Police v Turbitt - [2005] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TURBITT
Judgment of The Honourable Justice Gray
9 August 2005
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 an information by a magistrate for purported non-compliance with a procedural order – magistrate dismissed information because prosecution had failed to comply with an earlier order to comply with Rule 20 of the Magistrates Court Rules – appeal on grounds that magistrate erred in dismissing the information, erred in failing to comply with sections 67 and 68 of the Summary Procedure Act 1921 (SA) and erred in applying case flow management rules and principles in a manner inconsistent with and repugnant to the exercise of jurisdiction as statutorily prescribed.
Discussion of requirement for magistrates to give adequate reasons for decisions - consideration of scope of section 42 of the Magistrates Court Act 1991 (SA) – consideration of application of section 67 and 68 of the Summary Procedure Act - discussion of Magistrates Court Rules that implement case flow management objectives and their role in the overall exercise of discretion of magistrate – discussion of procedural fairness principles - consideration of whether any prejudice suffered by respondent.
Held: Dismissal of the information was an entirely inappropriate course for the magistrate to follow – appeal allowed – order for dismissal is set aside – matter is remitted for hearing before a differently constituted court.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 270A; Summary Offences Act 1953 (SA) s 15(1)(b), s 17(1); Magistrates Court Act 1991 (SA) s 42; Magistrates Court Rules r 8.08, r 20, r 26; Summary Procedure Act 1921 (SA) s 67, s 68, s 103(3), referred to.
Papps v Police (2000) 77 SASR 210; Australian Securities and Investments Commission v Vis (2000) 77 SASR 490; Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis (2003) 231 LSJS 431; Davern v Messel (1984) 155 CLR 21; Police v Struck [2005] SASC 76 ; Police v Slater (2003) 86 SASR 189; Police v Childs (2000) 76 SASR 425; Police v Long [2004] SASC 381; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Rona v District Court of South Australia (1995) 63 SASR 223; Wunsch v SA Police (1995) 64 SASR 203; Jago v District Court of New South Wales (19889) 168 CLR 23; Gray v Police (2003) 85 SASR 1; Barton v The Queen (1980) 147 CLR 75; Holmden v Bitar (1987) 47 SASR 509, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Case flow management principles"

POLICE v TURBITT
[2005] SASC 303
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against the dismissal of an information by a magistrate for purported non-compliance with a procedural order.
The respondent, Michael Patrick Thomas Turbitt, was charged on information with four offences. The first count alleged that on 11 December 2003, he attempted to enter a non-residential building at Gepps Cross as a trespasser with the intention of committing the offence of larceny pursuant to section 270A of the Criminal Law Consolidation Act 1935 (SA). It was alleged that, on the same day at Gepps Cross, he was on premises at 710 Main North Road without lawful excuse, contrary to section 17(1) of the Summary Offences Act1953 (SA).
The respondent was further charged that on 11 December 2003, he intended to damage the property of another, or was recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed, damaged gates, locks and a shed door tracking, the property of MDS Australia, such damage amounting to not more than $2000, contrary to section 85(3) of the Criminal Law Consolidation Act.On the same day at Gepps Cross, it was further alleged that the respondent, without lawful excuse, had in his possession implements of housebreaking, namely two multi-purpose tools, screwdriver, two knives, tin snips, pliers, small bolt cutters, large bolt cutters and a shifting spanner contrary to section 15(1)(b) of the Summary Offences Act.
On 7 September 2004 the respondent’s solicitor made a formal written request to the prosecution for disclosure of various items of evidence necessary to prepare the defence case. The particular items requested included:
-photographs taken at the scene by Police Officer Spence referred to in the statement of Police Officer Bentley;
-statement of Police Officer Spence;
-results of the DNA or any other testing on the yellow bolt cutters found at the scene;
-results and notes of all investigations in relation to the third person at the scene referred to as Nigel in the police interrogation of the co-accused Robert Crilly;
-statement of Raiph Sadari.
The matter was before the Magistrates Court on a number of occasions in order to prepare for trial. On 10 September 2004 the matter was called on for a pre-trial conference. Defence counsel sought an adjournment on the basis that the defence had not yet received the requested items. The adjournment was granted.
