Police v Gray No. Scciv-01-473

POLICE v GRAY
[2001] SASC 136
Magistrates Appeal (Criminal)

DOYLE CJ This is an appeal against a decision by a Magistrate dismissing a complaint filed in the Magistrates Court.
The Magistrate’s decision
The complaint, made by a member of the Police Force, sought a restraining order against Mr Gray under s 99(1) of the Summary Procedure Act 1921 (“the Act”). The complaint alleged a reasonable apprehension that Mr Gray would, unless restrained, “behave in an intimidating or offensive manner” towards the alleged victim. It sought an order, identified simply as “a Restraining Order” against Mr Gray.
The complaint came before a Magistrate for trial on 22 February 2001. The abbreviated transcript indicates that the Magistrate said that the complaint was lacking in sufficient particulars. The Magistrate required the Police Prosecutor to obtain instructions. After a short adjournment the Prosecutor said that his instructions were not to apply to amend the complaint. The Magistrate then said:
“In my view the Complaint is deficient in that it fails to adequately identify the date upon which the intimidating and/or offensive behaviour occurred and fails to adequately identify with sufficient particularity what acts are alleged to constitute such intimidating or offensive manner. In that circumstance it is my view that the defendant is prejudiced.”
The Magistrate then made the order dismissing the complaint.
The Notice of Appeal simply asserts that the Magistrate erred in dismissing the complaint.
The proceedings in the Magistrate’s Court
It is necessary to give a little background information before dealing with the appeal.
The complaint was filed on 25 July 2000. As I have said, it simply asserts a reasonable apprehension that Mr Gray would behave in an intimidating or offensive manner towards the victim. No further particulars are given.
In accordance with what I understand is the usual practice, the complaint came before a Magistrate on 27 July in the absence of Mr Gray. Section 99C(2) permits the Court to make a restraining order in the absence of the defendant, even though the defendant has not been summoned to appear, on the basis of evidence received in the form of an affidavit: see also s 99C(3). An affidavit sworn by the alleged victim is recorded as having been tendered. The affidavit alleges that on 31 March 2000 Mr Gray elbowed the alleged victim, and made verbal threats to him. It alleges a second incident on 14 June 2000 when Mr Gray struck the alleged victim with his shoulder. A further incident on 23 July 2000 is alleged when Mr Gray kicked the alleged victim and made further threats against him. The victim says that Mr Gray knows the victim by sight, knows where he lives, and that the victim fears that Mr Gray may repeat his behaviour or carry out his threats. The victim also gave oral evidence in support of the complaint.
In the absence of Mr Gray, expressing the power conferred by s 99C(2) of the Act, the Magistrate made a restraining order on 27 July. Among other things the order restrains Mr Gray from approaching, contacting, molesting, assaulting, threatening or interfering with the peace and comfort of the alleged victim.
The Act requires that in such a case, after making an order in the absence of the defendant, the Court must summon the defendant to appear to show cause why the order should not be confirmed: s 99C(2).
Although it is not on the file provided by the Magistrates Court, I assume that a summons was issued to Mr Gray. The Court file contains an endorsement recording that a summons was to issue.
An affidavit filed by the appellant contains a copy of the restraining order made by the Magistrate, and of the summons that was apparently served on Mr Gray on 30 July 2000.
On 3 August 2000 there was a further hearing before a Magistrate. Mr Gray did not attend. The order was confirmed.
Subsequently, Mr Gray appealed to the Supreme Court against the making of the confirming order. There was no opposition to the setting aside of the order, and such an order was made by a Judge of this Court. The matter was returned to the Magistrates Court. After several adjournments it came on for hearing before the Magistrate on 22 February, 2001.
An affidavit sworn by Mr Clough, a Clerk employed by the Crown Solicitor, establishes that on 23 October 2000 he posted to Mr Gray a copy of an affidavit of the Police Prosecutor, to which affidavit is exhibited the affidavit of the alleged victim originally filed in support of the complaint, and the short evidence given by the alleged victim, in the absence of Mr Gray, on 27 July 2000.
Is the complaint defective?
The complaint is made under s 99(1) of the Act. Section 99 is to be found in Division 7 of Part 3 of the Act. This Division is headed “Restraining Orders”. I set out here for convenience the provisions of the Act that are of particular importance to this appeal.
“Restraining orders
99. (1) On a complaint under this Division, the Court may make a restraining order against the defendant if –
(a)there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b)the Court is satisfied that the making of the order is appropriate in the circumstances.
