Marshall v Woodgate
[2022] TASSC 72
•22 June 2022
[2022] TASSC 72
COURT: SUPREME COURT OF TASMANIA
CITATION: Marshall v Woodgate [2022] TASSC 72
PARTIES: MARSHALL, Timothy John
v
WOODGATE, Hamish
FILE NO: 943/2022
DELIVERED ON: 22 June 2022
PUBLISHED ON: 8 October 2024
DELIVERED AT: Burnie
HEARING DATE: 14 June 2022
JUDGMENT OF: Jago J
CATCHWORDS:
Criminal Law – Procedure – Appeal – General principles – Interference with discretion of Court below – Orders and convictions – Withdrawal of complaint – Time for filing complaint.
Aust Dig Criminal Law [3447]
REPRESENTATION:
Counsel:
Applicant: J Kerr
Respondent: E Belonogoff
Solicitors:
Applicant: Tasmanian Aboriginal Legal Service
Respondent: Director of Public Prosecutions
Judgment Number: [2022] TASSC 72
Number of paragraphs: 37
Serial No 72/2022
File No 943/2022
TIMOTHY JOHN MARSHALL v HAMISH WOODGATE
REASONS FOR JUDGMENT JAGO J
22 June 2022
The applicant moves this Court to review an order made by Magistrate, Mr P Dixon, on 22 March 2022. The appeal relates to an order made by the Magistrate in respect to complaints 34620/2021 and 34621/2021.
The applicant had pleaded not guilty to both complaints. Each complaint alleged a count of common assault. The applicant argued neither complaint should be permitted to proceed because each complaint had been raised outside the relevant statutory limitation period.
The applicant's argument was rejected by the Magistrate and the complaints adjourned for a hearing date. The applicant seeks to review that decision. The sole ground of review is that the ruling constituted an error of law, namely that the Magistrate erred in law in ruling that the complaints were validly instituted, notwithstanding that more than 12 months had elapsed between the date of the alleged offences and the filing of the respective complaints.
On 22 June 2022, I upheld the Notice to Review and I dismissed complaints 34620/2021 and 34621/2021. These are my reasons for doing so.
History of Proceedings
The history of proceedings is set out in the applicant's submissions. The respondent accepts the history as outlined:
"4On 23 February 2021, the applicant was charged on complaint 70120 of 2021 (the first complaint) with three counts of common assault and one count of injuring property. The offences were alleged to have occurred in various locations and on various dates between 18 March 2020 and 16 October 2020. The complaint was made on oath, and a warrant of apprehension was issued in respect of the applicant on that same date.
5On 9 September 2021, the applicant appeared in the Launceston Magistrates Court on the first complaint. The complaint was adjourned without plea to 29 September 2021, and the applicant was admitted to bail.
6On 28 October 2021, the applicant was charged on complaint 34498 of 2021 (the second complaint) with three counts of common assault and one count of injuring property. The offences charged on this complaint were in identical terms to those particularised in the first complaint.
7On 2 November 2021, the applicant appeared in the Launceston Magistrates Court on both the first and the second complaints. The applicant's counsel noted on this occasion that the second complaint appeared to contravene the Justices Act, in that several unrelated matters were joined on a single complaint. Following a brief discussion, both complaints were adjourned without plea to 3 December 2021.
8On 5 November 2021, the applicant was charged on complaints 34620 of 2021 (the third complaint), 34621 of 2021 (the fourth complaint), 34622 of 2021 (the fifth complaint) and 34623 of 2021 (the sixth complaint) with three counts of common assault and one count of injuring property. Each complaint contained a single count, in terms identical to those previously joined on the first and second complaints.
9On 3 December 2021, the applicant appeared in the Launceston Magistrates Court on each of the complaints noted above. The first and second complaints were withdrawn with leave of the Court. No objection was made by the applicant to this course. Pleas of not guilty were then entered on his behalf to each of the remaining complaints. The third and fourth complaints were adjourned to the Burnie Magistrates Court on 18 March 2022 for hearing. The fifth and sixth complaints were adjourned to the Launceston Magistrates Court on 16 May 2022 for hearing.
10On 18 March 2022, the applicant appeared in the Burnie Magistrates Court on the third and fourth complaints. The applicant submitted at this time that each complaint was statute barred, as each had been made more than 12 months after the date of the alleged offence.
11Following submissions on this date, the third and fourth complaints were adjourned to the Burnie Magistrates Court on 22 March 2022 for a ruling to be made. Further submissions were made by the parties in writing during the adjournment period, and further oral submissions were made on behalf of the applicant on 22 March 2022. The learned magistrate then proceeded to deliver the ruling the subject of this motion, following which the complaints were adjourned to 28 September 2022 for hearing."
