Ryan v Doudle; Ryan v Clough; Ryan v Ward; Ryan v RSPCA - [2019] SASC 155

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
RYAN v DOUDLE; RYAN v CLOUGH; RYAN v WARD; RYAN v RSPCA
[2019] SASC 155
Judgment of The Honourable Justice Doyle
30 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
An appeal from a Magistrate’s dismissal of private prosecutions brought by the appellant against each of the four respondents.
Consideration of principles relevant to the stay or dismissal of proceedings on the basis that they constitute an abuse of process.
Held (per Doyle J):
1. The Magistrate was correct to conclude that the proceedings were an abuse of process.
2. The appeal is allowed, but only for the limited purpose of substituting orders that the proceedings be stayed rather than dismissed.
Animal Welfare Act 1985 (SA); Criminal Law Consolidation Act 1935 (SA) ; Magistrates Court Rules 1992 (SA) r 19; Criminal Procedure Act 1921 (SA) s 111, referred to.
Kowalski v Cole [2012] SASC 30; Gray v Police (2003) 85 SASR 1; Grassby v The Queen (1989) 168 CLR 1; Jago v District Court (NSW) (1989) 168 CLR 23; Rona v District Court (SA) (1995) 63 SASR 223; Kowalski v Bourne [2012] SASC 6, considered.

RYAN v DOUDLE; RYAN v CLOUGH; RYAN v WARD; RYAN v RSPCA
[2019] SASC 155
Magistrates Appeal: Criminal

1 DOYLE J: This is an appeal from a Magistrate’s dismissal of private prosecutions brought by the appellant against each of the four respondents. The Magistrate’s reason for dismissing the proceedings was essentially that they were defective and deficient to an extent that rendered them an abuse of process.
2 For the reasons which follow, I agree with his Honour’s reasons and conclusion, save that in my view the appropriate order was that the proceedings be stayed rather than dismissed. I intend to allow the appeal, but only for the limited purpose of varying the orders made in the way indicated.
The background
3 In April 2017, the Royal Society for the Prevention of Cruelty to Animals (SA) Inc (the RSPCA) received a complaint about the condition of animals at the property of the appellant (Ms Ryan).
4 On 28 April 2017, a Magistrate issued a warrant authorising inspector Cheryl Doudle and her delegates to use, if necessary, reasonable force to enter Ms Ryan’s property and exercise powers conferred by the Animal Welfare Act 1985 (SA) (the AWA).
5 On 3 May 2017, the warrant was executed on Ms Ryan’s property. The search revealed suspected breaches of the AWA. A number of animals were seized during the search and one animal was euthanised.
6 On 13 September 2017, Ms Ryan filed a civil claim in detinue in the Magistrates Court naming the RSPCA as the defendant and seeking, inter alia, $97,000 by way of damages.
7 On 29 September 2017, the RSPCA filed an Information in the Magistrates Court naming Ms Ryan as the defendant and alleging 29 breaches of the AWA.
8 Also on 29 September 2017, Ms Ryan filed an interlocutory application in her detinue proceedings seeking orders that the RSPCA return the seized animals to her. In early 2018, this application and a subsequent appeal by Ms Ryan were dismissed. On 3 August 2018, Ms Ryan’s detinue proceedings were dismissed.
9 During September and October 2018, Ms Ryan commenced private prosecutions against each of the four respondents, namely Ms Doudle (the lead investigator in the RSPCA’s investigation of Ms Ryan and the inspector who executed the warrant to search Ms Ryan’s property and seize her animals), Dr Ward (a veterinarian who provided an expert report on the conditions at Ms Ryan’s property at the time the animals were seized), Dr Clough (a veterinarian who provided an expert report on the condition of Ms Ryan’s animals following their seizure), and the RSPCA.
10 The Information filed in the proceedings against Ms Doudle charged her with 42 offences under the under the AWA and the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The Information listed each of the charged offences as summary offences whereas the majority were in fact indictable. The Information sought orders including for a term of imprisonment and a life-time prohibition against “owning, coming close to or dealing with any type of animals.”
