Police v Struck - [2005] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v STRUCK
Judgment of The Honourable Justice Gray
4 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
TRAFFIC LAW - OFFENCES - EVIDENCE
Appeal against orders made by magistrate during the course of trial dismissing two complaints - defendant charged with driving without due care and refusing to submit to taking a blood sample - defence counsel challenged admissibility of hospital records not previously disclosed to the defence - magistrate vacated trial date, ordered that the prosecution pay costs, ordered that defence counsel provide prosecution with list of all matters in which discovery was sought and that the prosecution comply with those requests and adjourned trial - when trial commenced, prosecution sought to tender photographs of scene - defence counsel objected on grounds that defence had not seen photographs - magistrate found prosecution had refused to comply with previous order and Rule 20 of the Magistrates Criminal Rules - magistrate found that defence had been prejudiced and dismissed both complaints and ordered that the prosecution pay costs.
Prosecution appealed on grounds that dismissal of the complaints involved errors of fact and law - magistrate incorrectly referred to Rule 20 - magistrate's view that prosecution had not complied with earlier order was erroneous - the exercise of discretion miscarried - consideration of issues of case management - consideration of order of costs.
Held - appeal allowed - orders of dismissal set aside - order for costs set aside - interlocutory order for costs made 1 July 2004 set aside - matter remitted for hearing before a differently constituted court.
Road Traffic Act 1961 (SA) s 45, s 47i; Magistrates Criminal Rules Rule 20; Magistrates Court Act 1991 (SA) s 20, referred to.
Police v Dorizzi (2002) 84 SASR 416; Queensland v J.L. Holdings (1996) 189 CLR 146; Police v Slater [2003] SASC 284, considered.

POLICE v STRUCK
[2005] SASC 76
Magistrates Appeal

GRAY J: This is a prosecution appeal from orders made by a magistrate during the course of a trial dismissing two complaints.
On 27 July 2002 the respondent, Desmond John Struck, was charged with driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA), and with refusing to submit to the taking of a blood sample contrary to section 47i of the Road Traffic Act.
A review of the history of the proceedings discloses that on 12 March 2004 the matter was set for trial in the Holden Hill Magistrates Court on 1 July 2004. The endorsement to the file includes the following note:
Prosecution to be put to proof. All witnesses to be called. Prosecution to produce parole officer’s log sheets in relation to the evening. Compliance with Rule 20 within 21 days.
On 1 July 2004, before the trial proceeded, counsel for Mr Struck made application for a permanent stay. Counsel for Mr Struck complained that hospital records brought to court by a medical witness, Dr Foo, who was subpoenaed to give evidence with respect to the section 47i charge, had not been made available to the defence. The magistrate vacated the trial date and ordered that the prosecution pay Mr Struck costs of the day’s attendance, fixed at $800.00. The magistrate made the following further orders:
Within seven days of today’s date defence counsel to provide to the prosecution a written list of all matters that he now still seeks discovery of.
Within 14 days of today’s date at the risk of having the complaint dismissed the complainant will comply with that request or seek to have the matter called on for argument.
The trial was then adjourned to 14 October 2004.
On 14 October 2004, Mr Struck entered pleas of not guilty to the two charges and the trial commenced. The prosecution called Dr Foo, two ambulance officers, the driver of the stationary motor vehicle and an investigating police officer.
It was the prosecution case that at or about 12.00am on 27 July 2002, on a suburban road at Yatala Vale, Mr Struck drove into the rear of a stationary vehicle. Ambulance officers noticed that there was a smell of alcohol about Mr Struck and that his speech was slurred. He had suffered a leg injury, and the ambulance took him to the Modbury Hospital. Soon after his arrival he was seen by nursing staff, who noted that he appeared to be affected by alcohol and to be “difficult”.
It was the prosecution case that Dr Foo sought to obtain a blood sample but that Mr Struck refused his request. Blood testing was conducted. This showed the presence of alcohol in Mr Struck’s blood. It was important for Dr Foo to ascertain the level of any blood-alcohol reading, as it was relevant to Mr Struck’s management and treatment. It was the prosecution case that Mr Struck’s refusal to supply a sample was in contravention of the provisions of section 47i of the Road Traffic Act.
The investigating police officer was asked during her evidence in chief whether she had taken any photographs of the accident scene. She responded that she had not on the night but that she had done so at a later date. It appears that she took the photographs some time prior to 1 July 2004. The prosecutor then informed the officer that he would like to show her a photograph. At this point the following interchange occurred:
Defence Counsel          Your Honour may recall that there was an order for a discovery and a request by the defence for all evidence the prosecution might produce, I haven’t seen these photos ever before.
