MAGUIRE v MODRA - [2010] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MAGUIRE v MODRA
[2010] SASC 74
Judgment of The Honourable Justice Vanstone
1 April 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY
Respondent-defendant charged with seven counts of practising whilst not being a legal practitioner - particulars of the complaint were defective in several respects - further particulars were provided by the Crown Solicitor - complaint amended after the statutory expiration period - complaint dismissed by magistrate because particulars given by the Crown Solicitor had fallen short of obligation to apprise defendant of the alleged conduct on which the charges were based and defendant substantially prejudiced.
Held: appeal allowed and dismissal of complaint set aside - matter remitted for rehearing - complaint was defective but not incurably bad - complaint was validly amended - letter of Crown Solicitor provided accurate particulars.
Legal Practitioners Act 1981 (SA), s 21(1), s 21(2), s 21(4), s 96; Summary Procedures Act 1921 s 52; Justices Act 1921 (SA), s 181; Acts Interpretation Act 1915 (SA), s 4(1), referred to.
King v The Queen (1986) 161 CLR 423; Surman v Police (1996) 65 SASR 421, distinguished.
Schultz v Pettit (1980) 25 SASR 427, discussed.

MAGUIRE v MODRA
[2010] SASC 74
Magistrates Appeal

VANSTONE J: This appeal raises issues relating to the supply of, and sufficiency of, particulars of charges and as to amendment of those particulars.
Background
The respondent was charged on complaint with seven counts of practising the profession of the law whilst not being a legal practitioner, contrary to s 21(1) Legal Practitioners Act 1981 (LPA). The charges were laid just prior to the elapse of the two year time limit regulating the prosecution of offences of this nature: s 52 Summary Procedures Act 1921 (SPA). For each charge the details of the alleged offence followed a similar format. In order to illustrate it, I set out count 1 of the complaint.
1.In or about the month of July 2006, the defendant practised the profession of the law whilst she was not a legal practitioner.
Contrary to section 21(1) of the Legal Practitioners Act, 1981.
Particulars
1.1At no time was the defendant a legal practitioner.
1.2In or about July 2006 the defendant practised the profession of law in that, for a fee or reward she provided legal advice, took instructions and prepared documents for the administration of probate in relation to the estate of [the deceased].
The particulars of the complaint were defective in several respects. First, the place or places at which each offence was said to have occurred were not specified. Next, it was alleged that the defendant “… provided legal advice, took instructions and prepared documents for the administration of probate …”, whereas it apparently should have read “application for probate”. These matters were raised by the respondent’s solicitor, Mr Sykes, on the second occasion of the matter coming before the Adelaide Magistrates Court, on 24 September 2008.
On the following day, Mr Sykes wrote to the Crown Solicitor requesting particulars in relation to each of the counts. The particulars he sought included the place or places where it was alleged the respondent had provided legal advice, or taken instructions, or prepared documents; the factual nature of the legal advice provided; the factual nature of the instructions taken; and the factual description of the documents prepared. The letter then continued as follows:
5.If it is alleged that the conduct of the Defendant contravened the section by virtue of any of the acts stipulated in subsection 21(2)(a)-(e) inclusive, please stipulate the particular act on the part of the defendant and where and when it took place.
The importance of the reference to s 21(2) LPA is that the subsection provides a non-exclusive definition of “practising the profession of the law”. Some of the terms used in the subparagraphs of that subsection are further defined in s 21(4) of the Act. For example, relevantly, s 21(2)(e) provides that a person practises the profession of the law if he or she “represents any party to proceedings in a court or tribunal”. Then, s 21(4) defines the concept of representing a party. It provides:
(c) a person represents a party to proceedings before a court or tribunal if the person—
(i)prepares, on behalf of that party, any legal process relating to the proceedings; or
(ii)takes instructions from or gives advice to that party in relation to the conduct of the proceedings; or
(iii)takes, on behalf of that party, any other step in the proceedings;
The Crown Solicitor responded to Mr Sykes’ letter in a timely manner, providing comprehensive particulars of the conduct alleged to constitute each offence. However, the letter was silent as to whether any or all of the particularised conduct was said to fall within any of the subparagraphs of s 21(2) LPA; nor indeed was any reference made to s 21(2).
On one reading of Mr Sykes’ request, there was no necessity for the Crown Solicitor to descend to that detail. Strictly, all that was sought was particularisation of the conduct itself, as opposed to characterisation of that conduct in terms of the provision, if applicable. However, Mr Soetratma, who appeared for the complainant both in this court and in the court below, at all times conceded that the failure to specifically refer to Mr Sykes’ fifth request and to s 21 LPA led to a misunderstanding of the complainant’s position and to an assumption by the respondent that the complainant was relying on the common law meaning of “practising the law”, as opposed to any expansion of that concept provided by the Act.
