Police v Korber
[2003] SASC 69
•19 March 2003
POLICE v KORBER
[2003] SASC 69Full 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 complainant’s behalf.
(3)If the complaint is made orally, it must be reduced to writing.
(4)A complaint need not be made on oath unless –
(a)some Special Act requires the complaint to be made on oath; or
(b)a warrant for the arrest of the defendant is to be issued.
(5)A complaint must be filed in the Court as soon as practicable after it is made.”
The complaint in this case was not one that was required to be made on oath. The relevant rules referred to in subsection (1) are rules made under the Magistrates Court Act 1991. Form 1 prescribed by the Magistrates Court Rules 1992 is the form for making a complaint under s 49 of the Summary Procedure Act. It provides for the date of making the complaint, has provision for the complainant to sign the complaint and for a Registrar or Justice of the Peace to witness the complaint. It also contains a jurat clause for the purpose of swearing the complaint.
Form 2 is a form of complaint and summons. The complaint part of the form is similar to Form 1. Below that is a form of summons specifying the time and place at which the defendant is to appear. The form also contains a proof of service. The form as contained in the rules makes no provision for recording the date of filing of the complaint or the date of issue of the summons. The only form of authentication assumes a signature over the description:
MAGISTRATES COURT
REGISTRAR/JUSTICE OF THE PEACE
Section 57 of the Summary Procedure Act requires that when a complaint has been made and filed in the Court, the Court must, subject to certain exceptions not presently relevant, issue a summons for the appearance of the defendant. That is a requirement of the Court. It is an act of the Court. It would appear to require some act of authentication by the Court. Rules 3.03 and 3.04 of the Magistrates Court Rules provide a means of authenticating “such process or orders issued out of the Court as the Chief Magistrate shall direct”.
No other relevant forms of complaint and summons are prescribed, but Form 5A is a form of summons that may be issued by the Court. It does not contain the complaint but refers to and requires the full text of the complaint to be recited in it or a copy of the complaint to be annexed to it. It makes similar provision for authentication as contained in Form 2.
On or before 6 June 2001 a police officer, acting in the course of his duty, prepared the complaint and summons (Form 2) the subject of these proceedings. Four copies of the complaint and summons were generated. They indicated that the complaint was made on 7 June 2001. On 6 June 2001 the police officer caused one copy to be signed by the application of a rubber stamp bearing a replica of his signature. The provision on the form for witnessing by a Registrar or Justice of the Peace was left blank, and the jurat clause was not completed. As will appear later in these reasons, there was no need to have the signature witnessed or to have the complaint sworn. The summons part of the form contained details of the time and place at which the defendant was to appear, namely 2.15 pm on 3 July 2001 at the Magistrates Court sitting at Elizabeth. The provision on the form for authentication above “Magistrates Court Registrar – Justice of the Peace” was not completed.
The signed copy of the form I have just described was served on the respondent on 6 June 2001. Thus, according to the form, it was served on the day before the complaint purported to have been made, and there was no authentication of the requirement to attend the Magistrates Court. No copy of the complaint and summons had been filed in the Magistrates Court.
I said that one copy had been signed in the manner indicated by the complainant. I infer that one additional copy was also signed in that manner on 6 June, as a proof of service also dated 6 June is attached to a copy of the Form 2 signed in a similar manner by the complainant.
On 8 June the complainant took another copy of the Form 2. He altered the date indicating when the complaint was made from 7th June to 8th June and placed the stamp of his signature on the document. That document was filed in the Magistrates Court at Elizabeth on that day. In all other respects the document was the same as that served on the respondent. No summons was issued by the Court at that stage. No explanation has been offered as to why that did not occur.
The respondent did not appear on 3 July 2001, the return date on the summons. With some justification he had raised in correspondence with the Court some questions concerning the validity of the complaint and “summons” he had received, offering that as a reason for his non-attendance. A fresh summons Form 5A was then issued by the Court reciting the complaint signed on 8th June. It was signed by a Justice of the Peace over the title “Magistrates Court Registrar – Justice of the Peace”. It was not dated, as the form makes no provision for a date. It contained a return date of 22 November 2001, and was duly served.