Prosecutor          It is just a photo of the scene.
His HonourIf you want to use them, you are in trouble because I made an order that within seven days, the last time this matter was adjourned the prosecution was to make a list of all matters that they wanted to see and within 14 days of that date they were at risk of having the complaint dismissed or comply with that request.
Prosecutor          These were photos taken to substantiate where the accident occurred.
His Honour         They weren’t discovered.
Prosecutor          I won’t pursue that matter any further.
His HonourI am actually concerned about the issue even further than that. You were told that you were at risk of having the complaint dismissed.
The witness left the courtroom and the following interchange took place:
His HonourYou have got evidence here in your possession that you haven’t, contrary to the order that I made given to the other side. It doesn’t matter what it is, I don’t know what Mr Bolton asked for, I suspect any evidentiary material that you were going to use at the trial.
Defence Counsel          Yes.
His HonourYou have got some evidence in your possession that you want to use at trial and you haven’t handed that over in compliance with Rule 20 and I have given you a warning that I will dismiss the complaint if you hadn’t complied with my ruling. I will adjourn until 3.30 for you to have some discussion on that point.
The magistrate then adjourned. On resumption a further interchange took place.
His HonourWe will proceed but I won’t allow you to ask those questions of this witness.
Defence Counsel          In my submission it is not a mere technical breach, the defence has been prejudice by the failure of the prosecution to provide this material.
His HonourI am inclined to agree with you without even hearing from you and I want to make a decision about it after I have given it some thought. He wanted to rely on evidence that was going to put to a witness that he hasn’t disclosed contrary to the general principles of Rule 20 and specifically contrary to an order made by me when this matter was set down for today.
Defence Counsel   The only thing is that I cross-examined the previous witness about the width and status of the road with a view to evidence I might be calling subsequently if I needed to from the defendant about that very thing. It appears to me although I haven’t seen the photos that they are of the scene and I may well have conducted my cross-examination of the previous witness differently had I been made aware by the prosecution that they were going to be calling detailed photos.
His HonourI will hear from both of you now on this point and then decide what to do.
Following submissions, the magistrate delivered the following ruling:
The defendant has been charged in relation to breaches of the Road Traffic Act. I have perused the file endorsements and have listened to submissions from defence counsel and the prosecution in relation to an application by defence counsel that these charges should be dismissed as a result of non-compliance with Rule 20 and further non-compliance with an order made by me in this court on the 1^st July 2004.
The file endorsements show that the matter came up for Pre-trial conference on a number of occasions prior to the matter being listed for trial for the first time on 1^st July 2004. The matter was unable to proceed on that day because documentation that should have been handed over to the defence counsel had not been handed over until the morning of the trial. Defence sought and was granted an adjournment to seek instructions on the same. I ordered costs against the complainant and adjourned the matter until today for trial.
I further made the following orders; that within seven days of that date, that is the 1^st of July, defence counsel was to provide prosecution was a list of all matters that he still sought in terms of discovery. I further ordered that within 14 days of 1^st of July, at risk of having the complaint dismissed, the complainant was to comply with that request, or seek to have the matter called on for argument if they wished to contest the disclosure of any documents to defence counsel.
Today the defendant pleaded not guilty to both counts, including the count of driving without due care. Evidence was called. The driver of the motor vehicle involved in the collision has given her evidence on behalf of the complainant, has been cross-examined and has been released.
The prosecutor now in examination-in-chief of a police officer was about to refer to some photographs of the scene of the accident. There is no dispute these photographs have not been handed over to defence counsel. Defence counsel states that that is in contradiction to Rule 20 principles and in particular my order of 1^st of July. He further states prejudice in relation to the cross-examination of the previous witness because he had based his cross-examination of this witness on his own observations of the area and did not have the benefit of those photographs. He submits he may have conducted his cross-examination differently if he had those photographs. I agree with him.
There has been a definite refusal to comply with general principles of Rule 20 disclosure and in particular an order made by me on 1^st July and I believe the defendant has been prejudiced in the conduct of his defence. I dismiss both counts against him. I make an order for costs in favour of the defendant and grant leave to call on in the event that costs cannot be agreed.
Issues on Appeal
Rule 20
Counsel for the prosecution submitted that the dismissal of the complaints involved errors of fact and law. He submitted that there had been no non-compliance with Rule 20 of the Magistrates Criminal Rules. Rule 20 relevantly provides:
PRELIMINARY EXAMINATION
20.01 The prosecutor shall file and serve the documents specified in section 104(1)(a) within such period not exceeding six weeks as the Court at the defendant's first appearance before the Court may specify.