On 15 October 2008 the matter was called on before the Chief Magistrate. The prosecution applied to amend the particulars of each count to substitute the words “application for” for the words “administration of”. There was no objection and the amendments were made. No attempt was made to add a particular describing the place where it was alleged the offending occurred.
Prior to trial, extensive work was done on both sides to formulate admissions, or agreed facts, going to the factual matters upon which the charges were based. The admissions comprehended and made redundant all oral evidence which the prosecution might otherwise have called at trial.
The trial commenced on 20 May 2009. Without objection, Mr Soetratma tendered the agreed statement of facts and accompanying documents, as well as other documents. He then opened the case. During his opening address he outlined the relevant statutory provisions and indicated that reliance was indeed placed on the statutory definition in s 21(2) LPA and the further explanation in s 21(4). Mr Sykes then interrupted the opening address to object that the prosecution was going beyond the case as particularised in the correspondence.
Mr Sykes argued that the complaint had always been defective in not stipulating the place where the offending was alleged to have occurred and that in its original form – referring to the “administration of probate” – it had failed to disclose an offence. He argued that the later amendment was of no utility since, by 15 October 2008, the complaint would have been out of time. More fundamentally, he argued that the defendant had been incurably prejudiced by not being apprised of the case she was required to meet. He submitted that the defendant would have to completely reconsider what facts she might be prepared to admit in light of her new understanding that the conduct alleged against her was said to amount to “represent[ing] any party to proceedings in a court or tribunal” in terms of s 21(2)(e), as that expression is defined in s 21(4), as opposed to merely “practising as a solicitor in the broad”. He submitted that the only fair course to adopt was to dismiss the complaint.
The matter was then adjourned for submissions as to whether the complaint should be dismissed. Those submissions proceeded on a later date. Having heard those, the magistrate reserved her decision. On 29 October 2009 the magistrate dismissed the complaint and published reasons for so doing. Subsequently, the magistrate ordered the prosecution to pay the sum of $13,934.72 to the defendant towards her costs.
The magistrate gave comprehensive reasons for her decision. She discussed the role of particulars and the issue of amendments being made after the elapse of a time limit. She indicated that she would have been prepared to allow amendment of the complaint to include the place where the offences were said to have occurred. Against Mr Sykes’ argument, she indicated that the amendment of the wording of the particulars made on 15 October 2008 had not affected the “pith and substance of the offence” and did not amount to the charging of a new offence outside the statutory time limit.
The magistrate then turned to the question of the particulars provided by the Crown Solicitor’s letter. She expressed the opinion that the Crown Solicitor’s response had not addressed the question of whether the defendant’s conduct had fallen within s 21(2) LPA. The magistrate said:
The real substance of the complainant’s case as pleaded was that the defendant was helping people in order for them to prepare their own applications for probate. There is no suggestion in the complainant’s response that what is alleged is that she was, in doing so, representing parties in court.
The magistrate went on to find that the particulars provided had fallen “far short” of the obligation to apprise the defendant of the conduct alleged to be the foundation of the charges. Having referred to the extensive work which had been done to arrive at the agreed facts and book of documents, the magistrate expressed the view that the defendant had suffered prejudice. She said if the case proceeded, there would need to be “a complete reconsideration of those facts and matters to determine what matters [the defendant] was prepared to admit”. Her Honour said that the defendant had been “so substantially prejudiced that the only fair course [was] to dismiss the complaint”.
The arguments on the appeal
Mr Soetratma suggested in argument before this court that, having regard to the magistrate’s reasons, her Honour’s order was more readily understood as a stay of the proceedings, rather than a dismissal of the complaint. Certainly she did not purport to dismiss the complaint on account of the defects in it, pursuant to s 181 SPA. Rather, her order responded to a judgment that substantial prejudice had been sustained by the defendant. I consider Mr Soetratma to be correct in this submission. In any event, the appellant suggests that the order should be set aside and, as will be seen, I agree.
In this court Mr Crocker represented the respondent. He argued that the magistrate’s decision was correct and, further, that it could be supported on grounds going beyond those relied upon by the magistrate. As to the Crown Solicitor’s letter, Mr Crocker argued that, considered in the context of Mr Sykes’ request, it not only led to a misunderstanding of the complainant’s case, but further, amounted to an election by the complainant not to rely on s 21 LPA. If that were correct, then he argued that the position taken in the complainant’s opening address amounted to a complete change in the case presented against the defendant. He likened the situation to that which occurred in King v The Queen (1986) 161 CLR 423. There, King was indicted with another man on a charge of murder. The case against King was put on the basis that he was an accessory before the fact to the killing of his wife by the co-accused, Matthews. Part way into the summing up to the jury, the prosecutor requested that the judge leave to the jury the possibility that it could convict King if satisfied that he was an accessory to the killing of his wife by an unidentified person. The judge acceded to that request. In the event King was convicted, but his co-accused was not. The conviction of King was quashed in the Court of Criminal Appeal and a re-trial ordered. The appeal to the High Court proceeded on the argument that a verdict of acquittal should have been entered.
