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 solicitor and the prosecution witnesses but the appellant had not been brought from Cadell. The magistrate then struck out the complaint.
It was clear that the non-appearance of the appellant was not the fault either of the appellant himself, nor the authorities who were prosecuting him. In submissions that were put before the magistrate, the prosecution asked that the matter proceed, even without the appellant, and the defendant’s counsel submitted that the complaint should be struck out because of unfairness. There appeared to be no consideration given to the obvious alternative of allowing a further adjournment until the defendant could be present.
Issues on Appeal
The appellant argued that the magistrate had no power to strike out the complaint in the way he did. It was argued that the complaint was dismissed in circumstances in which the procedure required by ss 67, 68, 69 of the Summary Procedure Act 1921 had not been complied with. I set out those sections:
67    When defendant pleads guilty, court to convict or make an order
(1)     When the defendant is present at the hearing the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be).
(2)     If the defendant admits the truth of the complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the court shall convict him or make an order against him accordingly.
68    Procedure on plea of not guilty
(1)     If the defendant does not admit the truth of the complaint the court shall proceed to hear—
(a)the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and
(b)the defendant and his witnesses and any other evidence which he adduces in his defence; and
(c)any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character.
(2) Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.
(3)    The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.
69    After hearing the parties court to convict or dismiss
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.
It was argued that as the respondent had not admitted the truth of the complaint and was clearly pleading not guilty, therefore s 68 should have been followed before the complaint could be dismissed. I was referred to the judgment of His Honour Justice Besanko in Police v Long and Long [2004] SASC 381. In that matter His Honour held that the procedures of ss 67, 68, 69 are mandatory.
It was argued by Mr Katsaras for the appellant that the magistrate was correct in dismissing the complaint and that in a sense his dismissal was equivalent to a permanent stay. He argued that irrespective of the relevant sections in the Summary Procedure Act, a magistrate in South Australia has the power to stay proceedings where the trial would be unfair. His authority for that proposition was the decision of Gray v The Police (2003) 85 SASR p 1 at p7, where His Honour Justice Gray said:
The conclusion to be drawn from these statements of principle is that the Magistrates Court in South Australia has the power to permanently stay proceedings where the prosecution of criminal proceedings will result in a trial that is unfair and an abuse of the processes of the court. The cases suggest that this power will only be exercised sparingly where good reason exists.
Even if there is such a power by the Magistrates Court to determine a stay of proceedings, and even if the magistrate in this case in essence stayed the proceedings instead of dismissing them, in my view he erred in doing so. In his reasons the magistrate said:
It would be unfair to proceed with the trial without the presence of the defendant, and it would be inappropriate to adjourn and delay the hearing of this matter any further. The next available date would be in November 2006 and I therefore proceed to strike out the complaint.
In my view the magistrate did not comply with the relevant sections of the Summary Procedure Act when dismissing the complaint and therefore did not have the power to do so in the absence of the appellant. If he did have a power to stay the proceedings, and that was in fact what he did, that power should only be exercised as a last resort to ensure a fair trial. There was clearly a way to allow a fair trial, and that was to adjourn the matter and conduct the trial in the normal way.
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.