Leonard, Gary Raymond v Richardson, David Andrew

[1998] TASSC 78

78/1998

PARTIES:  LEONARD, Gary Raymond (Inspector)

v

RICHARDSON, David Andrew

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  APPELLATE

FILE NOS:  LCA 18/997

DELIVERED:  2 July 1998

HEARING DATES:  8 April 1998

JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Procedure - Information and complaint - Form and sufficiency - Complaint disclosing no offence - What constitutes in particular cases - Tasmania - Complaint alleging summary offence - Whether justices had power at time of the making of the complaint to determine it - Whether Police Regulation Act 1898, s29D, first required completion of procedural steps by Commissioner of Police - Meaning of “complaint” and “simple offence” in Justices Act 1959.

Justices Act 1959, s3(1).

Police Regulation Act 1898, s29D.

Aust Dig Magistrates [64]

REPRESENTATION:

Counsel:

Applicant:  T J Ellis

Respondent:  S J Cooper

Solicitors:

Applicant:  Clarke & Gee

Respondent:  Ogilvie McKenna

Judgment category classification:

Court Computer Code:                  

Judgment ID Number:                  781998

Number of pages:  4

Serial No 78/1998

File No LCA 18/1997

INSPECTOR GARY RAYMOND LEONARD v DAVID ANDREW RICHARDSON

REASONS FOR JUDGMENT  CRAWFORD J

2 July 1998

The respondent was a police officer. On 7 June 1996 the applicant made a complaint charging him with three counts of violation of duty, contrary to the Police Regulations 1974, reg47(1)(d). Particulars included the following:

1       On 10 December 1995 at Wynyard, without good and sufficient cause, he made an unlawful or unnecessary arrest, contrary to reg47(1)(d)(xi).

2       On 19 December 1995 at Burnie, he wilfully made a false statement in writing in relation to an official matter, contrary to reg47(1)(d)(iv). It was alleged that he prepared and submitted for the purpose of a prosecution arising out of the arrest, a file containing false statements about the incident which preceded the arrest.

3       On 21 February 1996 at Burnie, he wilfully made false and misleading verbal statements in relation to an official matter, contrary to reg47(1)(d)(iv). It was alleged that he made those statements to two other police officers in the course of an internal investigation into complaints made by persons (arising out of the incident and the arrest).

By the Justices Act 1959, s26(1), it was provided that “in a case of a simple offence ... unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 6 months from the time when the matter of complaint arose”. In this case the complaint was made three days before the expiration of six months from the time when the first matter of complaint arose. There was therefore no suggestion that the complaint did not comply with s26(1).

The complaint came on for hearing before magistrates on a number of dates. Initially the respondent pleaded not guilty to the three charges but eventually he was given leave to change his plea to a plea that further proceedings ought not to be had on the complaint. By the Justices Act 1959, s74A(6), the learned magistrate was thereupon obliged, before proceeding further, to hear and determine the plea and amend the complaint, dismiss the complaint or overrule the plea. Facts were agreed and after hearing argument and reserving his decision the learned magistrate held that he had no jurisdiction to hear and determine the matter of complaint and he made an order dismissing it. The applicant has moved this Court to review the order of dismissal upon the basis that the learned magistrate was in error in holding that he did not have jurisdiction to hear and determine the complaint.

The history of the case, leading to the plea that further proceedings ought not to be had on the complaint, was as follows. An incident involving the respondent as a police officer, occurred on 10 December 1995. I presume that the respondent arrested a man at the time. On 12 December 1995 some form of complaint was made against the respondent, presumably to his superiors, arising out of his conduct in the course of the incident and the making of the arrest. On 21 February 1996 he was “interviewed by Internal Affairs”. On 22 May 1996 the Deputy Commissioner of Police wrote to Superintendent Krushka of the Western District, advising inter alia:

·       an investigation into the circumstances surrounding the incident had resulted in complaints, made against the respondent, being substantiated.

·       a decision had been made to refer the matter for the consideration of the Director of Public Prosecutions.

·       because of material contained in a file, proceedings under the Criminal Code, the Police Offences Act 1935 andor the Police Regulations 1974 were likely.

