Police v Childs - [2000] SASC 111

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Childs

Details

AGLC: Police v Childs [2000] SASC 111
Case: [2000] SASC 111
Decision Date: 28 April 2000

CaseChat Overview and Summary

The case of Police v Childs was an appeal against the dismissal of a charge by a Magistrate during a pre-trial conference. The respondent, who was charged with two counts of causing damage to property with intent or reckless indifference, pleaded guilty to the first count during the pre-trial conference. The Magistrate then dismissed the second count without hearing evidence from the parties. The appellant argued that the Magistrate had no power to dismiss the second count during a pre-trial conference or, if such power existed, that the Magistrate erred in not hearing evidence in support of the prosecution case and submissions from the prosecution in relation to that count.

The court held that while pre-trial conferences are intended to manage caseflow and explore the possibility of disposing of charges without a trial, they are not the appropriate forum for taking pleas or making final orders. The court found that the Magistrate had exceeded her powers by dismissing the second count without hearing evidence from the parties. The court allowed the appeal, set aside the order dismissing the second count, and remitted the matter to the Magistrates Court of South Australia for the hearing and determination of the second count before another magistrate. The court also emphasised the importance of clearly distinguishing between pre-trial conferences and open court proceedings to ensure that parties are aware of the forum in which they are speaking and whether the public may be excluded.

Orders