Russell Stephen Cowan v SA Police No. SCGRG 94/600 Judgment No. 4805 Number of Pages 12 Criminal Law and Procedure (1994) 75 a Crim R 247
[1994] SASC 4805
•27 October 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) and PERRY(3) JJ
CWDS
Criminal law and procedure - Minor indictable offence - failure to elect for trial in superior court within time prescribed by Magistrates Court Rule 21 - validity of Rule 21 - Requirement in Section 103(2) Summary Procedures Act and Rule 21.02 for provision of form of election to defendant complied with by provision to counsel or solicitor - provision of form differing from that in Rule - requirement directory only - obligation to elect within time not affected by defective compliance with requirement to provide form - ruling of Magistrate that election invalid, upheld.
HRNG ADELAIDE, 9, 12 September 1994 #DATE 27:10:1994
Counsel for appellant: Mr M L Abbott QC with
Mr H I P Patsouris
Solicitors for appellant: Patsouris and Associates
Counsel for respondent: Ms W J Abraham
Solicitors for respondent: DPP (SA)
ORDER
Appeal dismissed.
JUDGE1 KING CJ The appellant was charged, on an Information sworn the 13th July 1993 and filed in the Magistrates Court, jointly with one Fewster, with six offences of obtaining by false pretences and two of attempting to pervert the course of justice. Both defendants appeared before the Court on 14th July and were represented by counsel. They were remanded on bail to appear on 11th August. On that day Cowan did not attend in person but both defendants were represented by counsel. Their non attendance was excused. They were remanded to 22nd September for a trial date to be set. On that date they were represented by counsel but Cowan did not appear in person. His non attendance was excused. The trial date was set for 21st March 1994 in the Magistrates Court to occupy three weeks.
2. On 21st March 1994, the defendants appeared in person and were represented by counsel. Mr Abbott QC for Cowan intimated to the magistrate that Cowan elected to be tried in a superior court. A Notice making such election had been filed in the Court on 18th March. In a decision delivered on 25th March, the learned magistrate ruled that the notices and the purported election were invalid and that the trial should proceed as a summary trial. Mr Abbott intimated that his client would seek judicial review of that decision and the magistrate indicated that he would not proceed with the trial until the judicial review proceedings had been completed.
3. Cowan thereupon instituted this appeal pursuant to s42 of the MagistratesCourt Act. The section as it stood at the relevant time authorized appeals against interlocutory orders.
4. Section 103 subsections (2) and (3) of the Summary Procedure Act provides as follows:
"(2) A defendant must be provided with a copy of the
information and, if charged with a minor indictable offence,
the appropriate form for electing for trial in a superior
court.
(3) 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."
5. The Rules of the Magistrates Court governing the making of an election are contained in Rule 21 which is as follows:
"21.00 Election
21.01 The form of election pursuant (sic) section 103(2) of
the Act shall comply with Form No 8.
21.02 The defendant shall be provided with a form of
election -
(a) where the defendant is served with a summons, at the
time of service of the summons;
(b) in any other case when the defendant first appears
before the court.
21.03 An election is made by filing a copy of the
information to which the election relates with a duly
completed form of election annexed thereto.
21.04 Unless an election has been made, the prosecution,
upon the request of the defence or direction of the Court,
must provide the defence with a summary of the evidence in
support of each charge.
21.05 A request for a summary of evidence must be made not
later than three weeks after the first appearance of the
defendant before the Court.
21.06 A summary of evidence shall be provided within three
weeks of the request being made or a direction given.
21.07 An election must be made within 14 days of the
delivery of the summary of evidence, or where no summary has
been requested or directed, not later than 6 weeks after the
defendant's first appearance before the Court.
21.08 Notwithstanding any other provisions of this Rule, an
election may not be made after a matter has been set for
trial.
21.09 When a defendant makes an election the provisions of
Rule 20 apply mutatis mutandis as if the election had been
made at the first appearance of the defendant before the
Court.
21.10 The Registrar shall notify the prosecutor of the
filing of an election."