11 The Informations filed in the proceedings against Dr Ward and Dr Clough charged each of them with four offences under the CLCA. Again, while the offences were all listed as summary offences, they included indictable offences. The Informations sought various orders, including orders prohibiting the defendants from “testifying orally or written in judicial proceedings.”
12 The Information filed in the proceedings against the RSPCA charged it with the same 42 offences as Ms Doudle, and again listed all of the offences as summary offences when the majority were indictable. The Information sought orders including a “heavy monetary penalty in favour to the ‘Victims of crime’”.
13 On 28 September 2018, Ms Doudle filed an election for trial by jury pursuant to r 19 of the Magistrates Court Rules 1992 (SA). On 19 November 2018, Dr Ward and Dr Clough filed equivalent elections. Shortly after each of these elections, Ms Ryan filed applications opposing the elections. At a hearing on 20 November 2018, Ms Ryan’s applications were refused by the Magistrate.
14 On 19 December 2018, Ms Ryan filed documents providing ‘Further and Better Particulars’ of the four Informations (the Particulars documents).
15 At a hearing before the Magistrate on 19 December 2018, counsel for the respondents applied for each Information to be dismissed on the basis that Ms Ryan had failed to comply with the procedural requirements of the Criminal Procedure Act 1921 (SA) (the CPA), and in particular had not filed a committal brief pursuant to s 111 of the CPA. Ms Ryan sought an adjournment in order to prepare the necessary materials. The Magistrate informed Ms Ryan of the possibility that the prosecutions might be an abuse of process; reminded her of his previous observations that without legal assistance she might struggle with the procedural requirements and that it was doubtful whether it was possible to charge a corporate entity (the RSPCA) with some of the offences charged; and remarked that the current particulars in the Particulars documents did not bear any apparent relationship to the offences charged. The Magistrate ultimately adjourned the matters to 14 January 2019 to provide Ms Ryan with an opportunity to prepare and provide the necessary committal material.
16 On 8 January 2019, the RSPCA filed an election for trial by jury in the District Court.
17 On 13 January 2019, Ms Ryan emailed a ‘Book of Evidence’ to counsel for the respondents.
18 On 14 January 2019, at a hearing before the Magistrate, counsel for the respondents again made an application that each Information be dismissed on the basis there had been a failure to comply with the procedural requirements of the CPA. Counsel relied in particular on the fact that the material provided the previous day did not conform to what was required by the CPA, including by reason that it was not in the affidavit form prescribed by s 111(4)(a) of the CPA.
19 After hearing submissions, and noting that this was the second occasion that the matters against Ms Doudle, Dr Ward and Dr Clough had been before the committal court, the Magistrate dismissed the proceedings against these respondents.
20 In his ex tempore reasons of 14 January 2019, the Magistrate noted that many of the offences included within the Informations filed against these three respondents were major indictable offences. After referring in general terms to the background set out above, his Honour reasoned:
The matters have come before me on a number of occasions in Port Pirie and more recently in Port Augusta after I had set the matters down in the committal court for the charge determination/preliminary brief date. On most occasions, certainly in more recent times, Ms Shaw of counsel has appeared for the defendants. That is for each of the defendants.
From the first occasion that each of these matters was before me, I have raised with Ms Ryan the desirability of her obtaining legal advice. For one reason or another she has not been able to do that. I have discussed with Ms Ryan my concerns which arise on the face of the Informations as to the validity and efficacy of her laying of the Informations. In my view those concerns are many and varied. In particular, it is my view that the statement of each of offence or certainly of most of the offences, that is, the written words used to describe the offence and the particulars do not in fact capture offences known to the law. In each case Ms Ryan has identified a provision of an Act, whether it be the Criminal Law Consolidation Act, the Animal Welfare Act or some other Act, but in my view certainly in the vast majority of the alleged offences the accompanying words do not accurately or competently describe any offence.
I think I have said to Ms Ryan on an earlier occasion that in my view it is highly arguable that the laying of the Informations represents an abuse of process of the court. If I have not previously said that, I make it clear, that is my view. Today Ms Shaw applies for dismissal of the Informations, I am talking now of course only of those three Informations where individuals are named as defendants, on the basis that Ms Ryan has not complied with procedural requirements. There are, of course, procedural requirements for the proper and orderly disposition of Major Indictable offences. Initially that requires the filing at court and provision to the defendant of a Preliminary Brief.
