Kowalski v Cole & Ors - [2012] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KOWALSKI v COLE & ORS
[2012] SASC 30
Judgment of The Honourable Justice Kelly
2 March 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - ORDINARY RULE
Appeal against an order of a Magistrate dismissing privately laid Information pursuant to s 181(2)(b) of the Summary Procedure Act 1921 (SA) - whether Magistrate in error in finding that defects in the Information were incurable by amendment - whether Magistrate actuated by bias or whether apprehension of bias on the part of the Magistrate.
Held: appeal dismissed - Information alleges offences not known to the law at the time of the conduct said to give rise to the offences, this, amongst other matters, renders the Information incurably bad - no basis for a finding of actual or apprehended bias.
Summary Procedure Act 1921 (SA) s 181(1), s 181(2); Criminal Law Consolidation Act 1935 (SA) s 134, s 142, s 172; Criminal Law Consolidation (Offences of Dishonesty) Act 2002 (SA); Legal Practitioners Act 1981 (SA) s 31(2), s 96, referred to.
Willing v Hollobone (No 2) (1975) 11 SASR 118; Bedi v The Queen (1993) 61 SASR 269; Maxwell v Murphy (1957) 96 CLR 261, considered.

KOWALSKI v COLE & ORS
[2012] SASC 30
Magistrates Appeals: Civil
KELLY J.

This is an appeal against an order of a Magistrate of 20 December 2011 dismissing a privately laid Information pursuant to s 181(2)(b) of the Summary Procedure Act 1921 (SA).
Introduction
In deciding whether the Magistrate was in error in so dismissing the Information, the following issues arise for consideration: is the Information defective, if the Information is defective, in what way is it defective, and if defective, by amendment, can the defects identified be cured pursuant to s 181(2)(a) of the Summary Procedure Act?
In answering these questions subsidiary questions arise. Ultimately, of course, the question is whether the Magistrate was in error in dismissing the Information.
This matter does not have an uncomplicated history and it is worth setting out in some detail how the matter came to be before me.
On 23 September 2011, the informant and appellant, Kazimir Kowalski, filed a private Information alleging 18 counts against a number of defendants, the Information naming the defendants as follows: “Russell John Cole, Andrew Sim, RJ Cole & Ptners Pty Ltd and its servants & agents”. By the Information, the other orders sought were “compensation and penalty of imprisonment. In the sum of $100, 000.00”. Only one of the defendants has been served; namely, Russell Cole, who was present at Court on most of the relevant occasions in the Magistrates Court and was represented by counsel at the hearing before me. The appellant has represented himself throughout the proceedings.
The matter first came before the Magistrate on 15 November 2011, on which occasion the Magistrate made a number of orders with a view to the matter being heard on a particular date. Subsequently, it became apparent to the Magistrate that counts 14-18 on the Information were wrongly identified as minor indictable offences, when in fact they were major indictable offences. This made the orders of 15 November inappropriate as certain other procedures needed to be followed before proceeding to deal with major indictable counts.
The Information was laid with three groups of charges under ss 134, 142 and 172 of the Criminal Law Consolidation Act 1935 (SA). These provisions concern theft, dishonest exploitation of position of advantage and blackmail, respectively. These three offences came into effect on 5 July 2003 by the enactment of the Criminal Law Consolidation (Offences of Dishonesty) Act 2002 (SA). However, the Information particularises conduct which took place between June 1992 and December 1994. The Magistrate raised this issue with the appellant who submitted that the particular acts only became offences upon orders being made in the Supreme Court in 2005. I turn now to explain this submission, as I understand it.
The offences have as their basis the alleged unlawful receipt or demand by the respondents of a sum of money from the appellant, being purportedly on account of legal fees earned in respect of work undertaken for the appellant. It is alleged that at various dates in 1992 and 1994, a law firm connected with the respondents in this action unlawfully withdrew money from the appellant’s trust account and unlawfully demanded further money from him. In a taxing dispute some time later between the firm and the appellant, a bill of costs of the law firm was struck out by an order of Judge Lunn on 22 July 2005. In effect, the appellant’s submission before the Magistrate, and reiterated before me on appeal, is that the conduct the subject of the Magistrate’s Court Information only constituted criminal conduct for the purposes of ss 134, 142 and 172 of the Criminal Law Consolidation Act when Judge Lunn on 22 July 2005 struck out the bill of costs of the law firm.
The Magistrate rejected this submission, and turned to the issue of whether the Information laid could be amended. He reached the conclusion that the within matter was an instance falling within the category of an Information defected incurably. That is, it was not curable through amendment pursuant to the power conferred by s 181 of the Summary Procedure Act. In this respect, the Magistrate reasoned:
I have had regard to the authorities, in particular the comments of Justice Cox in Schultz & Pettit (1980) 25 SASR 427 at p.433 and Justice Duggan in Bedi v The Queen (1993) 61 SASR 269 at p.275. It is clear the court has a wide power to amend an Information or Complaint under s 181 of the Summary Procedure Act, 1921. However, there are some defects in an Information or Complaint that cannot be amended; in other words, they are too bad to cure.
