Heinrich v Curtis
[2006] SASC 264
•30 August 2006
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 264Magistrates 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, leave to serve in the Magistrates Court a summons for judicial review pursuant to r 98.04A of the Supreme Court Rules 1987, and ultimately an order in the nature of certiorari quashing certain orders made by the Chief Magistrate.
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).
By notice of appeal pursuant to s 42 of the Magistrates Court Act 1991 the appellant argues that the learned Chief Magistrate erred in declining to find that the Information was void or invalid, erred in granting the prosecution application to amend, erred in allowing the prosecution to withdraw the Complaint subject to objection and failed to give adequate reasons for his decisions.
The respondent argues before me that there is no power under s 42 to appeal against the types of orders that the Chief Magistrate made. I now consider that question.
Jurisdiction of the Supreme Court to hear the Appeal
The appeal is brought pursuant to s 42 of the Magistrates Court Act1991 which provides:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
(2) The appeal lies—
(a) in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence—to the Industrial Court; or
(b) in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
(4) On an appeal, the appellate court may, if the interests of justice so require, re‑hear any witnesses or receive fresh evidence.
(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b) it may remit the case for hearing or further hearing before the Magistrates Court;
(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6) Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.
It is also noted that in s 3 of the same Act “judgment” is defined as “a judgment, order or decision and includes an interlocutory judgment or order”.
Mr Peek QC, for the appellant, submitted that the decisions of the Chief Magistrate dismissing the Complaint are appealable pursuant to that section. He argued that the order is not an interlocutory order in summary proceedings and does not come within s 42(1A). He further argued that it does not have anything to do with a preliminary examination and, therefore, does not come within the exception contained in s 42(1) of the Act.
In my view the argument is misconceived because although the Chief Magistrate in his reasons ordered that “the Complaint is dismissed”, it was clearly not a dismissal of the Complaint. It was pointed out by the respondent that what the Chief Magistrate was doing was permitting the Complaint to be withdrawn pursuant to s 69 of the Summary Procedure Act 1921. For him to have dismissed the Complaint he would have had to hear the evidence of the parties. He clearly had not done that. Therefore, I find that the order to dismiss the Complaint was interlocutory in nature and therefore comes within s 42(1A) of the Magistrates Court Act 1991 and cannot be the subject of an appeal.
The orders which the Chief Magistrate made in relation to the Information, in my view, are orders which “arise from a preliminary examination”. It is argued by Mr Peek QC that such orders could not arise from a preliminary examination because no such examination had yet taken place. In my view, the above words are not meant to convey such a restrictive meaning. I find that preliminary orders in relation to an Information which will lead to a preliminary examination are matters “arising from the preliminary examination” within the meaning of s42(1). They are matters involved in and concerning the preliminary examination and therefore come within the prohibition of s 42(1) of the Magistrates Court Act 1991.
Judicial Review
I turn to the question of judicial review. Pursuant to r 98 of the Supreme Court Rules the appellant seeks leave to serve a summons for judicial review. Although the subject matter is the same as for the appeal under s 42 of the Magistrates Court Act 1991, I set out the orders he seeks:
1.an order in the nature of certiorari removing the laying of the original Information into this Honourable Court for the purpose of it being quashed;
2.an order in the nature of certiorari removing the original Information into this Honourable Court for the purpose of it, or its several counts, being quashed;
3.an order in the nature of certiorari removing the amended Information into this Honourable Court for the purpose of it or its several counts, being quashed;
4.an order in the nature of certiorari removing the decisions of Mr Prescott CSM made on 8th May 2006 on files AMC-04-6220 and AMC-05-11603 into this Honourable Court for the purpose of them being quashed;
5.an order in the nature of prohibition prohibiting the Informant whether by his servants, agents or otherwise from taking further action against the plaintiff on the amended Information;
6.an order in the nature of prohibition prohibiting the Magistrates Court from further hearing proceedings against the plaintiff on the amended Information;
7.an order staying the hearing of any proceedings against the plaintiff on the amended Information.
The thrust of the application is that this Court should find that the Information was invalid and, therefore, in making the orders that he did the Chief Magistrate exceeded his jurisdiction. Rather than attending to the question as to whether it is appropriate for these orders to be subject to judicial review, I intend to go to the merits of the appellant’s arguments and of course, if they have no merit, leave to serve would not be granted.
The appellant argues that the Information is invalid for a number of reasons. The first is that when the Information was originally laid on 18 August 2005 there was already a Complaint which had been laid on 14 February 2004 and the Complaint involved the same alleged offence which was the third count on the Information. It is argued that as there were two concurrent legal processes dealing with the same alleged offence, the Information is therefore invalid. In support of his argument Mr Peek argues that s 102 of the Summary Procedure Act 1921 which allows charges to be joined on the one Information (including summary offences) cannot apply to anything but the initial act of charging a defendant with a particular offence. In other words, it cannot allow a court to pick up a summary offence, as they did here, which has already been charged on a Complaint and join that charge to an Information.