·       having in mind the six months statutory limit for the lodgment of complaints which applied to lower court matters (a reference no doubt to the Justices Act 1959, s26(1)) complaints had been lodged in the Hobart Court of Petty Sessions in relation to the matters while the advice of the Director was being sought.

On 24 May 1996 the respondent was suspended from duty on full pay, pursuant to the Police Regulation Act 1898, s12(1). On 7 June 1996 the complaint, which is the subject of these proceedings, was made. It was filed in a court of petty sessions that day, but no summons was issued to the respondent and it remained unserved. In the first week of September 1996 witnesses were reinterviewed. On 24 September, 14 October and 4 November 1996 the respondent‘s solicitors wrote to the Director of Public Prosecutions seeking copies of documentation. On 25 November 1996 the respondent’s solicitors wrote again to the Director “to request that you make a decision and advise us of it within seven days, failing which I will seek to have the complaints listed and determined”. More than one complaint had been made under the Justices Act 1959. Without summonses having been served, the respondent‘s solicitors made requests for the complaints to be listed for hearing in a court of petty sessions. On 24 December 1996 the Director advised the respondent’s solicitors that the only charges which would proceed were those under the Regulations. (I presume one or more breaches of a statute had also been charged in a complaint which is not before me.)

Pursuant to the Police Regulation Act 1898, s5 and s29(d), the offences alleged to have been committed by the respondent under the Police Regulations 1974 are referred to in that Act as “disciplinary offences”. Concerning reports of disciplinary offences against police officers, the Commissioner of Police was required to comply with s29A which is in these terms:

“29A—(1)  The Commissioner shall review every report and any other document bearing on the matter of a report from which it appears a police officer or cadet has committed or is committing a disciplinary offence.

(2)             Where the Commissioner, acting under subsection (1), believes on reasonable grounds that a police officer or cadet has committed or is committing a disciplinary offence, he shall cause a notice to be served on that person specifying the offence that he believes has been or is being committed and informing that person that he may—

(a)     admit in writing the commission of the offence so specified or of any other disciplinary offence;

(b)     deny in writing the commission of the offence so specified; or

(c)     elect to have that offence determined on complaint before a magistrate,

and that, if he admits under this section the commission of a disciplinary offence, or (in the case of a denial under this section) if the Commissioner after due inquiry is satisfied that the person has committed a disciplinary offence, the Commissioner may impose on him, in respect thereof, a penalty under Part III.”

Under s29B a police officer or cadet, within fourteen days of the service on him of a notice under s29A, is required to submit a written admission in accordance with par(a) of s29A(2), or a written denial in accordance with par(b) or to make an election in accordance with par(c). If he

makes the admission under par(a), then under s29C he may, for the purpose of making an explanation or in relation to any penalty that may be imposed by the Commissioner, tender a written submission or request to be paraded before the Commissioner. Part III of the Act provides for the penalties which the Commissioner may impose.

Section 29D is in the following terms:

“29D—Where a police officer or cadet on whom a notice under section 29A is served—

(a)     elects, within the period specified in section 29B, to have the offence specified in the notice determined on complaint before a magistrate; or

(b)     has, at the expiration of the period specified in section 29B, failed or refused to make an admission or a denial or such an election as provided by that section,

the offence shall be determined on complaint before a magistrate in accordance with the Justices Act 1959.”

On 17 January 1997 there was served on the respondent a notice from the Commissioner of Police under s29A. It gave notice that the Commissioner had reviewed reports and other documentation relating to complaints made against the respondent and that as a consequence the Commissioner had formed a belief (see s29A(2)) that the respondent had committed disciplinary offences of the nature of violation of duty under the Police Regulations 1974. The notice specified and particularised the three offences which are charged in the complaint in these proceedings. Essentially the notice complied with s29A(2). It was not submitted to me that it did not do so.

The respondent did nothing in response to the notice. In the terms of s29D, he “failed ... to make an admission or a denial or such an election as provided” by s29B and the offences fell to “be determined on complaint before a magistrate in accordance with the Justices Act 1959”.