Rule 12 of the Magistrates Court Rules 1992 relevantly provides:
“12.01 A complaint reduced to writing shall comply with Form No 1.
12.02The complainant (or other duly authorised person) may make and lay a complaint by stating the matter of complaint to a witness who must be a Registrar, Deputy Registrar or Justice of the Peace.
12.03The complaint when reduced to writing must be –
(i)signed by the complainant (or other duly authorised person),
(ii)signed and dated by the witness.
12.04A ‘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.
…….
12.07A complaint must be filed in the Court within seven days of being made unless not practicable.
12.08A copy of the complaint shall be given to the defendant on or before the time of the first Court appearance.
…..”
I respectfully agree with the single Judge who found that the original Form 2 as served on the respondent was ineffective as a summons to require him to attend the Magistrates Court on 3 July. The complaint had not been filed. The Court had not issued the summons. The summons was not authenticated by the Magistrates Court in any way. However, I disagree with the finding that the complaint on which the convictions were based was not validly made.
Section 49(1) of the Summary Procedure Act provides that a complaint may be “made” in accordance with the rules. Rule 12.04 cited above makes special provision for making and laying a complaint by a “public officer”. Section 57A of the Summary Procedure Act defines a “public officer” to include a member of the police force. Therefore, in this case, Rule 12.02 and Rule 12.03 had no application. The complaint on 6 June 2001 was duly made when made in writing, signed and dated by the complainant. The complainant was not required to appear before a witness or a Justice of the Peace. He was not required to swear the complaint. Those parts of the form were properly left blank. The complaint was therefore validly made on 6 June 2001, even though it was wrongly dated 7 June 2001. The application of the facsimile stamp by the complainant was sufficient for his signature: Hinton Demolitions Pty Ltd v Young (1973) 6 SASR 129 at 133; Willing v Young (No. 2) (1973) 7 SASR 368 at 371.
The complaint was made again on 8 June 2001 when the complainant affixed his signature stamp to an additional copy and changed the date of the complaint to 8th June 2001. That was the copy which was filed in the Magistrates Court. It was a valid complaint. It was a copy of that complaint made on 8 June which was recited in the Form 5A summons subsequently issued on or after 3 July requiring the respondent to appear on 22 November 2001. On its face, that was a valid and effective summons. No-one has suggested otherwise, and the respondent appeared in answer to it. Whatever problems there may have been with the document served on the respondent on 6 June, a copy of the complaint of 8 June as it then proceeded in the Magistrates Court was given to the respondent in compliance with Rule 12.08. That valid complaint was the foundation for the conviction of the respondent. Accordingly, in my opinion the respondent was properly convicted.
That is enough to dispose of the appeal. However, the procedures adopted by both the complainant and the Court, and to some extent reflected in the forms prescribed by the rules, indicate some lack of a complete understanding of what is presently required. It is therefore necessary to make some further observations.
A substantial change in practice came about with the enactment of the Magistrates Court Act 1991, rules under that Act and contemporaneous amendments to the Summary Procedure Act. Prior to that time, complaints were heard by justices or a magistrate constituting a court of summary jurisdiction. Section 44 of the Justices Act 1921, as the Summary Procedure Act was then known, provided:
“44. In any case, whether the matter of complaint is or is not directed or required to be heard by two or more justices, a single justice may –
(a) receive the complaint;
(b) grant a summons or warrant thereon;
(c) issue his summons or warrant to compel the attendance of any witness;
(d) by consent of the parties expedite the date of hearing;
(e)either upon the return of the summons, or at any other time before the completion of the hearing, adjourn the hearing as hereinafter provided;
(f)do all other acts and matters preliminary to the hearing; and
(g)issue any warrant of distress or commitment upon any conviction or order.”
Sections 49 and 50 provided:
“49. A complaint may be made to a justice in any case where –
(a) any person has committed, or is suspected to have committed, any simple offence; or
(b) a justice or justices has, or have or shall have, authority by law to make any order for the payment of money or otherwise.
50.(1) A complaint may be made by the complainant in person, or by his counsel or solicitor, or by any other person authorized in that behalf.
