Korber v Police No. Scciv-02-588

KORBER v POLICE
[2002] SASC 441
Magistrates Appeal: Criminal

MULLIGHAN J This appeal raises a point about a matter of procedure.
The appellant pleaded guilty to having, on 9^th February 2001 at Willaston, driven an unregistered motor vehicle, contrary to s 9 of the Motor Vehicles Act 1959, and to a further charge of driving an uninsured motor vehicle on the same occasion, contrary to s 102 of that Act. He was convicted of both charges and one penalty was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, namely a fine of $100. He was ordered to pay fees and a levy amounting to a further $180.70 and he was disqualified from holding or obtaining a licence to drive a motor vehicle for a period of two days.
He appeals against the convictions despite his pleas of guilty. Before he entered the pleas, he took preliminary points as to the validity of the complaint on the same ground as was argued on his appeal. The learned Magistrate ruled against him and he entered his pleas because he acknowledged his guilt of the offences as charged.
The appellant was not represented by counsel or a solicitor before the learned Magistrate or on the hearing of this appeal.
He was charged on the one complaint by a member of the SA Police stationed at Elizabeth (“the complainant”). The document prepared was a complaint and summons in accordance with Form 2 of the Magistrates Court Rules. It is a form of a complaint. It need not be made on oath unless a special Act so requires.
The appellant claims irregularity in the making and laying of the complaint. He was served with an unsigned copy of the complaint and summons on 6^th June 2001 by a process server who swore an affidavit of service on that date. The complaint and summons indicate that the complaint was made on 7^th June 2001 as that is the date typed on the form as the day upon which the complaint was made.
In the complaint and summons filed at the Magistrates Court at Elizabeth that date has been altered to 8^th June 2001 by the handwriting of the date “8^th” written over the “7^th”. On the face of these documents the appellant was served with the complaint and summons before the complaint was made.
The complainant is a police prosecutor. I received, without objection, two affidavits of the complainant. The second affidavit was sworn on 21^st June 2002. The completion of the hearing of the appeal was delayed due to the ill health of counsel. When the hearing was resumed, the appellant intimated that he did not want to cross-examine the complainant on the affidavits and neither he nor Mr Grant, who appeared for the respondent, made further submissions. I am able to accept as proved the matters set out in the affidavits.
The complainant prepared the complaint and summons.
The complainant says that some time before 6^th June 2001 he drafted the complaint and summons. According to him, there was a practice followed by police prosecutors at that time of sending the complaint and summons to a process server for service on the defendant without first filing it in the Magistrates Court and without the summons being signed by the Registrar of the Court or a Justice of the Peace. He followed that practice in this matter and consequently the complaint and summons were served on the appellant on 6^th June 2001. This practice has since been discontinued. Form 2 provides for the summons to be signed by the Registrar of the Court or a Justice of the Peace. I expect that the Registrar is a Justice of the Peace. Form 2 provides for the complaint to be made on oath and consequently had to be made before a Justice of the Peace or any other person qualified to take an oath.
The document served on the appellant was a copy of the complaint and summons prepared by the police prosecutor and indicated that the complaint had been made on 7^th June 2001. It contained a stamp of the signature of the police prosecutor and his name, rank, police number and where he was stationed. There was no signature of a Justice of the Peace, and it appears that it was not signed in the presence of a Justice of the Peace, although Form 2 had been used which is appropriate for a complaint made on oath. The part of the document which is the summons was completed in the usual way with the name of the appellant and when and where he was required to attend the Magistrates Court at Elizabeth.
In his first affidavit the complainant says the complaint and summons were filed at the Magistrates Court at Elizabeth on 8^th June 2001. A stamp of the registry of the Magistrates Court at Elizabeth indicates that it was received on 8^th June 2001. The copy of the complaint and summons, as originally prepared and bearing the date of 7^th June 2001, has the receipt stamp of the Court bearing the date of 14^th June 2001. There is no evidence to explain why the receipt stamp was placed on that copy. It suggests that this copy was also filed at the Court but I do not think this is a matter of any significance on this appeal as the proceedings against the appellant were based upon the complaint bearing the date 8^th June 2001. The complainant says that on 8^th June he believed a complaint had to be filed at the Court on the date that it was made. He obtained a copy of the complaint and summons which he had earlier prepared and had been served on the appellant. This copy was generated by a computer. It did not contain his signature. He altered the date when the complaint was made in the manner which has been mentioned. He then placed the stamp of his signature and the other particulars on the document. The document filed at the Court was not a complaint made on oath as the jurat clause is blank and there is no signature of a Justice of the Peace. The making of the complaint and the placing of the stamp containing the signature of the complainant and the other information was not witnessed. The complainant acknowledges that he filed the complaint and summons without having appeared before a Justice of the Peace and making the complaint on oath. The original complaint and summons is on the Magistrates Court file. It indicates that the making of the complaint was not witnessed by the Registrar of the Court or a Justice of the Peace and the summons is not signed by the Registrar or a Justice of the Peace.
