Police v Long - [2004] SASC 381

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LONG & LONG
Judgment of The Honourable Justice Besanko
25 November 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - WITHDRAWAL OR STRIKING OUT OF INFORMATION OR COMPLAINT
Appeal against an order of a Magistrate dismissing an Information and discharging the respondents - where the respondents were jointly charged on Information with assault occasioning actual bodily harm - where the charges were listed for trial before the Magistrate with three days set aside - where the appellant sought an adjournment of the trial on the basis that the results of forensic tests were not yet available - where the Magistrate made orders dismissing all charges against the respondents - where the Magistrate awarded costs against the appellant to each respondent - whether the Magistrate erred in refusing the appellant's application for an adjournment - whether the Magistrate erred as a matter of fact and law in dismissing the Information - whether the Magistrate erred in not reconsidering his order when asked to do so by the appellant - whether the order for costs should be set aside - appeal allowed and Information remitted to the Magistrates Court for hearing and determination.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 40; Summary Offences Act 1953 s 74A; Summary Procedures Act 1921 ss 67, 68, 69, 76A; Magistrates Court Rules 1992 r 8.08, referred to.
Police v Slater (2003) 86 SASR 189; Police v Scott Phillip Robinson [1997] SASC 6282; Jago v District Court (NSW) (1989) 168 CLR 23, considered.

POLICE v LONG & LONG
[2004] SASC 381
Magistrates Appeal

BESANKO J: This is an appeal by the police against two orders made by a Magistrate. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991. Clifford Benjamin Long and Clifford Tony Long were jointly charged on Information with the offence of assault occasioning actual bodily harm (s 40 Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of the charge were that on 13^th June 2003 at Adelaide in the State of South Australia, they assaulted Scott John Rogers a person of or above the age of twelve years thereby occasioning him actual bodily harm. On the same Information, Clifford Benjamin Long was charged with a further offence, namely, stating a name and address that was false (s 74A(3)(b) Summary Offences Act 1953). The particulars of that charge were that on 13^th June 2003 at Adelaide in the said State, Clifford Benjamin Long being a person reasonably suspected by Shaun Pope, a member of the police force, of having committed an offence, namely, assault occasioning actual bodily harm and having been required by such member of the police force to state his full name and address, stated a name and address that was false.
The charges were listed for hearing before the Magistrates Court constituted of a Magistrate on Wednesday 1^st September 2004, and three days were set aside for the hearing of the charges. On that day, the Magistrate who was to hear the charges made an order dismissing the Information and discharging the respondents. He also ordered that the informant pay the costs of each respondent fixed in the amount of $2,400.00. The appeal is against both those orders.
The facts
The prosecution case is that at about 7.50 pm on 13^th June 2003, Mr Rogers was assaulted in Gresham Place, Adelaide, by the respondents. Shortly prior to that time, Mr Rogers had been at the casino with his girlfriend, Ms Karen Brand. He had been drinking heavily and he does not remember leaving the casino because of the amount of alcohol he had consumed. Ms Brand was with Mr Rogers at the time of the assault. Mr Rogers is not able to remember any of the details of the incident, and he is unable to identify his attackers. Ms Brand states that Mr Rogers was headbutted by one of his attackers, and that he fell to the ground. She states that the other male “then stomped down on Scott’s head with his right foot”. The same male kicked Mr Rogers to the head. Ms Brand was very upset because there was a great deal of blood.
Mr Michael Wong, a legally qualified medical practitioner and neurosurgical registrar at the Royal Adelaide Hospital, North Terrace, Adelaide, states that Mr Rogers suffered a skull fracture over the right petrous temoral bone. Mr Rogers suffers a loss of hearing in his right ear as a result of the assault, and that loss of hearing may be permanent.
There were other witnesses to the assault, and it seems that their observations of what occurred differ somewhat from those recounted by Ms Brand.
The Information was laid on 4^th July 2003. There were a number of directions hearings and pre-trial conferences. There were hearings on 4^th July 2003, 15^th August 2003, 28^th October 2003, 21^st January 2004, 24^th March 2004, 28^th May 2004 and 4^th August 2004. The trial dates of 1^st, 2^nd and 3^rd September 2004, were fixed by a Magistrate on 24^th March 2004.
