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

1. 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.

2. 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”.

3. 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".

4. 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.

5. 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

6. The grounds of appeal as they actually appear in the notice of appeal are:

   1Error of law; and

   2Error of fact.

7. 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".

8. 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 the various constitutional matters which the appellant wished to raise.  It was not an amended notice of appeal but a summary of argument.

9. At the outset of the appeal, I asked Mr McDonald, who appeared for the Governor, and Mr Wells, who appeared as amicus curiae for the Director of Public Prosecutions, to briefly state their preliminary points so that Mr Russell-Taylor could respond to them.  I indicated to Mr Russell-Taylor that unless he could overcome the preliminary points raised by both counsel, I was not prepared to go on and hear what he suggested were the merits of the appeal.

10. As it turns out, Mr Russell-Taylor gave me no satisfactory response to the submissions made by counsel for both defendants. 

    The Magistrate's reasons

11. In my view, the Magistrate was correct in finding that treason, being a major indictable offence, could only be laid on information pursuant to s 101(1) of the Summary Procedure Act 1921 (SA) and not by way of complaint.  Mr McDonald submitted that this was a defect not curable by amendment.  I agree, and I also agree that the learned Magistrate was correct to dismiss the complaint pursuant to s 181 of the Summary Procedure Act.

12. Mr McDonald also complained of insufficient particularity.  There are, in fact, no particulars given.  There are no facts alleged.  There is nothing alleging any conduct which might amount to an offence of treason, the only assertion  being the description which I referred to earlier in these reasons.

13. In relation to the complaint taken out against the Department, apart from the allegation of treason, to which the same comments apply, the rest of the allegations, namely, "dishonesty, state instrumentality, and acting improperly", are quite inappropriate.  The dishonesty section of the Criminal Law Consolidation Act, namely, s 131, which the appellant seeks to use, defines dishonesty as part of the offence of theft, and does not of itself create any offence. The appellant's reference to it is misconceived.

14. Section 237 of the Criminal Law Consolidation Act defines "state instrumentality" for the purposes of Part 7 of the Act, but again that section does not create any offence and again the attempted use of the section by the appellant is misconceived.

15. In relation to acting improperly, there are no particulars.  I am not sure what is therefore alleged.

16. As I have indicated, I pointed out to Mr Russell-Taylor that unless he could overcome these arguments of Counsel then I had no option but to dismiss his appeal.  I declined to allow him to advance any argument as to what he called the merits of the matter.  When given the opportunity of advancing any further arguments regarding his lack of standing before the Court, he decided not to pursue the matter further.

17. For the reasons set out, I find that the learned Magistrate was correct in the way that he dealt with the matter.  The Magistrate described the error in bringing the proceedings by way of complaint and not by way of information as a fatal flaw.  I agree that it is fatal but I also agree with the other reasons advanced by both Mr McDonald and Mr Wells in their summary of argument for dismissing the appeal.

18. The order then is that the appeal is dismissed.  I will hear the parties as to costs.