The appellant did not attend the Court on 3^rd July 2001. He wrote to the Court seeking copies of the complaint and summons, the statement of allegations against him and the notes of the investigating officers. He drew attention to some irregularities in the laying of the complaint without specifying them. The hearing of the complaint was adjourned to 22^nd November 2001. A fresh summons was issued by the Court and served on the appellant. This summons was signed by a Justice of the Peace and is not defective in any respect.
The original summons was plainly a nullity. It had never been issued by the Court. It was not signed by the Registrar or a Justice of the Peace. It was served before the complaint was made and laid. However, this is a matter of no consequence because when the complaint was heard the appellant was present at Court in obedience to the subsequent summons. The jurisdiction of the Court does not depend upon a summons being issued but upon the making of a complaint: Electronic Rentals Pty Ltd v Anderson (1970-1971) 124 CLR 27 at 44, Willing v Hollobone (No 2) (1975) 11 SASR 118 at 125, 132-133 and Plenty v Dillon (1990-1991) 171 CLR 635 at 641-643.
The hearing was again adjourned to 21^st March 2002. The appellant submitted that there were irregularities in the process of issuing the complaint and summons in that the complaint was invalid and the summons was issued before the complaint was made. The learned Magistrate rejected these submissions but his reasons for doing so have not been recorded.
The appeal is on various grounds challenging the decision of the learned Magistrate that the complaint was correctly made and executed and the summons was valid and other grounds which I mention shortly.
Section 49 of the Summary Procedure Act 1921 provides:
“49. (1)Where a person is suspected of having committed a summary offence, a complaint may be made in accordance with the rules charging that person with the offence.
(2)A complaint may be made by the complainant personally or by a legal practitioner or other person duly authorised to make the complaint on the complainant's behalf.
(3) If the complaint is made orally, it must be reduced to writing.
(4) A complaint need not be made on oath unless—
(a)some Special Act requires the complaint to be made on oath; or
(b)a warrant for the arrest of the defendant is to be issued.
(5)A complaint must be filed in the Court as soon as practicable after it is made.”
There is no Special Act which required this complaint to be made on oath and there was no suggestion that a warrant for the arrest of the appellant was to be issued. The charges laid against the appellant by the complaint are summary offences: see s 5 of the Act.
Rule 12 of the Magistrates Court Rules relates to complaints. I mention the Rules which are relevant for present purposes:
“12.01A complaint reduced to writing shall comply with Form No 1.
12.02The complainant (or other duly authorised person) may make and lay a complaint by stating the matter of complaint to a witness who must be a registrar, deputy registrar or justice of the peace.
12.03The complaint when reduced to writing must be -
(i)signed by the complainant (or other duly authorised person),
(ii)signed and dated by the witness.
12.04A public authority or public officer (as defined in section 57A of the Act) or a legal practitioner may make and lay a complaint in writing on signing and dating it without appearing before a witness.
.....................
12.07A complaint must be filed in the court within seven days of being made unless not practicable.
12.08A copy of the complaint shall be given to the defendant on or before the time of the first court appearance.”
Section 57 of the Act relates to the issue of a summons. It provides:
“57.(1) When a complaint has been made and filed in the Court, the Court must, subject to subsection (2), issue a summons for the appearance of the defendant.
(2) No summons need be issued—
(a)where the relevant law under which the complaint is made provides for the matter to be dealt with ex parte;
(b)where the defendant is already before the Court; or
(c)where a warrant is issued to have the defendant arrested and brought before the Court.
(3)If when a complaint is filed in the Court the whereabouts of the defendant is unknown, the Court may defer issuing a summons until informed of a place at which service might be effected.”
As has been mentioned, Form 2 of the Magistrates Court Rules provides for the complaint and summons to be incorporated in the same document.