The police prosecutor, Ms Susan Lucas, has sworn two affidavits dealing with the events of 1^st September 2004. I received those affidavits on the hearing of the appeal. The respondents are represented by Vadasz Lawyers. Mr Nicholas Vadasz has at all times appeared for Clifford Tony Long. An employee of Vadasz Lawyers has appeared for Clifford Benjamin Long. Mr Phillip Saunders appeared for him at the hearing before the Magistrate on 1^st September 2004. He has sworn two affidavits which I received on the hearing of the appeal.
In her first affidavit Ms Lucas states that on 1^st September 2004 she sought an adjournment of the trial on the basis that the results of forensic tests were not yet available. Two days before 1^st September 2004 she contacted Mr Vadasz and advised him of this fact and of the fact that she would be seeking an adjournment of the trial to await the provision of the results. Mr Vadasz indicated that neither he nor the solicitor representing Clifford Benjamin Long would oppose the application. Ms Lucas also sent advice of her intention to make an application for an adjournment to the listings section of the Adelaide Magistrates Court.
After making her application the Magistrate asked Ms Lucas why there had been a delay, and she advised him that there had been a misunderstanding between uniformed police officers and the officers in the Criminal Investigation Branch. She said that each had believed that the other had initiated the tests, whereas in actual fact neither had done so until late in the proceedings. Counsel for each of the respondents advised that they did not oppose the application for an adjournment by the prosecution but would be seeking costs. The Magistrate said that he was reluctant to grant the application and he then adjourned saying that he wished to consider the matter. When his Honour came back onto the bench, he said that it would be unfair to witnesses if the trial were delayed and that it would also be unfair to the respondents if the trial proceeded without first knowing the results of the forensic evidence. The Magistrate also said that he was concerned, albeit to a lesser degree, about the rules of case flow management. He then made orders dismissing all charges against the respondents.
Ms Lucas then said to the Magistrate words to the following effect:
“When your Honour left this courtroom you said you wanted to consider whether or not you would grant an adjournment of this trial. There was no mention of dismissing the charges. Your Honour has only considered two options and there is at least a third. I would like to be heard on the topic.”
The Magistrate advised Ms Lucas that it was too late for such a submission as the matter had already been dismissed. The question of costs was then raised, and the Magistrate asked Ms Lucas whether she had any submissions to make. She said words to the following effect:
“Your Honour, I have nothing to say about costs. Is your Honour denying me the right to make submissions about why the charges should not be dismissed.”
The Magistrate again said that it was too late for such submissions and that the charges had already been dismissed. Costs were awarded against the police in the amount of $2,400.00 for each respondent.
In her second affidavit Ms Lucas states that the charges were not read to the respondents on 1^st September 2004, nor were pleas taken from the respondents. Ms Lucas states that although Mr Vadasz in the course of his submissions mentioned that dismissing the charges was an option, he made no submissions in support of that contention. In fact, he advised the Magistrate that he did not oppose the prosecution’s application that the matter be adjourned. The Magistrate asked Ms Lucas whether she was ready to proceed in the event that he did not grant her application for an adjournment. She advised the Magistrate that her witnesses were present and that she was in a position to proceed. Ms Lucas states that three witnesses (Mr Rogers, Ms Brand and another male) were present on 1^st September 2004 and others were on standby.
Ms Lucas states that the Magistrate did not ask for, or hear an opening summary of the prosecution case before refusing the application for an adjournment or before dismissing the charges.
