Jerusalem Investments Pty Ltd and Michelle Anne Ramadan v SA Police No. SCGRG 93/2382 Judgment No. 4386 Number of Pages 5 Practice and Procedure

[1994] SASC 4386

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Practice and procedure - adjournment - appeal against conviction - selling liquor in a manner unauthorised by the terms of the restaurant licence - application for adjournment refused - magistrate proceeded with ex parte trial on a misapprehension that it was the appellant who had sought earlier adjournments - serious consequences for appellant of a conviction - appeal allowed - retrial ordered. Liquor Licensing Act 1985 ss.124, 125, 129. Davison v Deputy Commissioner of Taxation (1984) 56 ALR 367, considered.
Practice and procedure - complaints - whether complaints properly made in name of "Police". Magistrates Court Rules R.12.O5.

HRNG ADELAIDE, 19 January 1994 #DATE 19:1:1994
Counsel for appellants:     Mr E Fardone
Solicitors for appellants:    Fardone and Co
Counsel for respondent:     Mr S Gupta
Solicitors for respondent:    Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 DEBELLE J This is an appeal against conviction. The appellant, Jerusalem Investments Pty Ltd ('Jerusalem Investments'), holds a restaurant licence in respect of a roadhouse on the Sturt Highway at Blanchetown. On 25 October 1993 in the Berri Magistrates Court, Jerusalem Investments was convicted of selling liquor in a manner unauthorised by the terms of the restaurant licence, contrary to s.129 of the Liquor Licensing Act, 1985. On the same day, the appellant, Michelle Ramadan, was convicted of unlawfully aiding and abetting the principal offence contrary to s.53 of the Summary Procedures Act, 1921. The convictions were ordered following an ex parte hearing. 2. The facts alleged were that two persons were in the roadhouse at Blanchetown at about 1.30 on 5 February 1993. They gave Mrs Ramadan a bag of tomatoes. In exchange, she gave those persons two cans of beer. The two persons are alleged to have admitted to the police officer, an off-duty police officer who observed the transaction, that they had not consumed a meal at the premises. The police officer himself saw no evidence of a meal. These allegations are denied by the appellants. Mrs Ramadan, who was the person who supplied the beer, says that she had earlier made a steak sandwich for these two men. She said that they had paid for the food and some beers that they had earlier consumed. She denied exchanging the beers for tomatoes, saying that the tomatoes were given to her on a regular basis. There is manifest conflict between the police allegations and the version given by the defendant, Mrs Ramadan. In the event, each of the appellants was convicted without penalty. They were each ordered to pay the sum of $56 court fees and levy and the sum of $75 for witness fees. 3. The circumstances leading to the ex parte hearing were as follows. The matter was first listed for hearing on 23 July 1993. Mr Fardone, the appellant's solicitor, had, on 16 June 1993, written to the police at Berri seeking particulars of the offence. Those particulars were supplied by a letter dated 18 June 1993. For present purposes, what is relevant is that, in his letter of 16 June, Mr Fardone states that he was acting for both Jerusalem Investments and Mrs Ramadan. He informs me that that position never altered. Indeed, on 18 August 1993, he again wrote to the police at Berri and in that letter again the inference plainly is that he was acting for both Jerusalem Investments and Mrs Ramadan. 4. As I have said, the matter was first listed for hearing on 23 July 1993. Mr Fardone did not then appear. However, Mrs Ramadan did appear and the matter was adjourned to 20 August 1993 for the purpose of setting a trial date. On 20 August, Mrs Ramadan appeared with her husband. Mr and Mrs Ramadan are directors of Jerusalem Investments. The magistrate's endorsement of the file reads: 'No appearance Jerusalem Investments. Ex parte leave granted and adjourned for trial on 5 October 1993, 11 am, Berri.' There is a further endorsement: 'As to Mrs Ramadan, adjourned to Berri for trial 5 October 1993 at 11 am'. It appears that the magistrate was proceeding under the misapprehension that there was no appearance at all on behalf of Jerusalem Investments. 5. As the learned magistrate had indicated that there was no appearance on behalf of Jerusalem Investments, it would have been proper for the prosecutor to have drawn his attention to the fact that there was at least a relationship between the Ramadans and Jerusalem Investments, a matter which the prosecutor would have known by reason of the correspondence to which I have earlier referred, namely, the letters of 16 June 1939 and 18 August 1993. Both matters should have been listed for trial on 5 October. The magistrate was plainly proceeding under a misapprehension. 