Rodgers v Simpson
[2001] WASCA 223
•30 JULY 2001
RODGERS -v- SIMPSON [2001] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 223 | |
| Case No: | SJA:1050/2001 | 30 JULY 2001 | |
| Coram: | MILLER J | 30/07/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision of Magistrate set aside Matter remitted to Court of Petty Sessions Bunbury to be heard according to law | ||
| PDF Version |
| Parties: | JAMES RICHARD RODGERS AILSA EVELYN SIMPSON |
Catchwords: | Criminal law Private complaint Perjury Dismissal by Magistrate on ground that leave of the Supreme Court not obtained Requirement for leave under s 720 Criminal Code reserved for matters in which there has been a committal for trial |
Legislation: | Criminal Code, s 720 Justices Act 1902, s 45 |
Case References: | Gouldham v Sharrett [1966] WAR 129 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
BETWEEN : JAMES RICHARD RODGERS
- Appellant
AND
AILSA EVELYN SIMPSON
Respondent
Catchwords:
Criminal law - Private complaint - Perjury - Dismissal by Magistrate on ground that leave of the Supreme Court not obtained - Requirement for leave under s 720 Criminal Code reserved for matters in which there has been a committal for trial
Legislation:
Criminal Code, s 720
Justices Act 1902, s 45
Result:
Appeal allowed
(Page 2)
Decision of Magistrate set aside
Matter remitted to Court of Petty Sessions Bunbury to be heard according to law
Representation:
Counsel:
Appellant : Mr M C Owens
Respondent : Mr S A Gabriel
Solicitors:
Appellant : Max Owens & Co
Respondent : Bunbury Community Legal Centre
Case(s) referred to in judgment(s):
Gouldham v Sharrett [1966] WAR 129
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: The appellant instituted proceedings by complaint in the Court of Petty Sessions Bunbury against the respondent by way of two separate complaints. The first alleged that on 4 April 1998 at Bunbury the respondent unlawfully assaulted one Kathryn Marie Rodgers. The second alleged that on 25 February 1999 at Bunbury the respondent "in a judicial proceeding before Mr Lawrence SM knowingly gave false testimony".
2 The complaints were private complaints, and they came before the Court of Petty Sessions on 23 March 2001. The appellant appeared in person but the respondent was represented by counsel.
3 The first of the complaints was adjourned to 23 April 2001 with an order that the complainant serve within 14 days full particulars of the assault alleged. The second complaint was dismissed and the notation on the charge sheet is in the following terms: "Discharged. Not given leave. s 720".
4 The transcript of proceedings before the learned Magistrate reveals that when the complaint alleging perjury was mentioned counsel for the respondent advised the learned Magistrate that the complaint had not been brought properly because leave to bring the complaint was required under the provisions of s 720 of the Criminal Code. It was therefore said to be an abuse of process.
5 The learned Magistrate accepted the submission of counsel for the respondent and asked the appellant whether he had obtained leave of the Supreme Court to bring the complaint. When the appellant replied that he had not he was told that he had to get leave of the Supreme Court first and in relation to that matter it was discharged. His Worship said:
"Mr Rodgers, the matter will be discharged, because under section 720 of the Criminal Code you have to get leave of the Supreme Court to commence proceedings".
6 On 24 April 2001 Pidgeon J granted the appellant leave to appeal the decision of the learned Magistrate on the following ground:
"The learned Magistrate erred in law in discharging the complaint pursuant to Section 720 of the Criminal Code or at all. Section 720 of the Code has no application until at least a committal of the Defendant."
7 It was contended by counsel for the appellant that the learned Magistrate's error of law was manifest because s 720 of the Criminal
(Page 4)
- Code was only applicable to the appellant's complaint after a committal from a court of petty sessions. Reliance was placed upon the decision of the Full Court of the Supreme Court of Western Australia in Gouldham v Sharrett [1966] WAR 129, where the Court dealt with the circumstances in which leave of the Supreme Court would be granted to bring a private information alleging an indictable offence. Quite clearly that case establishes that the question whether leave should be so granted under s 720 of the Criminal Code is a matter which arises either after a committal of a defendant for trial, or by direct application to the Supreme Court by way of motion for leave to present an information.
8 Section 720 of the Code provides in the first paragraph thereof:
"Any person may, by leave of the Supreme Court, present an information against any other person for any indictable offence not punishable with strict security life imprisonment, alleged to have been committed by such other person."
9 In Gouldham v Sharrett (supra) the Court refused leave to present a private information, but the history of the matter clearly indicates that there had been a committal for trial, which committal was necessary before the provisions of s 720 of the Code came into play. Wolff CJ (at 132) said:
"In all, the evidence against Sharrett was most tenuous, nevertheless the magistrate committed him for trial. I would think that had a bill been filed the judge at trial would have been bound to withdraw the case from the jury."
10 It would appear that an application may be made under s 720 of the Code to present an information without the necessity of committal proceedings, but that application is one to be made by way of motion to the Supreme Court itself. Clearly it would be a rare case in which leave was given to a private citizen to present an information in circumstances where there had been no committal. In Gouldham v Sharrett (supra) Wolff CJ (at 137 - 138) set out the criteria by which the Court will consider whether to grant leave under s 720 of the Code, pointing out that committal proceedings would generally be required. His Honour said:
"Private prosecutions have become practically otiose but the provisions in Chapter LXXIII still stand. What should be the policy of the court in considering whether to grant leave under s 720? I consider it should be guided by the following considerations:-
(Page 5)
- (1) Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General: eg prosecutions for such offences as non-capital homicide, perjury, and so on?
(2) Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?
(3) If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before justices should not be resorted to?
(4) Has the accused already been committed for trial by a petty sessional court?
(5) Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?
(6) Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?
(7) Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?"
11 I am therefore of the opinion that the learned Magistrate in this case incorrectly assumed that application had to be made to the Supreme Court for leave to present an information under s 720 of the Code before a complaint in petty sessions could be considered. That was clearly an error of law and one into which his Worship was led by reason of the submissions made by counsel for the respondent.
12 It may be that the appellant's complaint requires further and better particularisation, but on the face of it, it is a sufficient complaint within the meaning of s 45 of the Justices Act 1902.
13 In my view the appeal should therefore be allowed and the matter remitted to the Court of Petty Sessions for rehearing according to law. It would be preferable for the matter to be listed before a different Magistrate if that be possible.
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