Mr Saunders states that he appeared for Clifford Benjamin Long on 1^st September 2004. He states that Ms Lucas sought an adjournment of the trial and that she indicated to the Magistrate that she anticipated there would be an order for costs made against the prosecution. Mr Vadasz made submissions on behalf of both respondents and he indicated that he neither opposed nor supported the prosecution’s application for an adjournment. He stated that he had only recently become aware of the issue of the existence of forensic testing and he referred to the likely embarrassment caused in the conduct of the defence case in the cross-examination of witnesses in circumstances where the results of such tests were not known. There was a reference to the fact that he had not yet received certain medical documentation. Mr Saunders states that in the course of his submissions Mr Vadasz referred to the court’s power to dismiss the Information against the two respondents. Mr Saunders states that Mr Vadasz made no application that the court dismiss the Information and he reiterated that he neither opposed nor supported the application for an adjournment and that it was a matter for the court. Mr Saunders adopted Mr Vadasz’s submissions. The Magistrate adjourned to consider what order he should make. The Magistrate returned and made an order dismissing the Information and discharging the defendants. He also made an order dealing with the issue of costs. In his first affidavit Mr Saunders states that at no stage did Ms Lucas indicate that she was in a position to proceed with the trial on 1^st September 2004. In his second affidavit Mr Saunders recalls that Ms Lucas mentioned the fact that she had witnesses present. Mr Saunders states that he does not contest the assertion by Ms Lucas in her affidavits that when asked by the Magistrate whether the trial was ready to proceed in the event that he did not grant its application for an adjournment, she said that her witnesses were present and that she was in a position to proceed.
There is very little difference between the appellant and the respondents in terms of what occurred on 1^st September 2004. I accept the evidence of Ms Lucas and make findings in accordance with her evidence as set out above.
The Magistrate’s reasons
In his reasons for dismissing the Information the Magistrate referred to the pre-trial hearings, and the application for an adjournment. He referred to the forensic evidence being gathered by the prosecution and said that that evidence may be important from the informant’s point of view in that it may tend to implicate the respondents and it may tend to negative the respondents’ claim of self defence.
The Magistrate said that there were a number of available options in terms of what he could do, although all of them were unsatisfactory. He referred to the first option which he said was to start the trial on 1^st September 2004, and then become part-heard. He said that that was not a satisfactory option and that it would be manifestly unfair to expect counsel for the respondents to cross-examine witnesses without knowing what the forensic evidence will reveal. The Magistrate said that the second option of adjourning the trial was equally unsatisfactory. It would impose an unfair burden upon honest and conscientious witnesses. A delay would mean (said the Magistrate) that such a witness has to give either an incomplete recollection or resort to reconstruction. Apparently, three days could not be set aside before 22^nd February 2005.
The Magistrate then said:
“Delay is the natural enemy of a fair result that respects the presumption of innocence. It seems to me that part of the duty of the parties is to have, in the absence of unusual or exceptional circumstances, matters ready for trial on the day fixed by the court for that trial. It isn’t part of role of the court, or if it is it shouldn’t be, to persuade, to cajole, to threaten the parties to discharge that duty as if they were school children reluctant to do their homework. I would also refer to the considerations of case flow management.
It is fair to assume that when this matter was set down in March for a three-day trial to commence today three other trials thought worthy of a hearing had to defer to it. If this matter were to be listed again in February of 2005 it is fair to assume that three matters thought worthy of a hearing would have to defer. That’s the way in which the ripple effect operates. That’s the way in which delays are created and I repeat, those delays are the natural and constant enemy of fairness.”
The Magistrate then made the orders the subject of the appeal.
Issues on appeal
The grounds of appeal filed by the appellant raise three issues. First, it is said that the Magistrate erred in refusing the prosecution’s application for an adjournment. Secondly, it is said that the Magistrate erred as a matter of law and fact in dismissing the Information. As a matter of law, he erred in dismissing the Information in circumstances in which the procedure in ss 67, 68 and 69 of the Summary Procedures Act 1921 (“SPA”) had not been complied with, and/or in circumstances in which the Magistrate had not heard from the prosecution in relation to the possible dismissal of the Information. As a matter of fact, he erred in dismissing the Information because there was no sufficient ground to justify that course. Thirdly, it is said the Magistrate erred in not reconsidering his order when he was asked to do so by the prosecution. It was said that he had the power to do so and that he should have done so and reference was made to s 76A of the SPA.
It is convenient to start with the second ground, namely, the question whether the Magistrate had the power to make an order dismissing the Information. In the circumstances which had arisen, the Magistrate did not have power at common law to make an order dismissing the Information. There is power in the SPA in certain circumstances to dismiss an Information. For the purposes of the sections I am about to set out, the Information is a complaint (s 4 SPA). The relevant sections in the SPA are as follows:
“67 - When defendant pleads guilty, court to convict or make an order
(1)When the defendant is present at the hearing the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be).
