Police v Slater

POLICE v SLATER
[2003] SASC 284
Magistrates Appeal: Criminal

PERRY J. (ex tempore) This is an appeal by the police against an order made by a magistrate sitting in the Magistrates Court at Adelaide, pursuant to which he dismissed certain counts on two separate complaints.
On the first complaint[1] the respondent was charged with one count of disorderly behaviour, one count of indecent language and one count of assault police, all said to have arisen in the course of an incident which occurred on 17 September 2002.
[1] Magistrates Court file AMC 15220/2002.
In the second complaint[2] the respondent was charged with one count of using offensive language in a public place, two counts of assault police and one count of refusing to give his full name and address, all alleged to have arisen out of an incident which occurred on 22 September 2002.
[2] Magistrates Court file AMC 15899/2002.
It appears from the files that both complaints were brought on together, that is, on the one occasion, for a pre-trial conference before a magistrate on 15 April 2003. A police prosecutor appeared for the complainant and Ms Dixon for the respondent.
The endorsement on the file with respect to the first complaint was:
“Plea: no plea. Pre-trial conference, prosecution to supply a copy of the statement of police officer Kermode to defence.”
On the second complaint, the endorsement reads:
“Plea: no plea. Pre-trial conference notes made by Constable Hand and any other officers to be produced.”
A further pre-trial conference was held in both matters before another magistrate on 27 May 2003.
Once again a police prosecutor appeared for the complainant and Ms Dixon represented the respondent. The police prosecutor who appeared on this occasion was Mr Craig Wolfe. I have the benefit of an affidavit which he has filed in support of the appeal. He records that Ms Dixon made submissions to have the charges on both complaints dismissed by reason of an alleged failure by the prosecution to comply with the orders which had been made on 15 April 2003.
Mr Wolfe deposes to the fact that his submissions with respect to both matters were that they should not be dismissed but that they should be adjourned with an order for costs against the prosecution for failure to comply with orders for disclosure of documents, and as he states in his affidavit, photographs.
It is not clear to me how the reference to photographs arises, as there is no reference to photographs appearing in the orders made on 15 April 2003.
After an intimation by the magistrate that the prosecution should “not complain about the defence submission because the Magistrates Court file indicated that the prosecution were to have complied with the orders for disclosure by this time”, Mr Wolfe states in his affidavit that he made further submissions as follows:
“Your Honour, the information that the defendant seeks is simply handwritten corroboration of statements that have already been provided by police or information that appears on the apprehension reports that have been provided to the defence. A copy of the video taken at the charge counter has been provided. The photograph that has been requested by defence of the defendant’s injuries is not required to be disclosed, in my opinion. Your Honour, this matter should be set down for trial and negotiations may take place between the parties to insure that the necessary documents are provided to defence prior to the trial. In my submission, the appropriate order is to adjourn this matter and award costs against the prosecution.”
According to Mr Wolfe, the magistrate then indicated that he would grant the orders sought by Ms Dixon and said:
“I am going to make an executive decision. In relation to the charges for which the defendant has intimated a plea of guilty, I will impose a conviction on the charge of offensive language in relation to the count one on the complaint relating to 22 September 2002 ... The defendant will be fined $150 for that offence. I will impose a conviction on the charge of disorderly behaviour in relation to the count one on the complaint relating to 17 September 2002 ... The defendant will be fined $150 for that offence. The three counts alleging offences of assault police will be dismissed.”
According to Mr Wolfe, at no point in the proceedings was a formal plea taken from the respondent in relation to the counts upon which the respondent was convicted. Furthermore, it follows from his narrative of the course of the proceedings before the magistrate, that no plea was taken with respect to the other counts as well.
With respect to the question of pleas on the first counts, Mr Wolfe challenges the certificate of record from the court below.
Ms Dixon’s affidavit, filed in response to the appeal, does not accord in all respects with the account given by Mr Wolfe. She confirms, however, that she submitted to the magistrate on the hearing on 27 May 2003 that all of the charges be dismissed.
She says, however, that the magistrate asked in the presence of the respondent whether he was willing to plead to the charge of disorderly behaviour and the charge of offensive language, to which the respondent replied that he would plead guilty to those charges. She says that she formally advised the court of the respondent’s plea of guilty. She states that after receiving the plea on the respondent’s behalf, the magistrate proceeded to sentence him.
Ms Dixon states that once the sentences had been imposed on those counts, the magistrate dismissed the other charges “for want of prosecution”.