On 10 December 2004 the matter was called on for a further pre-trial conference. The magistrate questioned the prosecution with respect to the status of the police response to the requests for disclosure. The prosecutor explained that the prosecution was still unable to meet the defence requests, as the material the subject of the requests had not yet been prepared. The magistrate ordered the prosecution to comply with Rule 20 of the Magistrates Court Rules within 28 days. He warned the prosecution that a failure to comply with this order might result in a dismissal of the proceedings. The magistrate then listed the matter for the trial to commence on 15 March 2005. The court file records the following:
For Trial -
Within 28 days of today’s date pros to comply fully with rule 20.
Leave to call on by def if rule 20 not complied with
Pros warned that in the event of non-compliance infom could be dismissed.
In his affidavit, the prosecutor in attendance when the purported Rule 20 order was made deposed to the fact that the investigating officer had informed him that Mr Sadari had been overseas for an extended period and had only returned two weeks prior to the hearing on 10 December 2004. The investigating officer confirmed that a signed affidavit had been taken from Mr Sadari. However, the prosecutor was unable to locate a copy of this affidavit. Accordingly, he had requested that another copy be forwarded.
The period of 28 days in which the prosecution was to comply with Rule 20 expired on 7 January 2005. Counsel for the respondent had not received the items of evidence requested.
On 17 January 2005, counsel contacted the Holden Hill Magistrates Court to request that the matter be listed for hearing. The matter was called before the magistrate on 21 January 2005. Counsel for the respondent informed the magistrate that she had not yet received the information from the prosecution and that therefore the prosecution had not complied with the purported Rule 20 order. Counsel also informed the magistrate that the prosecution had advised her that the statement of the witness, Mr Sadari, would be available the following day. The prosecution had also advised that there were no test results from the State Forensic Centre as the tools found at the scene had not been sent for testing and there was no intention to have them tested. As such, the only matter remaining to be disclosed to the respondent was the affidavit of Mr Sadari.
The magistrate asked the prosecution about the status of the materials requested. He then went on to state that the prosecution had been ordered to comply with Rule 20, had been warned on more than one occasion about providing disclosure and had failed to do so. The magistrate immediately dismissed the charges “for want of prosecution”. The prosecutor applied for a brief adjournment to enable her to take further instructions. The magistrate refused the application, stating that he had already made his ruling and that the order to dismiss the charges would remain. The only record of the order for dismissal is the court endorsement, which simply reads:
Dismissed want of prosec
…
Noted: Despite No. of warnings. Victim not comply R22
At the hearing of the appeal, it was taken that this was intended to read, “Prosecution not comply with R20”.
It is important to note that at no time did counsel for the respondent make an application for a dismissal of the information. The matter had simply been called on for further pre-trial directions. Neither counsel was permitted the opportunity to make submissions as to whether an order dismissing the information was appropriate. The significance of these matters will be discussed below.
Preliminary Matters
Absence of Reasons
The magistrate appears to have dismissed all counts contained in the information on account of the prosecution’s failure to comply with an order made on 10 December 2004. However, the magistrate did not prepare any reasons for his decision.
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] (2000) 77 SASR 210.
[2] (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.
This obligation to provide reasons arose in the present proceedings.
The lack of reasons presents a difficulty for this Court attempting to exercise its appellate jurisdiction to review a decision without any 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.
Section 42 Magistrates Court Act
This appeal is brought pursuant to section 42 of the Magistrates Court Act 1991 (SA), which provides:
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a)An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
(2) The appeal lies—
(a)in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence—to the Industrial Court; or
(b)in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
(4)On an appeal, the appellate court may, if the interests of justice so require, re‑hear any witnesses or receive fresh evidence.
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)it may remit the case for hearing or further hearing before the Magistrates Court;
(c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6)Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.
The term “judgment” is defined by section 3(1) of the Magistrates Court Act to mean “a judgment, order or decision and includes an interlocutory judgment or order”.
Counsel for the Crown contended that this appeal against the magistrate’s order for dismissal clearly fell within section 42. It is an appeal against a “decision” of a magistrate to dismiss the information.
Counsel for the respondent submitted that not all judgments dismissing a charge are open to appeal. Counsel contended that the order for dismissal occurred before the commencement of the trial and that, as such, it was an interlocutory order and not a final judgment. It was said that the prosecution could be reinstituted by the laying of a new information and thus the order of the magistrate did not finally dispose of the rights of the prosecution.
