R v MOFFAT

[2011] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v MOFFAT

[2011] SADC 29

Ruling of Her Honour Judge Davey

18 March 2011

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS

An application pursuant to Rule 8 of the District Court (Criminal and Miscellaneous) Rules 1992 was brought by the applicant for a permanent stay of estreatment proceedings on the basis that the Director of Public Prosecution's Application for Enforcement of a Breached Bond had been prepared by a person who was not a legal practitioner and not a delegate of the Director of Public Prosecutions and that accordingly this court did not have jurisdiction to hear the enforcement proceedings.  The applicant also argued that the Special Magistrate failed to use the term "remand" when referring the matter to this court.

Held: Application dismissed. Matter properly came before this court by virtue of s 57(4a) of the Criminal Law (Sentencing) Act 1988.

District Court (Criminal and Miscellaneous) Rules 1992  ; Criminal Law (Sentencing) Act 1988 ss 57(1) and 57(4a); Legal Practitioners Act 1981 s 11, referred to.

R v MOFFAT
[2011] SADC 29

1. This is an application pursuant to Rule 8 of the District Court (Criminal and Miscellaneous) Rules 1992 for a permanent stay of estreatment proceedings against a probationer, Brenton Moffat.  On 25 January 2011 I informed the parties that I dismissed the application for a stay of the proceedings and I now publish my reasons.

2. The application for the stay of proceedings was made orally.  It was listed for argument before me on 9 December 2010, the applicant having had two weeks notice of the date for hearing.  The applicant did not make a written application pursuant to Rule 8 but eventually made an oral application before me on 9 December 2010.  The Director of Public Prosecutions (DPP) did not object to the informality of the proceedings. 

3. In support of his application, the probationer sought information from the DPP as to whether or not the deponent to the sworn Application, namely Kym Arrighi, was a delegate of the DPP.  Mr Petraccaro, who appeared for the Director, informed the court and the argument proceeded on the basis that there was no express delegation or other delegation to Kym Arrighi.

4. The probationer’s argument seemed to proceed, at least initially, on the basis that Kym Arrighi was not a legal practitioner and not a delegate of the DPP. As I understand the argument put on behalf of the applicant, it was said that Kym Arrighi in preparing the document described as “Application for Enforcement of a Breached Bond” was acting in breach of s 11 of the Legal Practitioners Act 1981 and also that Ms Arrighi could not swear the Application as she was not a delegate of the Director.  It was argued that because of the defects in the process, I did not have jurisdiction to hear the enforcement proceedings.

5. I turn to an examination of the relevant provisions of Part 9 Division 2 of the Criminal Law (Sentencing) Act 1988.

6. Section 57 provides:-

   “Division 2—Enforcement of bonds

   57—Non-compliance with bond

   (1)If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer's bond, the court may—

   (a) —

   (i)      issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or

   (ii)     issue a warrant for the probationer's arrest; and

   (b)     issue a summons to any guarantor.

   (2)If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person's arrest.

   (3) Where a person is arrested pursuant to a warrant issued under this section, the person must be brought before the probative court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings.

   (4) If a probationer is found guilty of an offence by a court of a superior jurisdiction to that of the probative court, being an offence committed during the term of the bond, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction.

   (4a)If a probationer is found guilty of an offence by a court of an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must—

   (a)     sentence the probationer for the offence and remand him or her to the probative court to be dealt with for breach of the conditions of the bond; or

   (b)     remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond.

   (5) The court dealing with a probationer for breach of condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply.

   (6)     In this section—

   court of an inferior jurisdiction means—

   (a)     if the probative court is the Supreme Court—the District Court, the ERD Court or the Magistrates Court;

   (b)     if the probative court is the District Court or the ERD Court—the Magistrates Court;

   court of a superior jurisdiction means—

   (a)     if the probative court is the Magistrates Court—the Supreme Court, the District Court or the ERD Court;

   (b)     if the probative court is the District Court or the ERD Court—the Supreme Court.”

7. This matter came before this court by virtue of s 57(4a) of the Criminal Law (Sentencing) Act 1988 (CLSA).  A bond of 3 years duration with a suspended sentence attached was ordered by this court on 2 June 2008 and the probationer entered into the bond.  The probationer appeared on 10 October 2010 in the Holden Hill Magistrates Court charged with offences which breached that bond and the learned Special Magistrate then sentenced him for those offences, namely Failing to Comply with a Bail Agreement, Disorderly Behaviour, Refuse Name and Address and Aggravated Assault against a police officer.  Because the commission of those offences (which were admitted) breached the bond imposed by this court on 2 June 2008, His Honour Mr Chin SM referred the matter to this court. 

8. The endorsement on the computer record reads “files to be sent to the District Court to 8 November 2010 at 10 am for District Court bond to be dealt with”.  Insofar as I understand Mr Mancini’s argument about this issue, he said that the learned Magistrate failed to use the term “remand” and appears to suggest that the matter was not properly referred to this court and I therefore lacked jurisdiction to hear the matter.  However, since the time of the argument, I have viewed the file cover containing the order signed by the learned Special Magistrate which includes a reference to s 57 CLSA and the terms of the Order are:

   “Rem to District Court to 8/11/2010 @ 10 am for District Ct bond to be dealt with.”

9. The abbreviation “Rem” plainly refers to “Remand”.  If there was any doubt about the matter, the order made by the learned Special Magistrate remanded the matter to this court.  This order and remand therefore gave rise to the jurisdiction of this court. 

10. The document filed by the DPP did not give rise to or create the jurisdiction of this court.  Whilst the document filed by the DPP is entitled an “Application for Enforcement of a Breached Bond” it was, in my view, unnecessary.  The Application was on oath.  This was also unnecessary as no warrant or summons was required as the matter had been remanded to this court for 8 November 2010.

11. I do not intend to comment on most of the other arguments or submissions made as it is unnecessary to do so.  I think that there may be force in the criticism of the DPP allowing a law clerk to “settle” proceedings (see front sheet of the “Application for Enforcement of a Breached Bond”) but I do not express any view about whether this may breach the Legal Practitioners Act 1981 and whether this may cause a fundamental defect in the proceedings. I think that the “evidence given on oath” referred to by s 57(1) CLSA may, if required, be by any person with the requisite knowledge or belief. Importantly, this evidence on oath is necessary for the issue of a summons or warrant but such a process is not required if the matter is referred to this court via s 57(4a) CLSA.

12. The form of the Application used by the DPP to enforce bonds is not one provided for by the CLSA nor by the Rules of this Court.  The format used seems to try to do more than one thing and it may confuse the obtaining of a summons or warrant with notification of the Application to be made to enforce the bond.  In the circumstances of this matter however, I do not intend to decide this issue.