Section 26(1)(a) Justices Act 1959 provides:
"(1)In the case of a simple offence that is not an indictable offence, or of a breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made –
(a)within 6 months from the time when the matter of complaint arose; or
(b)against a provision of an Act that has been declared in accordance with subsection (1A) to be an Act to which this paragraph applies –
(i)within 3 years from the time when the matter of complaint arose; and
(ii)within 6 months from the time when the matter of complaint came to the attention of the Director of Consumer Affairs and Fair Trading.
(1A)The Minister responsible for administering the Consumer Affairs Act 1988 may declare, by order published in the Gazette, an Act to be an Act to which subsection (1)(b) applies.
(1B)An order under subsection (1A) is a statutory rule within the meaning of the Rules Publication Act 1953 .
(2)Notwithstanding subsection (1) , a complaint for a simple offence (not being an indictable offence) may be made against a person within 12 months after the time when the matter of complaint arose if –
(a)that matter of complaint may also give rise to an indictable offence; and
(b)the person has been charged with that indictable offence within the period of 6 months, or the other time referred to in that subsection.
(3)Notwithstanding subsections (1) and (2) , a complaint for a simple offence (not being an indictable offence) may be made against a person at any time if –
(a)the matter of complaint giving rise to a simple offence may also be a matter giving rise to an indictable offence; and
(b)the person has been charged with that indictable offence within the period of 6 months, or the other time, referred to in subsection (1) ; and
(c)the person has consented in writing to the making of that complaint."
In respect to a charge of common assault, Police Offences Act s 35(5) provides:
"(5)A complaint made for the purposes of the Justices Act 1959 in relation to an offence against this section is to be made within 12 months after the date of the offence."
Complaint 34620/2021 alleged an offence committed on 18 March 2020. Complaint 34621/2021 alleged an offence committed on 24 June 2020. Each complaint was made on 5 November 2021, more than 12 months after the date of the alleged offences. The exception in s 26(3) of the Justice Act did not apply. Clearly then, the limitation period for the making of each of the two complaints had expired prior to them being raised.
The question which then arises is whether complaints 34620/2021 and 34621/2021 could effectively proceed as substitutes for complaint 70120/21 (the first complaint), which had been validly instituted, (although was arguably in breach of s 29 of the Justices Act), in circumstances where complaint 70120/21 had been withdrawn.
What is the effect of the complaint having been withdrawn?
The practice of granting leave to withdraw a complaint is one readily utilised in the Magistrates Court. The practice was referred to by Cox CJ in Cooper v Graves [1997] TASSC 22. At [7] – [8], his Honour said:
"7There is a practice whereby informations or complaints may be withdrawn with the leave of the court, although there remains considerable controversy as to the effect such a course has on subsequent proceedings in respect of the same subject matter. In Pickavance v Pickavance [1901] P 60, a complaint by a wife for payment of maintenance due to the husband's cruelty, Sir Francis Jeune P, said at 64:
'It is to be remembered as a very important element in these cases, that the withdrawal of a summons can only take place by leave of the justices or magistrate: a complainant cannot put an end to a criminal proceeding except by leave of the Court, and if that leave is given and the summons is withdrawn that amounts to a consent by the Court; and that involves the obvious effect that the complaint upon which the summons was founded necessarily falls to the ground. The Court, having once given its consent to the withdrawal, cannot be competent to revive it again by issuing a fresh summons on the same ground'.
8In Davis v Morton [1913] 2 KB 479, a complaint for a summary offence was withdrawn with the consent of the justices for technical reasons and was held not to amount to the equivalent of an acquittal barring a further prosecution. In R v Woodhouse [1919] VicLawRp 105; [1919] VLR 736 a charge for an indictable offence not triable summarily was withdrawn before justices and this was held not to be a bar to subsequent prosecution for the same subject matter. In respect of a summary offence, such a withdrawal was held by Nicholls CJ in Schofield v Betts (1936) 31 Tas R 32 to have the same effect as an acquittal. The contrary view was expressed by Lowe J in respect of a summary offence in Bishop v Cody [1939] VicLawRp 37; [1939] VLR 246. The practice of withdrawing a complaint for a summary offence with leave of the court is adverted to without any expression of disapproval in Wilson v McCormack [1968] Tas SR 55. In Neasey & Ors v Strickland (supra) at 236, Zeeman J, dealing with the case of a complaint in respect of an indictable offence, expressed doubt as to whether such a complaint could be withdrawn. Whether that is so or not, I think it is clear that such a practice is available at least in respect of summary offences and this is sufficient to give some meaning to the expression used in s4(1)(b). However, in the circumstances of this case, and even assuming that a complaint for an indictable offence can be withdrawn, it would be stretching the meaning of the word to suggest that the complaint in this case was withdrawn. Certainly the proceedings were discontinued by a person seized of and entitled to pursue the prosecution of the complaint; but nowhere in the transcript did Mr Perks use any expression indicative of his intention to withdraw the complaint, still less did he seek the leave of the learned magistrate to the adoption of that course, nor did the learned magistrate purport to give that leave or to treat the complaint as withdrawn. In my opinion it cannot be said that the complaint in this matter was withdrawn and accordingly the learned magistrate was right to hold that he had no jurisdiction to make an order for costs."
