Police v M, M - [2012] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v M, M
[2012] SASC 83
Judgment of The Honourable Justice White
29 May 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - NATURE OF APPEAL
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OTHER CASES
EVIDENCE - MECHANICAL RECORDS
Respondent charged with performing a grossly indecent act in a public place - Magistrate dismissed complaint following submissions at conclusion of prosecution opening and without hearing evidence.
Crown appeal against dismissal - whether Magistrate erred in law in dismissing the complaint by failing to comply with ss 68 and 69 of Summary Procedure Act 1921 (SA) (SPA) - whether Magistrate erred in failing to consider the evidence sought to be adduced by the prosecution - whether appeal competent.
Held: appeal allowed - Magistrate's order of dismissal and order of costs set aside - matter remitted to Magistrates Court for hearing - Magistrate failed to comply with ss 68 and 69 of SPA by failing to hear the evidence sought to be adduced by the prosecution - appeal competent.
Magistrates Court Act 1991 (SA) s 42; Summary Offences Act 1953 (SA) s 23; Summary Procedure Act 1921 (SA) s 64, s 68, s 69; Magistrates Court Rules 1992 (SA) r 8.08, referred to.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; McIlvar v Szwarcbord (2008) 256 LSJS 264; Police v DiGeronimo (1997) LSJS 362; Police v Dorizzi (2002) 84 SASR 493; Police v Long [2004] SASC 381; Police v Slater (2003) 86 SASR 189; R v Chen (1993) 2 VR 139; R v Maqsud Ali [1966] 1 QB 668; R v Robson (1972) 2 All ER 699; Smith v The Queen (2001) 206 CLR 650; WorkCover Corporation v Camarinha [1999] SASC 390, considered.

POLICE v M, M
[2012] SASC 83
Magistrates Appeal

WHITE J. The respondent was charged with the offence of performing a grossly indecent act in a public place, contrary to s 23(2) of the Summary Offences Act 1953 (SA). The prosecution alleged that the offence was committed at about 5.30 am on 5 December 2010 on the Festival Plaza.
The respondent’s trial commenced on Monday 20 February 2012. Following submissions at the conclusion of the prosecution opening and his refusal of a prosecution application for an adjournment, the Magistrate dismissed the complaint. He did so without hearing any evidence in the trial or in a voir dire, and without any forewarning to the parties that the dismissal of the complaint at that stage was a possibility.
The police now appeal against that dismissal. The sole ground of appeal is that the Magistrate erred in law in dismissing the complaint, because he had failed to comply with the mandatory requirements of ss 68 and 69…

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 M, M

Details

AGLC: Police v M, M [2012] SASC 83
Case: [2012] SASC 83
Decision Date: 29 May 2012

CaseChat Overview and Summary

The matter before the Supreme Court of South Australia is an appeal by the police against the dismissal of a criminal complaint by the Magistrates Court. The respondent, M, was alleged to have committed an offence, and the primary evidence against her was CCTV footage from the Skycity Casino. The police intended to tender this footage, but the person who made the copy, Mr Anderson, was unable to attend the trial. The respondent objected to the footage being admitted without proper proof of its provenance and authenticity. The Magistrate dismissed the complaint, finding that the prosecution had not established a prima facie case.

The legal issues before the court were whether the Magistrate erred in law by dismissing the complaint without hearing the evidence that the prosecution wished to adduce and without forewarning either party that he was contemplating such a step. The appeal hinged on whether the Magistrate complied with the mandatory requirements of sections 68 and 69 of the Summary Procedure Act 1921 (SA). These sections set out the procedure for the court to follow when a defendant pleads not guilty, requiring the court to hear evidence from both parties and then determine the matter.

The court found that the Magistrate had indeed erred in law. The procedure outlined in sections 68 and 69 is mandatory and must be followed. The Magistrate dismissed the complaint without hearing the evidence that the prosecution had available and without forewarning either party that he was contemplating such a step. The prosecutor had not indicated that he would be tendering no evidence, or that he was abandoning the prosecution, or that he accepted that the complaint should be dismissed. The court concluded that the Magistrate’s failure to comply with the mandatory requirements of the Act resulted in an error of law.

As a result of the court's findings, the appeal was allowed. The order of the Magistrates Court dismissing the complaint and the order of costs were set aside, and the matter was remitted to the Magistrates Court for hearing before another Magistrate. The court ordered that the parties be heard as to costs.