(2)If the defendant admits the truth of the complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the court shall convict him or make an order against him accordingly.
68 – Procedure on plea of not guilty
(1)If the defendant does not admit the truth of the complaint the court shall proceed to hear –
(a)     the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and
(b)     the defendant and his witnesses and any other evidence which he adduces in his defence; and
(c)     any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant’s, general character.
(2)Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.
(3)The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.
69 – After hearing the parties court to convict or dismiss
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.”
The procedure laid down in the above sections is mandatory and it was not followed in this case. The substance of the complaint was not stated to the respondents and they were not asked whether they admitted the truth of the charges in the Information. In other words, they did not enter pleas. It was suggested that it can be implied from the circumstances that the respondents entered pleas of not guilty. I do not accept this contention. The procedure specified in the sections is clear and it is important that the procedure be followed. Even if I am wrong, there is a further reason why the procedure in the above sections was not followed. In my opinion, it cannot be said the prosecution were heard by the Court in the sense referred to in s 68(3) or in the sense referred to in s 69. The prosecution was not heard on whether the Magistrate should convict the respondents or dismiss the Information.
During the course of submissions on the hearing of the appeal reference was made to r 8.08 of the Magistrates Court Rules 1992 which provides as follows:
“8.08Where there is time default or the conduct of a party is otherwise contrary to the objects stated in Rule 8.02 the Court may dismiss the proceedings and may do so in order to protect the integrity of the caseflow management system and to implement the Court's requirements that matters proceed at the time fixed for hearing whether by way of trial or otherwise notwithstanding that any injustice to the opposing party might have been avoided by an order for costs or some other order.”
This rule does not assist in the resolution of the present issue because it must be read subject to the provisions of the SPA. A rule of court cannot vary the procedure laid down in the SPA (Police v Slater [2003] SASC 284; (2003) 86 SASR 189).
There was some debate before me as to whether the Magistrate could have made a different order which would have had a similar effect from the respondents’ point of view, namely, an order permanently staying the proceedings on the Information. The power of a Magistrate to make such an order on the basis that the continuation of the proceedings would constitute an abuse of process, was not the subject of detailed submissions. Assuming for the moment that he had the power, such an order is quite a different order (Police v Scott Phillip Robinson [1997] SASC 6282) and there are a variety of matters which must be considered before exercising the power (Jago v District Court (NSW) (1989) 168 CLR 23). Those matters were not canvassed before the Magistrate and were not analysed by him. Certainly I am not in a position to say that a permanent stay of the proceedings would have been an appropriate order.

In my opinion, the order dismissing the Information must be set aside.
As far as the first ground is concerned I think it would have been open to the Magistrate to refuse an adjournment. It must be said that Ms Lucas did not provide much information in support of the application, and a better and more detailed explanation should have been provided. The Magistrate was understandably concerned about the history of the matter and the effect of an adjournment on the management and progress of other cases before the Court. However, the fact that the Magistrate might have refused an application for an adjournment would only be relevant on this appeal if it was inevitable that the prosecution would not have proceeded had an adjournment been refused. That is not the case, and in fact the evidence suggests that in that event the prosecution would have proceeded to present its case.
In view of my conclusion that the Magistrate did not have the power to dismiss the Information, it is unnecessary to consider the third ground of appeal, namely, that the Magistrate erred in failing to hear the prosecution on an application to set aside his order under s 76A of the SPA.
That leaves the order as to costs which the respondents submit should stand even if the order dismissing the Information is set aside. I reject this submission. The costs awarded were the costs associated with the dismissal of the Information not simply an order for the costs occasioned by an adjournment. The Magistrate was not entitled to dismiss the Information. The order for costs must be set aside. However, the appellant accepts that the respondents are entitled to an order for costs to represent the adjournment of the trial.
Conclusion
For the reasons I have given, I make the following orders:
1.The appeal is allowed and the orders made by the Magistrate are set aside.
2.The Information is remitted to the Magistrates Court constituted by a different Magistrate for hearing and determination.
I will hear the parties on how the costs conceded by the appellant should be dealt with and the question of the costs of the appeal.