I cannot see why that is the case. The evidence which the prosecuting authorities thought enabled them to lay an Information for more serious charges could in this case only become known after the Complaint had been laid. I cannot see why they cannot use the power to join the summary charge to the Information merely because that charge has already been laid by way of Complaint.
It is true that to continue that process by which one offence is dealt with by way of both Complaint and Information would be unfair. However that unfairness is appropriately cured by withdrawing the Complaint or having it stayed as an abuse of process. The Chief Magistrate allowed the Complaint to be withdrawn and therefore the unfairness was cured. The fact that for a period of time there existed two charges for the same offence does not make the Information invalid.
The appellant also argued that the purported amendment of the Information was invalid. The original Information of 18 August 2005 read as follows:
Offence details
1.On or about the 6th day of January 2004 at TUSMORE or another place in the said State falsified a document or produced, published or used a document knowing it to be false, intending to deceive another or to facilitate the deception by another and by that means to benefit himself.
Section 140 of the Criminal Law Consolidation Act 1935.
This is a major indictable offence.2.On or about the 6th day of January at TUSMORE or another place in the said State attempted to pervert the course of justice or due administration of law, namely a prosecution for an offence of exceed prescribed concentration of alcohol.
Section 256 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.3.On the 6th day of January 2004 at NORWOOD in the said State drove a motor vehicle on a road, namely Elizabeth Street while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act 1961.
Section 47b of the Road Traffic Act 1961.
This is a summary offence.It is further alleged that the concentration of alcohol was 0.080 grams in a hundred millilitres of blood.
The Chief Magistrate by his rulings of 8 May 2006 amended the Information so count 1 read as follows:
3. Count 1 is amended as sought to allege:
Between the 5th day of January 2004 and the 9th day of January 2004 at Leabrook or another place in the said State used a document knowing it to be fabricated or altered with the intention of influencing the outcome of judicial proceedings.
Section 243 Criminal Law Consolidation Act 1935.
This is a major indictable offence.
Count 2 was dismissed. Mr Peek argues that this is more than a mere amendment but is in fact a substitution of charges and therefore the amendment is invalid, with the consequence that the Information should go back to its original state.
The power to amend an Information is governed by s 181 of the Summary Procedure Act 1921 which reads as follows:
181 – Charges
(1)An information or complaint is not invalid because of a defect of substance or of form.
(2)The Court may –
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
The respondent argues that what has happened in the present case is no more than curing a defect of substance or form and there is no prejudice to the appellant. I agree with that submission. The amended offence under s 243 of the Criminal Law Consolidation Act 1935 is in fact a combination of the two original offences, one of which has been amended and the other dismissed. It merely alleges the falsification of the document, but adds the element of intending to influence the outcome of judicial proceedings. In my view, that does no more than substitute one more appropriate offence for the other two.
There can be no prejudice to the appellant as the basis of fact upon which the prosecution relies for the amended count 1 offence is the same as those for the original counts 1 and 2. Also that amendment was made at a very early stage in the proceedings.
The next argument as to invalidity is that the Information in both its amended and unamended form does not comply with s 22A of the Summary Procedure Act 1921. I set out that section:
22A – Description of offence
(1)Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3)After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.
The appellant argues that there is a lack of particularity which is fatal to both the amended and unamended Informations. In support of this argument Mr Peek QC made a substantial submission based on the historical development of the requirement for particulars. In my view both Informations substantially comply with s 22A.
It is clear that the document that is alleged to have been fabricated or altered can only be that involving the blood analysis kit. It is also clear that the judicial proceedings spoken of in the particulars clearly refer to the alleged offence on Complaint. It cannot be said that the appellant does not have “reasonable information as to the nature of the charge” within the meaning of s 22A. As this is at an early stage of proceedings better particulars can be sought. That can be done at various stages. If it were to become apparent that the appellant was prejudiced by the extent of particulars provided, an application for further and better particulars could be brought.
The next basis of alleged invalidity is that the Information does not comply with s 101 of the Summary Procedure Act 1921. That section reads as follows:
101 – Information of indictable offence
(1)Where a person is suspected of having committed an indictable offence triable in this State, an information may be laid, in accordance with the rules charging that person with that offence.
(2)If the information is laid orally, it must be reduced to writing.
(3)An information must be filed in the Court as soon as practicable after it is laid.