Orders

Orders of the court

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Background

Background to the litigation

The police now appeal against that dismissal. The sole ground of appeal is that the Magistrate erred in law in dismissing the complaint, because he had failed to comply with the mandatory requirements of ss 68 and 69 of the Summary Procedure Act 1921 (SA) (SPA).Background The principal evidence on which the prosecution intended relying at the trial was CCTV footage said to have been taken by a camera at the Skycity Casino. In his opening, the prosecutor outlined that two police officers, Snr Constable Walker and Constable Barile, would give evidence that on 5 December 2010 they had spoken to the respondent at the Festival Plaza, near to the Casino, regarding her alleged conduct. On the following day they had gone to the Casino and had been shown, by a Mr Anderson, some CCTV footage of the alleged conduct. In their presence, Mr Anderson made a copy of the footage and handed it (apparently in DVD form) to Snr Constable Walker. It was that footage which the prosecutor wished to tender at the trial. The prosecutor outlined in general terms the content of the footage. He also indicated that he would be asking the Magistrate to undertake a view of the relevant area of the Festival Plaza. The prosecutor informed the Magistrate that he was not in a position to call Mr Anderson at the trial because he was interstate. He foreshadowed a submission that the evidence of the two police officers, together with the content of the CCTV footage itself, would be sufficient to prove its authenticity. There then followed some submissions by both parties about the absence of Mr Anderson and the respondent’s requirement for the “provenance” of the CCTV footage to be properly established. In the course of her submissions, the respondent’s counsel made the following points:1. The respondent had expected Mr Anderson to be called.2.The prosecutor had been put on notice one or two weeks previously that the CCTV footage was not agreed; that the prosecution should adduce proper proof of it; that the respondent maintained that position; and that she would object to the tender of the footage without proper proof of its provenance and authenticity.3.Even if Mr Anderson was called, his evidence may not be sufficient to prove the provenance and authenticity of the CCTV footage.4.The respondent was shown in the footage but would submit that the CCTV footage showed two men sexually assaulting her and then decamping before the arrival of the police.5.On their arrival, the two police officers had immediately accused the respondent of committing an offence and had not made any investigation of the two men shown in the footage.6.The respondent’s husband had arrived at the Plaza to find her semi-naked and in a distressed condition.7.That the contents of the footage were “disgusting” but, contrary to the prosecution case, were of “a sexual assault by two men upon a woman who had had her drink spiked”.8.That the respondent had that morning provided the prosecution with an expert report regarding “drink spiking”.The points made by the prosecutor included the following:1.The images in the CCTV footage were inconsistent with the respondent having been the victim of a sexual assault.2.Mr Anderson had been informed by notice shortly after 25 November 2011 of the trial date, and of the requirement for him to attend to give evidence.3.An addendum statement had been obtained from Mr Anderson on 27 December 2011 and signed by him on 22 January 2012. 4.A summons (apparently a subpoena) had been issued to Mr Anderson on 6 December 2011, although the prosecutor was not in a position to prove service of that summons.5.The police had recently been informed that Mr Anderson was taking a week’s leave and would not be available6.He considered that the evidence of the police officers (who would identify themselves on the CCTV footage) and the CCTV footage itself would establish the provenance of the footage.7.He had taken over the conduct of the prosecution within a few days of the commencement of the trial, following the sickness of the prosecutor who had had the carriage of the matter, and that he had first learnt of Mr Anderson’s unavailability only two working days before the trial was to commence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

I do not consider that this characterisation of the appeal is appropriate. Unlike the circumstances considered in Police v Dorizzi, this is not a case in which the prosecutor tendered no evidence or otherwise invited the dismissal of the complaint with a view to testing an evidentiary ruling. As already indicated, the prosecutor was not given an opportunity to adduce such evidence as he did have available, nor was he forewarned by the Magistrate that dismissal of the complaint was in contemplation.Conclusion For the reasons given above, I allow the appeal. I set aside the order of the dismissal and the order of costs made by the Magistrate on 20 February 2012 and I remit the matter to the Magistrates Court for hearing before another Magistrate. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

It can be seen that the Magistrate dismissed the matter immediately after his refusal of the adjournment and without giving the prosecutor an opportunity to make any further submissions, or to lead such evidence as the prosecutor did have available, and without the prosecution closing its case. It is also to be noted that the respondent’s counsel had not made any submissions seeking the dismissal of the matter.Consideration The appellant submits that the course adopted by the Magistrate is not authorised by the SPA. Sections 64, 68 and 69 are pertinent presently. Section 64 requires the Magistrates Court, if both parties appear before it, to proceed to hear and determine the matter of the complaint. Section 68 provides for the procedure when a defendant enters a 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. It can be seen that the effect of s 68(1) is to require the Magistrates Court, following a not guilty plea, to hear such evidence and submissions as each party wishes to present. Section 69 provides for what is to occur next: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.Thus, s 69 contemplates that after the parties and their evidence have been heard the Court will consider and determine the complaint, and either find the charge proved or dismiss the complaint, as the case may require. As Besanko J observed in Police v Long,[1] the procedure laid down in ss 68 and 69 is mandatory. The procedure is clear and it is important that it be followed.[2] [1] [2004] SASC 381.[2] Ibid at [23].Failure to Comply with ss 68 and 69 In the present case, although some submissions were made by each party, the Magistrate did not hear the evidence which the prosecution wished to adduce and which it had available. Instead, he proceeded to dismiss the complaint without any forewarning to either party that he was contemplating that step and, accordingly, without any opportunity for either to be heard. The prosecutor had not indicated that he would be tendering no evidence, or that he was abandoning the prosecution, or that he accepted that the complaint should be dismissed. At its highest, the prosecutor had done no more than acknowledge the effect of the ruling which the Magistrate had given.