Whilst the weight of authority leans towards a conclusion that the withdrawal of a complaint is not equivalent to an acquittal, it also supports the proposition that it is nevertheless a finalisation of proceedings. Once proceedings are finalised, there is no longer a complaint which is "alive" before the Magistrate upon which he could make an order. In Rogers v Police [2017] 130 SASR 190 at [33]-[38] it was noted:
"33 It is now generally accepted that when considering whether an order is interlocutory, a central question is whether the subject order (here the Magistrate’s refusal to make any monetary award to the appellant) finally disposes of the rights of the parties in the action. Thus in Hall v Nominal Defendant (Hall), Windeyer J stated at [9]:
'The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of “that action” because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. For example, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause: Coroneo v Kurri and South Maitland Amusement Co Ltd.[10] A judgment on a demurrer may thus be either final or interlocutory depending upon circumstances: Hope v R C A Photophone of Australia Pty Ltd;[11] John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd.[12] These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties.'
34 Taylor J also noted at [13]:
'A great deal has been said concerning the distinction between final and interlocutory orders but it has, in the main, been the practice of courts to confine themselves to a consideration of the character of the particular order in question in each case. … However, Lord Alverstone CJ, when called upon to say whether a particular order was interlocutory or final said: “It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order”: Bozson v Altrincham Urban District Council. Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory.' [Footnotes omitted]
35This approach has been confirmed in subsequent decisions of the High Court in Licul v Corney, Carr v Finance Corporation of Australia Ltd (No 1)[15] and Bienstein v Bienstein. [Footnotes omitted]
36Importantly for the present case, in the decision of Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd (Coroneo) (referred to by Windeyer J in the emboldened passage in Hall above), the High Court held that even though a plaintiff remained free to bring another action for the same cause against a defendant, an order by the court entering a non-suit against the plaintiff is a final judgment rather than an interlocutory judgment because that 'judgment disposes of the action to which it relates'. Thus Rich, Evatt and McTiernan JJ held:[17]
It is clear that a judgment of nonsuit which is entered by the Supreme Court under sec 7 of the Supreme Court Procedure Act … is not an interlocutory judgment within the meaning of sec 35 (1)(a) of the Judiciary Act. Such a judgment disposes of the action to which it relates, and the fact that another action may be commenced by the plaintiff is insufficient to prevent the judgment of nonsuit from being final within the meaning of this provision of the Judiciary Act. [Footnotes omitted]
37The decision of the High Court in Coroneo was followed and applied in the decision of the South Australian Full Court in Svingos v Deacon Avenue Cartage & Storage Pty Ltd (Svingos) where Mitchell J dealt with the present issue at some length, again holding that an order for a non-suit (without a direction by the court that such order shall have the same effect as a judgment upon the merits) was a final order because it finally determined the action between the parties, notwithstanding that the plaintiff was at liberty to bring another action. Her Honour stated:[18]
'The appellant was the plaintiff in an action in the Local Court of Adelaide in which he claimed from the defendant damages alleged to have been suffered by him in consequence of a trespass upon his land committed by the servants or agents of the defendant. It was claimed that the person or persons who had trespassed upon the land had left open a gate, and that cattle had strayed through the opening onto the land on which olive trees were growing and had damaged the trees'.
The Chief Stipendiary Magistrate who heard the claim delivered reasons for judgment at the conclusion of which he said:
'For these reasons in my view the plaintiff must fail. I think that the appropriate course may be to nonsuit the plaintiff pursuant to s 137 of the Local and District Criminal Courts Act 1926-1969 … but I will hear counsel on this aspect of the case.'