(2)    For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions –
(a)the defendant follows a person; or
(b)the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c)the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d)the defendant gives offensive material to a person or leaves offensive material where it will be found by, given to or brought to the attention of a person; or
(e)the defendant keeps a person under surveillance; or
(f)the defendant takes any other action in relation to a person or a person’s property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
…
Issue of restraining order in absence of defendant
99C. (1) A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.
(2)    A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
(3)    The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case –
(a)the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b)if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
…
(5)    The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on which the adjournment is ordered, unless the Court is satisfied –
(a)that a later date is required to enable the summons to be served; or
(b)that there is other adequate reason for fixing a later date.”
There are other provisions in Division 7 that I have not set out. Some warrant a brief mention. Section 99AA provides for the making of what are called “paedophile restraining orders”. These are orders restraining persons, against whom certain matters are proved, from loitering near children. Section 99B provides for the making of a complaint seeking a restraining order, and the making of the restraining order, by telephone. This section, like s 99C, provides for the issue of a summons calling upon the defendant to show cause why a restraining order should not be confirmed, if an initial restraining order is made in the absence of the defendant.
The provisions of s 99 and s 99C of the Act confer jurisdiction on the Magistrates Court to make the restraining order in the present case, and they provide for the proceedings to be initiated and conducted on the making of a complaint. Rules to be found in the Magistrates Court Rules 1992 provide for the form of complaint to be used under s 99, and for other forms required under Division 7.
The provisions in Division 7 do not constitute a complete code governing claims for a restraining order. It is clear that other provisions of the Act are capable of applying to proceedings for a restraining order. Whether a particular provision does apply depends on the contents of that provision, compared with the provisions to be found in Division 7.
It is to be noted that a complaint that seeks a restraining order, and a summons issued on such a complaint, do not require the complainant to state “the matter charged against any person”, or to state an offence with which the defendant to the complaint is charged. In my opinion there is no reason to read provisions such as s 22A of the Act, dealing with the complaints and summonses stating a matter charged, and alleging an offence, as applicable to a complaint that seeks the making of a restraining order. A complaint that seeks a restraining order under s 99 does not allege an offence. It is an application to the Court to have an order made, which order may be made only if the complainant proves a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner, and only if the Court is satisfied that it is appropriate to make the order.
To obtain an order the complainant does not have to prove that an offence has been committed. The complainant need prove only such facts as give rise to a reasonable apprehension of the kind identified by the Act, and such facts as might satisfy the Court that it is appropriate to make the order.
There was a good deal of case law under the Justices Act, as the Act was previously known, relating to the requirements for a valid complaint alleging an offence: see John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-522, Mason CJ, Deane and Dawson JJ and the cases referred to therein, and in particular Johnson v Miller (1937) 59 CLR 467, Reedy v O’Sullivan [1953] SASR 114 and Lafitte v Samuels (1972) 3 SASR 1. It may be that notwithstanding various provisions in the Act, and the somewhat different provisions previously found in the Justices Act, a complaint alleging an offence, or a summons issued on such a complaint, is valid only if the complaint identifies “the essential factual ingredients of the actual offence”: John L Pty Ltd at 519. What that requires in a given case depends upon the circumstances.
But, as I have already indicated, in my opinion there is no reason to read s 22A of the Act in particular, which is now the relevant provision, as applying to a complaint that seeks the making of a restraining order. Such a complaint is not one referred to by s 22A. Nor is there any reason to return to the common law provisions relating to the validity of complaints or informations alleging an offence, a topic considered in John L Pty Ltd.
As neither the Act nor the Magistrates Court Rules (apart from prescribing a form) make any provision for the manner in which the complaint is to be expressed, it is appropriate to return to fundamental principles of justice. They are principles intended to ensure a fair and efficient hearing. Those principles are to be treated as applicable unless clearly excluded by statute. In my opinion those principles require only that, to be valid, a complaint must identify for the Court, and ultimately for the defendant, the relief that is claimed, and the jurisdiction and power of the Court that is invoked for the grant of that relief. In the present case the complaint invokes the jurisdiction conferred by s 99(1), and seeks a restraining order of the kind envisaged by s 99(1) and provided for by s 99(3), which enables the Court to “impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner”. There is no provision in the Act that requires any greater detail for the complaint to be valid. Nor is there any reason to read the provisions of the Act as contemplating anything more than that.