The simple answer to these opposing submissions is found in Australian Securities and Investments Commission v Vis,[3] where the Full Court was asked to examine the scope of section 42 of the Magistrates Court Act. Doyle CJ observed:[4]
[Section 42] confers a right of appeal on “a party to a criminal action”. There can be no doubt that the section confers a right of appeal against an order dismissing a charge. It provides specifically for an appeal against “a judgment dismissing a charge of a summary or minor indictable offence”.
[3] (2000) 77 SASR 490.
[4] (2000) 77 SASR 490 at [4].
On this basis, it seems clear that the decision of the magistrate to dismiss the information clearly fell within section 42.
However, an alternative argument regarding the scope of section 42 was advanced. In Police v Dorizzi,[5] Duggan J observed:[6]
Section 42(1a) specifically excludes appeals from interlocutory judgments given in summary proceedings. Presumably, the policy behind the restricted right of appeal is to prevent summary proceedings from being fragmented. Furthermore, it is relevant to bear in mind that a ruling on the admissibility of evidence is not a judgment in any event. In Legal Practitioners’ Complaints Committee v A Practitioner (1987) 46 SASR 126 King CJ considered the nature of the right to appeal provided for in s 50 of the Supreme Court Act1935 which applies, inter alia, to ‘every judgment . . . order, or direction of a judge’. King CJ said (127):
“A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.”
[5] (2002) 84 SASR 416.
[6] (2002) 84 SASR 416 at [19].
It was argued that, drawing upon the reasoning in Dorizzi, this appeal was no more than a “thinly veiled” attempt to impermissibly seek review of an interlocutory ruling. It was claimed that the appeal was not authorised by section 42 of the Magistrates Courts Act.
In Dorizzi the magistrate conducted a voir dire hearing. He decided to exclude video evidence as a matter of discretion. The prosecutor was then faced with a dilemma of proceeding with the trial for several months in circumstances where it was considered that without the video evidence being admitted the complaints would fail. The prosecutor made a deliberate and considered decision not to lead other evidence and invited the magistrate to dismiss the complaint, indicating that an appeal would be lodged to test the voir dire ruling. No further evidence was sought to be led on appeal. It was in this circumstance that the Full Court later ruled that the appeal was no more than a “thinly veiled” attack on an evidentiary ruling. Duggan J observed:[7]
The appeal from the magistrate to the single judge did not purport to be other than an appeal against a final judgment, namely, the dismissal of the information. However, when the veil is lifted to reveal the true nature of the appeal, it is clear that its purpose was to test the magistrate’s ruling on admissibility. It was always the intention of the prosecution to seek a favourable decision on this issue on appeal and an order that there be a retrial on the charges. The prosecution was motivated by what appeared to be practical reasons for this approach. It was considered inappropriate to call a large number of witnesses after the magistrate’s ruling when there was a clear possibility, or even likelihood, that, at least in the case of some of the appellants, there would not have been sufficient evidence for a case to answer without the evidence which had been excluded. Nevertheless, for the reasons which follow, it is my view that an appeal on this basis is contrary to the intent and purpose of the appeal provisions in the Act.
[7] (2002) 84 SASR 416 at [20].
In Holder v Lewis[8] Doyle CJ, with whom Prior and Perry JJ agreed, observed:[9]
The Magistrate’s decision to exclude the evidence was not “an interlocutory judgment”. It was not a judgment at all. It was simply a ruling made in the course of the trial: see Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Dorizzi at [19]. The appeal to the Supreme Court was an appeal against the Magistrate’s order dismissing the complaint. That order is a judgment given in the action. The appeal was competent.
…
The present case is quite different. As I have pointed out, if the excluded evidence was admitted, Mr Holder had a case to answer. The complaint against him should not have been dismissed. The further evidence, coupled with the excluded evidence, established that Mrs Holder and the company had a case to answer. Accordingly, the decision to dismiss the charges against them was shown to be wrong.
[8] (2003) 231 LSJS 431.
[9] (2003) 231 LSJS 431 at [20] and [27].
The present case differs from that of both Dorizzi and Holder in that the order for dismissal did not arise from a finding that the Crown had failed to establish a case to answer. Here, the information was dismissed apparently due to the prosecution’s failure to comply with an order of the court reflecting case management principles. Notwithstanding, this case is comparable to Holder in that the order the subject of this appeal was a final order. It finally determined the proceedings against the respondent.

