Police v Childs

POLICE v CHILDS
[2000] SASC 111

Magistrate’s Appeal - Criminal

BLEBY J (Ex tempore): The respondent was charged on complaint with two counts of causing damage to property with intent or reckless indifference and without lawful authority, contrary to s.85 of the Criminal Law Consolidation Act. Both offences were alleged to have occurred on the same day, namely 6 June 1999 at Smithfield Plains. The first count concerns damage to the security door of a house, the property of the South Australian Housing Trust. The second count concerned damage to a car, the property of Amanda Jane Sewell.
The respondent’s first appearance on the complaint was on 17 August 1999. The matter was adjourned to 28 September 1999 to enable the respondent to obtain legal advice. On that day he was represented, and the matter was adjourned to a pre-trial conference to be held on 23 November 1999. For some reason that conference was advanced by one day, and the pre-trial conference was then adjourned to 1 February 2000.
On that day the respondent was represented by counsel and the pre-trial conference proceeded. A number of issues were discussed following which the respondent instructed his counsel that he would plead guilty to count 1 on the complaint. It seems to have been accepted that that should be dealt with forthwith. The charge on count 1 was read and the respondent pleaded guilty. The prosecutor then summarised the relevant facts before the Magistrate and then informed the Magistrate that count 2 might still be resolved. He asked that the matter be held in the list for a short time to enable the prosecutor and the respondent’s counsel to discuss the matter further. The Magistrate refused that request and dismissed count 2 on the complaint without hearing from the parties. She then, without recording a conviction on count 1, ordered that the respondent pay $34.20 compensation to the South Australian Housing Trust. No further penalty was imposed.
The appellant now appeals against the dismissal of count 2 by the Magistrate. It is alleged that the Magistrate had no power to dismiss count 2 during a pre-trial conference. Alternatively it is alleged that if she did have such power, the Magistrate erred in not hearing evidence in support of the prosecution case and submissions from the prosecution in relation to that count.
The respondent did not appear on the date first fixed for the hearing of this appeal due to a misunderstanding as to which court he should attend. He subsequently appeared, unrepresented, and the hearing at his request was further adjourned. When the appeal was finally argued, the respondent did not appear, although he had been in court when the adjourned date for the hearing was fixed, and he understood that the matter would proceed today. I therefore heard argument in his absence.
There can be no doubt that the proceedings conducted on 1 February were intended to be no more than a pre-trial conference. A trial date had been fixed for 23 February and summonses to witness had been issued for that date.
Section 49(1) of the Magistrates Court Act 1991 confers on the Chief Magistrate, the Deputy Chief Magistrates and any two or more other magistrates the power to make rules to regulate the practice and procedure of the court. Rule 8 of the Magistrates Court Rules 1992 provides for a system of caseflow management in respect of criminal matters. As part of that scheme Rule 26 provides for the holding of pre-trial conferences. That rule provides:
“26.01...... Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law so as to:
(a).... fully explore the possibility of disposing of the charge other than by way of trial;
(b)enable the duration of the hearing to be estimated as accurately as possible;
(c).... determine what evidence if any may be proved by affidavit;
(d)facilitate the course of the trial,
and shall inform the court as to each of the above.
26.02........ To the extent necessary to comply with this rule the parties must confer fully and frankly.
26.03 Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses.
26.04........ Insufficient compliance with this rule must be taken into account on the question of costs.
26.05 To ensure compliance with rule 8 and this rule the court may on notice to the parties require that they attend a pretrial conference.
26.06........ A pretrial conference may be presided over by such person as the court may nominate.”
That rule is a valid rule but it must be read subject to the defendant’s common law right to silence: Ling v Police (1996) 90 A Crim R 376. The rule does not and cannot confer judicial power on the officer conducting the conference. His purpose is purely procedural, to assist in the proper processes of caseflow management.
It is clearly not intended that any orders disposing of proceedings should be made during the course of a pre-trial conference. Such a conference need not even be presided over by a magistrate: Rule 26.06. However, this conference was presided over by a magistrate, and it appears that the conference was at least able to resolve matters concerning count 1. It was no doubt convenient there and then for the charge to be formally read and the plea taken and the matter dealt with. However, that could not have been done as part of a pre-trial conference. The inference to be drawn from the brief outline of the proceedings deposed to in the prosecutor’s affidavit is that the prosecutor, the respondent and the Magistrate agreed that the court should convene forthwith to deal with count 1 in the manner agreed to in the conference. That could only have been done with the consent of the parties. There was already a trial date fixed for another day.
