Police v Nelson, Norris, Carroll and Forbes - [2007] SASC 453

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Criminal)
POLICE v NELSON, NORRIS, CARROLL AND FORBES
[2007] SASC 453
Judgment of The Honourable Justice Nyland
20 December 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - ORDERS - SETTING ASIDE EX PARTE ORDERS
Prosecution appeal against dismissal of complaints by magistrate in busy circuit - non-attendance of prosecution witnesses - magistrate proceeded ex parte - non-attendance by defendants - no pleas entered - no hearing despite seriousness of charges - denial of procedural fairness to prosecution - appeal allowed and complaint remitted to Magistrates Court for hearing.
Criminal Law Consolidation Act 1936 ss 20(3), 39(1), 85(1) and 85(3); Domestic Violence Act 1993 s 15(1); Summary Procedure Act 1921 ss 62, 62A, 63 and 68, referred to.
Police v Slater [2003] 86 SASR 189, applied.
Police v Long and Long [2004] SASC 381; Police v Turbitt [2005] 92 SASR 480; Police v Oakley [2006] SASC 373, discussed.

POLICE v NELSON, NORRIS, CARROLL AND FORBES
[2007] SASC 453
Magistrates Appeal
NYLAND J:

This judgment relates to prosecution appeals against the dismissal of charges in four cases which were listed for hearing in the Magistrates Court sitting at Marla during the month of March 2007, namely, charges against, Brian Nelson, Ronsley Carroll, Christopher Norris, and Heston Forbes. Although each is a separate and unrelated matter, the issue for decision is the same. Accordingly, as a matter of convenience, the four appeals were heard together. Nevertheless, before turning to the legal argument, it is appropriate to set out the facts relating to each particular case.
Police v Brian Nelson : Appeal File No 483 of 2007
The respondent was charged on information with two offences of contravening a domestic violence order on 5 October 2006 at Ernabella. He was also charged on the same date with committing the offence of intentionally making physical contact directly with Anyupa Nelson knowing that she might reasonably object to the contact contrary to s 20(3) of the Criminal Law Consolidation Act 1936 (CLCA). It was alleged that this was an aggravated offence as it was committed by the respondent, knowing that the victim of the offence was his spouse.
It appears from the apprehension report that a restraining order was served on the respondent on 19 June 2006 and was current to 19 June 2008. The restraining order required the respondent not harass, threaten or intimidate the victim Anyupa Nelson.
It was alleged, however, that at about 6 pm on Thursday, 5 October 2006, the respondent assaulted his wife by punching her twice in the chest and throwing a rock at her which hit her on the shoulder.
Police v Ronsley Carroll : Appeal File No 484
The respondent was charged on information with two counts of assaulting Sheree Rose, a family member, contrary to s 39(1) CLCA, at Ernabella on 23 March 2005 and a further charge of assault at Ernabella on 24 March 2005, contrary to s 39(1) CLCA. It was alleged that the respondent was in a relationship with the victim, Sheree Rose, and that on 23 March 2005, he assaulted her by hitting her above the right eye with the steel rim of a bike wheel causing minor swelling and bruising and that on 24 March 2005, he hit the chair on which she was sitting causing her to fall off. While she was on the ground he hit her with a baseball bat causing minor bruising.
The respondent was also charged on complaint with the offence of assaulting Jon Barrat Parkinson, contrary to s 39(1) CLCA. It was alleged that on 15 December 2004, the respondent assaulted Mr Parkinson in the Ernabella community store by throwing a rock at him, hitting him on the left hip.
Police v Christopher Norris: Appeal File No 485 of 2007
The respondent was charged on an information with two counts of property damage, both of which were alleged to have occurred at Indulkana on 23 June 2004. Count 1 alleged an act of arson by which a motor vehicle, the property of Simon Baker was destroyed with the approximate damage being about $3,000. This offence was contrary to s 85(1) CLCA.
The second count of property damage alleged that the respondent used a small iron bar to smash the rear window of a vehicle belonging to the victim, Kay Baker. This offence was contrary to s 85(3) CLCA.