In my view the original Information falls into that category. I have regard in particular to the comment of Justice Duggan in Bedi v The Queen where, as an example, his Honour referred to the case where an Information or Complaint laid charges under an Act which had been repealed and therefore disclosed no offence known to law at the time. In this case the Information laid relates to charges which did not exist at the time of the alleged conduct and came into effect later. Whilst it is the inverse situation to that averted to by Justice Duggan, in my view the same principle applies.
The Magistrate concluded by expressing the view that the Information was beyond, or the defect in the Information in relation to all 18 counts was beyond, cure and he dismissed the Information under s 181(2)(b) of the Summary Procedure Act. Before turning to discuss the issues arising on the appeal, it is convenient to set out immediately the terms of s 181 of the Act:
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 Appeal
The appellant advanced nine grounds of appeal, but as I understood his arguments, his complaints may be broadly summarised as follows. First, he contended that there was apprehended and actual bias on the part of the Magistrate. As I understand this argument, the appellant complained that bias was manifest by reason of the method and manner in which he conducted the hearing, by proceeding to deal with the Information without requiring to hear from the defendants, and in circumstances where the Magistrate apparently listed an unrelated matter involving the appellant at the same time as the hearing the subject of this appeal. He also contended that the Magistrate “jumped into the arena” with the respondents, and that by dismissing the complaints he aided a wrongdoer – the respondents. Further, the appellant submitted that the Magistrate erred in failing to comply with certain Magistrates Court Rules and with the “spirit” of the Summary Procedure Act. The appellant made a series of complaints that the Magistrate was in error in failing to take into account Court decisions regarding the consequences at law of a finding of fraud. He contended that inadequate reasons were provided by the Magistrate. Finally, a complaint raised in the appellant’s outline of argument seems to be that the Magistrate acted beyond power in dismissing the Information in circumstances where he only had power to stay the Information.
I do not consider that any complaint regarding apprehended or actual bias has been made out – there is no basis in fact or law for such a finding.
The appellant submitted that he was misinformed by the Magistrates Court as to the nature of the hearing listed for 6 December 2011. A letter had been sent to the appellant from the Magistrates Court in which the following was advised:
Please be advised that the Magistrate has adjourned the above matter to Tuesday 6^th December at 2.15pm to hear further submissions concerning the Information. (though not in relation to an application to stay proceedings) If you do not attend the Information may be dismissed.
[Emphasis added.]
The hearing proceeded on 6 December, and submissions were heard. The Court record discloses that the matter was at that time adjourned to allow the appellant adequate time to consider the matters raised by the Magistrate. Further submissions were made by the appellant on 20 December, after which the Magistrate delivered ex tempore reasons for dismissing the proceedings.
The respondents accepted that the letter referred to above was perhaps unfortunately worded, but remained strictly correct, as the application to permanently stay the proceedings did not proceed before the Magistrate on 6 December, rather submissions were heard as to whether or not the proceedings should be dismissed. This was apparently due to the Magistrate becoming aware of the incorrect identification of five minor indictable offences as earlier mentioned. Importantly, however, this is to be understood against the background that the Magistrate had explained to the appellant the difficulty presented by the dates of the impugned conduct on the Information. The appellant had opportunity to make submissions and consider his position.
Magistrates Court Rules 8.00-8.08 concern the principles and processes governing case flow management in the Magistrates Court. Rules 26.00-26.06 concern a number of pre-trial procedures. Although the precise nature of the appellant’s complaints about these Rules is not clear, in my view, having reviewed the Magistrates Court file and the relevant Rules of Court and having heard submissions from both parties on appeal, the appellant’s complaint in this respect simply has not been made out.
The power to amend an Information or Complaint is a wide one. Substantial prejudice is often the test.[1] It is to be recalled that by virtue of s 181(2) of the Summary Procedure Act the Magistrate was vested with a power to dismiss the Information if a defect of substance or form was identified, and the defect could not appropriately be cured by amendment. For reasons that follow, I consider that the Information is incurably bad.[2] The Information is not open to amendment, rather it could only be ‘cured’ by the laying of a new Information.
[1] See Willing v Hollobone (No 2) (1975) 11 SASR 118.
[2] See for example Bedi v The Queen (1993) 61 SASR 269 at 274-276.