6. The grounds of appeal assert that s103 or the combination of s103 and Rule 21 are invalid by virtue of s117 of the Constitution of the Commonwealth. This ground was abandoned at the hearing and is plainly without substance.
7. Mr Abbott QC for the appellant argued that the right to trial by jury is a fundamental common law right and that the curtailment of such a right by statute requires clear and unambiguous language. He contended that the language of s103 is not apt to authorize the restrictions on the manner of exercising that right which are imposed by the Rules. The answer to that argument is that no language could be clearer than that used in s103(3) to restrict the right to trial by jury for charges of minor indictable offences to cases in which an election has been made in accordance with Rules of Court.
8. Mr Abbott further argued that the right to defer the election until the completion of the case for the prosecution is a common law right and that the section does not clearly indicate an intention to abolish that right. The concept of a minor indictable offence triable either summarily or on indictment was unknown to the common law; it is a creature of statute. It cannot be correct to say that there is any common law right to make an election at any particular time. The conditions under which a charge which would otherwise be triable on indictment may be disposed of summarily must be found in the statute and the ordinary principles of statutory interpretation apply.
9. Prior to the enactment of the amendments which came into force on 5th July 1992, the relevant statute, then known as the Justices Act, provided in s122 that a defendant to a charge of a minor indictable offence could elect trial by jury at any time up to and including the end of the case for the prosecution. That provision caused difficulties in hearings of such charges due to uncertainty during the hearing as to whether the issue to be decided would prove to be whether the charge had been proved or merely whether there was a case to answer. The difficulties, however, were manageable because, irrespective of whether the hearing proved to be a preliminary hearing leading to a decision whether there was a case to answer or a summary hearing leading to a conviction or dismissal, the hearing was conducted on the oral evidence of the witnesses.
10. This situation has been affected by changes in the procedures for the conduct of preliminary hearings. Since 1992 the evidence on a preliminary hearing is taken by way of the reception of written statements and other material, and not by means of oral evidence unless the Court so orders for special reasons; s106Summary Procedure Act. This legislative change clearly called for some revision of the procedures for the hearing of charges of minor indictable offences. Although prior to 1981, such a hearing proceeded as a preliminary examination unless and until converted into a summary hearing by the defendant's plea, the amendments made by the Statutes Amendment (Jurisdiction of Courts) Act 1981 had the effect that such hearings began as summary trials and were converted into preliminary hearings by a defendant's election to be tried upon indictment; Tassell v Hayes (1987) 163 CLR 34 at pp37-40. The prohibition against oral examination, and therefore cross-examination, of witnesses except for special reasons could be circumvented by a defendant deferring his election until the completion of the prosecution case. From a practical point of view s106 was therefore incompatible with the right to defer election until the evidence for the prosecution had been given.
11. A further factor was the need to apply modern case management techniques to the Magistrates Court. The orderly and economical dispatch of business in that Court, as in other Courts, demands that the Court know well in advance of a hearing whether it is to be a contested, perhaps lengthy, summary trial, or a relatively brief preliminary hearing perhaps without or with only limited oral evidence.
12. The revision of the procedures for the hearing of charges of minor indictable offences necessitated by the above changes, was made in the 1991 Act which renamed the Justices Act the Summary Procedure Act. Section 122 was repealed and replaced by s103. The legislative device used to effect the revision was to require election to be made in accordance with Rules of Court. This device had been used by the legislature to authorize orderly regulation in the Supreme Court and the District Court, of the election for trial by a judge without a jury; Juries Act 1927s7(1)(a) and to prevent forum shopping. It is a device which enables the Court to make rules which regulate the manner of the exercise of a right of election in a way which diminishes the opportunities for abuse and facilitates the work of the Court.
13. Section 103 exhibits a clear intention to abolish the procedure under the former s122 whereby a defendant could elect for trial on indictment at any time up to the completion of the case for the prosecution, and to authorize the Court to prescribe a procedure in lieu thereof designed to satisfy the requirements dictated by current legislation and court practices.