The order of the magistrate dismissing the information is a judgment within the meaning of section 42 of the Magistrates Court Act. Accordingly, this Court has jurisdiction to hear and determine the appeal.
A further preliminary point
Counsel for the respondent raised a further matter as a potential bar to this Court hearing the present appeal. It was said that this appeal must be considered in the context of the case law regarding appeals against acquittals. Counsel submitted that the view that jurisdiction is not conferred to hear and determine an appeal arising out of the dismissal of an information is reinforced by the well established presumption that parliament does not intend to give the prosecution a right of appeal against an acquittal or dismissal. In Australian Securities and Investments Commission v Vis, Doyle CJ described this presumption as “well established by authority”. He then continued:[10]
The presumption is a strong one in relation to suggestions that general words are intended to confer a right of appeal against an acquittal by verdict of a jury. The strength of the presumption in relation to the dismissal of a charge heard summarily is not so clear.
[10] (2000) 77 SASR 490 at [34].
Doyle CJ referred to the following passages from Davern v Messel,[11] a decision of the High Court that addressed this issue:[12]
[11] (1984) 155 CLR 21.
[12] (2000) 77 SASR 490 at [35]-[37].
Gibbs CJ said (at 31):
“…The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires that an acquittal be treated as final.”
A little later he said (at 32):
“…that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly.”
When he came to consider courts of summary jurisdiction, he said (at 37-38):
“A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted.”
After referring to a number of decided cases, he said (at 38):
“…It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices.”
Wilson J agreed with Gibbs CJ (at 65).
Mason and Brennan JJ appeared to have recognised the same principle of interpretation as that referred to by Gibbs CJ: at 46. When they came to consider the position in Australia, after referring to a number of English decisions, they said (at 51):
“The course of judicial decisions in Australia on statutory provisions providing for an appeal from orders made in summary proceedings has been less uniform than in England and Ireland.”
After referring to a number of Australian decisions they said (at 52):
“The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate.”
The other two justices appear to have recognised not qualification to the principle of construction, treating it as applicable with full force to courts of summary jurisdiction: Murphy J (at 62), Deane J (at 66). In particular Deane J adhered to what I might call the unqualified application of the presumption as expressed by him in Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 at 405-407.
Doyle CJ then went on to explain the effect of the High Court’s decision in Davern:[13]
The effect of the decision in Davern is that a right of appeal conferred in general terms will not readily be construed as providing for a right of appeal against the dismissal of a summary charge, but on the other hand the history of provision being made for such appeals means that it will not be difficult to find a sufficient indication of necessary intent. But in the present case, as it seems to me, the language used by Parliament is language which, far from being suggestive of a right of appeal against a dismissal, if any raises a doubt whether that was intended.
[13] (2000) 77 SASR 490 at [38].
The section under examination in Australian Securities and Investments Commission v Vis was section 55 of the Corporations (South Australia) Act 1990 (SA). Section 55(1)(b) provided for State jurisdiction “with respect to the hearing and determination of … appeals arising out of … any such trial or conviction…”. The question for the Court to consider was, therefore, whether “any such trial or conviction” could encompass a dismissal of a complaint charging a summary offence. Doyle CJ concluded that it could not. He reasoned:[14]
In my view, such an appeal cannot be described as proceedings connected with the hearing or dismissal of the charge in the present case. In my opinion, an appeal against the dismissal of a charge cannot be regarded as an appeal arising out of proceedings connected with “any such trial or conviction”. First of all, I doubt whether a dismissal can be a proceeding connected with a trial or conviction. A dismissal is not a separate proceeding in any sense. It is part of the process of trial and, if conviction is read broadly, part of the process of conviction. But in any event the relevant proceeding must still be connected with “any such trial or conviction”, and so the difficulty which I earlier identified again stands in the path of conferring jurisdiction under this provision.
[14] (2000) 77 SASR 490 at [60].
