Police v Long

Case [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

  1. 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 13th 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 13th 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.

  2. The charges were listed for hearing before the Magistrates Court constituted of a Magistrate on Wednesday 1

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Police v Long [2004] SASC 381
Case
[2004] SASC 381
Decision Date

CaseChat Overview and Summary

In the matter of Police v Long, the respondents, Clifford Tony Long and Clifford Benjamin Long, were jointly charged with assault occasioning actual bodily harm. The case was set for trial before a Magistrate with three days allocated, but on the first day, the Magistrate dismissed the Information and discharged the respondents. The police prosecutor had sought an adjournment due to the unavailability of forensic test results. The Magistrate awarded costs to each respondent, which the appellant sought to appeal. The appeal's primary focus was whether the Magistrate erred in refusing the adjournment, dismissing the Information, and awarding costs. The court found that the Magistrate had no authority to dismiss the Information without a proper hearing and set aside the orders. The Information was remitted to the Magistrates Court for a new hearing with a different Magistrate. The court also decided to revisit the costs awarded and the costs of the appeal.

The legal issues before the court included whether the Magistrate had erred in refusing the adjournment application and in dismissing the Information without a proper hearing. The court examined the procedural fairness of the Magistrate's actions and the principles of natural justice, particularly the right to be heard. The court held that the Magistrate's dismissal of the Information was an error, as it deprived the respondents of their right to a fair hearing. The court found that the Magistrate should not have dismissed the Information and discharged the respondents without a proper hearing. Furthermore, the court considered whether the Magistrate had erred in awarding costs to the respondents, holding that the costs awarded were linked to the dismissal of the Information and not simply for the adjournment. The court decided that these costs should be set aside, but acknowledged that the respondents were entitled to some costs for the adjournment of the trial.

The appeal was allowed, and the orders made by the Magistrate were set aside. The Information was remitted to the Magistrates Court for a hearing before a different Magistrate. The court directed that the parties should be heard on the costs conceded by the appellant and the costs of the appeal. The decision underscores the importance of procedural fairness and the right to a hearing in criminal proceedings, highlighting the potential consequences of procedural errors by the court.

Orders

Orders of the court

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Background

Background to the litigation

The charges were listed for hearing before the Magistrates Court constituted of a Magistrate on Wednesday 1st 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 13th 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 4th July 2003. There were a number of directions hearings and pre-trial conferences. There were hearings on 4th July 2003, 15th August 2003, 28th October 2003, 21st January 2004, 24th March 2004, 28th May 2004 and 4th August 2004. The trial dates of 1st, 2nd and 3rd September 2004, were fixed by a Magistrate on 24th March 2004. The police prosecutor, Ms Susan Lucas, has sworn two affidavits dealing with the events of 1st 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 1st 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 1st 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 1st 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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