempting to pervert the course of justice dismissed. On hearing the matter the Chief Magistrate allowed the withdrawal of the Complaint and the dismissal of the charge of attempting to pervert the course of justice as well as allowing the prosecution to amend the first count in the terms that I have set out. The appellant now argues that the Chief Magistrate had no power to allow the withdrawal of the Complaint and that the Information (for various reasons) was invalid. It is also argued that the Chief Magistrate had no power to amend the Information in the way he did.Background The following exhibits were tendered: an affidavit of Dr Christopher Dean Heinrich (the appellant) sworn on 30 June 2006 (Exhibit A1), an affidavit of Adriana Dominika Regano dated 30 June 2006 (Exhibit A2), an affidavit of Ian David Nosworthy dated 30 June 2006 (Exhibit A3), and an affidavit of John Cardale Wells dated 17 July 2006 (Exhibit R4). From that material I set out the history of the relevant facts.1.The defendant, a medical practitioner, was requested by the police to undergo a random breath test at Norwood. The police allege that the breath analysis instrument recorded a blood alcohol reading of 0.08% at 2.27 pm on 6 January 2004. The appellant indicated that he wished to exercise his right to have a blood test. A blood test kit was supplied and he departed the scene.2.It is alleged that the appellant organised a medical practitioner, namely a colleague Dr Cooper, to take his blood for the purposes of further analysis. That was done on 6 January 2004 between 2.30 pm and 3 pm.3.On 8 January 2004 a sample of blood said to be taken by Dr Cooper was received at the Forensic Science Centre and was analysed. It was found to contain 0.033 gms of alcohol per 100 millilitres of blood. This reading, if accepted, would undermine the correctness of the original breath analysis.4.The appellant was charged on Complaint on 14 February 2004 with one count of driving a motor vehicle with a prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961.5.The prosecution, after further investigations, alleged that the blood test kit form was not signed by Dr Cooper, but rather fabricated by the appellant.6.As a result of the further investigations the appellant was charged on an Information dated 18 August 2005 with the following offences:(a)Count 1: Falsifying a document with intent to deceive: contrary to s 140 of the Criminal Law Consolidation Act 1935,(b)Count 2: Attempting to pervert the course of justice: contrary to s 256 of the Criminal Law Consolidation Act 1935,(c)Count 3: Driving a motor vehicle with a prescribed concentration of alcohol: contrary to s 47B of the Road Traffic Act 1961.7.In the Adelaide Magistrates Court on 18 April 2006, Mr J C Wells for the Director of Public Prosecutions, applied to amend count 1 on the Information of 18 August 2005, to tender no evidence on count 2 and to withdraw the Complaint of 14 April 2004. Those applications were opposed by counsel for the appellant, Mr D Peek QC.8.After hearing full argument the Chief Magistrate on 8 May 2006 made orders:(a) allowing the Information of 18 August 2005 to be amended;(b) dismissing count 2 on the Information, and(c) dismissing the Complaint of 14 April 2004. He published reasons for his decision (ADR1 attached to Exhibit A2).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

Given the view I take of the merits of the appellant’s arguments, and the appropriateness of a grant of relief in this matter, leave to serve a summons for judicial review should be refused in this matter. Further, the applications for declarations and injunctions should also be refused.Conclusion I make the following orders:1. The notice of appeal to be struck out.2.In relation to the orders sought pursuant to r 98 leave to serve is refused.3.In relation to s 31 of the Supreme Court Act 1935 the application for declarations and injunctions is refused.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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