14. Mr Abbott further argued that Rule 21, so far as it requires election prior to the completion of the case for the prosecution, is not authorized by the statutory rule making power. The power to make rules is conferred on the Magistrates Court by s49 of the Magistrates Court Act 1991. Rules may be made inter alia "regulating the practice and procedure of the Court" and "dealing with any other matter necessary or expedient for the effective and efficient operation of the Court". Those expressions provide ample authority for Rule 21. Moreover I consider that the words "in accordance with the Rules" in s103 are an independent source of power to make rules regulating the election for trial in a superior court and that Rule 21, subject to what I shall say later about Rule 21.08, is authorized by that power.
15. Finally Mr Abbott submitted that the appellant was not precluded by Rule 21 from making his election when he did so because there had not been compliance with the requirements of Rule 21.02.
16. The appellant was not at any time served personally with a Form No.8. On or after the date of the appellant's first appearance with respect to the Information filed on 13th July the appellant's solicitor received a document entitled Form No.8. This form differed from the Form No.8 which then appeared in the Rules. It was an earlier superseded form. It was this form, signed personally by the appellant, which was lodged on 18th March as the purported election.
17. Mr Abbott argued that Rule 21.02 requires that the form be served on the defendant personally on the first occasion when the defendant personally appears before the Court. I think that, having regard to the purpose of the Rule, that is an unduly strict interpretation of it. Rule 21.02 is not a statutory precondition of jurisdiction such as that considered in Hacking v Keath (1966) VR 364. It is a machinery provision designed to implement s103(2) and to furnish a defendant with a ready means of making an election and appropriate information as how it is to be done in accordance with the Rules. I think that where a defendant does not personally attend but appears by counsel or solicitor, that appearance should be treated as the appearance of the defendant for the purpose of the Rule. The defendant is provided with the form for the purpose of the Rule if the form is furnished to his counsel or solicitor. A legal practitioner retained to appear for a client has ostensible authority to receive on behalf of the client documents connected with the case except those which are required by law to be served personally; Halsbury, Laws of England, Vol 44, 4th edition para 116. I see no reason why this rule should not be applied to procedural documents required to be provided to a defendant in criminal proceedings.
18. Mr Abbott further contended that the rule had not been complied with because the form provided is not the same as the form authorized by the Rules. Rule 5.01 provides that "It is sufficient compliance with these rules, as to the form of any document, if the document is substantially in accordance with the Form". The learned magistrate considered that there was not "a major difference" between the form as supplied and the form in the rules and therefore held, by implication, that there was substantial accord between the document provided and the authorized form. A comparison between the two documents discloses no material difference except in the information in the footnote as to the time when election must be made. It must be said that a defendant who had relied on the footnote could have been misled and found himself out of time to elect.
19. The soundness of Mr Abbott's argument, however, depends upon construing Rule 21 as meaning that a defendant's obligation to elect within the times prescribed arises only if and when he is provided with a Form No.8 in accordance with Rule 21.02. I do not construe it in that way.
20. Rule 21.01 requires the form of election to comply with Form No.8. Form No.8 appears in the Rules. A defendant can prepare his form of election from the Rules whether or not a printed form is available. The times within which election must be made are set out in the Rules. They are binding upon a defendant irrespective of his awareness of them. They are not expressed to depend upon his having been provided with the form. Rule 21.02 is designed to assist a defendant by directing that he be provided with the form which he will need to make his election. It thereby implements s103(2). I think that the requirement in s103(2) and Rule 21.02 for the provision of the form to a defendant, is directory in character. I can discern no warrant in Rule 21 for an interpretation which would relieve a defendant of the requirements as to the time within which election must be made simply because the requirement as to the provision of the form had not been complied with. Such an interpretation would be contrary to commonsense. Most defendants are legally represented and it is the responsibility of their legal representatives to be acquainted with the Rules and to ensure that their clients comply with them. The occasional case in which an unrepresented defendant does not make an election in accordance with the Rules due to ignorance can be catered for by a dispensation from compliance pursuant to Rule 40. I see no foundation either in the language of the section or the Rule or in considerations of justice, for a construction which would cause its purpose to be frustrated by failure of court officials to provide the form. Such a construction would enable legally represented defendants who are well aware of what is required of them, to set at naught on a technicality the important procedures designed to enable the Court to function with necessary efficiency.