I make the following observations about these provisions. Whilst the complaint in the present case did not have to be made on oath, it had to be made in accordance with R 12: s 49(1) and (4) of the Act. The complaint, when reduced to writing, must be signed by the complainant and signed and dated by the witness: R 12.03. It is accepted that the act of signing need not necessarily involve personal handwriting on the document by the complainant and that the application of a facsimile stamp by the complainant will suffice: Bennett v Brumfitt (1867) LR 3 CP 28 at 31, Hinton Demolitions Pty Ltd v Young (1973) 6 SASR 129 at 133 and Willing v Young (No 2) (1973) 7 SASR 368 at 371. I accept that the complainant applied the stamp with his signature and the other details to the complaint and that he did so on one copy dated 7^th June 2001 and on the subsequent copy on 8^th June 2001. At no time did the complainant appear before a witness and the complaint was not signed and dated by a witness. He must have applied the stamp to the first copy before 7^th June 2001 because the copy served on the appellant on 6^th June 2001 bore the stamp.
It may be seen that s 49(1) and (2) refers to the making of a complaint. Reg 12.02 refers to the making and laying of a complaint.
In The Queen v Manos; Ex Parte Samuels (1981) 28 SASR 262 the Full Court had to consider the validity of a complaint made in circumstances different from those in the present case but which involved the function of the Justice of the Peace to whom the complaint was made. Sections 49 and 50 of the Act, then titled the Justices Act, at that time was in terms different from the present section. The essential difference is that under the earlier section, the complaint was to be made to a Justice of the Peace. That requirement is now to be found in R 12. Otherwise the sections were in similar terms to the present section: 49. Mitchell ACJ observed at 267:
“Clearly some formality in the making of complaints is desirable to discourage the making of frivolous complaints, and, if a summons or warrant is to be issued, then the person issuing such summons or warrant must apply his mind to the matter of the complaint. Unless some proceeding is to issue as a result of a complaint it is the complainant only whose mental application to the matter of complaint is material.”
In that case a summons was not issued as the defendant was already before the Court having been arrested. Wells J discussed the role of the Justice of the Peace in some detail at 269:
“Inherent in the submissions advanced in support of the learned Special Magistrate’s ruling was a fundamental misconception. The submissions were apparently founded on the proposition that unless a Justice of the Peace who is asked simply to take a complaint - that, and no more - is obliged to exercise a judicial discretion or, at least, to undertake an appraisal of the complaint of some sort - however meagre, there can be no justification in practice for Parliament’s requiring a complaint to be taken at all in accordance with the procedures laid down by the Justices Act.
The plain common sense of the matter, however, is that a Justice to whom a complaint is made - that, and no more - represents an identified and accessible authority to whom a complainant may repair to lay his complaint against a defendant. The existence and responsibility of a Justice of the Peace thus brings an advantage to the community, to the complainant, and to the defendant. To the community he represents an independent officer of justice with whom an intending complainant may, without fear of being frustrated, lodge, for ultimate use by the courts, a formal complaint under the law. To the defendant, he represents a focal point where an accuser, having a complaint against the defendant, must formally commit himself to a positive allegation of wrong-doing which, in due course, will be subjected, with respect to its form and substance, to the arbitrament of a court. For the intending complainant, the Justice of the Peace is, therefore, a continuously available facility; for the intended defendant he is an exclusive source of authoritative information.
The Justice of the Peace does not, be it noted, concern himself with the merits, in truth or in law, of the complaint. He is a formal and exclusive clearing house - not a person exercising a judicial function or judicial powers.”
This requirement of formality is expressed in R 12.03. It was not observed by the complainant. He simply “signed” the complaint and forwarded it to the Court. In The Queen v Manos; Ex Parte Samuels the distinction was made between making a complaint and laying a complaint. The former is the act of the complainant and is the concept in s 49. The latter is what occurs before the Justice of the Peace.
The procedure of laying a complaint (or information) is an important procedure. In the case just cited, the observations of Windeyer J in Electronic Rentals Pty Limited v Anderson (1971) 124 CLR 27 at 39-40 were cited by White J at 270-271:
“In the cases presently before us an offence was alleged and documents couched in the form of informations were momentarily before the justices. Does this mean that an information was ‘laid before a justice’, within the meaning of s. 52 of the Justices Act, if the justice was not told the nature of the document put into his hand, did not read it, and as a result of what was said to him believed it to be not what it was? I do not think so. The word ‘lay’, like the word ‘exhibit’, is well known in law as meaning to present or put forward an accusation or charge (usually in the form of an information or indictment) or some other relevant allegation as in ‘lay the damages’ or ‘lay the venue’. An information is not laid by handing a document to a justice and misleading him as to its nature. Such misinformation is not an information. A written information is only duly laid before a justice when he receives it as information for his attention.’