(2) No complaint need be in writing unless it is required to be so by some Special Act.
(3) A complaint may be made without any oath being made of the truth thereof, except in any case -
(a) where some Special Act otherwise requires; or
(b)where the justice issues his warrant in the first instance.”
Section 52 required that when no time limit was prescribed by a statute, a complaint had to be made within six months from the time when the matter of the complaint arose. Section 57 provided:
“57. Whenever a complaint is made in manner aforesaid any justice may issue his summons for the appearance of any person charged by the complaint or against whom the order is thereby sought to be made: Provided that nothing herein mentioned shall oblige any justice to issue his summons in any case where the application for any order of justices is by law to be made ex parte.”
Section 101 provided that an information for an indictable offence could be “laid” before a justice. It only had to be in writing and substantiated on oath if it was intended to issue a warrant in the first instance: s 102.
Importantly, no complaint had to be in writing unless required by some special Act. A complaint had to be made to a justice who had to “receive” the complaint. As mentioned above, s 52 of the Act ensured that the date of making of the complaint could affect its validity. The justice then issued his or her summons to appear in a court of summary jurisdiction. The Act spoke of “making” a complaint and of “laying” an information. But in all cases, there was the necessary involvement of a justice.
In R v Scott; Ex parte Church [1924] SASR 220, in relation to the laying of an information, the Full Court made clear that this was a two stage process. The justice must first receive the information in the sense of applying his mind to the matter so as to receive in his mind the information which the statement of complaint contains. He must then decide what process should be issued upon it: see Murray CJ at 235; Poole J at 232.
In Lang v Warner (1975) 10 SASR 289 Bray CJ said of the justice to whom a complaint is made, at 291:
“He has to listen to the complaint if it is oral, or read it if it is written, and to apply his mind to it: he has to consider whether any process should be issued on it even though the immediate answer is that none need be issued because the defendant is in custody. Authority for these propositions may be found in Scott’s Case (supra), see, for example, per Murray CJ at p 235, and in the Electronic Rentals Case (1971) 124 CLR 27. It may even be that if the complaint is obviously nonsense, or if it alleges what is obviously a non-existent offence at the present time, such as witchcraft, the justice would be justified in refusing to take or receive it.”
Likewise, Walters J said, at 296:
“If the complaint is tendered in writing, it is necessary for the complainant personally to present to the justice, for his signature, the document in which the requisite particulars of the complaint are furnished, to ask that it be taken, and, as I think, at the same time to state that the matter of the complaint is set forth in the document. At that stage, the justice should consider what is alleged in the complaint, but save in exceptional circumstances, where, for example, the complaint is clearly made out of time or contains a patently frivolous or non-sensical charge, I do not think the justice is called upon to decide whether there is good cause to take it, or otherwise to exercise a judicial discretion. Certainly, there is no occasion for his considering whether the complainant has a case against the defendant.
Nevertheless, different considerations apply if a justice is asked to issue a summons on the complaint. When he is called upon to perform this function, an exercise of judicial discretion is involved.”
When speaking of the decision in R v Scott, Mitchell ACJ in R v Manos; Ex parte Samuels (1981) 28 SASR 262 referred to the first step of making the complaint in these terms (at 267):
“We are concerned with whether it was ‘made’. Nothing in the reasons for judgment in that case seems to me to support the proposition that a complaint is not duly made unless the Justice of the Peace before whom it is made applies his mind to the facts alleged in the complaint. Of course, if the complaint were made orally and there later was a dispute as to whether it was ever made or if it was signed and the signing was disputed, there might be a problem of proof if the Justice of the Peace had not applied his mind to the matter of complaint.”
Her Honour held (at 268) that the making of the complaint in that case did not involve the exercise of a discretion. That came at the second stage in the decision to issue a summons. Her Honour concluded, at 268:
“I have no doubt that the complaint was made by Mr Samuels when he signed the complaint and placed it before the Justice of the Peace. As there was no question of a summons being issued in this matter the state of mind of Mr Sweeney when he took the complaint was not material to the question of jurisdiction. The complaint was properly before the Court and should have been heard.”