When these matters were before me on the 19 December 2018, Ms Shaw contended that the procedural requirements in question had not been observed. Ms Ryan disputed that. Ms Ryan says she has filed documents constituting, in each case, a Preliminary Brief. On that earlier occasion, and again today, Ms Shaw presses for orders dismissing the Informations on the basis of a failure to comply with procedural requirements. In my view, the court does have the power to act in that respect if satisfied there has been a failure to comply with the procedural requirements, and in particular a failure to comply with the provision of a Preliminary Brief.
In my view, there has been such a failure in the case of each individual matter. Moreover it is my view, based on my discussion in court with Ms Ryan and my perusal of the documentation that she has provided, that there is virtually no reasonable prospect that at any time in the future that Ms Ryan will be able to comply with those procedural requirements. Certainly not be able to do that in the absence of her retaining legal representation. Furthermore, in my view the laying of the Informations and Ms Ryan’s attempts to progress the matters through to, presumably an answer charge date and then a trial in the District Court, do amount to an abuse of process. In my view, on any, in my opinion, on any view of what is now, what has been disclosed either in court or by way documents provided by Ms Ryan, there is no possibility of there ever being a time when the defendants could be called on to answer the charge or charges.
Apart from anything else, in my view, it would be extraordinarily unfair to require the defendants to continue to defend these charges when there is absolutely no reasonable prospect of them being prosecuted to any sort of conclusion in the usual fashion.
21 The Magistrate adjourned the proceedings against the RSPCA on the basis that those proceedings had only been before the committal court once, and that it was appropriate to provide Ms Ryan with the equivalent amount of time to that which he had provided in the other matters.
22 On 26 February 2019, Ms Ryan filed a fresh Information against the RSPCA. It charged the same 42 offences, although there were amendments to the wording of some charges. The Information continued to list all charges as summary offences, although it did contain a notation of ‘major indictable’ at the top of the Information.
23 On 27 February 2019, Ms Ryan also provided a further Particulars document.
24 The next hearing of the proceedings against the RSPCA was on 27 February 2019. Counsel for the RSPCA pressed for dismissal of the Information on similar grounds to those the Magistrate gave for dismissing the Informations in the other matters, including that the Information against the RSPCA was an abuse of process. After hearing submissions, the Magistrate dismissed the Information against the RSPCA. His Honour’s ex tempore reasons commenced by noting the similarities between this matter and the ones he had earlier dismissed. His Honour then reasoned:
In my view the Information is clearly an abuse of the process of the court. As I said on that earlier occasion it is apparent that Ms Ryan is considerably aggrieved by events which have occurred at some earlier point of time concerning interaction between the Society and Ms Ryan over a number of animals that were in her care or custody or ownership. In my view the charges which Ms Ryan seeks to maintain against the Society cannot be maintained, they are not capable of being maintained as a matter of law against the Society.
In my view Ms Ryan continues to operate under a number of misapprehensions, misunderstandings or misapplication of the law as it applies to matters of this nature. In my view it is abundantly clear that Ms Ryan will never, certainly whilst she remains un-represented, be able to comprehend and therefore comply with the procedural requirements of the court and the legislation with respect to matters of this nature. I note that in the further Informations that she has provided she continues to assert that the offences are summary offences, clearly many of the offences are not summary offences. That is but one example of the level of Ms Ryan’s misunderstanding, misapplication or misappreciation of the relevant legal principles.
In my view it would be unfair if not unconscionable to require the defendant to continue to respond to the purported charges. Therefore the Information is dismissed.
25 Since the dismissal of the criminal proceedings commenced by Ms Ryan she has issued two further sets of civil proceedings against the RSPCA, one in the District Court and one in the Magistrates Court.