Mr Crocker further argued that, the complaint was at all times defective, both in its failure to nominate a place of offending and in its description of the impugned conduct. He put that the original particulars were nonsensical. These, he said, were defects going to substance and relying on Surman v Police (1996) 65 SASR 421 and Schultz v Pettitt (1980) 25 SASR 427 he argued that amendments designed to rectify such a defective complaint could not be made, at least after the time when charges for such offences would otherwise be barred by statutory time limit. To allow such amendment would be to allow to proceed a charge for a difference offence.
Mr Crocker finally argued that the elapse of the statutory time limitation also affected the authorisation given by the Attorney-General pursuant to s 96 LPA to institute the proceedings. That authorisation was endorsed on the complaint prior to its being filed. Mr Crocker argued that the wording of s 96 suggested that it should have been contained within a separate document. Necessarily, the authorisation was given at a time before the wording of particulars was altered. Mr Crocker submitted that the authorisation could not extend to the charges, as particularised after amendment on 15 October 2008.
Strictly, I do not consider that these last two matters are raised upon this appeal. The appeal is against the order of the magistrate dismissing the information and any alternate contention would necessarily be directed to supporting that decision on one or more additional bases. These arguments are quite independent of the decision of the magistrate and if they are well made it would mean that the complaint was liable to be dismissed well before the October 2008 amendments were made. Nevertheless, Mr Soetratma takes no point and I am prepared to briefly deal with them. I do not think they have any substance.
Analysis
In my view the complaint was not, at any time, even at common law, incurably bad. It was defective in failing to nominate the place of offending and its particulars were poorly drafted. I reject the submission that the assertion in the original particulars was nonsense. The meaning was tolerably clear. It was effective in invoking the court’s jurisdiction. If I am correct then there is strictly no need to consider the respondent’s argument that there is an important distinction between the old s 182 Justices Act 1921 – which prevented objection being taken or allowed to complaints flawed by defects of form or substance – and the current s 181 SPA (which came into effect in 1992) which preserves the validity of such flawed complaints. In Surman, Bollen J found no relevant difference in the two provisions, but the amendment he was dealing with was of a different character and he found it to have resulted in the charging of a different offence. That is a distinct issue. Here s 181 SPA would save the complaint, even were the deficiencies seen to be of substance and rectification of them to have occurred (as they did) after the statutory time limit expired.
My finding that the complaint was at no time incurably bad also addresses Mr Crocker’s argument that the Attorney-General’s authorisation applied only to the charges as originally laid.
The terms of s 96 LPA are as follows:
96—Summary offences
(1) (subsection repealed).
(2)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.
(3)An apparently genuine document purporting to be an authorisation under this section will, in the absence of proof to the contrary, be accepted as such in any legal proceedings.
By s 4(1) Acts Interpretation Act 1915 “document” includes “any paper or other material on which there is writing”. In my view the Attorney-General’s authorisation may be given either by a separate paper, which is satisfactorily linked to the relevant complaint, or, as here, on the complaint itself.
Amendment to the terms of the charge will not affect the validity of the authorisation, at least if, as here, the amendments did no more than complete and clarify the particulars. Again, I refute the respondent’s argument that it was only when the amendments to the particulars were made, on 15 October 2008, that the charge became valid.
As to Mr Crocker’s argument that the provision of particulars by way of the Crown Solicitor’s letter of 3 October 2008 amounted to an election not to rely on s 21 LPA, I do not consider it to be sustainable. As I mentioned, the letter provided extensive particulars of the conduct relied upon in each count. However, it did not characterise that conduct in terms of the legislation. In those circumstances it cannot be construed as an election. The situation is quite different from that which occurred in King v The Queen where the prosecuting counsel opened the case on a very specific basis and later sought to have the case left to the jury on a quite different basis. Accordingly, on the view I take of the matter, there was no occasion to dismiss the complaint, or to stay the prosecution. Given that the prosecution accepted that there had been a misunderstanding as to the case to be presented, the magistrate might have been persuaded to adjourn the matter so that the defendant could consider her position. I do not agree that the defendant could have been compromised by her earlier preparedness to make admissions as to the facts comprising the prosecution case. Presumably those admissions were made on the basis of clear instructions. Perhaps as a matter of tactics they would not have been made had the defendant’s advisers not perceived that the case was being confined in a particular manner, but particularly given my expressed view that nothing in the terms of the Crown Solicitor’s letter was misleading, I would not be inclined to make any order relating to costs or otherwise in response to that.
Conclusion
Consequently I propose to set aside the magistrate’s orders, including the order as to costs, and remit the matter to the Magistrates Court for hearing according to law. Costs of the proceedings before the magistrate who dismissed the complaint will be costs in the cause.
I shall hear the parties as to costs of the appeal.