Kowalski v Bourne - [2012] SASC 6

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
KOWALSKI v BOURNE
[2012] SASC 6
Judgment of The Honourable Justice Kourakis (ex tempore)
13 January 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against an order of a magistrate dismissing the appellant’s criminal action – magistrate found that the appellant’s action was agitating historic matters of a civil nature under the guise of a criminal prosecution – whether the criminal proceedings should have been dismissed.
Held – appeal allowed to the limited extent of changing the form of order substituted to impose an order staying the criminal information as an abuse of process substituted for order of Magistrate dismissing the action – appeal otherwise dismissed.

KOWALSKI v BOURNE
[2012] SASC 6
Magistrates Appeal: Criminal

KOURAKIS J (ex tempore): In September 2011 the appellant, Mr Kowalski, laid an information in the Magistrates Court comprising 11 counts alleging that the respondent, Mr Bourne, had committed 11 contraventions of the Criminal Law Consolidation Act 1935 (the Act). The offences have as their foundation the alleged unlawful receipt by Mr Bourne of a sum of about $6,684.00 from Mr Kowalski, purportedly on account of legal fees earned in representing Mr Kowalski in a claim related to an injury suffered at work. The offences allege various forms of theft, blackmail, receiving and dishonest obtaining of that sum of money.
The information came before a magistrate. On what I think was the first occasion on which the information was called on in the Magistrates Court, the Magistrate dismissed it. The only reasons for dismissal given by the Magistrate were:
“I have read this information and it is clear to me that Mr Kowalski is agitating historic matters of a civil nature under the guise of a criminal prosecution. They are without merit.”
In my view those reasons were inadequate. They did not expressly identify the legal ground on which the proceedings were dismissed and gave no indication of the Magistrate’s reasons for taking that precipitous step.
There has therefore been an error of law by reason of the inadequacy of the Magistrate’s reasons. Accordingly, I proceed to consider for myself whether the proceedings should have been dismissed.
In my view the concern of the Magistrate appears to have been that the proceedings were an abuse of process. I have read and considered the information and the material attached to it. The material on its face raises a concern that the information is an abuse of process. The respondent is prepared to proceed on the basis that that was the ground on which the Magistrate dismissed the information and submits that I should reach the same conclusion.
I should say immediately that it is doubtful that the Magistrate was empowered to dismiss the proceedings on that ground. The respondent accepts that the proper order with respect to criminal proceedings which are an abuse of process is to stay the proceedings until further order. I will accept that proposition…

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 Kowalski v Bourne

Details

AGLC: Kowalski v Bourne [2012] SASC 6
Case: [2012] SASC 6
Decision Date: 13 January 2012

CaseChat Overview and Summary

In the case of Kowalski v Bourne, the appellant, Kowalski, appealed against the order of the magistrate dismissing his criminal action against Bourne. The appellant had commenced proceedings against Bourne on criminal charges, which the magistrate found were an attempt to agitate historic matters of a civil nature under the guise of criminal prosecution. The appeal to the Supreme Court of South Australia centred on whether the magistrate had correctly dismissed the appellant’s criminal action.

The court was required to determine whether the magistrate was correct in dismissing the criminal action on the basis that it was an abuse of process. The central legal issue was whether the criminal proceedings should have been dismissed because they were being used to pursue civil matters. The court also had to consider whether the magistrate's order dismissing the action was an appropriate form of order, or if a stay of the proceedings would have been more suitable.

The Supreme Court found that the magistrate was correct in concluding that the criminal action was an abuse of process, but the form of the order dismissing the action was not appropriate. The court held that while the magistrate was correct in finding that the criminal action was being used to agitate civil matters, the dismissal of the action did not adequately address the abuse of process. Instead, the court should have imposed an order staying the criminal information. The appeal was allowed to the limited extent of substituting the form of order, changing it from a dismissal to a stay of the proceedings. The appeal was otherwise dismissed, affirming the magistrate's conclusion that the proceedings were an abuse of process.

Orders