21. It is plain that the appellant's election was not made within the time prescribed by Rule 21. Rule 21.07 stipulates that the election must be made "within 14 days of the delivery of the summary of evidence, or where no summary has been requested or directed, not later than 6 weeks after the defendant's first appearance before the Court". There is no evidence as to whether a summary of evidence was requested but there is no complaint of failure to supply such summary within time. The purported election was made long after the expiration of the period which would have applied if a summary of evidence had been requested and supplied in accordance with the Rules. It was also made long after the expiration of the period of 6 weeks from the first appearance.
22. I do not rely upon Rule 21.08, because of doubts which I entertain about its validity. As indicated above I consider that there is ample statutory power to make rules regulating the manner in which the right to elect trial in a superior court must be made. That must be subject to the qualification, however, that a rule which so restricted the manner of election as to negate the right would not be a valid exercise of the power. The Rules must be such as to provide reasonable opportunity for the making of the election. That is the source of my concern about Rule 21.08.
23. Rule 21.08 clearly envisages the possibility of the matter being "set for trial" before the expiration of the periods in Rule 21.07 within which election must be made. The Rules do not prescribe any procedure by which a matter is "set for trial". If as in the present case, the date for trial is fixed in consultation with and with the agreement of the defendant, there is no unreasonable fetter on the right to elect. The defendant could make his election before the date is fixed or could refuse to agree to the fixation until the Rule 21.07 periods had expired. Rule 21.08, however, according to its literal terms, would permit the defendant being deprived of the right of election, by the Court acting before the expiration of the time stipulated in R.21.07, to set the matter for trial, even without notice to the defendant. I suspect that the drafter of R.21.08 had in mind the current practice of the Court as exemplified by what occurred in the present case and assumed that a matter would not be set for trial, at least before the expiration of the periods in R.21.07 without the consent of the defendant. I think that R.21.08 should be amended to make that clear.
24. Finally Mr Abbott argued that the learned magistrate ought to have exercised his power under Rule 40 to relieve the appellant from compliance with the Rules so far as necessary to validate his election. I cannot find any persuasive ground for so doing. The appellant was represented throughout by senior counsel. He must have been well aware of the requirements of the rule. He has not asserted otherwise. He has made no claim that he was not aware of the requirements or that he was misled by the form with which he was provided. The lodging of the form of election did not occur until virtually the eve of trial. The trial date had been fixed over six months earlier with his counsel's concurrence and three weeks had been set aside for the hearing. The late election, if permitted, would have been likely to cause loss of judicial time and therefore cost to the public, but also a substantial delay in the proceedings due to the need to commence and implement the procedures for a preliminary examination. No shadow of excuse was put forward for the failure to act at an earlier time.
25. I think that the magistrate's decision was correct.
26. In my opinion the appeal should be dismissed.
JUDGE2 MILLHOUSE J This appeal concerns committal (or, I suppose, now more properly called "preliminary") proceedings in the Magistrates Court.
2. The appellant and another man, Fewster, have been charged with false pretences.
3. The appeal is from the decision of Mr K.C. Rogers SM in which the learned magistrate insists on going on with the appellant's summary trial. This is the history of the matter as set out in his Reasons:-
" An information was presented to the Magistrate's Court on
the 15th July 1993 by the prosecution. I am told that this
was in place of a previous information alleging one or more
major indictable offences. Both defendants were represented
by experienced counsel, namely Mr Abbott QC for Cowan and Mr
Sykes for Fewster. Both defendants were remanded to a date
in August and then to the 22nd September to fix a trial
date. On that date, Monday, 21st March, was set as the date
for commencement of the trial and the court was told it
would require three weeks. Presumably the much longer
period between the date the matter was set for trial and the
trial date was to accommodate both the Crown and defence
counsel's commitments and possibly witnesses commitments as
well. Nothing of relevance then happened until Friday, 18th
March 1994, when both defendants filed Forms of Election
with the court. The forms in question were signed
personally by each defendant."
