Police v BEARD

[2010] SASC 49

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v BEARD

[2010] SASC 49

Judgment of The Honourable Justice Duggan (ex tempore)

17 February 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - WITHDRAWAL OR STRIKING OUT OF INFORMATION OR COMPLAINT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - DISMISSAL - GENERAL MATTERS

Appeal against summary dismissal of complaint – respondent charged with damaging property contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) – no plea entered by respondent – Magistrate summarily dismissed complaint at pre-trial conference – pre-trial conference not converted into open court – whether Magistrate had power to dismiss complaint.

HELD:  appeal allowed – procedure for hearing of complaint  set out in ss 64, 67,68 and 69 of the Summary Offences Act 1921 (SA) – case flow management system provided for in r 8 of the Magistrates Court Rules 1992 (SA) must be read subject to statutory requirements – no power for Magistrate to summarily dismiss a matter at a pre-trial conference nor in the absence of procedural requirements found in ss 64, 67,68 and 69 of the Summary Offences Act 1921 – the order for dismissal of the complaint set aside – matter remitted for trial before another Magistrate.

Criminal Law Consolidation Act 1935 (SA) s 85(3); Summary Procedure Act 1921 (SA) s 64, s 67, s 68, s 69     ; Magistrates Court Rules 1992 (SA) r 8, r 26 , referred to.
Police v Childs (2000) 76 SASR 425; Police v Turbitt (2005) 92 SASR 480; Police v Slater (2003) 86 SASR 189; Police v Long & Long [2004] SASC 381, applied.
Rona v District Court of South Australia and Anor (1995) 63 SASR 223, distinguished.

POLICE v BEARD
[2010] SASC 49

Magistrates Appeal:   Criminal

1. DUGGAN J (ex tempore):             This is a prosecution appeal against the summary dismissal of a complaint by a Magistrate at the Port Adelaide Magistrates Court.

2. The respondent was charged with damaging property contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that the offence took place on 23 December 2008. The complaint was dismissed at a pre-trial conference on 9 December 2009.

3. It is conceded by the appellant that there were lengthy delays in the case and that there was a lack of diligence on the part of the prosecution in fulfilling the requirements of disclosure of the prosecution case. It is unnecessary to trace the history of that dilatoriness.

4. The sole issue in the case is whether the Magistrate had power to dismiss the complaint in the circumstances in which he did.

5. The procedure followed by the Magistrate has been discussed in Police v Childs,[1] Police v Slater,[2] Police v Turbitt[3] and Police v Long & Long.[4] 

   [1] (2000) 76 SASR 425.

   [2] (2003) 86 SASR 189.

   [3] (2005) 92 SASR 480.

   [4] [2004] SASC 381.

6. The following propositions emerge from these cases.

   1.The procedure for hearing and determining a Magistrates Court matter in which the defendant pleads guilty or not guilty is set out in ss 64, 67, 68 and 69 of the Summary Procedure Act 1921 (SA).

   2.These provisions require that the final disposal of the matter must take place at a properly convened hearing with a Magistrate sitting in open court.

   3.Rule 8 of the Magistrates Court Rules 1992 (SA) provides for a system of case-flow management in the Magistrates Court and as part of that system rule 26 provides for the holding of pre-trial conferences. The purpose of such conferences is procedural and is aimed at assisting the processes of case-flow management.[5]

   4.Although a pre-trial conference may be converted in to a hearing in open court before the Magistrate, it must be made clear that this procedure is being adopted and that the procedural requirements of the taking of a plea and the subsequent conduct of a trial or sentencing hearing are observed.

   5.The Magistrate cannot summarily dismiss a matter at a pre-trial conference nor can the matter be dismissed in the absence of the procedural requirements to which reference has been made.

   6.The case-flow management system provided for in the rules must be read subject to the statutory requirements. In an appropriate case an application may be made for a permanent stay on the ground of an abuse of the process of the Court. This procedure is available in a wide variety of circumstances which include a situation where the prosecutor has misused the rules of procedure.[6]  In a less serious case it may be appropriate for the Court to make costs orders against the prosecution.

   [5]    Police v Childs (2000) 76 SASR 425 at [8].

   [6]    Rona v District Court of South Australia and Anor (1995) 63 SASR 223 at 227.

7. In the present case it was not argued by counsel for the respondent that the Magistrate was at liberty to summarily dismiss the complaint in the manner in which he did. That concession is properly made. The order was made at a pre‑trial conference and no plea was taken. There had been no application for a permanent stay of the matter.

8. The appeal will be allowed and the order for dismissal of the complaint will be set aside. The matter will be remitted to another Magistrate for trial.