6. The trial did not proceed on 5 October. Mr Fardone says that it did not do so because the police had telephoned him earlier to advise that a witness would not be available and that they would be seeking an adjournment. He said that he consented to that adjournment. There is no evidence from the police prosecutor which disputes Mr Fardone's account. Mr Gupta, who appears for the respondent, is prepared to accept that that is the correct position. It is clear from the endorsements on the magistrate's file that, for some reason, the trial did not proceed. Indeed, the magistrate's endorsement discloses that the application for the adjournment on 5 October was made on the application of the prosecution. I note also that the magistrate's endorsement records: 'Prosecution unable to serve all witnesses', which also reinforces the facts as asserted by Mr Fardone. I proceed on the footing that the application was made by the police. The magistrate ordered on 5 October that the matter be listed for trial on 25 October as what he called a 'priority trial'. 7. On 22 October 1993, Mr Schild, the police prosecutor at Berri, telephoned Mr Fardone's office on two occasions leaving a message asking Mr Fardone to contact him as a matter of urgency. It appears that one of the prosecution witnesses would not be available for 25 October. On 25 October, a person from Mr Fardone's office rang the office of the police prosecutor at Berri and left a message to the effect that no-one would be attending. That is what is asserted by Mr Schild. Mr Fardone says that the message was that because there was a risk that the matter would not proceed in the absence of a police witness, he believed that the matter would be adjourned and he decided not, therefore, to go to Berri. Mr Fardone says that he spoke to Mr Schild about these matters and Mr Schild said that it was up to the magistrate to decide if the matter would proceed. I do not think it is necessary to resolve any conflict between these two accounts. The version given by Mr Fardone acknowledges what the true position is, namely, that it was for the magistrate to decide whether an adjournment should be granted and not for Mr Fardone. Mr Fardone also arranged for a Mr Rischbieth, a solicitor at Berri, to attend and seek an adjournment. Mr Rischbieth did attend and did apply for the adjournment. The adjournment was refused. The police prosecutor was then given leave to proceed ex parte. 8. The appellants now appeal against the convictions on the ground that the adjournment ought to have been granted. There is a subsidiary ground, namely, that the complaint was defective in the way it was issued in that the complainant was simply stated as 'Police at Berri'. This latter ground was not pressed by Mr Fardone. He acknowledged that had the matter of the identity of the complainant been drawn to the attention of the magistrate, leave could have been given to substitute another complainant if it was thought that there was any merit in the point. 9. The matter has not been fully argued before me. It is, nevertheless, appropriate to make the following observations. It seems to me that it may be necessary for those who are responsible for those matters to consider whether it is proper for complaints to be issued in the name of a person simply described as 'Police' or, as is sometimes done, 'SA Police'. The practice derives from the fact that rule 12.05 of the Magistrates Court Rules 1992 provides: 'Where a complaint is made and laid by a police officer in the execution of his duty, the complaint and proceedings thereon may be entitled 'Police v ....' However, s.49(2) of the Summary Procedures Act 1921 provides: 'A complaint may be made by the complainant personally or by legal practitioner or any other person duly authorised to make the complaint on the complainant's behalf.' 10. It is clear that s.49 contemplates an individual as the complainant. In no respect can the amorphous description 'Police' or 'SA Police' be regarded as a person or an individual or even as a corporate body. One might ask: Who is Police? Or SA Police? Is it an individual? Is it a group of individuals? Does it refer to the Police Department? 11. Mr Gupta referred to the fact that s.49(2) refers to: 'Or other persons duly authorised to make the complaint.' He says that Rule 12.05 in the Magistrates Court Rules is such an authority and that the word 'person' in s.49(2) can be construed in the plural. He refers to s.26 of the ActsInterpretation Act, 1915 which provides that the singular will be construed as including the plural in any legislation. This submission cannot be upheld. 