Police v Heston Forbes: Appeal File No 486 of 2007
The respondent was charged on two separate informations. The first information included three counts of assault contrary to s 39(1) CLCA and three counts of contravening a domestic violence restraining order which had been made by the Magistrates Court sitting at Coober Pedy on 27 August 2002, contrary to s 15(1) of the Domestic Violence Act 1994 (DVA). The alleged victim was the respondent’s de facto partner, Patricia Robinson. It was alleged that on 15 July 2004, the respondent assaulted Ms Robinson by swinging various gardening implements at her and striking her with a piece of electrical cord causing severe bruising to both legs. It was further alleged that on 11 February 2005, the respondent assaulted Ms Robinson by kicking her to the chest, striking her to the face with a bottle of petrol and attempting to hit her with a wheel brace. It was further alleged that on 10 April 2006, the respondent assaulted Ms Robinson by punching her twice in the head.
There was a further information which alleged that the respondent had assaulted Ms Robinson on 4 March 2004 at Indulkana contrary to s 39(1) CLCA, and that he had also contravened a domestic violence restraining order imposed in the Magistrates Court sitting a Fregon on 27 August 2002, contrary to s 15(1) DVA. It was alleged that on 4 March 2004, at Indulkana, the respondent had also assaulted Ms Robinson by striking her on the leg with a small shovel causing pain.
In each of these cases, an order for dismissal of charges was made by the learned magistrate when it appeared that the prosecution witnesses were not in attendance to give evidence. There is, however, a degree of confusion as to the procedure adopted by the learned magistrate. The endorsement on each of the files is quite brief and is simply to the effect that ex parte leave was granted, that there were no witnesses, no evidence was tendered and the information dismissed.
APP Williamson appeared for the prosecution in each case and Ms Chumak for the respondents. Each of them has filed an affidavit setting out what he/she believed had occurred but there is some divergence of recollection appearing therein. It does, however, appear to be common ground that each of these matters was listed for call over in the Port Augusta Magistrates Court on 7 and 21 March 2007. None of the respondents was required to attend the call over, but Ms Chumak appeared as counsel for each of them at that time as well as later appearing as counsel at the hearing in Marla. At the call over, the court was informed that the defence had not been provided with witness statements and some orders were made for the provision of them to defence prior to trial. The matters of Nelson and Norris were set down for hearing on 26 March 2007 at Marla and the matters of Carroll and Forbes on 27 March 2007 and 28 March respectively.
At the hearing in Marla none of the respondents apart from Carroll, who appeared ex custody, was in attendance nor were there any complainants or witnesses for the prosecution.
Mr Williamson maintains that in each case in which a respondent was not in attendance he asked for a warrant to issue, but the magistrate refused the application, and indicated that she intended to proceed ex parte. Mr Williamson did not, however, recall any application, nor any submissions relating to the ex parte procedure from either himself or Ms Chumak. Ms Chumak however said that, when asked by the magistrate, she had consented to ex parte leave. Ms Chumak also said that she told the court in each case that the charges were disputed. Ms Chumak does not however explain in her affidavit the reason for the absence of the particular respondent. Mr Williamson said he also applied in each case for an adjournment to provide him with the opportunity to contact witnesses and to ensure their attendance on an adjourned trial date, but those applications were also refused. He said he did not at any time make a formal submission for the tendering of no evidence and the charges were simply dismissed as a result of him having no witnesses in attendance.
I subsequently endeavoured to obtain some clarification as to what had occurred by obtaining a report from the learned magistrate. She reported by letter dated 21 September 2007. Understandably, at this stage of the proceedings, she had little recollection of the individual matters, but believed that the endorsements on the court files accurately represented what had occurred.
At the time of making the orders for dismissal, the learned magistrate did not provide any reasons, nor indicate the section pursuant to which she purported to make the orders, but in her report she indicated that where the defendants had not appeared, she had proceeded pursuant to s 62A of the Summary Procedure Act 1921 (SPA). She also said that “as regards proceeding ex parte, given the lack of both defendants and witnesses I have most likely proceeded ex parte without an application by either party”.
