Police v Korber - [2003] SASC 69

POLICE v KORBER
[2003] SASC 69
Full Court: Doyle CJ, Perry and Bleby JJ

DOYLE CJ: I would allow the appeal to the Full Court, set aside the decision of the single Judge of this Court allowing the appeal from the decision of the Magistrates Court, and substitute a decision dismissing the appeal from the Magistrates Court to the Supreme Court. That will have the effect of reinstating the convictions recorded and penalty imposed by the Magistrates Court. I agree with the reasons given by Bleby J. I agree also that there should be no order as to the costs of the appeal.
PERRY J. I agree that the appeal should be allowed for the reasons given by Bleby J, and that there should be an order in the terms suggested by him.
This is subject to the qualification, which is not relevant to the disposal of the appeal, with respect to Bleby J’s comments as to the “complaint” dated 7 June 2001.
Rule 12.04 of the Magistrates Court Rules 1992 provides:
“A public authority or public officer (as defined in section 57A of the Act) or a legal practitioner may make and lay a complaint in writing on signing and dating it without appearing before a witness.” (emphasis added)
On a proper construction of that rule, the date which appears on the complaint must be date upon which it was signed.
The action of the complainant in this case in signing the complaint and summons on 6 June 2001 and dating it 7 June 2001 was therefore irregular, and the purported complaint was bad.
In my view, there was only one valid complaint, that being the complaint dated 8 June 2001, which was signed on the same day.
I agree with Bleby J that the drafting of r 12 and of the relevant forms leaves much to be desired and should be reviewed.
BLEBY J: This appeal concerns the validity of a complaint against the respondent which resulted in his conviction in the Magistrates Court for driving an unregistered vehicle, contrary to s 9 of the Motor Vehicles Act 1959, and for driving an uninsured vehicle on the same occasion contrary to s 102 of the same Act. A single penalty, namely a fine of $100, was imposed, together with fees and levy amounting to a further $180.70. He was disqualified from holding or obtaining a driver’s licence for a period of two days.
An appeal to a single Judge of this Court was allowed, and the conviction set aside on the ground that the complaint was invalid. The prosecution now appeals, by leave, against that decision.
Section 49 of the Summary Procedure Act 1921 provides:
“(1)Where a person is suspected of having committed a summary offence, a complaint may be made in accordance with the rules charging that person with the offence.
(2)A complaint may be made by the complainant personally or by a legal practitioner or other person duly authorised to make the complaint on the…

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 Korber

Details

AGLC: Police v Korber [2003] SASC 69
Case: [2003] SASC 69
Decision Date: 19 March 2003

CaseChat Overview and Summary

In the case of Police v Korber, the appellant, the police, challenged the decision of a single Judge of the Supreme Court who had allowed an appeal from the Magistrates Court. The appeal was in relation to the conviction of the respondent, Korber, for driving an unregistered vehicle and an uninsured vehicle, and the penalty imposed on him. The single Judge had set aside the conviction on the basis that the complaint was invalid. The police appealed to the Full Court, arguing that the complaint was valid and that the conviction should be reinstated. The Full Court allowed the appeal and set aside the decision of the single Judge, reinstating the conviction and penalty imposed by the Magistrates Court. The Full Court found that the complaint was validly made when it was signed and dated by the police officer on 6 June 2001, despite being incorrectly dated as 7 June 2001. The Full Court also found that the summons issued by the Magistrates Court was valid and effective. The Full Court noted that the forms prescribed by the Magistrates Court Rules were misleading and could cause confusion, and suggested that they should be reviewed.

The legal issues in this case were whether the complaint was validly made and whether the summons issued by the Magistrates Court was valid. The Full Court found that the complaint was validly made when it was signed and dated by the police officer on 6 June 2001, despite being incorrectly dated as 7 June 2001. The Full Court noted that the relevant rules and forms did not require the complaint to be witnessed or sworn, and that the police officer's use of a facsimile stamp to sign the complaint was sufficient. The Full Court also found that the summons issued by the Magistrates Court was valid and effective, despite not being dated or authenticated by the Court. The Full Court noted that the forms prescribed by the Magistrates Court Rules were misleading and could cause confusion, and suggested that they should be reviewed.

The Full Court allowed the appeal and set aside the decision of the single Judge, reinstating the conviction and penalty imposed by the Magistrates Court. The Full Court noted that the forms prescribed by the Magistrates Court Rules were misleading and could cause confusion, and suggested that they should be reviewed. The Full Court made no order as to costs.

Orders