Police v Oakley - [2006] SASC 373

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v OAKLEY
[2006] SASC 373
Judgment of The Honourable Justice Gray
12 December 2006
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING
Appeal against dismissal of a complaint by a magistrate – magistrate dismissed complaint without application having been made and without any notice of the possibility of such order - magistrate provided no reasons for the dismissal or the procedure followed - there was no suggestion of irreparable prejudice to the accused – whether magistrate erred in dismissing the complaint - whether magistrate erred in failing to comply with sections 67 and 68 of the Summary Procedure Act 1921 (SA) - whether magistrate failed to accord procedural fairness to the prosecution - whether magistrate erred in applying case flow management rules and principles in a manner inconsistent with and repugnant to the exercise of jurisdiction as statutorily prescribed appeal allowed - order of dismissal set aside - matter remitted before a differently constituted Magistrates Court.
Criminal Law Consolidation Act 1935 (SA) s 85(3); Summary Procedure Act 1921 (SA) s 67, s 68, referred to.
Police v Turbitt (2005) 92 SASR 480; Papps v Police (2000) 77 SASR 210; Gray v Police (2003) 85 SASR 1; Holmden v Bitar (1987) 47 SASR 509, considered.

POLICE v OAKLEY
[2006] SASC 373
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against the dismissal of a complaint.
The appeal raises important questions concerning case-flow management and procedural fairness. A Magistrate made an order of dismissal without any application having been made and without any notice being given of the possibility of such an order being made.
The Facts
The respondent, Christopher Kym Oakley, was charged on complaint that, on 12 November 2004, at Salisbury, intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed, he damaged a motor vehicle the property of Joanna Salamaga, such damage amounting to not more than $2,500 contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA). The respondent, if convicted, faced a maximum penalty of imprisonment for two years.
The complaint was laid on 23 August 2005. The complaint and summons notified the hearing details as “Magistrates Court sitting at Elizabeth, 20 December 2005 at 10.00am”.
On 14 December 2005, the respondent’s solicitors wrote to the Officer in Charge of the Elizabeth Prosecution Unit noting that the matter was before the Court on 20 December 2005 and seeking the following information:
A copy of the information and apprehension report.
A copy of the police incident report.
A copy of all police notes in relation to this charge.
All witness statements in relation to this matter.
Any other documents you intend to rely upon
Would you please provide this documentation as soon as possible.
On 20 December 2005, the matter was called on before a magistrate. There was no appearance by the respondent or his legal representative. The endorsement to the file indicates that a letter had been received from the respondent’s solicitor. The matter was adjourned to 12 April 2006.
On 11 April 2006, a facsimile was forwarded by the respondent’s solicitors to the Officer in Charge of the Elizabeth Prosecution Unit in the following terms:
We act for the abovenamed whose matter is next before the Elizabeth Magistrates Court on Wednesday 12 April 2006 at 10:00am.
We refer to our correspondence to your office dated 14 December 2005 requesting disclosure. We note that this correspondence has not been answered. Could you please attend to this as a matter of urgency.
On 12 April 2006, the matter was called on before the court. There was no appearance by the respondent. However, on this occasion his solicitor attended. Apparently, the solicitor indicated that the matter would be contested. No formal plea was entered. The Magistrate adjourned the complaint for a pre-trial conference on 3 August 2006.
On the same day, 12 April 2006, a further facsimile was forwarded by the respondent’s solicitors to the Officer in Charge of the Elizabeth Prosecution Unit in the following terms:
We act for the abovenamed. We confirm this matter is next before the Elizabeth Magistrates Court on 3 August 2006 for a pre-trial conference. We refer to our correspondence to your office dated 14 December 2005, requesting disclosure. We note that this request has not been answered.
Could you please provide us with a copy of the following:
Statement of victim, namely Salamaga
Photographs of all alleged damage to victim’s vehicle
Statements of all other witnesses
Copy of police incident report
Copy of all original police notes
According to the affidavit of the Prosecutor, in approximately August 2006 and prior to the pre-trial conference, he was instructed to appear on the pre-trial conference in regard to this matter.
On 3 August 2006, the matter was called on for a pre-trial conference before a different Magistrate. The respondent’s solicitor informed the Court of the requests of 14 December 2005 and 12 April 2006 for disclosure of documents. He told the Court that no documentation had been provided.
The Prosecutor informed the Magistrate that he had not previously seen the letter of 12 April 2006 and that it was not on the police brief. He was unable to provide an explanation as to why the request was not on the brief.
The Magistrate then without application or notice inquired of the Prosecutor as to the reason for not disclosing the documents. The Prosecutor responded that, other than the usual workload issues experienced by the prosecution, he could offer no excuse.
The Magistrate then dismissed the complaint. The file was endorsed as “2 requests for statements and particulars – no explanation as to why information has not been furnished” and ordered costs of $150 against the Police. The Magistrate did not prepare or provide any further reasons.
The Appeal
Adequacy of Reasons
The obligation of judges and magistrates to give adequate reasons for decisions are well established. In Papps v Police,[1] the following observations were made:[2]
[1] Papps v Police (2000) 77 SASR 210.
[2] Papps v Police (2000) 77 SASR 210 at [34]-[35] (footnotes omitted).
As was said in Lawson v Lee the reasons must be "coherent, intelligible and comprehensive". But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.
The lack of reasons in this case presents a difficulty for this Court attempting to exercise its appellate jurisdiction to review a decision without guidance as to the Magistrate’s reasons for the making of his discretionary decision. Notwithstanding the time constraints and the demands placed on magistrates, it is important that decisions constituting final orders, subject to a right of review, are substantiated with reasons.