12. However, as I have said, it is a matter which could have been cured by amendment if the point had been raised. It is a matter to which attention might be given in future complaints. 13. I turn to the question whether the adjournment should have been granted. An examination of the reasons for the decision of the magistrate refusing the adjournment discloses that the magistrate has proceeded on the misapprehension that there was no representation for Jerusalem Investments on earlier occasions and, indeed, on 25 October. I do not think the magistrate can be criticised for that. No one drew his attention to the fact that the Ramadans were directors of the company or to the fact that Mr Fardone's office was representing it. 14. It appears also that the magistrate was proceeding on the footing that the appellants had themselves been responsible for most of the earlier delays. As my narrative indicates, that is not so. Indeed, the trial on 5 October had to be adjourned because of an application by the police. There was only one occasion when the appellants were not ready to proceed and that was on 25 October. While, no doubt, Mr Fardone and his office can be criticised for the attitude taken and for their failure to appear, I do not think that was necessarily a ground for refusing the adjournment. 15. I am conscious of the fact that magistrates are very busy and that they have long lists which have to be dealt with and determined. I am conscious also that these difficulties are the greater where matters are dealt with in Magistrates Courts in country towns, where the magistrate does not sit as frequently as he does in city and metropolitan courts. Considerations of this nature were addressed by the Full Court of this court in Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367. At pages 369 to 371, the Chief Justice referred to the responsibility of judges and magistrates who are subjected to great pressure from the volume of cases to be tried to ensure, so far as is possible, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they had had proper notice. I adopt all that was said by the Chief Justice on that occasion. However, those considerations are always subject to the overriding considerations of justice. 16. The consequence of proceeding ex parte was likely to be that convictions would be recorded. The conviction of Jerusalem Investments was for a breach of the Liquor Licensing Act. Breaches of the Liquor Licensing Act might render the holder of a licence liable to disciplinary action under ss.124 and 125 of the Liquor Licensing Act and could, if there were a number of convictions, lead to suspension of the licence under s.125. The conviction, albeit for an offence that the magistrate observed was quite trivial, therefore, had quite serious consequences for the appellant Jerusalem Investments. The consequences might not have been so severe had the magistrate decided to certify the offence as trifling. But he did not. The failure of the appellants to appear either personally, or by their legal representatives, could have been cured by an order as to costs and, in all the circumstances, it might have been appropriate for such an order to have been made. 17. Given that this was the first occasion on which there had been any failure by either of the appellants to appear, I think in all the circumstances the adjournment ought to have been granted. As I have said the prejudice could have been cured by an order as to costs. 18. While I am very mindful of the busy nature of a magistrate's work, to which I have already referred, I do not think that was a sufficient and compelling requirement to proceed to an ex parte decision which has the consequences to which I have referred. 19. There is also one other matter to which I must have regard in considering whether the conviction ought to be set aside, and that is to determine whether there is any suggestion of manipulation by the appellants seeking to avoid the consequences of the prosecution. There could be no suggestion of that in this case and, indeed, none is suggested by the respondent. 20. In all the circumstances, the appeal is allowed and the convictions are set aside, and I order there should be a retrial of the matters alleged in the complaint. 21. The orders will be as follows. Appeal allowed. The convictions recorded against each of the appellants on 25 October 1993 are set aside. There will be a retrial of the matters alleged in the complaint. 22. Given that this magistrate has already recorded a conviction, I think it desirable that, if it is at all possible, the matter should be heard by another magistrate.