The learned magistrate also said that as the defendants had not admitted to the truth of the complaints, she proceeded to hear their matters pursuant to s 68 SPA. She did not recall any application by the prosecution for either a warrant or an adjournment but said in any event that she would have taken the view that it was not in the interests of justice to issue a warrant and have a defendant arrested when the indicators were that the prosecution witnesses would not attend at trial in any event.
Section 62A SPA provides:
Power to proceed in absence of defendant
(1) If a person who has been apprehended (whether under a warrant or without a warrant), and released on bail fails to appear at the time and place appointed for the hearing of a complaint laid or to be laid against him, the court may in its discretion hear the complaint in the absence of the defendant, and may adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had appeared at that time and place.
(2)This section shall apply whether the defendant is discharged pursuant to powers granted by this or any other Act.
The provisions of this section are clearly intended to empower a court to conduct a hearing in the absence of a defendant when a defendant deliberately absents himself/herself from the court. In my view, however, it is not concerned with a hearing in the absence of both parties. The definition of “ex parte” is in the Shorter Oxford English Dictionary:
1.     orig. Law. Made or executed on one side only.
2.     gen. Of statements, etc.: Made by or in the interests of one side only.
In The Macquarie Dictionary:
1.    from or on one side only, as in a controversy; in the interest of one party.
2.Law. made on the application of one party to an action in the absence of the other.
Sections 62 to 62D SPA inclusive all describe the procedure to be followed when a defendant fails to appear in court in answer to a summons, bail etc. They permit the court to hear a complaint and to adjudicate on a defendant’s guilt or innocence, notwithstanding his/her failure to attend court as required. I consider, however, that each of these sections contemplates the situation in which the complainant is present and there is some hearing of the complaint. On the other hand, if the defendant appears, but the complainant does not, then s 63 SPA provides that, in that circumstance, the court should dismiss the complaint unless it thinks it is proper to adjourn the hearing. Section 63 SPA did not apply in this case however as, apart from Carroll, the respondents were not in attendance, and in any event, the complainants, although absent, were at least represented by the presence of the police prosecutor.
Section 68 SPA sets out the procedure on a plea of not guilty and provides:
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.
The provisions of this section also appear to require the court to conduct a hearing, as it says that if the defendant does not admit the truth of the complaint the court “shall proceed to hear the complainant and his witnesses and any other evidence which he adduces in support of his complaint” etc.
There is a further difficulty with the procedure adopted in this case. Although each of these respondents was represented by Ms Chumak, who indicated the matters were contested, it appears that apart from Carroll, no pleas were ever entered by the respondents to the charges against them. Although Carroll had pleaded not guilty at an earlier court appearance, he did not enter a plea before the magistrate on the day that the trial was due to be heard, prior to the charges against him being dismissed.
In Police v Slater[1] Perry J considered the provisions of s 68(1) SPA and held that it was not open to a magistrate to dismiss a complaint before a plea was entered to it unless successful objection was taken to the form of the complaint and is, or cannot be, amended, or the complainant consents to dismissal.
[1] [2003] 86 SASR 189
Although that case was concerned with an order made at a directions hearing, I consider the remarks of Perry J are of equal application to the present situation.
In Police v Long & Long[2], Besanko J allowed an appeal against an order dismissing charges following the refusal of a magistrate to allow a requested adjournment when the prosecutor advised that forensic tests were not available. The charges were not read to the respondents, nor pleas taken prior to the dismissal. Besanko J considered the question of whether the magistrate had the power to make the order dismissing the information and found that in the circumstances which had arisen the magistrate did not have the power to do so. After setting out the provisions of ss 67, 68 and 69 SPA, Besanko J said (at [23]):
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.
[2] [2004] SASC 381
In this case, the learned magistrate said in her report:
I feel I should make a few comments regarding the Marla circuit which are not in response to any requests by the Court.
I do so with great respect to the Court and I accept they may well be irrelevant as regards the matters on appeal.
The Police Prosecutor had been organised at very short notice. He arrived at Marla having not previously seen the trial files. There were no local police officers available to assist him and no efforts appeared to have been made by the police to assist witnesses to get to court, there being no public transport available.
