R v Ratcliff, Stanfield & Utting

Case [2007] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v RATCLIFF, STANFIELD & UTTING

[2007] SASC 297

Reasons for Ruling of The Honourable Justice Nyland

10 August 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

Applicants charged with criminal defamation - finding of no case to answer at committal - ex officio information filed by DPP - application to quash or dismiss proceedings - whether DPP empowered to lay ex officio information - whether laying ex officio information for minor indictable offences in superior court amounted to abuse of process - applicants deprived of right to summary trial - applicants filed election for trial before judge and jury in superior court - election not withdrawn before conclusion of committal hearing - not an abuse to be tried in accordance with election - whether non compliance by DPP with s 257 CLCA as to consent to prosecution invalidated proceedings - consent proved - applications dismissed.

Criminal Law Consolidation Act 1935 s 257 and s 275; Summary Procedure Act 1921 ss 5, 103(2) and 105; Supreme Court Rules 1992 r 8, and r 9; Director of Public Prosecutions Act 1991 s 4 and s 7; Juries Act 1921 s 7, referred to.
Question of Law Reserved (No 3 of 1995) (1996) 66 SASR 450; O'Neill v R (1989) 53 SASR 1; Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509; Burgoyne v Earle [1999] WASCA 154; Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355; Dever v Creevey; ex parte Creevey (1993) 1 QR 32; Schulz v Virgin (1996) SASR 94, discussed.
Barton v The Queen (1980) 147 CLR 75; Duffield & Dellapatrona v R (1992) 28 NSWLR 638; R v Maitland [1963] SASR 332; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Basha (1989) 39 ACrimR 377, considered.

R v RATCLIFF, STANFIELD & UTTING
[2007] SASC 297

NYLAND J:

  1. This is an application by Malcolm Barry Stanfield (Stanfield) and Wendy Utting (Utting) to quash or dismiss proceedings. 

    Background:

  2. In order to understand the argument in this case, it is necessary to set out some of the background to this application.  Stanfield and Utting, together with Craig Ratcliff (Ratcliff) were charged on an information filed in the Magistrates Court at Adelaide with the offence of criminal defamation, contrary to the provisions of s 257 of the Criminal Law Consolidation Act 1935 (CLCA).  The matter was designated as a minor indictable offence.

  3. Counts 1 to 4 of that information charged Utting and Stanfield jointly with an offence committed on 1 April 2005.  Count 5 charged Utting only with an offence on the same date, and Count 6 charged Stanfield only with an offence on that…

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AGLC
R v Ratcliff, Stanfield & Utting [2007] SASC 297
Case
[2007] SASC 297
Decision Date

CaseChat Overview and Summary

The applicants in this case, Malcolm Barry Stanfield and Wendy Utting, sought to quash or dismiss the criminal proceedings against them for criminal defamation. The charges were laid by the Director of Public Prosecutions (DPP) on an information filed in the Magistrates Court at Adelaide. This information alleged that the applicants, together with Craig Ratcliff, had committed offences of criminal defamation on various dates between 2004 and 2005. The applicants argued that the proceedings should be quashed or dismissed on several grounds, including the assertion that the DPP was not empowered to lay an ex officio information for minor indictable offences in the superior court, and that the laying of such information amounted to an abuse of process.

The court considered whether the DPP was empowered to lay an ex officio information for minor indictable offences in the superior court, and whether the laying of such information amounted to an abuse of process. The court also considered whether the applicants were deprived of their right to a summary trial, and whether non-compliance by the DPP with section 257 of the Criminal Law Consolidation Act 1935 (CLCA) as to consent to prosecution invalidated the proceedings. The court found that the DPP was empowered to lay an ex officio information for minor indictable offences in the superior court, and that the laying of such information did not amount to an abuse of process. The court found that the applicants were not deprived of their right to a summary trial, as they had elected for trial in a superior court, and that the lack of certification on the information as originally filed did not render the proceedings invalid.

The court dismissed the applicants' applications to quash or dismiss the proceedings. The court found that the DPP had certified consent to the proceedings on 12 September 2006, and that this was sufficient compliance with section 257 of the CLCA. The court found that the applicants had not established any grounds to support their applications to quash or dismiss the proceedings, and that the proceedings should therefore continue.

Orders

Orders of the court

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Background

Background to the litigation

This is an application by Malcolm Barry Stanfield (Stanfield) and Wendy Utting (Utting) to quash or dismiss proceedings. Background: In order to understand the argument in this case, it is necessary to set out some of the background to this application. Stanfield and Utting, together with Craig Ratcliff (Ratcliff) were charged on an information filed in the Magistrates Court at Adelaide with the offence of criminal defamation, contrary to the provisions of s 257 of the Criminal Law Consolidation Act 1935 (CLCA). The matter was designated as a minor indictable offence. Counts 1 to 4 of that information charged Utting and Stanfield jointly with an offence committed on 1 April 2005. Count 5 charged Utting only with an offence on the same date, and Count 6 charged Stanfield only with an offence on that date. Counts 7, 8 and 9 all related to Ratcliff and alleged offences committed on 4 August 2004, 12 August 2004 and 10 March 2005. The information required each of them to appear in the Magistrates Court on 5 October 2005 at 9.30 am. The information bears the endorsement “I, Geraldine Davison – Acting Director of Public Prosecutions for the State of South Australia, hereby consent to the institution of these proceedings pursuant to s 257 of the Criminal Law Consolidation Act 1935”. Each of the defendants appeared in court on the return date when proceedings were adjourned to 15 November 2005 for mention only. On that date, defence counsel were provided with a number of statements of witnesses. The matter was thereafter adjourned to 9 December 2005 for the defendants to indicate whether any or all of them would elect for trial in a superior court, pursuant to s 103(2) of the Summary Procedure Act 1921 (SPA). On 9 December 2005, the matter again came on for hearing in the Magistrates Court. On that date an election was filed by Utting in which she elected for trial in the District Court of South Australia. Counsel who appeared on behalf of Ratcliff and Stanfield indicated that they too might file election forms. The matter was then adjourned to 20 February 2006. Thereafter there were some further delays in the course of which consideration was given to the possibility of a judicial officer, other than a magistrate, presiding over the preliminary examination of the matter. The matter eventually came on for hearing before a District Court judge, sitting as a magistrate, on 31 July 2006. Each of the defendants was represented by counsel. At the commencement of the proceedings, the prosecution was granted leave to amend Counts 5 and 6 on the information, as a result of which Stanfield and Utting were jointly charged with each of those offences, as well as the other four. Counsel for Utting also applied for separate committal proceedings from Ratcliff. That was supported by counsel for Stanfield. There was further argument as to that matter, in the course of which the issue arose as to whether Ratcliff and Stanfield had each elected to be tried in a superior court. That issue was resolved on 2 August 2006. The preliminary examination thereafter proceeded on the basis of each of the defendants having so elected.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, on 31 May 2007, subsequent to the reservation of judgment with respect to this application, a certificate was filed in this court in which the DPP certified that he had, on 12 September 2006, consented to the commencement of the proceedings against each of the defendants in accordance with s 257 CLCA. In my view, that is sufficient compliance with s 257 CLCA and the lack of certification on the information as originally filed does not render the proceedings invalid.Conclusion: No grounds have been established to support the applications filed by Stanfield and Utting to quash or dismiss the proceedings. Those applications are therefore refused.

Ratio Decidendi

Legal Principle Established

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