A complaint that satisfies these requirements adequately identifies the jurisdiction invoked and the relief sought. In the exercise of the jurisdiction conferred by Division 7, there is no need to require the kind of particularity, for a valid complaint, that is required when an offence is alleged. I will deal in a moment with the obligation to provide particulars necessary to ensure a fair trial.
Accordingly, in my opinion the complaint as made is a valid complaint. The summons served on the defendant is a valid summons.
Section 181 of the Act provides as follows:
“Charges
181. (1) An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may –
(a)amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)dismiss an information or complaint if the defect cannot appropriately be cured by amendment.”
In my opinion there is no defect of substance or of form in the complaint. Accordingly, no question arises of an amendment to the complaint, nor was there any reason to dismiss the complaint on the basis that it contained a defect of substance or of form.
Particulars
Nevertheless, the fact remains that the complaint did not contain particulars of the matters that the complainant alleged, and would seek to prove, as a basis for inviting the Court to conclude that there was a reasonable apprehension of the type identified by s 99(1)(a). In the usual case, one would expect those particulars to identify past behaviour by a defendant which was intimidating or offensive, or past occasions when the defendant had caused or threatened to cause personal injury or damage, together with circumstances supporting the suggestion that such conduct might occur again in the future. Section 99(2) might be said to suggest that an order should be made if it is proved that a defendant has behaved in the manner described in that provision on two or more separate occasions. But the issue for the Court under s 99(1) is whether there is a reasonable apprehension that such behaviour will occur in the future. Proof of some or all of the matters identified in s 99(2) is no more than a step along the way. Proof of past behaviour described in s 99(2) is not essential to obtain a restraining order, although such proof will usually be the basis of an application. Nor is proof of such past behaviour sufficient to obtain a restraining order. The order will be made only if there is also a reasonable apprehension of such behaviour in the future.
Be that as it may, when a complaint is made under s 99(1), the Court is entitled to require the complainant to provide particulars of the matters to be alleged by the complainant, to enable the Court to conduct the proceedings in a fair and efficient manner. Should the defendant appear to answer the complaint or summons, the defendant is entitled to adequate particulars of the allegations made against the defendant, to ensure that the defendant receives a just hearing: see Johnson v Miller at 489-490 Dixon J, at 497-498 Evatt J, at 501-502 McTiernan J.
But the fact that such particulars are not provided in the complaint, or in the summons issued on a complaint, does not mean that the complaint or the summons are invalid. It is sufficient if those particulars are provided, when required, to the Court and to the defendant.
The Magistrate was entitled to require the complainant to provide adequate particulars of the matters alleged against the defendant as the basis for the making of an order, even if the defendant made no such application. But the Magistrate was not entitled to require the complaint to be amended. The Magistrate was not entitled to so require, because the complaint was not defective as it stood. It was sufficient if the required particulars were provided by way of amendment or were provided separately.
In the present case, the alleged victim had sworn an affidavit setting out allegations against the defendant, and had given brief sworn evidence in support of that affidavit. The material in the affidavit was capable of providing sufficient particulars of the allegations against the defendant, assuming that the complainant was prepared to proceed on the basis of those allegations. There is no suggestion in the present case that the complainant asserted the right to present a case that differed from the case made out in the affidavit. Accordingly, as particulars had, in effect, already been provided, there was no basis upon which the Magistrate was entitled to conclude that the defendant would be prejudiced if the complaint was not amended. The material already provided to the defendant gave sufficient particulars of the allegations against the defendant.
The Magistrate was quite entitled to require the complainant to indicate that the complainant did not intend to depart from the allegations already provided by way of affidavit. But, as I have already said, there is no suggestion that the complainant was asserting a right to do this.
Accordingly, in my opinion, the Magistrate erred in dismissing the complaint. Adequate particulars had already been provided. As things stood, there was no prospect of the defendant being prejudiced were the hearing to proceed on the basis of those informal particulars. The Magistrate erred in dismissing the complaint. At most, the Magistrate could have called on the complainant to confirm that the allegations in the alleged victim’s affidavit were to be treated as particulars of the matters alleged against the defendant.
For those reasons I order that the appeal be allowed, that the order dismissing the complaint be set aside, and that the matter be remitted to the Magistrates Court to enable the defendant to appear before the Court to show cause why the order previously made should not be confirmed.

[2001] SASC 136

2 May 2001