20.02 The defendant must, not later than 7 working days prior to the date appointed by the Court for the defendant to answer the charge, give notice in writing to the Court and to the prosecution of the witnesses in relation to whom application to examine orally will be made, and a brief outline of the reasons for which they are required."
...
Counsel for the prosecution pointed out that Rule 20 concerned pre-trial committal proceedings and had no application to summary proceedings. This is evidently so. Counsel for Mr Struck, on the hearing of the appeal, accepted that Rule 20 had no application to the present proceedings.
Counsel for Mr Struck submitted that the magistrate may have had section 20 of the Magistrates Court Act 1991 (SA) in mind. Section 20 relevantly provides:
(1) The Court may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Court at a specified time and place to give evidence or to produce evidentiary material (or both).
(2) A summons to produce evidentiary material may, instead of providing for production of the material before the Court, provide for production of the material to an officer of the Court nominated in the summons.
...
Section 20 relates to the issue of subpoenas and could not have supported the magistrate’s order.
Non Compliance with a Court Order
Counsel for the prosecution submitted that in any event the magistrate’s view that his order of 1 July 2004 had not been complied with was erroneous. Counsel pointed out that the magistrate’s order required counsel for the defence to make a written request for the production of documents. Both counsel agreed that there had been no such request. Accordingly, there was no operative obligation on the prosecution. The prosecution was not in breach of the order.
The exercise of discretion miscarried
It is to be observed that the magistrate’s order was premised on non-compliance with Rule 20 and on non-compliance with an order made by the court. The magistrate’s exercise of discretion to dismiss the complaint miscarried. The exercise of the discretion was premised on mistakes of law and fact.
The Costs Order of July 2004
Counsel for the prosecution also complained about the order for costs made on 1 July 2004. Counsel contended the order was interlocutory and could not have been the subject of any earlier appeal.[1] However, the review of the order was sought on this appeal.
[1] Magistrates Court Act 1991 (SA) – section 42(1), Police v Dorizzi (2002) 84 SASR 416 per Duggan J at [19]
Counsel for the prosecution submitted that the police had no entitlement to the hospital records and that as a matter of general practice the hospital required a subpoena before the records would be produced. It followed that when the witness produced the records to the court, the records were then available to the prosecution for the first time. The records were also available to Mr Struck at the same time. Counsel for the prosecution pointed out that Mr Struck had an entitlement to a copy of the records, and the hospital would supply a copy to him as long as he made a request accompanied by an appropriate consent and authority. Counsel for the defence did not dispute these matters on the hearing of the appeal.
It was the prosecution case that, in these circumstances, there could be no criticism of the prosecution for its production of the records at trial on 1 July 2004 without prior production to the defence. The magistrate made the order for the costs of the day in error and his order should be set aside.
With the consent of both counsels, I reviewed the hospital records produced on 1 July 2004. The relevant entries are discrete. A short adjournment would have been sufficient to allow defence counsel time to peruse the records, take instructions and proceed with the trial.
The Production of Photographs
Another matter of suggested prejudice related to the photographs produced late in the trial. The photographs were tendered to this court with the consent of both counsel. They were taken some two years after the incident and during hours of daylight. The photographs depict a suburban road and surrounds. It appears from the transcript, and was confirmed on appeal, that counsel for Mr Struck at the trial did not inspect the photographs. Counsel’s objection and submission of prejudice lacked any condescension to particularity.
In the ordinary course, the photographs should have been disclosed prior to trial. However, the photographs only had relevance to the charge of driving without due care. Having examined the photographs, I find it difficult to accept that any material prejudice could have arisen. Counsel for Mr Struck, when pressed, was unable to articulate or identify any question that would have arisen or any resultant prejudice. In any event, further questions that counsel may have wished to put to earlier witnesses could have been addressed on the recall of those witnesses.
Case Management
It would appear that the magistrate was concerned about the way in which the prosecution managed the preparation of the case for trial. The magistrate’s reasons suggest that he was affronted by what he viewed as being non-compliance with the Rules of Court and with court orders. These concerns led the magistrate to make the orders of dismissal.
In Queensland v J.L. Holdings[2] the High Court considered the proper role of case management, and Dawson, Gaudron and McHugh JJ observed:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Perry J made similar observations in Police v Slater:[3]
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.
In the circumstances, the orders of dismissal were entirely inappropriate.
[2] (1996) 189 CLR 146 at 154
[3] [2003] SASC 284 at [31]
Conclusion
This appeal should be allowed. The orders of dismissal are set aside. The order for costs is set aside. The interlocutory order for costs made on 1 July 2004 is set aside. The matter is remitted for hearing before a differently constituted court.