The question of issuing a summons did not arise in that case because at the time of making the complaint the defendant had been arrested and was in custody.
Wells J, at 269, said of the role of a justice in taking a complaint:
“(A) Justice to whom a complaint is made – that, and no more – represents an identified and accessible authority to whom a complainant may repair to lay his complaint against a defendant. The existence and responsibility of a Justice of the Peace thus brings an advantage to the community, to the complainant, and to the defendant. To the community he represents an independent officer of justice with whom an intending complainant may, without fear of being frustrated, lodge, for ultimate use by the courts, a formal complaint under the law. To the defendant, he represents a focal point where an accuser, having a complaint against the defendant, must formally commit himself to a positive allegation of wrong-doing which, in due course, will be subjected, with respect to its form and substance, to the arbitrament of a court. For the intending complainant, the Justice of the Peace is, therefore, a continuously available facility; for the intended defendant he is an exclusive source of authoritative information.
The Justice of the Peace does not, be it noted, concern himself with the merits, in truth or in law, of the complaint. He is a formal and exclusive clearing house – not a person exercising a judicial function or judicial powers.”
White J made similar observations at 270.
Finally, in R v Jiri Fiala Ex parte G J Coles & Co Ltd (1987) 46 SASR 47 the Court reached a similar conclusion as to the role of a justice in the making of a complaint, as distinct from the exercise of the discretion which follows as to the issue of process. See Jacobs J, with whom Matheson J agreed, at 54 – 56.
The statutory amendments which came into force in 1992 abolished courts of summary jurisdiction as such and created the Magistrates Court as a Court of record. Any complaint, if oral, had to be reduced to writing. Otherwise, the method of making a complaint was no longer prescribed in the Summary Procedure Act but was to be made in accordance with the rules of the Magistrates Court. Those rules, whilst retaining the essence of the previous process for some complainants, changed the procedure significantly for complaints made by a public authority or public officer as defined in s 57A of the Summary Procedure Act. In practice, that group of complainants is by far the largest single group of persons who make complaints. Under the new procedure they were able to “make and lay” the complaint by signing and dating a written complaint without appearing before a justice. For this group of complainants, the former role of a justice had been eliminated.
What was the second stage of the process – the issuing of a summons by the justice before whom the complaint was made – became the function and, in most cases, the obligation of the newly constituted Magistrates Court upon the filing in that Court of the complaint. The Court was required to issue the summons under s 57 of the Summary Procedure Act. That did not require the exercise of a discretion.
Moreover, the provisions of s 52 of the Summary Procedure Act were later (in 1997) amended to provide time limits from the date of the alleged offence within which proceedings must be commenced. The operative action to be taken within the required limitation period was no longer the making of the complaint referred to in s 49, but the commencement of proceedings. In my opinion that related to the filing of the complaint in the Court, and not the making of the complaint. That had the effect of eliminating any possibility of a complainant, who might not now have to appear before a justice, backdating a complaint which would otherwise have been out of time.
Under s 49(5) of the Act the complaint must be filed “as soon as practicable” after it is made. Under Rule 12.07 that must be within seven days of its being made “unless not practicable”.
In a post 1992 case Nyland J had occasion to consider the role of a justice in the issuing of the summons upon a complaint. In Miller v Police (1997) 67 SASR 484 her Honour said, at 488 – 489:
“The significant change effected by the amending legislation is to make the issuing of a summons mandatory once a complaint has been made and filed in the court. The justice of the peace no longer has any discretion with respect to the issue of the summons. Mr Boylan argued, however, that if the amendment had removed the discretion then the formality to which Mitchell ACJ referred in Manos’ case must now include the justice of the peace applying his/her mind to the matter of the complaint, otherwise there would be no screening for frivolous complaints, complaints made out of time or complaints alleging non-existent offences. I cannot, however, accept that argument.