The Magistrate provided no adequate reasons for the order made or the procedure followed. There was no suggestion that a fair trial could not occur. There was no suggestion that prejudice of a serious or irreparable kind had been occasioned to the respondent. The Magistrate appeared either not to be aware of, or not to have regard to, a number of decisions of this Court pointing out the serious problems with a course such as that followed by the Magistrate.
Sections 67 & 68 of the Summary Procedure Act and Procedural Fairness
On appeal, counsel for the Crown submitted that the Magistrate had erred in failing to comply with sections 67 and 68 of the Summary Procedure Act 1921 (SA), in that there was no hearing on the merits of the complaint.
The counsel for the Crown submitted that the Magistrate failed to accord procedural fairness to the Police. Counsel complained that the Magistrate applied case-flow management rules and principles in a manner inconsistent with, and in conflict with, the exercise of jurisdiction as statutorily prescribed.
The issues raised on this appeal are dealt with in my previous decision, Police v Turbitt, [3] which arose out of very similar factual circumstances to those presently under review and which reasons I adopt for the purpose of determining this appeal. I there concluded that the Magistrate’s decision dismissing the information was an entirely inappropriate course to follow. I considered at length the obligations of magistrates arising pursuant to sections 67 and 68 of the Summary Procedure Act 1921 (SA). I discussed the need for magistrates to give explicit notice to the prosecution of the possibility of an order of dismissal so as to ensure that procedural fairness is accorded to the prosecution. In addition, I discussed the proper role and application of case-flow management principles. With respect to the application of case-flow management principles and in particular the intersection between such principles and the legislative requirements provided for in sections 67 and 68 of the Summary Procedure Act, I observed:[4]
Although the Magistrates Court does have a rule-making power, any rules made pursuant to that power cannot confer jurisdiction or impede the exercise of jurisdiction as intended by the legislature. Rules made by the Magistrates Court must be interpreted and applied in a manner facilitative of the exercise of jurisdiction and cannot be used in a way that is either inconsistent with the grant of jurisdiction or repugnant to the exercise of that jurisdiction. Consequently, rules designed to achieve case-flow management objectives, such as Rule 8, and rules designed to facilitate the smooth running of a trial, such as Rule 26, must be exercised in a manner that is consistent with, and not repugnant to, the exercise of statutorily prescribed jurisdiction. The Magistrates Court Rules are not to be interpreted or applied in a way that results in a departure from the procedure prescribed in sections 67 and 68 of the Summary Procedure Act.
[3] Police v Turbitt (2005) 92 SASR 480.
[4] Police v Turbitt (2005) 92 SASR 480 at [60].
By dismissing the complaint on the basis that the prosecution had failed to provide to the defence the requested information, the Magistrate overlooked the public interest in ensuring that complaints are prosecuted. The exercise of his discretion miscarried.
Procedural fairness required the Magistrate to give explicit notice to the prosecution that he was considering making an order of dismissal. It required further that the prosecution be permitted to make submissions regarding the possibility of dismissal prior to an order being made. Neither of these things occurred.
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.
In Turbitt, I recognised that it was clear from the authorities that a magistrate does possess the power to dismiss proceedings. However, 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.[5]
[5] Police v Turbitt (2005) 92 SASR 480 at [60].
Counsel for the respondent accepted that his client could not demonstrate any real prejudice. Counsel also conceded that a delay in providing the requested information would not lead to any unfairness. It cannot be said that the risk of abuse of court resources resulting from the delay in prosecution disclosure outweighed the public interest in ensuring that the complaint was prosecuted.
The circumstances of this matter fall far short of those that courts have previously found to warrant a stay or dismissal of proceedings.[6] An order dismissing the complaint was not an appropriate course for the Magistrate to follow.[7]
[6] See Gray v Police (2003) 85 SASR 1 at [19]-[24].
[7] See Holmden v Bitar (1987) 47 SASR 509 at 517 (Cox J).
At the time of the Magistrate’s order for dismissal, the respondent had suffered no irreparable prejudice. The trial date was to be set. The prosecution could have been called on to provide relevant information, and its compliance could have been monitored. There was sufficient time for the defence to prepare its case without labouring under any prejudice.
The absence of any prejudice to the respondent leaves the Magistrate’s order for dismissal without justification.
Case Flow Management
The appellant submitted that the Magistrate erred in placing greater importance on case-flow management principles that the rules attempt to implement than on the court’s primary role, which is the attainment of justice. As I observed in Turbitt:[8]
The proper role of case-flow management principles is to ensure the prompt and efficient disposal of court business. The application of such principles is always subject to the ultimate objective of the court, the attainment of justice. Rules of court in any jurisdiction exist to facilitate the attainment of justice. It is therefore inconsistent to apply them in such a way as to obstruct that goal. Justice requires that an accused be tried according to law - not according to case management principles. In the circumstances, the order of dismissal was entirely inappropriate.
[8] Police v Turbitt (2005) 92 SASR 480 at [54].
In any event, at the time that the order for dismissal was made, the trial date had not been set. The interests of case-flow management would have been better served by keeping the complaint on foot and permitting the prosecution an adjournment in order to prepare properly for the trial. The Magistrate could have monitored the ongoing preparation to ensure fairness to the respondent and to be satisfied that every effort was being made by the prosecution to comply with its obligations.
Conclusion
This appeal is allowed. The order of dismissal is set aside. The matter is remitted for hearing before a differently constituted Magistrates Court. Given the delays that have already occurred in these proceedings, it is desirable that a further pre-trial conference take place as soon as possible and that the trial date be expedited.