Prior J disagreed with Doyle CJ on this point. He concluded that the phrase “any such trial or conviction” should be construed to include the hearing and determination of summary complaints.[15] Williams J, however, adopted a similar view to that of Doyle CJ. Williams J reasoned:[16]
I reject the argument which would notionally recognise a summary hearing (separate and apart from any conviction), as providing a basis for an appeal under the CSA Act, s 55(1). To take such a step would be inconsistent with the indivisible nature of a summary hearing and its outcome. Parliament has provided an appeal only in the event that a summary hearing results in a conviction, but it has made no provision for an appeal if the hearing result in a dismissal of the complaint.
[15] (2000) 77 SASR 490 at [97].
[16] (2000) 77 SASR 490 at [107].
The Appeal
On appeal, counsel for the Crown submitted that the magistrate had erred in:
-dismissing all counts on the Information on 21 January 2005.
-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 Information.
-applying case flow management rules and principles in a manner inconsistent with and repugnant to the exercise of jurisdiction as statutorily prescribed.
Rule 20
Counsel for the Crown contended that the magistrate erred in purporting to enforce an order made pursuant to Rule 20 of the Magistrates Court Rules. It was said that Rule 20 had no application to the proceedings before the magistrate. Rule 20 provides, inter alia:
20.01The 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.
20.02The 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.
...
Rule 20 concerns pre-trial committal proceedings and has no application to summary proceedings. Given that the magistrate’s decision to dismiss the proceedings was premised on purported non-compliance with a rule that did not apply in the circumstances, his discretion miscarried. In Police v Struck[17] the Court observed:[18]
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.
[17] [2005] SASC 76.
[18] [2005] SASC 76 at [11].
Counsel for the Crown submitted that Rule 26 of the Magistrates Court Rules was the applicable rule in the circumstances. However, it was said that notwithstanding the applicability of that Rule, the magistrate did not have the power to make an order to dismiss the proceedings pursuant to Rule 26.
Rule 26 of the Magistrates Court Rules is designed to facilitate the smooth running of a trial and provides for, among other things, the requirement of timely and thorough pre-trial disclosure:
26.01Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law so as to:
(a)     fully explore the possibility of disposing of the charge other than by way of trial;
(b)     enable the duration of the hearing to be estimated as accurately as possible,
(c)     determine what evidence if any may be proved by affidavit;
(d)     facilitate the course of the trial,
and shall inform the Court as to each of the above.
26.02To the extent necessary to comply with this Rule the parties must confer fully and frankly.
26.03Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses.
26.04Insufficient compliance with this Rule must be taken into account on the question of costs.
26.05To ensure compliance with Rule 8 and this Rule the Court may on notice to the parties require that they attend a pre-trial conference.
26.06A pre-trial conference may be presided over by such person as the Court may nominate.
Non-compliance with any element of Rule 26 could be readily addressed by a costs order and, if necessary, an adjournment. An order for costs would be an appropriate means by which to remedy non-compliance with this rule. Such an order would, in the ordinary case, redress the unfairness caused to the defence whilst ensuring that the public interest in the continuation of the proceedings is met.
The order of the magistrate dismissing the proceedings was an entirely inappropriate course to follow.
Sections 67 and 68 Summary Procedure Act
Counsel for the appellant further submitted that even if it is accepted that the magistrate dismissed the information with Rule 26 in mind, the magistrate had no power to make that order in light of the provisions of the Summary Procedure Act.
The appellant submitted that the procedure prescribed in sections 67 and 68 of the Summary Procedure Act is mandatory and should therefore have been complied with by the magistrate. Section 67 provides:
(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.
Section 68 provides:
(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 Magistrates Court of South Australia is a creature of statute. It has no inherent jurisdiction and no inherent powers. Any implied powers that it is said to possess are such powers that are necessarily incidental to the exercise of power expressly granted. In Grassby v The Queen[19] Dawson J made the following observations about the nature and powers of magistrates:[20]
The fact that a magistrate sits as a court and is under a duty to act fairly does not, however, carry with it any inherent power. Indeed, in my view, the nature of a magistrate’s court is such that it has no powers which might properly be described as inherent even when it is exercising judicial functions. A fortiori that must be the case when its functions are of an administrative character. In Reg v Forbes; Ex parte Bevan, Menzies J pointed out that:
“ ‘Inherent jurisdiction’ is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferencing particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as ‘inherent jurisdiction’, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have ‘inherent jurisdiction’.
… [I]t is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise. … Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.
[19] (1989) 168 CLR 1.