I well aware a number of the trials were for serious charges where alleged victims had suffered significant injury.
However having conducted court in remote Aboriginal communities for the best part of 20 years I am familiar with of the reluctance of witnesses to attend and give evidence, particularly where the incidents involved occurred a long time before. Only where there is significant input by local police is there any hope of witnesses appearing. In March 2007 this certainly was not happening, had not happened for any of the circuits I had presided over previously and from what I could see was not likely to happen in the future.
These local factors were relevant to my decision to proceed as I did.
The prosecutor did the best he could in difficult circumstances and I did not lose sight of the interests of justice or of the alleged victims however there was nothing to suggest to me that had the matters been adjourned the situation would be any different the next time the matter were listed for trial.
The attitude of the magistrate is understandable. It is clear that the prosecutor was very ill-prepared with respect to the prosecution of these cases, and this was a busy circuit in which a large number of matters were waiting to be heard. It should, however, only be in a rare and exceptional case that a court dismisses a charge or grants a stay of proceedings with respect to defendants charged with such serious crimes as those which were before the court in this case. The comments in the report indicate that the magistrate was displeased with the lack of diligence on the part of the prosecutor and the apparent breach of case flow management principles when she made the orders for dismissal. As unsatisfactory as the conduct of the prosecution was, however, it is always necessary to ensure that neither a complainant, nor a defendant, is deprived of procedural fairness by the rigid application of case flow management principles.
In Police v Turbitt[3] Gray J allowed an appeal against the dismissal of an information by a magistrate for purported non compliance with a procedural order for disclosure of various items of evidence. In so doing, Gray J discussed the proper role of case flow management principles and said (at [60] and [61]):
It is clear from the authorities that a magistrate does possess the power to dismiss proceedings, but that such an order should only be made where it is necessary to ensure fairness to an accused. Furthermore, the unfairness caused must be substantial unfairness that cannot be remedied by any other means open to the court.
In effect, an order dismissing an information amounts to a refusal to exercise jurisdiction. As such, it is a power that must only be exercised in exceptional circumstances Jago v District Court (NSW) (1989) 168 CLR 23 at 76 etc:
‘The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised.’
And on the topic of procedural fairness (at [65]):
By failing to permit the prosecution to explain its apparent non-compliance with the order made on 10 December 2004 and by failing to allow counsel for the prosecution the opportunity to take further instructions, the magistrate did not afford the appellant procedural fairness.
[3] (2005) 92 SASR 480

Similarly, in Police v Oakley[4] Gray J said (at [23]):
By failing to permit the prosecution to explain the apparent non-disclosure, and by failing to allow counsel for the prosecution time to make proper enquiry as to the reasons for delay, the Magistrate did not afford the appellant procedural fairness. This is a clear case of a denial of procedural fairness.
[4] [2006] SASC 373
Each of these respondents was charged with serious offences. Apart from Carroll, none of the respondents was in attendance to answer the charge. No pleas were taken by the magistrate before making the orders for dismissal. There was no application by the defence for the matter to proceed ex parte, and there does not appear to have been any submission made to the court of any prejudice to the respondents should the relevant case have been adjourned. The prosecution does not appear to have been provided with any opportunity, either by way of an adjournment or having the matter left in the list, to contact relevant witnesses to ascertain or explain the reason for their non-attendance. There was no hearing of any kind. The prosecution was therefore denied procedural fairness. Given the serious nature of the alleged offending, the obvious difficulties associated with aboriginal civilian witnesses, and the community interest in bringing offenders charged with serious offences to trial, as frustrating as the situation must have been for a magistrate in charge of a very busy list, I consider that the learned magistrate erred as a matter of law in dismissing the various charges in this case.
The appeals in each case will therefore be allowed. The orders for dismissal are set aside and the informations and complaints are reinstated. Each of these matters is remitted back to the Magistrates Court for further hearing according to law. The prosecution should be on notice, however, that subject to the various respondents being in attendance and entering pleas on the next occasion, the charges are likely to be dismissed pursuant to s 63 SPA in the event of the failure of the prosecution witnesses to attend to give evidence at that time.