The order which was made after counsel had been heard was:
'Order that the plaintiff be nonsuited, but that such order shall not have the same effect as a judgment upon the merits.'
We were informed that the plaintiff elected to be nonsuited in the above terms rather than to have judgment entered for the defendant. Section 136 of the Local and District Criminal Courts Act enables the Court to nonsuit a plaintiff, and by s 137 'a nonsuit, if the court so directs, shall have the same effect as a judgment upon the merits for the defendant.' The order of the Special Magistrate in this case ensured that the plaintiff might bring a fresh action against the defendant for the same cause (Poyser v Minors); but the particular action was at an end. If the order was a final order then the appeal is properly instituted (s 58(1)); but if it was an interlocutory order then the plaintiff could appeal only with leave (s 58(2)). It was a final order because it finally determined the action between the parties, notwithstanding that the plaintiff was at liberty to bring another action (Coroneo v Kurri Kurri and Smith Maitland Amusement Co Ltd; and cf Salaman v Warner, applied by Lord Denning MR in Salter Rex & Co v Ghosh). The appeal therefore was properly instituted. (Emphasis added)
[18] (1971) 2 SASR 126, 132-133.
38The judgment of Bray CJ is to the same effect. His Honour applied Coroneo, and held that there was 'no doubt' that a non-suit under s 136 of the Local and District Criminal Courts Act 1926 (SA) was a final judgment, notwithstanding it 'not having the effect of a judgment on the merits' and that 'the plaintiff may be at liberty to bring another action for the same cause'".
Once complaint 70120/2021 had been withdrawn, the effect was to bring to an end the action between the parties, and therefore conclude proceedings before the Magistrate, in respect to that particular complaint. That is, the complaint no longer existed in any form in which the court was entitled to adjudicate upon it.
The learned Magistrate, however, determined that because complaint 34620/2021 and 34621/2021 were, in all material particulars, identical to the first complaint, and that complaint had not been dealt with, in the sense that it had been determined on its merits, the third and fourth complaints could, in effect, proceed in substitution of the first complaint. The learned Magistrate reasoned that the process of raising complaints 34620/2021 and 34621/2021, in lieu of complaint 70120/21, was nothing more than a "rationalisation and re-organisation" of the respondent's case. This was, in my view, an error.
The prosecution faced a difficulty with the validity of complaint 70120/21 because prima facie it offended the provisions of s 29 of the Justices Act. A presumably informed forensic decision was taken to not seek to argue for amendment of that complaint, or otherwise prosecute the complaint. Section 29 of the Justices Act provided various mechanisms, which may have been utilised, in an endeavour to address any defects. The respondent chose not to take any of the steps available to it pursuant to that provision, instead electing to institute new proceedings by the filing of the second complaint, and subsequently the third and fourth complaints. Once that decision had been taken it was necessary for the new complaints to comply with legislative requirements. The question before the learned Magistrate then was whether there was such compliance, and therefore, a proper basis for complaints 34620/2021 and 34621/2021, to be before the court.
For the new complaints to be validly before the court, they had to be raised in compliance with the Justices Act. They were not, because they were not made within the relevant time period. The fact the first complaint was made within the relevant limitation period could not save the subsequent complaints from being out of time, even in the circumstances where the charges were the same. Whilst the proceedings may have been in identical terms, they were new and separate proceedings and compliance with legislative requirements was necessary. Once the first complaint was withdrawn, the proceedings on that complaint were finalised. There is no statutory or common law power to re-enliven a finalised proceeding.
The only exceptions that may have saved the raising of complaints 34620/2021 and 34621/2021 were those provided for in ss 26(2) and (3) of the Justices Act. Neither exception applied to these proceedings.
Consent
The concept of consent has no work to do in this matter. A statutory bar against prosecution of the kind referred to in s 35(5) of the Police Offences Act cannot be waived, or made the subject of negotiation as if it were a private privilege. It is immaterial to the present case that there may have been a history of this occurring in practice (see R v Tate [1996] 1VR 662 at 665).
As the limitation period on criminal proceedings cannot be waived, even with the consent of both parties, it is unnecessary to consider whether consent was given in this case.
Section 29(1) of the Justices Act provides a default limitation period of six months in relation to simple offences. Sections 29(2) and (3) provide exceptions to the general rule but only where the matter of complaint may give rise to an indictable offence and the person, the subject of the complaint, has been charged with that indictable offence within the relevant period. Clearly, that has no application here. These sections exhaustively cover the field as to when a complaint can be made and in what circumstances. No waiver can be created by consent.
Disposition
For these reasons, I made the orders that I did.
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