[20] (1989) 168 CLR 1 at 15-17.
As a creature of statute, the Magistrates Court is bound to operate within the bounds of its power and jurisdiction as conferred by statute. The Summary Procedure Act prescribes the powers available to magistrates in the exercise of their criminal jurisdiction.
Section 103(3) of the Summary Procedure Act provides:
If a defendant charged with a minor indictable offence does not elect, in accordance with the rules, for trial in a superior court, the charge will be dealt with in the same way as a charge of a summary offence.
The proceedings the subject of this appeal fall within section 103(3). In these circumstances, sections 67 and 68 of the Summary Procedure Act apply.
This Court has previously held that the procedure prescribed by sections 67 and 68 of the Summary Procedure Act is mandatory.[21] It has also held that a complaint cannot be dismissed at a directions hearing or pre-trial conference. In Police v Slater[22] Perry J regarded Police v Childs[23] as authority for the proposition that a magistrate does not have power to dismiss a complaint, or any count on a complaint at a directions hearing.[24] He reached this conclusion notwithstanding the terms of Rule 8.08 of the Magistrates Court Rules, which provides:
Where there is time default or the conduct of a party is otherwise contrary to the objects stated in r8.02 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.
[21] Police v Long [2004] SASC 381 at [23].
[22] (2003) 86 SASR 189.
[23] (2000) 76 SASR 425.
[24] (2003) 86 SASR 189 at [21].
Although the Magistrates Court does have a rule-making power, any rules made pursuant to that power cannot confer jurisdiction nor 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 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 of the Magistrates Court Rules, 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.
By dismissing the information for non-compliance with the rules of court, the magistrate overlooked the public interest in ensuring that offences are prosecuted and hence the exercise of his discretion miscarried.
Case 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.

In Queensland v J.L. Holdings Pty Ltd[25] the High Court considered the proper role of case management. Dawson, Gaudron and McHugh JJ observed:[26]
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:[27]
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.
[25] (1997) 189 CLR 146.
[26] (1997) 189 CLR 146 at 154.
[27] [2003] SASC 284 at [31].
These remarks were followed by the Court in Struck, where the Court allowed an appeal against an order of a magistrate dismissing proceedings in circumstances not dissimilar to the present.
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 incongruent 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.
In any event, at the time that the order for dismissal was made, the trial date was more than three months away. The interests of case flow management would have been better served by keeping the information on foot and permitting the prosecution the brief adjournment requested in order to properly prepare for the trial. The magistrate could have continued to monitor such preparation in order to ensure fairness to the respondent and to ensure that every effort was being made by the prosecution to comply with the rules. Rules of court operate as a guide to assist in the attainment of justice. They need not be strictly enforced. The course adopted by the magistrate has resulted in greater delay and increased the potential for unfairness to the respondent.
Discretion to dismiss proceedings
It is well established that a magistrate may stay a prosecution as an abuse of the court’s process where the prosecution has acted or failed to act with the effect that the court’s ability to function as a court is compromised or public confidence in the court is eroded.[28] As King CJ in Rona v District Court of South Australia observed:[29]
That the power of a court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled: Williams v Spautz (1992) 174 CLR 509. Although the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial, Barton v The Queen (1980) 147 CLR 75, which is strictly speaking a distinct rubric from that of abuse of process, and with preventing the prosecution of proceedings brought for an improper purpose, Williams v Spautz (supra), “it is not possible to state exhaustively all the categories of abuse of process”: Jago v District Court (NSW) (supra), per Brennan J (at 47). The underlying principle was stated in wide terms in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz (supra) (at 520):
“As Lord Scarman said in R v Sang [1980] AC 402 at 455, every court is ‘in duty bound to protect itself’ against an abuse of its process. In this respect there are two fundamental policy consideration which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464 at 481 in a passage which Mason CJ quoted in Jago (at 30). The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.”
[28] See Rona v District Court of South Australia (1995) 63 SASR 223 at 226-227; Wunsch v SA Police (1995) 64 SASR 203.
[29] (1995) 63 SASR 223 at 226-227.
