Police v Ryan - [2012] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RYAN
[2012] SASC 225
Judgment of The Honourable Justice Sulan
11 December 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - CONSTITUTION OF COURT AND GENERALLY - SOUTH AUSTRALIA
Appeal against sentence - the respondent was charged with aggravated assault contrary to ss 20(3) and 5AA(1)(c) of the Criminal Law Consolidation Act 1935 (SA) - the respondent pleaded guilty before a special justice - the Special Justice heard submissions and imposed a fine plus costs and payment of the victims of crime levy - whether the Special Justice had jurisdiction to hear and determine the offence alleged.
Held: appeal allowed - as the offence charged was a minor indictable, the Special Justice did not have jurisdiction to determine it unless there was no magistrate available - that precondition of jurisdiction requires an enquiry and determination that no magistrate is available - no enquiry was made - the proceedings before the Special Justice are void - the fine and orders for costs and victims of crime levy were set aside - the matter was remitted to the Magistrates Court to be heard by a magistrate.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(c), s 20(3); Magistrates Court Act 1991 (SA) s 7A, s 9A, referred to.
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, applied.
Pollard v Police [2010] SASC 23, considered.

POLICE v RYAN
[2012] SASC 225
Magistrates Appeal: Criminal

SULAN J: This is an appeal by the Police against a decision of a Special Justice. After hearing submissions, I allowed the appeal, set aside the orders and remitted the matter for hearing before a magistrate. I indicated that I would provide reasons in due course, which I now publish.
Introduction
The respondent and defendant, Daniel Mark Ryan, was charged with aggravated assault, contrary to ss 20(3) and 5AA(1)(c) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that, on 6 June 2012 at Magill, the defendant assaulted Remo Paolini. It was further alleged that the defendant committed the offence against a law enforcement officer, in retribution for something the offender knows or believes to have been done by the victim in the course of his official duty. The Police case is that the victim, a council inspector, had had previous dealings with the defendant regarding the defendant’s dog. The defendant’s dog had been put down by the council. On 6 June 2012 the victim was driving at Magill when he was flagged down by the defendant. The victim pulled over to the side of the road and rolled down his window to speak to the defendant. The prosecution case was that, while the victim stayed seated in his car, the defendant yelled at him and punched him twice in the head.
Background
On 14 August 2012, the case was heard by a Special Justice. The defendant was unrepresented and sought an adjournment in order to instruct a lawyer. The Special Justice remarked that it is a minor indictable offence and that, subject to hearing from the defendant and prosecutor, he considered that there will be a fine. The defendant then pleaded guilty and the Special Justice indicated that he would deal with the matter. The police prosecutor submitted that the matter was more serious than could be heard by a Special Justice. He sought to have the matter referred to a Magistrate. The Special Justice proceeded to hear submissions.
The Special Justice heard submissions from the police prosecutor and from Mr Ryan. The prosecutor outlined the police allegations. He referred the Special Justice to the previous convictions of the defendant. He submitted that the aggravating feature is that the victim was a general inspector for the council. The defendant made submissions. The Special Justice imposed a fine of $100, plus costs and the victims of crime levy.
The appeal
The first ground of appeal is:
The Court was not properly constituted under section 7A(2)(c) of the Magistrates Court Act 1991 (SA) to hear and determine the minor indictable offence alleged against the respondent.
There is no dispute that the offence charged is a minor indictable offence. It follows that, in order for the Court to be properly constituted, then a magistrate is required to sit unless a magistrate is not available.
Section 7A of the Magistrates Court Act 1991 (SA) provides:
7A – Constitution of Court
(1) Subject to this section, the Court, when sitting to adjudicate on any matter, must be constituted of a Magistrate.
(2) The Court may be constituted of a special justice –
(a)in its Petty Sessions Division; or
(b)to hear and determine uncontested applications of a class prescribed by the regulations; or
(c)in any other case – if there is no Magistrate available,
but, when constituted of a special justice, the Court may not impose a sentence of imprisonment.
Counsel for the appellant submits that the Special Justice failed to consider and determine that a magistrate was not available. That being a prerequisite to a Special Justice having jurisdiction, the Court, as constituted, did not have jurisdiction to hear and determine the matter.
In Pollard v Police,[1] Gray J considered the operation of s 7A. He said:[2]
Whether or not a Magistrate is available to constitute a court is a precondition to a special justice sitting in a jurisdiction other than the Petty Sessions Division. The concept of there being no Magistrate “available” is a jurisdictional fact as the jurisdiction of a special justice relies on the satisfaction of this condition.
[1] [2010] SASC 23.
[2] [2010] SASC 23, [59].
In Parisienne Basket Shoes Pty Ltd v Whyte, Dixon J said:[3]
... Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable.
[Citations omitted].
[3] (1938) 59 CLR 369, 389.
It was conceded by counsel for the defendant that the Special Justice failed to make any enquiry about the availability of a magistrate to hear the matter. The Special Justice proceeded, on an incorrect premise, that, because a fine was the appropriate penalty he, therefore, had jurisdiction. The precondition for jurisdiction requires a determination that no magistrate is available to hear the case. No enquiry was made. There was a failure to observe the requirements which attend the exercise of jurisdiction. The proceedings are void. The fine and orders for costs and victims of crime levy were, therefore, set aside. They are a nullity.
Whether a Magistrate is available to hear a matter is a matter of fact. The word “available” should be given its ordinary meaning. The third edition of the Australian Concise Oxford Dictionary includes the definition of “available” as “capable of being used; at one’s disposal; free, not otherwise occupied; able to be contacted”. To this I would add “within a reasonable time”. A reasonable time may mean a future date. In each case, that must be determined having regard to the seriousness of the alleged offending.
This is a broad definition which accords with the objects of the Act. The Act prescribes that, in the ordinary course, a special justice is not to sit as the Court. By s 9A, the ordinary jurisdiction of a special justice, being the Petty Sessions Division, is limited to very minor matters. Where more serious matters come before a special justice, they should not be heard in that Court. They should be adjourned for hearing before a magistrate. Where a special justice makes an inquiry and finds that no magistrate is available to hear the matter within a reasonable time, then the special justice will have jurisdiction. As there was no inquiry in this case, it is not necessary to determine whether a magistrate was available.
However, it would appear that there were magistrates in the precinct of the Court on the day the Special Justice was sitting that were likely to have been available to hear the case. There were 13 magistrates sitting in the Adelaide Magistrates Court. The matter was listed at 2.15 pm that day. There were no less than four magistrates listed to hear matters that afternoon. Even if there were no magistrates available that day, the seriousness of the matter requires that a magistrate hear the matter at some date in the future. The matter should have been adjourned to a magistrate.
Having concluded that the proceedings are void, it was not necessary or appropriate for me to consider the second ground of appeal that the sentence was inadequate.
For these reasons, the matter was remitted to the Magistrates Court to be heard by a magistrate.