Police v FRANCIS - [2004] SASC 326

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v FRANCIS

Judgment of The Honourable Justice White (ex tempore)

13 October 2004

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - DELAY

Magistrate ordered that proceedings be dismissed as an abuse of process - Delay was said to constitute the abuse - Delay was not the fault of the prosecution - No evidence that respondent could not receive a fair trial - Magistrate erred in failing to hear submissions from parties before making the order for dismissal - Appeal allowed.
Magistrates Court Act 1991, s 42, referred to.
Papps v Police (2000) 77 SASR 210, applied.
Jago v District Court (NSW) (1989) 168 CLR 23, considered.

POLICE v FRANCIS
[2004] SASC 326

Magistrates Appeal (ex tempore)

WHITE J: This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, from a decision of a Magistrate made on 17 August 2004 by which he dismissed the complaint as an abuse of process.
The appellant was charged with the offence of receiving, it being said that that offence occurred on 27 January 2003. The appellant was charged by a complaint laid on 12 February 2003.
Between that date and 17 August 2004, the matter came on in the Magistrates Court on a number of occasions.
Having regard to the reason given by the Magistrate for his dismissal of the charge on 17 August, I propose to say a little about the history of the matter subsequent to 12 February 2003.
When the matter first came on in the Magistrates Court on 25 February 2003, the matter was adjourned on the respondent’s request as he intended to seek legal advice. Bail was granted to him.
The respondent did not appear when the matter next came on on 8 April 2003 and a warrant for his arrest was issued.
The file shows that the respondent was arrested on 1 September 2003 and again appeared in court on that day. Bail was granted to him and the matter was adjourned to 9 October 2003.
On that occasion, the matter was adjourned to 11 November 2003, with the file showing again that the respondent intended to seek legal advice.
The respondent did not appear on 11 November 2003. A warrant was issued, although it was directed that it lie on the file. The respondent did appear on the next occasion, 18 November 2003. The warrant was recalled, a plea of not guilty was entered and an order was made that the bail which had been granted to the respondent continue. The matter was adjourned to 29 January 2004.
On that occasion, a trial date of 6 July 2004 was set and it was ordered that a pre-trial conference take place on 4 June 2004. The pre-trial conference did take place on 4 June 2004 and the trial date of 6 July 2004 was confirmed.
On 24 June 2004 one of the guarantors who had provided a guarantee in respect of the respondent’s bail applied to be discharged from that guarantee and an order to that effect was made on 30 June 2004. On that occasion, a Magistrate adjourned the matter to 17 August 2004. It appears that that Magistrate must then have overlooked that the matter had been listed for trial on 6 July 2004.
In any event, for whatever reason, the matter was taken out of the listing arrangements for 6 July 2004. Why that occurred is not known to either party. Each attended on 6 July 2004 in anticipation that the trial would proceed. The prosecution attended with its witnesses and the respondent appeared with his counsel. Because the matter had not been listed by the Magistrates Court for that day, the matter was then adjourned to 17 August 2004, as I understand it, for a directions hearing or a pre-trial conference.
The matter was called on in the course of a pre-trial conference on 17 August 2004. I add that the respondent was also appearing on that day in relation to other charges.
On the hearing of the appeal, I received an affidavit from Andrew Paech sworn on 1 October 2004. That affidavit recounts the events which occurred when the matter was called on before the Magistrate in respect of this matter on 17 August 2004. Mr Paech’s affidavit recounts that the Magistrate, without an application from the respondent and without hearing from either party, dismissed the complaint stating that it was “an abuse of process”. The Magistrate identified delay as constituting the abuse of process.
The prosecution has appealed against that order of dismissal. Ms O’Connor, who has appeared for the respondent, concedes that the appeal ought to be allowed. In my opinion, that concession is well made and it is appropriate that this Court allow the appeal and set aside the order of dismissal.
In my respectful opinion, the Magistrate made a number of errors in making the order for dismissal of the proceedings on 17 August 2004. First, the Magistrate indicated, as his reason for dismissing the proceedings, that the delay constituted the proceedings an abuse of process. Presumably the Magistrate meant by this that the continuation of the proceedings in circumstances where he considered that had been delay constituted the proceedings an abuse of process.
The history which I have earlier recounted indicates that very little, if any, of the elapse of time which had occurred since the complaint was first laid was to be attributed to the conduct of the prosecution. In particular, it can be seen that some elapse of time is explained by the fact that the respondent had not answered his bail, some of the elapse of time is explained by the long period between the date when the matter was first listed for hearing and when the matter could be heard, namely, 6 July 2004; but most critically, there is the fact that the trial did not proceed on 6 July 2004 apparently because of an administrative oversight or administrative mistake within the Magistrates Court itself. In all these circumstances it could not reasonably be held that the elapse of time constituted a delay by the prosecution such as to make its continuation of the proceeding an abuse of process.
Even if there was delay, that did not, of itself, amount to an abuse of process. There are some circumstances in which a lengthy elapse of time can make continuation of proceedings so unfair as to constitute an abuse of process because it can bring about circumstances in which an accused will be denied a fair trial.[1] It is a rare case in which delay by itself will have that effect. Usually some additional factor such as the loss of an important witness, or loss of evidence is required before it can be said that a fair trial will not be possible. There was nothing to indicate that circumstances of that kind existed in this case. The respondent himself had not made any submission to that effect, nor had he foreshadowed such a submission.
[1] Jago v District Court (NSW) (1989) 168 CLR 23.
In addition, the Magistrate was, in my respectful opinion, mistaken in making the order for dismissal without giving either party an opportunity to be heard. Each party was entitled to procedural fairness. That included an entitlement to be heard before the order of dismissal was made.
Furthermore, the Magistrate’s reasons for dismissing the charge were, in my respectful view, perfunctory. Mr Paech recounts in his affidavit that, immediately after the order was made, he requested the Magistrate to give reasons for the dismissal of the charge, but the Magistrate declined to do so. The obligations of judges and Magistrates to give adequate reasons for decisions are well established. It is sufficient to refer, in this respect, to the decision of the Full Court in Papps v Police (2000) 77 SASR 210.
In all the circumstances, the decision of the Magistrate to dismiss the complaint which had been laid on 12 February 2003 seems inexplicable.
For these reasons, I consider that the appeal should be allowed. The orders of the court are:
1.The appeal is allowed.
2.The order dismissing the proceedings made by the Magistrate on 17 August 2004 is set aside.
3.The matter is remitted to the Magistrates Court for further hearing.