On 12 February 1997 the complaint first came on for hearing before a magistrate. The respondent pleaded not guilty to all charges and the hearing was adjourned. Thereafter it was adjourned on a number of occasions. Eventually, on 6 November 1997, the respondent was given leave to change his pleas to a plea that further proceedings ought not to be had on the complaint and it was submitted for the respondent that the learned magistrate had no jurisdiction to hear the complaint. In the alternative, it was submitted for the respondent that if that submission was not upheld the complaint should be dismissed as an abuse of process. The learned magistrate upheld the respondent‘s first submission and found it unnecessary to determine the second. If the motion to review is upheld then the case should be remitted to the learned magistrate for determination concerning the second submission and if it is rejected, the hearing of the complaint.

Essentially what the learned magistrate held was that he had no jurisdiction to hear and determine the complaint because at the time the complaint was made he would have had no jurisdiction to hear and determine it. His Worship held that a condition precedent to jurisdiction was the completion of the procedures in the Police Regulation Act 1898, s29A to s29D, before the complaint was made and then the making of the complaint before six months had expired from the matter of complaint arising (see Justices Act 1959, s26(1)). His Worship declined to apply a contrary decision made by a different magistrate in an earlier case.

Counsel for the respondent essentially addressed the following argument to both the learned magistrate and to this Court:

1       The Police Regulation Act 1898, s29D provides that if the police officer fails to make an admission or a denial or a relevant election within the time provided for in s29B, the offences specified in the notice served on him under s29A “shall be determined on complaint before a magistrate in accordance with the Justices Act 1959”.

2       The complaint was made on 7 June 1996.

3 The s29A notice was served on the respondent on 17 January 1997.

4       The complaint purports to allege the commission by the respondent of three “simple offences”, as that expression is defined in the Justices Act 1959, s3(1).

5       By virtue of the Justices Act 1959, s3(1), the expression “simple offence” means, when it is used in that Act, “any offence (indictable or not) punishable, on summary conviction before justices, by fine, imprisonment, or otherwise”.

6       When the complaint was made on 7 June 1996 none of the three matters of complaint amounted to a simple offence because the provisions of the Police Regulation Act 1898, s29A to s29D, prevented a magistrate from determining the complaint.

7       A magistrate has no jurisdiction to hear a charge of a simple offence unless it is commenced by a complaint made under the Justices Act 1959. By that Act, s3(1), the word “complaint” means, in the Act, “a written allegation of an indictable or simple offence or of a breach of duty made to a justice”.

8 Until service of the s29A notice and the failure of the respondent to respond to it had continued for fourteen days thereafter there was no “simple offence” which a complaint could allege because, by inference, having regard to s29D, no magistrate had jurisdiction to determine the complaint and to punish the respondent on summary conviction for the offences alleged in it. The alleged summary offences only became summary offences at the expiration of that fourteen day period.

In my opinion the learned magistrate was plainly wrong and the ingenious submissions of counsel for the respondent must fail. The complaint was made within six months from the time when the matters of complaint arose. It alleged that the respondent had committed a simple offence, that is to say, it alleged that the respondent had committed an offence punishable, on summary conviction before justices, by fine, imprisonment, or otherwise. Whether, in the circumstances of the case, justices had power to determine the complaint and to convict the respondent at the time of the making of the complaint, was an entirely different question. Whether justices had that power fell to be determined at the time they came to consider exercising it. The validity of the complaint was unaffected by such a question. There was nothing in either of the Acts which ought to have persuaded the learned magistrate to decide otherwise. Before the respondent could lawfully be punished a number of events had to occur. For example, there had to be a hearing, a taking of his pleas and a finding of guilt. That none of those events had taken place at the time of the making of the complaint (nor could they have), did not mean that the complaint did not allege the commission of an offence which was punishable on summary conviction.

It is unnecessary to determine whether the provisions of the Police Regulation Act 1898, s29D, prevented justices from determining the offence until one of the events referred to in pars (a) and (b) thereof had taken place. On one interpretation of the section the effect of it is merely to divest the Commissioner of the power to continue to deal with an alleged offence and not to take away from justices the power to hear and determine a complaint alleging such an offence.

For these reasons the motion will be upheld and the order dismissing the complaint will be set aside. The complaint will be remitted to the same magistrate, who is yet to rule on the respondent’s alternative submission that the complaint should be dismissed as an abuse of process.