Police v Clements - [2006] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v CLEMENTS
[2006] SASC 219
Judgment of The Honourable Justice David
26 July 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS PRACTICE CASES
Crown appeal from decision of Magistrate dismissing complaint against the respondent - Respondent unable to be brought to Court from Cadell Training Centre where he was on remand - The non-attendance was not the fault of either the appellant or the respondent, who were both ready to proceed with the trial - Held: the Magistrate failed to comply with the mandatory requirement of s 68 of the Summary Procedure Act - The Magistrate erred in failing to adjourn the matter - Appeal allowed.
Summary Procedure Act 1921 s67 s68 s69, referred to.
Police v Long and Long [2004] SASC 381; Gray v Police (2003) 85 SASR 1, discussed.

POLICE v CLEMENTS
[2006] SASC 219
Magistrates Appeal: Criminal

David J: This is an appeal by the Police against an order made by a magistrate on 2 May 2006. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991. The respondent, Daniel Richard Clements, was charged on a complaint which alleged that on 10 September 2004 he assaulted Troy Smith, contrary to s 39(i) of the Criminal Law Consolidation Act 1935. After a number of appearances, the magistrate struck out the complaint. It is from that order that the Police now appeal.
From the affidavits of two police prosecutors, Timothy Pfeiffer and Sharon Fulcher, an affidavit of George Katsaras, who acts for the respondent and the magistrate’s written reasons, I set out a brief history of the matter:
1. The first court appearance was on 24 September 2005.
2.On 9 February 2005 the matter was listed for pre trial conference on 9 March 2005.
3.On 9 March 2005 the Court was advised that the prosecutor had been on leave and the matter was adjourned until 25 May 2005.
4.On 25 May 2005 the matter was listed for trial, commencing on 9 December 2005.
5.On 18 November 2005 that trial date was vacated on application from the prosecution. A fresh trial date of Tuesday 2 May 2006 was set.
6.On 27 April 2006 the Court received a memo from the Support Services Supervisor of the Cadell Training Centre, where the appellant was being detained, indicating that they were unable to bring him to court until 2.00pm on 2 May 2006.
7.After communications between the Cadell Training Centre and the magistrate, it was made clear that the appellant must be at court at 10.00am on 2 May 2006.
8.On 1 May 2006 the magistrate informed Mr Katsaras, who was then acting for the appellant, and the prosecution, that if the defendant was not present as the Court required on 2 May 2006, the magistrate would consider striking out the complaint for unfairness.
9.On 2 May 2006 the matter was called on for trial at 10.00am and everybody was present, including the appellant’s…

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 Clements

Details

AGLC: Police v Clements [2006] SASC 219
Case: [2006] SASC 219
Decision Date: 26 July 2006

CaseChat Overview and Summary

In the case of Police v Clements, the Crown appealed a decision of a magistrate who dismissed a complaint against the respondent. The respondent, who was on remand at Cadell Training Centre, was unable to be brought to court for the trial, which had been repeatedly adjourned. Both the appellant and the respondent were prepared to proceed with the trial, but it could not commence due to the respondent's non-attendance. The magistrate dismissed the complaint, leading to this appeal.

The primary legal issue before the court was whether the magistrate complied with the mandatory requirements of s 68 of the Summary Procedure Act, which mandates that a trial must proceed in the absence of the respondent if they are unable to be brought to court through no fault of their own. The court had to determine whether the magistrate correctly exercised their discretion under the statute and if the complaint should have been struck out.

The court held that the magistrate did not adhere to the mandatory requirement of s 68, as the respondent's non-attendance was not due to any fault of the appellant or the respondent. Consequently, the magistrate erred in not adjourning the matter. Given this error, the appeal was allowed, and the magistrate's order dismissing the complaint was set aside. The complaint was remitted to the Magistrates Court for further hearing and determination. The court also noted that it would hear the parties on the issue of costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I realise the magistrate was in a very frustrating position because a trial which had been adjourned on a number of occasions was delayed by forces outside of the control of the court or the parties. However, in my opinion the order striking out the complaint should be set aside.Conclusion For the reasons I have given, I make the following orders:1.The appeal is allowed and the order made by the magistrate is set aside.2.The complaint is remitted to the Magistrates Court for hearing and determination. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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