When the charge was read and the plea taken and the submissions made as to count 1, the Magistrate was plainly no longer presiding over a pre‑trial conference but, by arrangement between the parties, was sitting as a magistrate in open court. It appears that it was in that capacity that the Magistrate dismissed count 2. She then proceeded to make the orders in relation to count 1. At the time the Magistrate dismissed count 2 she was certainly not presiding over a conference. I therefore reject the appellant’s submission that the Magistrate had no power to do what she did because she was presiding over a conference. However, she also had no power to dismiss the complaint if in fact she was presiding over a pre‑trial conference.
That does not mean to say that there was any justification for what the Magistrate in fact did. She was sitting in open court. The preceding pre‑trial conference had not adequately discussed any question which might bring about a resolution of count 2. That was implicit from what the prosecutor told the Magistrate, namely that count 2 might be resolved, and from the prosecutor asking that the matter be held in the list for a short time to enable him and counsel for the respondent to discuss the matter further. That request was peremptorily refused, and count 2 was dismissed. It appears that occurred without even a plea to count 2 being taken.
It was not necessary for the two counts to be dealt with in the same proceedings: s 51, Summary Procedure Act 1921
This was a situation where both parties had appeared before the court. Section 64 of the Summary Procedure Act requires in those circumstances that the court “shall proceed to hear and determine” the matter of the complaint. The course that the court takes depends on whether the defendant enters a plea of guilty or not guilty to the complaint. In the former case, s 67 of the Summary Procedure Act provides that the court may proceed to convict the defendant or make an order against him. Section 15 of the Criminal Law (Sentencing) Act 1988 enables the court, if it finds the offence so trifling that it is inappropriate to impose any penalty, without recording a conviction, to dismiss the charge or to record a conviction and to discharge the defendant without penalty. Section 16 of that Act allows the court to impose a penalty without conviction under certain conditions. However, in either case, those powers can only be exercised where the court finds the person guilty of the offence. Such a finding can only be on the defendant’s own plea of guilty or after hearing the evidence and finding the complaint proved. It was the respondent’s formal plea in this case which enabled the Magistrate to take the course she did in relation to count 1.
If a plea of not guilty is entered, s 68 of the Summary Procedure Act requires the court to hear the complaint and the complainant’s witnesses and any other evidence which may be adduced in support of the complaint. It also requires the court to hear the defendant and the defendant’s witnesses and any other evidence which may be adduced by way of defence. It must then, in certain circumstances, hear any evidence of the complainant in reply. An opportunity must be given for addresses: s 68(3). It is only after all that has happened that the court is to consider the whole matter and determine the complaint, and then convict or make an order against the defendant or dismiss the complaint, as the case may require: s 69 Summary Procedure Act. It is open to the court, after hearing the evidence and addresses, to exercise the powers under s 15 or s 16 of the Criminal Law (Sentencing) Act in an appropriate case.
Therefore, what the Court was required to do depended on the plea that was entered by the respondent. The court has no power to dismiss a complaint before a plea is taken unless a successful objection is taken to the form of the complaint, and it is not or cannot be amended. However that was not this case. As no plea was taken on count 2 the Magistrate exceeded her powers by purporting to dismiss count 2 of the complaint. Even if a plea of guilty had been entered, she would still have been obliged to hear the prosecutor and the respondent as to the appropriate course then to be taken. The proceedings before the Magistrate therefore miscarried and the appeal must be allowed.
Before concluding the matter, however, I should add that it is apparent from the appellant’s submission that there may have been some confusion as to whether the Magistrate was only ever presiding over a pre‑trial conference. I would not wish to discourage the procedure whereby, if a pre‑trial conference has resolved a matter so that it may be disposed of forthwith, it should be so dealt with, if all the parties are in agreement. It must be realised, however, that it is inappropriate for a plea to be taken and for final orders to be made in the course of a pre‑trial conference, a matter held in private. I have inferred in this case that with the express or complied consent of all parties the conference ended to enable the plea on count 1 to be taken forthwith. It is desirable, however, that the transition be clearly observed, and that the magistrate announce that he or she, with the consent of the parties, is now sitting in open court. Likewise, if after sitting in open court, the magistrate is to resume a pre‑trial conference, the position should be made quite clear so that the parties know in what forum they are speaking, and whether members of the public may properly be excluded.
The appeal is therefore allowed. The order of the Magistrate purporting to dismiss count 2 of the complaint is set aside. The matter is remitted to the Magistrates Court of South Australia for the hearing and determination of count 2 of the complaint before another magistrate on a date to be determined by that Court upon appropriate notice being given to the respondent.

[2000] SASC 111

28 April 2000