The appeals
26     Ms Ryan has appealed each of the four dismissal orders made by the Magistrate. Each of the appeals relies upon grounds in substantially the following terms:
1.   1. The Magistrate “prejudicially asserted that the Informant is abusing court process as well as have not pointed offences in the ‘particulars’ describing each offence under the relevant legislation.”
2.   2. The Magistrate “did not take into account the possibilities that an officer of the Public and employee of a private charity can commit crimes,” or, in the case of the appeal relating to the RSPCA, “the possibilities that an Incorporated charity and its agents/employees … can and did commit crimes.”
3.   3. The Magistrate “did not give fair hearing and consideration of the concerns and Proof that a private citizen would have for possibly convicting an private charity employee for his or her criminal activities on the informant’s premises and with the informant’s property (namely animals)” and, in the case of the appeals relating to Dr Ward and Dr Clough, “writing misleading and coerced statements with the intention to influence judicial proceedings and benefit his or her employer.”
27 The grounds of appeal are difficult to understand, and Ms Ryan’s submissions on appeal did little to assist. However, it is plain that Ms Ryan wishes to contest the orders made, and contends that she ought to have been permitted to continue to pursue her private prosecutions of the respondents, or at least have had further opportunity to rectify the defects and deficiencies relied upon by the Magistrate in dismissing the proceedings. I have thus approached the appeal on the basis that Ms Ryan contends that there was no proper basis for the Magistrate to conclude that the proceedings involved an abuse of process, or that the proceedings should otherwise be dismissed.
Consideration
28 The Magistrate did not identify in his reasons the source of the power to dismiss that he was exercising.
29 Counsel for the respondents relied in part upon the provision in s 181(2)(b) of the CPA that, in the case of an Information that is defective in substance or in form, a court may “dismiss an information if the defect cannot appropriately be cured by amendment.” By way of illustration of the exercise of this power, a Magistrate’s invocation of this power to dismiss an Information was upheld in Kowalski v Cole in circumstances where the Information included charges that were duplicitous and alleged offences not known to the law at the time of the relevant conduct.
30 Counsel for the respondents also relied upon the Magistrates Court’s inherent or implied power to prevent an abuse of its processes. Counsel relied upon Gray v Police as both confirming the existence of this power, and illustrating its breadth. In that case, in confirming that the Magistrates Court had power to stay criminal proceedings, permanently if necessary, in order to prevent an abuse of its processes, Gray J relied upon authorities including Grassby v The Queen, Jago v District Court (NSW) and Rona v District Court (SA). As those authorities explain, abuse in this context includes proceedings issued or pursued for some ulterior or improper purpose, proceedings which are frivolous, vexatious or oppressive, and proceedings which will otherwise result in an unfair trial. The rationale for the power to stay in these circumstances lies in the public interest in the due administration of justice, and the maintenance of public confidence in the same. It is recognised that these objectives will be undermined if the processes of the criminal law are permitted to be used in a manner that is productive of oppression or injustice.
31 In Kowlaski v Bourne, Kourakis J (as his Honour then was) held that a private prosecution brought in the Magistrates Court was an abuse of process. In addition to the lack of merit in the proceedings, and the apparent personal animosity motivating the informant, his Honour emphasised the oppressive nature of the proceedings given the informant’s lack of understanding of the law and consequential difficulty in competently prosecuting the matter to a fair trial. As his Honour explained:
Mr Kowalski is a lay litigant with a very limited understanding of the law. It appears from the way in which the information has been drawn and from the accompanying material, that if the information were to proceed it would take a tortuous path with much of the Magistrates Court’s time and resources occupied and devoted to matters which were simply irrelevant. That too, coupled with the lack of any real prospect of success is reason to stay the information.
32 Having concluded that the proceedings were an abuse of process, his Honour allowed the appeal from the Magistrate’s dismissal of the Information filed by Mr Kowalski, but only for the limited purpose of substituting an order that the proceedings be stayed until further order. While leaving open the possibility that an abuse might warrant dismissal, his Honour considered that a stay was the appropriate order in that case.