In R v Jiri Fiala Ex Parte G J Coles & Co Ltd (1987) 46 SASR 47, the Full Court had to consider the role of the Justice of the Peace under the previous legislation. All members of the Court accepted the decision in The Queen v Manos; Ex Parte Samuels that the role of the Justice of the Peace to whom the complaint is laid does not involve any exercise of discretion or judicial act. Jacobs J, with whom Matheson J agreed, observed at 55:
“In the words of White J in R v Manos at 270 ‘if the complainant misinforms or misleads the justice as to the nature of what he is doing, he is not making a complaint to the justice because the justice is not listening to the complaint in any relevant sense’. Just as he cannot ‘receive’ a complaint that is not ‘made’, neither can he ‘receive’ or take it if he does not apply his mind to an understanding of what it is that he is receiving.”
Later he went on to approve the following observation of Bray CJ in Lang v Warner (1975) 10 SASR 289 at 291:
“He has to listen to the complaint if it is oral, or read it if it is written, and to apply his mind to it: he has to consider whether any process should be issued on it even though the immediate answer is that none need be issued because the defendant is in custody. Authority for these propositions may be found in Scott’s case (1924) SASR 220, and in the Electronic Rentals case (1971) 124 CLR 27. It may even be that if the complaint is obviously nonsense, or if it alleges what is obviously a non-existent offence at the present time, such as witchcraft, the justice would be justified in refusing to take or receive it.”
Jacobs J said at 55-60:
“It is quite unrealistic to suggest in the context that the word ‘read’ means read every word. It means no more than that the justice must look at, or look through, the document to satisfy himself that he is indeed being asked to take or receive a complaint against some person for a recognisable offence, just as he must listen and ‘receive into his mind’ if the complaint is oral.”
Olsson J, who was in the minority, expressed the view that the Justice of the Peace had judicial responsibilities. He said that the receipt of a complaint and the issue of a summons in relation to it is not to be regarded as a mere formality. He discussed those responsibilities at 72-73.
In Miller v Police (1997) 67 SASR 484 Nyland J was concerned with the new provisions in s 49 and s 57 of the Summary Procedures Act to which I have referred. In that case the complaint was prepared on a computer system and contained the date of 25^th January 1996 as the date the complaint was made and in the jurat clause. The complainant signed the complaint on 29^th January 1996 and altered the date of the making of the complaint accordingly but he did not alter the date in the jurat clause. He was unable to say if he signed the complaint before it was taken to the Justice of the Peace and the learned Judge found that it was probable that he did not sign it in the presence of the Justice of the Peace. It was established that the complaint was made on 29^th January 1996. The Justice of the Peace initialled the alteration of the date. She could not recall if she glanced at or scanned this complaint although it was her usual practice to do so.

Nyland J held that the procedure to be followed in bringing a defendant before the Court involves two distinct steps, the making of the complaint and the issuing of the summons: 486. She reviewed cases which I have mentioned. She concluded at 488-489:
“The significant change effected by the amending legislation is to make the issuing of a summons mandatory once a complaint has been made and filed in the court. The justice of the peace no longer has any discretion with respect to the issue of the summons. Mr Boylan argued, however, that if the amendment had removed the discretion then the formality to which Mitchell ACJ referred in Manos’ case must now include the justice of the peace applying his/her mind to the matter of the complaint, otherwise there would be no screening for frivolous complaints, complaints made out of time or complaints alleging non-existent offences. I cannot, however, accept that argument.
The change in the legislation, in my view, reflects an intention on the part of the legislature to remove the discretion vested in the justice of the peace and overcome any difficulties which may have been encountered under the previous Act. It does not thereby convert the making of the complaint into a judicial act. Subject to the provisions contained in s 49(4)(a) or (b), a complaint need not even be made on oath. The complaint could simply be signed by the complainant and filed at the court. Once that occurred, the court would be required to issue a summons. The role of the justice of the peace has therefore been severely curtailed. There would not seem to be any reason to impose a greater obligation upon a justice witnessing a signature on a complaint as opposed to any other document. The legislation places the onus upon the complainant to ensure that the document is a valid complaint and he/she may well be at risk with respect to an order for costs if the complaint for any reason is not correctly made.”