First, it is to be noted that a number of the counts on the Information relate to the same transactions. On their face, a number of the counts are duplicitous. However, this is just one matter. More fatal is the defect identified and relied upon by the Magistrate, with whom I agree. As earlier mentioned, the Information was laid with three groups of charges under ss 134, 142 and 172 of the Criminal Law Consolidation Act, which sections did not come into effect in their present form until 2003. The Information particularises conduct which took place between June 1992 and December 1994. There are a number of reasons why this gives rise to an incurably bad defect.
First, as charged, these were not offences at the time of the conduct. The presumption against retrospectivity is well established, particularly in the context of the criminal law. The seminal Australian statement is to be found in the observations of Dixon CJ in Maxwell v Murphy:[3]
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. …
[3] Maxwell v Murphy (1957) 96 CLR 261 at 267.
Secondly, as submitted by the respondents, to accept that conduct occurring in 1992-1994 could become criminal by virtue of Judge Lunn’s order in 2005, would be to elevate Judge Lunn’s order well beyond its proper effect – being to strike out a bill of costs – to a determination of criminality. I agree. Further, the appellant appeared to be making the submission that the relevant criminal conduct took place on the day that Judge Lunn made his order striking out the bill of costs. He submitted that until the costs are taxed, the conduct cannot be criminal, and when the bill of costs was struck out, the criminal conduct occurred. I reject this submission. The conduct complained of took place in the 1990s, the presumption of retrospectivity applies and there is nothing to suggest that it has been rebutted.
Further Matters
During the hearing of the appeal, it became apparent that there was some confusion as to which was the Information properly before the Magistrate. On the Court file is the earlier referred to Information alleging 18 counts. Attached to the appellant’s outline of argument on appeal was an Information alleging 20 counts. The Magistrate refers in his reasons to the earlier Information and it is that Information which is the subject of the endorsements on the file. In my view, it is that Information that was properly before the Court. In all respects, material and immaterial (including dates and Court stamps) the two Informations appear to be identical, save for the addition of two further counts – count 19 and count 20 – on a separate page which is dated 5 November 2011. Count 19 alleges a breach of s 31(2) of the Legal Practitioners Act 1981 (SA) and count 20 alleges fraud. The appellant refers to count 19 in the second ground of appeal although it never became clear to me what that particular complaint was about.
Insofar as it is necessary for me to consider, in my view, count 19 in any event would have no prospect of success. This is particularly so as s 96 of the Legal Practitioners Act relevantly provides:
Proceedings for an offence against this Act must not be brought unless the Attorney-General has, by instrument in writing, authorised the institution of the proceedings.
A s 96 authorisation has not been provided. On the hearing of the appeal, the appellant submitted that the Attorney-General would provide such an authorisation as he “is trying to wipe out organised crime in this State”. Even if this were the case, the fact of the matter is no authorisation was or has been provided.
Also insofar as it is necessary for me to consider, it is my view that count 20 would have no prospect of success. I set out the terms of count 20:
On 31-8-1992, 2-9-1992, 16-6-1993 and 22-6-1994 Mr Russell John Cole, Mr Andrew Sim and RJ Cole & Partners Pty Ltd at Christies Beach in the State of South Australia committed a FRAUD on me, when they illegally transferred the sums of $18,634.66, $463.79 and $10,000.00, that they were holding in trust for me, out of their Trust Account without my written or oral authority. (MINOR INDICTABLE OFFENCE)[4]
[4] These italicised words are handwritten.
Particulars
On 31-8-1992, 2-9-1992, 16-6-1993 and 22-6-1994 Mr Russell John Cole, Mr Andrew Sim and RJ Cole & Partners Pty Ltd at Christies Beach in the State of South Australia committed a FRAUD on me, when they illegally transferred the sums of $18,634.66, $463.79 and $10,000.00, that they were holding in trust for me out of their Trust Account without my written or oral authority, therefore, their FRAUD on me has vitiated every transaction known to the law. That FRAUD on me has even vitiated every judgment of any Court and Tribunal on the grounds that FRAUD is an insidious disease and it spreads to and infects every transaction that Mr Russell John Cole, Mr Andrew Sim and RJ Cole & Partners Pty Ltd have made. See Jonesco v Beard (1930) AC 298 at pp 301, 302.
This count replicates dates and amounts of money the subject of other counts on the Information. Although not entirely clear, it is on its face duplicitous. Further, as submitted by counsel for the respondents, it is inchoate and vague. In these circumstances, and with there being no reference to what statutory provisions have been breached, it would be difficult for any defendant to understand and answer this charge.
Finally, it is to be noted that counsel for the respondents submitted in the alternative that the prosecution below is an abuse of process in the sense that it attempts to re-litigate matters that have already been the subject of final judgments, and that if the Magistrate was found to be in error in dismissing the Information in the manner he did, then I ought to permanently stay the prosecution as an abuse of the processes of the Magistrates Court. In light of my conclusions above, no need arises for me to address this contention.
Conclusion
I dismiss the appeal.