4. The learned magistrate found "that the filing of the Election Notices on Friday, 18th March is a nullity and they have no effect whatsoever." He therefore sought to go on with the summary trial.
5. Section 103 of the Summary Procedure Act has cut down the common law right to trial by jury. Under the previous procedures a defendant had the right to be tried by jury unless he elected to be tried summarily. Now the position is reversed: a person charged with a minor indictable offence must elect for trial by jury; otherwise he gets a summary trial. The relevant parts of s103 are:-
"(1) Where an information charging an indictable offence
has been filed in the Court - ...
(b) if the defendant is not in custody-
(i) the Court may, if the charge has been substantiated on
oath, issue a warrant to have the defendant arrested and
brought before the Court and then, on the appearance of
the defendant, remand him or her in custody or on bail to
appear at a nominated time and place to answer the charge;
or
(ii) the Court may appoint a time and place for the
defendant to appear to answer the charge and issue a
summons requiring the defendant to appear at the time and
place so appointed.
(2) The defendant must be provided with a copy of the
information and, if the defendant is charged with a minor
indictable offence, the appropriate form for electing for
trial in a superior court.
(3) 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."
6. Rule 21 of the Magistrate Court rules has been made setting out the procedures to be followed. The relevant parts are:-
"21.00 Election
21.01 The form of election pursuant (sic) section 103(2) of
the Act shall comply with Form No 8.
21.02 The defendant shall be provided with a form of
election -
(a) where the defendant is served with a summons, at the
time of service of the summons;
(b) in any other case when the defendant first appears
before the court.
21.03 An election is made by filing a copy of the
information to which the election relates with a duly
completed form of election annexed thereto.
21.04 Unless an election has been made, the prosecution,
upon the request of the defence or direction of the Court,
must provide the defence with a summary of the evidence in
support of each charge.
21.05 A request for a summary of evidence must be made not
later than three weeks after the first appearance of the
defendant before the Court.
21.06 A summary of evidence shall be provided within three
weeks of the request being made or a direction given.
21.07 An election must be made within 14 days of the
delivery of the summary of evidence, or where no summary has
been requested or directed, not later than 6 weeks after the
defendant's first appearance before the Court.
21.08 Notwithstanding any other provisions of this Rule, an
election may not be made after a matter has been set for
trial.
7. Appended to the Rules are a number of forms including the Form 8. I need not set the whole form out but towards its foot this endorsement appears:-
"N.B. AN ELECTION DOES NOT TAKE EFFECT UNTIL THIS FORM DULY
COMPLETED IS FILED IN THE COURT AT THE ABOVE ADDRESS. IT
MUST BE LODGED:
(a) Where a summary of the evidence has been requested by
the defence or directed by the court - within 14 days of the
delivery of the summary;
(b) Where there is no request or direction for a summary -
not later than 6 weeks after the defendant's first
appearance before the court."
8. It will be seen that the endorsement mirrors Rule 21.
9. The only other Rules I should mention, although in my view they do not come into the matter, are Rules 5.01 and 40.01:-
"5.01 It is sufficient compliance with these rules, as to
the form of any document, if the document is substantially
in accordance with the Form."
"40.01 The court may relieve any party from compliance with
the rules if the justice of the case requires it and on such
terms as the court orders."
10. So much for the procedures: now for what actually happened.
11. At some time, by some one, the appellant's solicitor was given a form 8 - but it was an obsolete form: in particular the endorsement was not the same: the endorsement on the form given read:-
"N.B. AN ELECTION DOES NOT TAKE EFFECT UNTIL THIS FORM DULY
COMPLETED IS FILED IN THE COURT AT THE ABOVE ADDRESS. IT
MUST BE LODGED NOT LATER THAN THE TIME OF YOUR SECOND
APPEARANCE BEFORE THE COURT UNLESS THE COURT DIRECTS
OTHERWISE."
12. (This mirrors the earlier version of Rule 21 not the Rule in effect at the relevant times.)
13. The mandatory language both in s103(2) and in Rules 21.01 and 21.02 is to be noted.
14. Miss Wendy Abraham, for the respondent, had to concede that there had not been strict compliance with Rule 21.
15. On the other hand the appellant, by filing his Election Form only three days before the hearing had not complied either - either with the direction on the form with which he was provided or with the direction on the form with which he should have been provided.