The gravamen of the argument advanced by the appellant on the hearing of the appeal is that it was not open to the magistrate to dismiss any of the counts on the two complaints, other than after the requirements of s 67 and s 68 of the Summary Procedure Act 1921 had been complied with. Those sections provide:
“When defendant pleads guilty, court to convict or make an order
67(1) When the defendant is present at the hearing the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be).
(2)If the defendant admits the truth of the complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the court shall convict him or make an order against him accordingly.
Procedure on plea of not guilty
68(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.”
Mr Soetratma, who appeared for the appellant, contended that it was simply not open to the court to dismiss a complaint before a plea is taken, unless a successful objection is taken to the form of the complaint, and it is not or cannot be amended. In support of that proposition, he referred to the decision of Bleby J in Police v Childs[3]
[3] (2000) 76 SASR 425.
In my opinion, that submission is correct, save that a dismissal may always be ordered in open court by consent at any stage.
Furthermore, I regard the case of Police v Childs as authority for the proposition that the court does not have power to dismiss a complaint or any count on a complaint at a directions hearing. I say that notwithstanding the terms of Magistrates Court Rules (1992), r 8.08 which provides:
“8.08Where there is time default or the conduct of a party is otherwise contrary to the objects stated in rule 8.02 the court may dismiss the proceedings and may do so in order to protect the integrity of the caseflow management system and to implement the court’s requirements that matters proceed at the time fixed for hearing whether byway of trial or otherwise notwithstanding that any injustice to the opposing party might have been avoided by an order for costs or some other order.”
An exception may be where there is an incurable defect in the form of the complainant or a procedure or irregularity that cannot be surmounted which would be fatal to it.
The rules must be read subject to the Act. The procedure laid down in the Act may not be varied by rule of court.
Here, it seems to me in the first place, that the magistrate erred in dismissing the counts of assault police without a plea being entered to them. It is common ground in the affidavits of both Mr Wolfe and Ms Dixon that no plea was entered to the assault police counts.
Ms Dixon, on the hearing of the appeal, contended that there had been an intimation of the plea, that is, of the plea of not guilty to the charges of assault police. But an intimation of a plea at a pre-trial hearing or directions hearing is not the same as a plea taken in open court pursuant to the procedures laid down in s 67 and s 68 of the Act.
It may be that the magistrate considered that he was sitting in open court at the relevant time, given that on Ms Dixon’s account of the matter he had taken a plea of guilty to the charges upon which he entered convictions.
True it is, as Bleby J points out in Police v Childs (supra), that a magistrate conducting a directions hearing may convert the hearing into an open court hearing, and then deal with the matter on the footing that it is no longer a directions hearing, but a hearing of the complaint or information, as the case may be.
But such a course could only be taken with the consent of the parties. There was certainly no consent by Mr Wolfe to any such procedure being followed, insofar as the magistrate purported to deal with the charges of assault police.
Furthermore, even if the magistrate had obtained the consent of the parties to deal with the two complaints in open court at that stage, it was, in my view, an incorrect and erroneous exercise of the discretion to dismiss the assault counts on the complaints in so in a peremptory fashion, simply because the prosecution had failed fully to comply with earlier orders for the production of certain documents.
The magistrate should have afforded an opportunity for the further material which the defence required to be provided. He could have ordered that the matters go to trial at that stage, with supplementary orders designed to ensure that complete discovery, as requested by the defence, was made by the prosecution a reasonable time ahead of the hearing.
Attempts to convert case flow management procedures into overly rigid procedural orders which put a prosecution out of court in such a peremptory fashion should not be encouraged. There is a public interest in the maintenance of prosecutions. There is a public interest, if police officers are alleged to have been assaulted, in having the charges dealt with and ventilated properly. That interest is not well served by such a heavy-handed application of case flow management procedures.
The appeal should be allowed and the dismissal of the charges of assault police should be quashed. Those charges should be reinstated and referred to another magistrate for such directions as may be necessary for them to be brought to trial in an orderly manner.
I so order.
There is no appeal against the convictions and sentences which have been imposed on the other counts, so that those convictions and sentences are to remain.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. Magistrates Court file AMC 15220/2002.
2. Magistrates Court file AMC 15899/2002.
3. (2000) 76 SASR 425.

[2003] SASC 284

19 August 2003