33 Returning to the present matter, it is not clear to me that this was a case falling within the Magistrate’s power to dismiss an Information under s 181(2)(b) of the CPA. While there are undoubtedly defects in the Informations, I am not persuaded that they “cannot appropriately be cured by amendment”. While I do not think Ms Ryan is herself capable of making the necessary amendments, I am not in a position (in part because of the lack of clarity in the charges as presently articulated) to conclude that the defects are inherently incapable of being cured by amendment. The difficulties with the present Informations differ from the incurable defects in Kowalski v Cole, and are generally less fundamental in nature. That said, it may well be that some of the defects, in particular in the charges laid against the RSPCA, are sufficiently fundamental in nature as to be incapable of cure.
34 However, it has not been necessary for me to reach a concluded view as to whether, and if so to what extent, the Magistrate might have been empowered to dismiss the Informations filed by Ms Ryan under s 181(2)(b) of the CPA. The reason for this is that I am satisfied that the Magistrate was justified in concluding that each of the proceedings were an abuse of process. That conclusion follows from the combined effect of several considerations.
35 The first is that it is readily apparent from the materials before me that the proceedings are motivated by Ms Ryan’s animosity towards the respondents arising out of the seizure and retention of animals from her property, and from the RSPCA’s pursuit of proceedings against her. Indeed, as mentioned earlier, the relief sought by Ms Ryan includes orders preventing two of the respondents from testifying in judicial proceedings (presumably intended to prevent them doing so in the proceedings against her). Not only is there no legal basis for such relief but it also raises concerns as to Ms Ryan’s purposes in pursuing these proceedings.
36 Next, there are the defects in the Informations filed by Ms Ryan. As the Magistrate explained, these defects exist at multiple levels. Many of the charges are misdescribed as summary offences when they are in fact indictable offences. Many of the charges, while identifying the sections within the AWA or CLCA sought to be relied upon, are nevertheless articulated in terms that do not conform to the offences in those sections. Many of the charges are also hopelessly vague in their terms. And the Particulars documents do not assist in this respect. In the case of some charges the Particulars are just as general or vague in their terms. In the case of other charges, the Particulars consist of a lengthy narrative without making it plain how the matters in those narratives are said to relate to the charges on the Informations.
37 Next, there is the inadequacy of the material relied upon by Ms Ryan in support of the charges laid. The documents are not in the affidavit form prescribed by the CPA. It is also difficult to understand the intended relevance of much of the documentation sought to be relied upon.
38 In my view, given the defects on the face of the Informations and in the Particulars provided in support of the charges contained on the Informations, and the difficulties with the material sought to be relied upon to make out the charges, it would be inappropriate and unfair to the respondents to permit the proceedings to progress in their current form. That is particularly so in circumstances where I share the Magistrate’s doubts that Ms Ryan is capable of ever overcoming these problems and prosecuting the proceedings in an appropriate manner.
39 It is entirely understandable that a lay person might struggle, as Ms Ryan has, with the demands of prosecuting criminal proceedings. And while the courts must afford some flexibility and assistance to unrepresented litigants to ensure they are not shut out of the legitimate pursuit of legal proceedings, the courts must also be astute to ensure that their processes (particularly their criminal processes) do not become instruments of oppression or injustice.
40 Given the currently defective state of the proceedings, and the practical reality that Ms Ryan had demonstrated an inability to address the defects or otherwise pursue the proceedings in a manner that would be fair to the respondents, the Magistrate was correct to conclude that it would be oppressive and unjust to the respondents, and hence an abuse of process, to allow the proceedings to continue.
41 Having agreed with the Magistrate’s conclusion that the proceedings were an abuse of process, the only issue that remains is whether the proceedings should have been stayed or dismissed. While there may well be a power to dismiss proceedings that are an abuse of process, in the ordinary course the appropriate order will be a stay. In circumstances such as the present, where the gravamen of the abuse lies in the inability of Ms Ryan to address the defects in the Informations and to otherwise competently prosecute the proceedings, I consider that a stay was the appropriate order.
Conclusion
42 For the reasons set out, I uphold the Magistrate’s conclusion that the proceedings brought by Ms Ryan were an abuse of process. I would, however, allow the appeals for the limited purpose of substituting orders that the proceedings be stayed rather than dismissed.