She held that the complaint had been “properly made”.
With respect, I disagree with these observations. S 49 and s 57 must be read with R 12 to discern what is required. The procedure under the present legislation and Regulations to bring a defendant to Court involves three steps; first, the making of a complaint which may be oral or in writing, secondly, the laying of the complaint before a Registrar, Deputy Registrar or Justice of the Peace (R 12.07) and, thirdly, the issuing of a summons, except in the circumstances set out in s 57(2). The complaint is laid when it is brought before, and witnessed, by a Registrar or Justice of the Peace. The Court has the responsibility of issuing the summons and according to the Rules it must be signed by a Registrar or Deputy Registrar of the Magistrates Court or a Justice of the Peace. As has been mentioned, the complaint may be made orally to a Registrar, Deputy Registrar or Justice of the Peace in which case it is very likely to be made and laid at the same time and by the same words. It may be made in writing and brought before the Registrar or Justice of the Peace in which case it is likely to be made earlier than when it is laid.
Under the present regime the Registrar or Justice of the Peace before whom the complaint is laid is not merely a witness. A complaint with no basis in law cannot be laid. The Registrar or Justice of the Peace before whom the complaint is laid must exercise the role discussed in The Queen v Manos and by the majority in R v Jiri Fiala for the obvious reason mentioned by Bray CJ in Lang v Warner. A complaint may be made by a private citizen who, out of malice or ignorance, alleges conduct against a fellow citizen which does not constitute an offence in law but may offend a religious principle. Mere screening of such a complaint in writing, or the hearing of such complaint made orally, would indicate that such a complaint could not be laid and the process would end at that stage. No citizen should be obliged to obey a summons to attend court to answer a charge of having committed conduct which does not amount to an offence against the law. In my view, the act of laying a complaint is an essential part of the system in the public interest and the Rules provide that it is to be undertaken before a person of knowledge and experience, namely a Registrar, Deputy Registrar or Justice of the Peace so that it may be undertaken properly.
What then is to be made of R 12.04. It also acknowledges the separate and distinct steps of making and laying a complaint but, as has been seen, provides that both of those steps may be taken without appearing before a witness. This Rule must be construed in the context of R 12.02 and R 12.03. The complaint must be laid before a Registrar, Deputy Registrar or Justice of the Peace but it is not necessary that the complainant, if of the type referred to in R 12.04 appear before any of them as the witness. The Rule acknowledges that public authorities, police officers and solicitors are to be trusted to discharge their responsibilities in this context competently and with propriety and so it is not necessary that they be subjected to the inconvenience of appearing personally before the witness. The written complaint may be “witnessed” by the Registrar or Justice of the Peace by observing the signature without the personal attendance of the complainant. However, that is not to say that the person before whom the complaint is laid has no role to play. The role is the same as has been discussed earlier.
In the present case the original summons was a nullity because it was not issued by the Court or signed by the Registrar or a Justice of the Peace and was served before the proceeding had commenced. However, the appellant did receive the fresh summons and attended court and so the defective procedure in relation to the initial summons is of no consequence.
There was no need for the complaint to be made on oath (s 49(4)). Consequently, the “signing” of the complaint on 8^th June 2002 was the making of a valid complaint.
In my view, the complaint was not laid and was not signed by the Registrar, Deputy Registrar or Justice of the Peace as required by the Rules. There is no reason to suppose that it was ever seen by any of them. It is likely that it was not seen or considered by any of them. The role of the Registrar, Deputy Registrar or Justice of the Peace as to the laying of a complaint was not undertaken. Consequently, the complaint, although made, was not laid and therefore was not a valid complaint. Also, the procedure in R 12.03 was not followed because the complaint was not signed and dated by the witness. Indeed there was no witness.
The appellant submitted that it is an integral part of the system that the complaint be correctly laid. I agree. The learned Magistrate erred in his conclusion. As the complaint is invalid, the proceedings against the appellant were not instituted. I allow the appeal. I set aside the conviction on each charge, the fine, the order that he pay the fees and the levy, and the order for licence disqualification.

[2002] SASC 441

23 December 2002