King CJ drew attention to the fact that proceedings can be permanently stayed where “the prosecutor can be said to have manipulated or misused the rules of procedure”. He then continued to discuss case management rules and the important role that they now play in the administration of a court. King CJ observed:[30]
The case management rules are designed to ensure, inter alia, that the cases for the prosecution and the defence are prepared, that all necessary amendments are made, that necessary notices are given and that statements of any additional prosecution witnesses are supplied to the defence, in good time before trial so that the trial will proceed on the day fixed and the time allocated for the trial will not be wasted. It is essential to the proper management of cases that both the DPP and the accused comply with the direction which are given, carry out undertakings made and adhere to assurances given, at the status conferences held in accordance with those Rules. Only in that way can a trial be accorded which is fair to both parties without waste of the limited public resources committed to the court system. The court must therefore insist on the parties including the DPP acting in that way. Only thus can the court “protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike” and prevent the “erosion of pubic confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”: Williams v Spautz (at 520).
[30](1995) 63 SASR 223 at 227.
Deane J in Jago v District Court of New South Wales[31] observed:[32]
An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it could constitute an abuse of process.
[31] (1989) 168 CLR 23.
[32] (1989) 168 CLR 23 at 60.
The above passages were referred to with approval in Gray v Police[33] where the Court was asked to determine the power of a magistrate to permanently stay proceedings. The Court concluded:[34]
The conclusion to be drawn from these statements of principle is that the Magistrates Court in South Australia has the power to permanently stay proceedings where the prosecution of criminal proceedings will result in a trial that is unfair and an abuse of the processes of the court. The cases suggest that this power will only be exercised sparingly where good reason exists.
[33] (2003) 85 SASR 1.
[34] (2003) 85 SASR 1 at [16].
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:[35]
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.
[35] Jago v District Court of New South Wales (1989) 168 CLR 23 at 76; See also Attorney-General for New South Wales v Watson (1987) 20 Leg Rep SL 1 at 1; R v Kite (1990) 60 A Crim R 226 at 230.
In Barton v The Queen,[36] Gibbs ACJ and Mason J observed:[37]
It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced ... though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.
[36] (1980) 147 CLR 75.
[37] (1980) 147 CLR 75 at 94-95.
In light of these observations, as earlier observed, at the time of the order of dismissal, the trial date was still three months away. Accordingly, it cannot be said that the risk of abuse of court resources resulting from the delay in the prosecution’s compliance with the rules regarding disclosure at that time outweighed the public interest in ensuring that offences are prosecuted.
The circumstances of this matter fall far short of those that courts have previously found to warrant a stay of proceedings.[38] An order dismissing the information was not an appropriate course for the magistrate to follow.
[38] See Gray v Police (2003) 85 SASR 1 at [19]-[24].
Procedural Fairness
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.
Indeed, denying the prosecution the opportunity to prosecute the offences charged was, in itself, a denial of procedural fairness to the prosecution. In Holmden v Bitar,[39] Cox J made the following observation:[40]
…the power to order a stay of proceedings – or, it may be, to dismiss them – as an abuse of a court’s process is a quite exceptional remedy. Any procedural device that has the effect of denying an informant a trial on the general issue is a very drastic one indeed. It is not to be used simply because the court perceives some feature of the prosecution that can be characterised as “unfair”: cf Doyle v Leroux [1981] Crim LR 631. It can be expected that instances of its application will be rare.
[39] (1987) 47 SASR 509.
[40] (1987) 47 SASR 509 at 517.
It is not enough that the magistrate had warned the prosecution at a previous pre-trial hearing that it was to comply with Rule 20 or risk having the proceedings dismissed. Natural justice required the magistrate to give explicit notice to the prosecution that he was considering making such an order. It required further that the prosecution be permitted to make submissions regarding the possibility of dismissal prior to an order being made.
Prejudice
This Court has adopted the general practice not to dismiss a matter for non-disclosure by one party unless that non-disclosure results in irreparable prejudice to the other party. In a case where prejudice has arisen, the normal course to follow would be to redress that prejudice by an adjournment and an order for costs or by temporarily staying the proceedings.
At the time of the magistrate’s order for dismissal, the respondent had suffered no irreparable prejudice. The trial date was still three months away and the prosecution had undertaken to provide the requested information within 24 hours. This would have left sufficient time for the defence to prepare its case without labouring under any prejudice.
The absence of any prejudice on the part of the respondent leaves the magistrate’s order for dismissal without any justification.
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 extensive 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 as far as possible.