Russell-Taylor v Jackson - Nelson - [2007] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RUSSELL-TAYLOR v JACKSON - NELSON & ANOR
[2007] SASC 15
Judgment of The Honourable Justice Anderson
23 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - NOTICE OF APPEAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
Appeal against a decision of a Magistrate dismissing complaints of treason made by the appellant – whether the Magistrate was correct to dismiss the appeal on the ground that the offence could only be laid by information – whether there were sufficient particulars – whether the offence was properly laid – whether the error in laying the charge is fatal. Held: Appeal dismissed – no error demonstrated – Offence of treason can only be laid by information and not by complaint – Insufficient particulars detailing the offences – Error in laying the charge incorrectly is fatal.
Mr Wells appeared amicus curiae for the Director of Public Prosecution.
Summary Procedure Act 1921 (SA) s 101 (1), s 181; Criminal Law Consolidation Act 1935 (SA) s 131, s 237, referred to.

RUSSELL-TAYLOR v JACKSON - NELSON & ANOR
[2007] SASC 15
Magistrates Appeal
ANDERSON J
Introduction

In this matter the appellant, Mr Russell-Taylor, has appealed from a decision of a Magistrate who dismissed complaints which had been made against the Governor of South Australia and a non-existent department, namely, the Department of Public Prosecutions.
The complaints alleged treason under the Criminal Law Consolidation Act 1935 (SA) on the basis that the Governor of South Australia has:
“deliberately and wilfully sought to deprive or depose her Majesty from the style, honour or royal name of the imperial crown of the United Kingdom”.
The complaint against the Department of Public Prosecutions alleges treason on the same basis, but also goes on to allege "dishonesty, state instrumentality and acting improperly".
The Magistrate dismissed the complaints for a number of reasons, but relevantly for the purposes of this appeal, pointed out to the appellant that the proceedings in the Magistrates Court were by way of complaint, and that because they were charges of treason and therefore were major indictable offences, they had to be laid by way of information.
The Magistrate also pointed out to the appellant that there was no such entity as the Department of Public Prosecutions, but despite this, the appellant has chosen to lodge his notice of appeal without making any application to amend the name of the defendant.
The grounds of appeal
The grounds of appeal as they actually appear in the notice of appeal are:
1Error of law; and
2Error of fact.
The grounds are said in each case to be an error of law and an error of fact as being "in conflict with High Court of Australia ruling".
The appellant later filed a document which purported to be an amended notice of appeal. It used the same terminology but then, in addition, developed an argument regarding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russell-Taylor v Jackson - Nelson

Details

AGLC: Russell-Taylor v Jackson - Nelson [2007] SASC 15
Case: [2007] SASC 15
Decision Date: 23 January 2007

CaseChat Overview and Summary

In the case of Russell-Taylor v Jackson - Nelson, the appellant brought an appeal against a decision by a Magistrate to dismiss complaints of treason made by the appellant. The matter was heard in the Supreme Court of South Australia. The central issue was whether the Magistrate was correct in dismissing the appeal on the basis that the offence of treason could only be laid by information, rather than by a complaint. Further, the court had to determine whether there were sufficient particulars detailing the offences, and if the error in laying the charge was fatal to the appeal.

The court considered the legislative requirements for laying charges of treason, noting that it can only be laid by information and not by complaint. The court further examined whether the particulars provided in the complaint were sufficient to detail the offences as required by law. The court concluded that the error in laying the charge as a complaint rather than by information was fatal and that the particulars provided were insufficient. The appeal was dismissed as no error was demonstrated that would warrant a different outcome.

The court's reasoning was based on the strict statutory requirements for the laying of charges of treason, and the necessity for sufficient particulars to detail the offences. Given the fatal error in the form of the charge and the insufficiency of the particulars, the appeal was dismissed. The court did not find any grounds to set aside the Magistrate's decision. The final orders were that the appeal was dismissed, and the decision of the Magistrate remained in place.

Orders