Rule 19.1 of the Magistrates Court Rules 1992 provides that Informations are to comply with Form 4. Form 4 includes a space near the top of the Information where the informant’s name is to be entered. In accordance with what is apparently the usual practice in the Magistrates Court, on the Information laid against the appellant that space was filled with the words “The undersigned Member of the Police Force”. On the form that was filed, the informant’s name “Daryl Wayne Curtis” appears on the bottom of the form alongside his signature.
The appellant complains that Form 4 was insufficiently complied with, and that as a result the Information does not comply with s 101 of the Act. Magistrates Court Rule 5.01 states “It is sufficient compliance with these rules, as to the form of any document, if the document is substantially in accordance with the Form”. No one reading the Information filed against the appellant could have any doubt about the name of the Informant. I am of the opinion that the Information as laid complies with the rules for the purpose of s 101 of the Act.
The appellant further complains that Magistrates Court Rule 19.09, which requires a copy of the Information to be given to the defendant prior to the first hearing, was not complied with. An unsigned, and hence non-compliant, copy of the Information was provided to the appellant prior to the first hearing. Nevertheless, a fresh form which did comply with the requirements was given to the appellant at a later stage.
The rule was substantially complied with and there was no possible prejudice to the appellant. I would not interpret s 101 of the Summary Procedure Act 1921 as invalidating entirely an Information for a purely formalistic failure to comply with Magistrates Court Rule 19.09 where that failure is of no consequence to the defendant and is rectified at an early stage.
I conclude that the Information is valid.
Finally, the appellant argued that the learned Chief Magistrate failed to give adequate reasons. As these decisions of the Chief Magistrate were interlocutory in nature and were not decisions that disposed of proceedings, there was no obligation on him to give reasons at all: Tzeegankoff v Magistrates Court (1998) 199 LSJS 296; Mountford v Magistrates Court of South Australia & Anor [2006] SASC 184. Although the Chief Magistrate’s reasons were brief, they should be seen in the context of the stage of the proceedings.
Because of my findings as to the merits, I find that it is not arguable that the Magistrate has erred. Consistent with my findings that the Information is not invalid, I find that it is not arguable that he has exceeded his jurisdiction.
The nature of relief sought
However, I will comment briefly on the nature of the relief sought by the appellant. The appellant seeks a wide range of declarations and orders in the nature of certiorari and prohibition. I have set out the orders in the nature of prerogative writs that the appellant seeks above. The appellant seeks the following declarations and injunctions:
1. The original Information is void and of no effect.
2.In the alternative to 1. the several counts of the original Information are void and of no effect.
3.The amended Information is void and of no effect.
4.In the alternative to 3. the several counts of the amended Information are void and of no effect.
5.The purported withdrawal and dismissal of the Complaint is void and of no effect.
6.An injunction restraining the Informant whether by his servants, agents or otherwise from taking further action against the plaintiff on the amended Information.
7.An injunction restraining the Magistrates Court of South Australia from further hearing proceedings against the plaintiff on the amended Information.
Both declarations, being an equitable remedy, and orders in the nature of prerogative writs, have a discretionary aspect. It would not be appropriate in the exercise of that discretion to make superfluous orders.
In this matter, had I found that the original Information was invalid, the only remedy that would have been necessary would have been a declaration that the original Information was invalid. The orders in the nature of certiorari that the appellant seeks in relation to the original Information would have been superfluous and would not have been granted.
Had I found that the Chief Magistrate made a jurisdictional error in making the orders he did on 8 May 2006, an order quashing those orders would have been all that is necessary. If the orders were quashed, there would not be an amended Information in respect of which to make the further declarations sought, and there would clearly have been no need for the orders in the nature of prohibition and stays that the appellant seeks.
There is a further aspect of the discretionary nature of judicial review remedies that is relevant to this matter. In argument Mr Petraccaro, who appeared for the Director of Public Prosecutions as an interested party, purported to concede that if I did find that the orders made by the Chief Magistrate were ultra vires, I would not have any discretion but would have to quash the orders. I do not accept that concession. If it was found that the Chief Magistrate acted ultra vires, the granting of the remedies remains discretionary. There is ample authority to show that the Court will be slow to grant such remedies where to do so would hold up criminal proceedings in the courts below: see Polley v Bright & Anor (1995) 79 A Crim R 562 at 565-566 and the authorities there cited; Mountford v Magistrates Court of South Australia & Anor at [49]. In this case even if I were to have found for the appellant on the merits of the matter, I would not have granted the relief sought. There is no identifiable prejudice to the defendant. The proceedings are at a very early stage. There remains an Information, valid on its face, active in the Magistrates Court. The appellant has any number of procedures available to him in the normal criminal process that can cure any prejudice that will arise.
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.
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