Police v J, RPH - [2007] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v J, RPH
[2007] SASC 79
Judgment of The Honourable Justice Sulan
8 March 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - WITHDRAWAL OR STRIKING OUT OF INFORMATION OR COMPLAINT
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
Appeal against the dismissal by a Magistrate of a complaint - respondent charged with assault - respondent a youth at the time of the alleged offence - complaint laid in the Magistrates Court instead of the Youth Court - Magistrate dismissed the complaint and provided no reasons for so doing - consideration of whether s 57(2) of the Young Offenders Act 1993 empowers a court to transfer proceedings to an appropriate court - failure of Magistrate to give reasons for his decision - appeal allowed.
Children's Protection and Young Offenders Act 1979 s 86(2); Criminal Law Consolidation Act 1935 s 39(1); Summary Procedure Act 1921 s 52; Young Offenders Act 1993 s 16, s 57(2), referred to.
Mill v Tomlinson (Mohr J, 31 August 1990, unreported); Papps v Police (2000) 77 SASR 210; Rowland v Police (2001) 79 SASR 569, considered.

POLICE v J, RPH
[2007] SASC 79
Magistrates Appeal

SULAN J: This is a Crown appeal against the decision of a Magistrate to dismiss a complaint made against RPHJ, the respondent. The respondent was born on 30 June 1986 and was a youth at the time of the alleged offence.
On 24 February 2004 the respondent allegedly assaulted a person contrary to s 39(1) of the Criminal Law Consolidation Act 1935. At the time of committing the alleged offence the respondent was seventeen years of age. The police complaint incorrectly stated that the alleged offence was committed in 2005. As a consequence the respondent was charged as an adult, not a youth and the complaint was laid in the Magistrates Court.
On 8 December 2006 the prosecution informed a Magistrate at the Elizabeth Magistrates Court that the complaint had been incorrectly laid. The prosecutor applied to amend the complaint and to have it transferred to the Youth Court. Counsel for the respondent opposed the application. The Magistrate dismissed the complaint. He provided no reasons for so doing.
The appellant submits that pursuant to s 57(2) of the Young Offenders Act 1993 (“the Act”) the Magistrate should have transferred the proceedings to the Youth Court. Furthermore, it is contended that the Magistrate should have provided reasons sufficient to identify the basis upon which his decision was reached.
Background
The incident occurred at the Munno Para Shopping Centre, Smithfield, on 24 February 2004. The respondent, accompanied by two friends allegedly assaulted a person employed at the Munno Para Shopping Centre. It is unnecessary to deal further with the facts alleged by the prosecution, other than to observe that it was not until 16 April 2005 that the police spoke to the respondent. An attempt to find him shortly after the alleged offence had been unsuccessful and it was only when the police interviewed the respondent about an unrelated matter that it came to their attention that these allegations remained unresolved.
The complaint was laid on 12 May 2005. The complaint incorrectly stated that the incident occurred on 24 February 2005. It appears that the police prosecution division became aware of the error in March 2006. Upon learning of the error, the appellant’s solicitor advised the respondent’s solicitor that the prosecution intended to make an application to have the matter remanded to the Youth Court. It is unclear why it took a further seven months for the case to be heard by a magistrate.
At the hearing on 8 December 2006 the appellant applied to have the matter transferred to the Youth Court. Section 57(2) of the Act provides:
57 – Determination of a person’s age
(2) If, in any proceedings before a court, it becomes apparent to the court that the person the subject of those proceedings should, by reason of age, be dealt with in some other court, the court may remand that person to appear in the appropriate court.
The respondent opposed the application. The respondent submitted that the time in which the prosecution was permitted to lay a fresh complaint had expired. The respondent submitted that, although s 57(2) of the Act empowers the court to remand the respondent to the Youth Court, it does not have the effect of transferring the proceedings in the Magistrates Court to the Youth Court. He submitted that the Magistrate did not have the power to transfer the proceedings, as s 57(2) of the Act does not empower the court to do so. He submitted that the prosecution was required to lay a fresh complaint in the Youth Court. As the alleged offence had been committed more than two years prior to the date of the hearing before the Magistrate, the matter was out of time and no complaint could validly be issued in the Youth Court. Therefore, it was of no effect to remand the respondent to the Youth Court. He submitted that the error concerning the offence date was incurable and, therefore, there was no point in transferring the matter to the Youth Court.
The Magistrate refused the application and dismissed the complaint. He gave no reasons for his decision.
Submissions
Counsel for the appellant submits that, as the respondent was a youth at the time of committing the alleged offence, he should have been charged before the Youth Court. It is contended that s 57(2) of the Act provides for the transfer of proceedings from the Magistrates Court to the Youth Court. The appellant submits that s 57(2) of the Act is a remedial provision and should be broadly interpreted. Counsel submits that the purpose of s 57(2) of the Act is to empower the court to remand a person the subject of proceedings to the appropriate court, which can then dispose of the proceedings. The appellant submits that the purpose of the section would be defeated if the proceedings were not transferred upon the making of the order.