The change in the legislation, in my view, reflects an intention on the part of the legislature to remove the discretion vested in the justice of the peace and overcome any difficulties which may have been encountered under the previous Act. It does not thereby convert the making of the complaint into a judicial act. Subject to the provisions contained in s 49(4)(a) or (b), a complaint need not even be made on oath. The complaint could simply be signed by the complainant and filed at the court. Once that occurred, the court would be required to issue a summons. The role of the justice of the peace has therefore been severely curtailed. There would not seem to be any reason to impose a greater obligation upon a justice witnessing a signature on a complaint as opposed to any other document. The legislation places the onus upon the complainant to ensure that the document is a valid complaint and he/she may well be at risk with respect to an order for costs if the complaint for any reason is not correctly made.”
Save to the extent that there may be an implication from what Nyland J said that a complaint of a police officer must be witnessed by a justice, I respectfully agree with what her Honour said. We are not here concerned with any obligations which may arise in the case of a complaint made by a person other than a public authority or a public officer.
The important points to be repeated are that both before and after the changes effected in 1992 the making of a complaint did not involve the exercise of discretion by a justice; that after the 1992 changes for the majority of complaints, including those made by police officers, a justice was no longer required to be involved in the process of making the complaint; that there was then a requirement to file the complaint in the Magistrates Court; and that that Court was then required to issue a summons upon the filing of the complaint. That latter process did not require the involvement of a justice or the exercise of a discretion. If the Court’s failure in this case to issue the summons on 8 June 2001 was based on a belief that that had been effected either by the complainant or, as used to be the case, by a justice, that was a mistaken belief.
Notwithstanding the changes made in 1992, the requirements of the present Act and Rules do not seem to have been reflected in one aspect of the Magistrates Court Rules and in the forms prescribed. This may have assisted in creating a misunderstanding of the respective roles of a complainant, a justice and the Court.
In the first place, Rules 12.02 and 12.04 of the Magistrates Court Rules prescribe who may “make and lay” a complaint. The Summary Procedure Act does not refer to the “laying” of a complaint at all, but only to the "making” of a complaint. The additional word used in the rules has no statutory foundation. Historically, it had been reserved for the laying of informations. To the extent that the use of the word “lay” in Rule 12.04 may induce a belief that there is a need for something other than the “making” of the complaint, it has no justification and is mere surplusage. Whatever may have been in contemplation of the drafter in using the word “lay” in Rule 12.04, it is nevertheless clear that whatever has to be done by the complainant under that rule is done by the complainant merely signing and dating the complaint without appearing before a witness.
In the second place, Form 1 and the complaint portion of Form 2 are misleading and could well cause confusion and raise doubts in the minds of many recipients of summonses as to the validity of the complaint. Most complaints in the Magistrates Court are made by a public authority or public officer as defined in s 57A of the Act. In most cases they need not be sworn: s 49(4). They do not need to be witnessed, let alone by a registrar or a justice. Yet the forms prescribed make provision for these possibilities, and must be left blank when they do not apply. A recipient not well versed in the requirements of the Summary Procedure Act or the Magistrates Court Rules might well wonder whether the summons received was valid, where apparently significant parts are omitted. This suggests that there ought to be a separate form prescribed for use under Rule 12.04.
Thirdly, the summons portion of Form 2 and the other forms of summons prescribed do not make reference to the date of filing of the complaint It is therefore not possible from a reading of the summons to know whether the proceedings have been commenced within time. The provision for authentication of the summons by the Court contains no provision for the date of issue of the summons. Section 15 of the Magistrates Court Act 1991 enables the issue of summonses and warrants on behalf of the Court by a registrar or justice, but that can be an administrative role only. Under s 57 of the Summary Procedure Act it is the Court which issues the summons. It is no longer a discretionary or quasi-judicial Act, and does not have to involve a justice. This part of the form seems merely to have been carried forward from the pre 1992 practice without consideration as to the appropriate form of authentication by a court which had been created as a court of record with its own seal.
The forms prescribed may well have merely followed those in use under the previous regime. I have said enough to suggest that they warrant review in the light of the present requirements of the Summary Procedure Act and of the Magistrates Court Rules.
In my opinion the appeal should be allowed and appropriate orders made whereby the convictions and penalty imposed in the Magistrates Court are reinstated. There should be no order as to costs.
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