16. I can't put out of my mind the suspicion that the appellant, by purporting to make such a late election - when he had known of the date of the hearing for six months - may have been, for his own purposes, trying to put off the evil day of trial. However, as Mr Abbott QC said in meeting another point, this appeal is not about merits but the construction of the Act and Rules. At the least, though, the appellant's late purported election was a serious breach of case flow management principles and probably led to inconvenience to the Court and a waste of time and money.
17. The rather long Notice of Appeal has six grounds but Mr Abbott's argument came down to two points.
18. The first is that the appellant should have been provided personally with a copy of the Information and the appropriate form for electing, pursuant to s103(2). (The phrase "must be provided with" in the section is undesirably inexact: it cannot mean anything but "served with": it would have been better, too, if the sub-section specified who was to provide (or serve) it. It's a pity the draftsman used the passive rather than the active tense so avoiding specifying who was responsible for getting the form to the defendant.) The appellant was not served personally: the form was given at some time to his solicitor. There were two deficiencies - lack of personal service and lack of adherence to the times in the Rule.
19. The practice of the Court does not always conform with the requirements of s103(1)(b), personal attendance. A defendant represented by counsel or solicitor is often excused attendance. This is for convenience sake. If, say, a defendant is not in the State, living somewhere else, and there is thought to be no risk of his not turning up at the eventual hearing, there is no point in making him come to, in this case, the Adelaide Magistrates Court every time the matter is mentioned.
20. The endorsement on the Court file shewed that the appellant did not appear on the first occasion but he did on a later occasion. It is another pity that the Act does not embody the commonsense practice of the Court. On the other hand, I have always accepted that an appearance by counsel or solicitor in circumstances such as in this case is the equivalent of personal appearance. This is strengthened because under the present procedures a defendant does not need to be in Court, to have heard the evidence against him, before he makes his election: he has already made it by filing a form before the preliminary proceedings begin. I therefore conclude that the provision of the form either to counsel or to solicitor was the same as personal service.
21. As to lack of adherence to the times in the Rule, the appellant's solicitor could not say precisely when he received the form so it is not possible to come to a conclusion as to time of service.
22. Mr Abbott's first point fails.
23. His second point: the right to trial by jury is such a fundamental right that it should not be taken away or even cut down except by the most express language: the provisions of the Act and Rules should be strictly construed in favour of an accused. Certainly these are penal provisions and that lends weight to Mr Abbott's argument.
24. I have already pointed out that the provisions of s103(2) and of Rule 21 are mandatory ("The defendant must be provided with a copy .....," "The form ....... shall comply ......", "The defendant shall be provided with a form of election" and so on).
25. I accept Mr Abbott's second argument. For reasons unexplained the wrong form was provided (I suppose "they" were using up the supply of old forms rather than throwing them away) and it may not have been provided at the appropriate time. A defendant may have been misled by this. (I doubt whether this appellant was misled because he was being competently advised but as Mr Abbott said the appeal is not about the merits.)
26. Because the procedures were not strictly complied with, the learned special magistrate did not have jurisdiction to go on with the hearing. He could not cure the deficiencies by the exercise of his discretion pursuant to Rules 5.01 or 40.01. It matters not that the appellant was himself in default in notifying his election. The whole thing was a nullity. Nor was the prosecution helped by s25 of the Acts Interpretation Act:-
"Whenever forms are prescribed by any Act, forms to the same
effect are sufficient provided that deviations from the
prescribed forms are not calculated to mislead."
27. It was not even substantial compliance - the endorsements on the two forms were significantly different, not to the same effect.
28. This means that the appeal succeeds.
29. What follows? The proper course is to send the matter back to the Adelaide Magistrates Court to start again at the point of service of the Election form and then strictly to follow the steps set out in Rule 21.
30. I suggest that the appeal be allowed.
JUDGE3 PERRY J I agree that the appeal should be dismissed for the reasons published by His Honour the Chief Justice.
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