Counsel for the respondent submits that s 57(2) of the Act only empowers the court to remand ‘the person’ the subject of the proceedings to the Youth court. Counsel contends that the section does no more than empower the court to ensure that the person the subject of the proceedings is directed to the appropriate court. Counsel for the respondent contends that the power of the Court is limited to remanding the person in custody or on bail to appear in the Youth Court at a certain time. Counsel submits that this power is analogous to police arresting a person and granting that person police bail, requiring them to attend before a court, at a specific time, prior to a complaint being laid.
Counsel for the respondent submits s 16 of the Act requires that if a youth is to be charged with an offence then the charge must be laid before the Youth Court. Section 16 of the Act provides:
16 – Charge to be laid before the Court
If a youth is to be charged with an offence to which this Act applies, the charge must be laid before the Court.
Counsel for the respondent submits that the effect of s 16 of the Act is that if the charge is laid in a court other than the Youth Court, it is a nullity and a fresh charge is required to be laid in the Youth Court.
Counsel for the respondent submits that there is a distinction between remanding a person to the Youth Court and transferring the proceedings. In this case the charge was incorrectly laid before the Magistrates Court and, therefore, a fresh charge must be laid before the Youth Court. The respondent argues that the appellant is out of time to commence proceedings in the Youth Court as s 52 of the Summary Procedure Act 1921 requires proceedings are to be commenced within two years of the date on which the offence is alleged to have been committed which, in this case, means that proceedings were required to be commenced by 24 February 2006. The respondent submits that the Magistrate had no other choice but to dismiss the complaint.
I consider that s 16 of the Act does no more than provide that the Youth Court has exclusive jurisdiction in respect of persons who commit offences whilst a youth. A charge laid in an adult court against a youth must be heard in the Youth Court. If the proceedings are transferred to the Youth Court then the charge is deemed to have been laid in that Court. I do not accept the submission that the only manner in which a charge is laid in the Youth Court is by initiating the proceedings in that Court. If proceedings are transferred to the Youth Court for its determination, then the charge has been laid in that Court.
I do not accept the respondent’s submission that s 57(2) of the Act is limited to remanding an accused to the Youth Court. The very purpose of s 57(2) of the Act is to ensure that if an error about a person’s age is identified, then the error can be remedied by remanding that person to the appropriate court. By so remanding the person, the proceedings, whether amended on complaint or information, are transferred. To limit the effect of the provision in the manner contended by the respondent would render it almost meaningless. If the respondent’s contention were correct, once an error is identified, then the complainant would be required to commence new proceedings in the appropriate court. Section 57(2) of the Act would be limited to requiring a defendant to present himself, either in custody or on bail, to the appropriate court. In my view, the section is not so limited. Once the court remands the person to the appropriate court, the proceedings to which that person is subject are also transferred to the appropriate court.
In Mill v Tomlinson,[1] after the respondent had pleaded guilty in the Magistrates Court to certain driving offences, it became evident that he was a youth and should have been dealt with as a child pursuant to the Children’s Protection and Young Offenders Act 1979. The Magistrate dismissed the complaint because the defendant should have been charged on a complaint appropriate to a child, not an adult.
[1] Mohr J, 31 August 1990, unreported.
Mohr J referred to s 86(2) of the Children’s Protection and Young Offenders Act 1979, which is in the same terms as s 57(2) of the Act. He said:
… the usual course in the circumstances which arose in this case would have been to “overlook” the fact that the inappropriate form of complaint and summons had been used and remand the matter to the appropriate Children’s Court.[2]
[2] Mill v Tomlinson (Mohr J, 31 August 1990, unreported).
Mohr J observed that no injustice or prejudice to the defendant had been demonstrated, and the interests of justice required the Magistrate to remand the defendant to the appropriate court. Mohr J considered that s 86(2) of the Children’s Protection and Young Offenders Act 1979 was enacted to provide a procedure whereby a matter commenced in the incorrect court could be dealt with in the appropriate court. I agree. Section 57(2) of the Act required the Magistrate to consider whether, in the interests of justice, an order should be made remanding the respondent to the Youth Court. As the Magistrate provided no reasons, the appellate court is unable to determine why the Magistrate did not remand the respondent to the Youth Court.
This Court has stated on previous occasions that magistrates are required to give adequate reasons. A failure to do so amounts to an error of law.[3] What amounts to adequate reasons will depend on the nature of circumstances of the case. In Papps v Police,[4] Gray J said:
The problem that arises has been described in a variety of ways. In Watson v Anderson it was said that the failure to give reasons frustrates the performance of the appellate court’s duty. In Mobasa Pty Ltd v Nikic it was concluded that the absence of reasons for judgment impedes the right of appeal, confuses the issues, makes it difficult to decide whether any error occurred, tends to increase the costs of appeal and above all, tends to protract litigation by the necessity of new trials. In Kotz v Police, it was said that only if reasons are given that adequately reveal the reasoning upon which the decision is based can an appeal court effectively discharge its functions.[5] (Citations omitted)
[3] Rowland v Police (2001) 79 SASR 569, 572.
[4] (2000) 77 SASR 210.
[5] Papps v Police (2000) 77 SASR 210, 214-215.
The Magistrate provided no reasons. As a consequence, it is not possible for an appellate court to understand the basis upon which the Magistrate dismissed the complaint.
The appeal is allowed. The order dismissing the complaint is revoked.