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Sullivan v Police

Sullivan v Police

Case [2000] SASC 171 22 June 2000

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SULLIVAN v POLICE
[2000] SASC 171

Magistrates Appeal: Criminal

MULLIGHAN J In the course of proceedings in the criminal jurisdiction of the Magistrates Court, a learned Magistrate refused the application of the appellant for an order for his costs thrown away when the trial was adjourned. The appellant appeals from that decision.
The appellant was charged on complaint made on 17th August 1999 that he assaulted a woman on 8th May 1999. The matter first came on for hearing at the Magistrates Court at Murray Bridge on the return date on 20th September 1999 and again on 18th October 1999 when the Court was informed that the solicitor acting for the appellant had not been able to obtain instructions as to the allegations made in the police apprehension report as the appellant had been working interstate. Presumably the Court was informed on this occasion that the charge would be contested because the matter was adjourned to 6th December 1999 for a pre-trial conference so that the parties could comply with obligations as to pre-trial preparation pursuant to the Magistrates Court Rules 1992.
On 17th November 1999 the solicitors for the appellant wrote to the prosecution section of the respondent at Murray Bridge for various purposes, including the making of a request for production of particular documents and photographs in the event that prosecution of the charge was to proceed. The documents sought were a copy of all prosecution witness statements, whether or not the prosecution intended to call them, the record of the police interview of the appellant, the police incident report, the notes of a Doctor Kerrigan and copies in colour of the photographs of the alleged victim which had been mentioned in the police apprehension report. The prosecution was asked to produce these documents and photographs before 6th December 1999.
On that day the pre-trial conference was held, over which another Magistrate presided. A police prosecutor and the solicitor for the appellant attended. The solicitor informed the Magistrate that he had not received the police incident report, the copies of the photographs and a copy of the notes of Dr Kerrigan. The Magistrate expressed the view that as the trial could not be listed for hearing before March 2000, the solicitor would have ample time to pursue the prosecution for the documents and photographs before the date of the trial. There is a dispute as to what was then said to the Magistrate about the likelihood of the requests being answered, but as it is a matter of no significance it is unnecessary to mention the allegations and denials about that matter. The Magistrate made an order that the documents and photographs requested by the appellant be given to his solicitor by the prosecution on or before 18th February 2000 and listed the matter for trial on 15th March 2000.
On 10th December 1999 a prosecutor sent a memorandum by facsimile transmission to the solicitor for the appellant acknowledging receipt of his letter of 17th November 1999 and…

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 Sullivan v Police

Details

AGLC: Sullivan v Police [2000] SASC 171
Case: [2000] SASC 171
Decision Date: 22 June 2000

CaseChat Overview and Summary

The appellant in this matter, Sullivan, appeals against the decision of the learned Magistrate in the Magistrates Court who refused the appellant's application for an order for his costs thrown away when the trial was adjourned. The appellant was charged with assault on a woman, and the matter was adjourned several times due to the appellant's unavailability and the prosecution's failure to provide necessary documents and photographs. On the day before the trial, the appellant's counsel informed the prosecutor that they would seek an adjournment and an order for costs due to the non-compliance with the Magistrate's order for production of documents. The trial was subsequently adjourned, and the Magistrate refused the application for costs, stating that both parties were equally culpable for the failure of the trial to proceed.

The legal issue before the court was whether the decision of the Magistrate to refuse the application for costs is an interlocutory judgment, which would render the appeal incompetent. The court had to determine if the decision was a final order or an interlocutory one, as the right of appeal against an interlocutory judgment is restricted in summary proceedings.

The court considered the provisions of the Summary Procedure Act 1921 and the Magistrates Court Act 1991, which provide for the power to order costs in proceedings and the right of appeal. The court also referred to relevant case law, which established that the proper test to determine whether a judgment or order is final or interlocutory is whether the judgment or order finally disposes of the rights of the parties.

The court found that the decision to refuse the application for costs is an interlocutory judgment, as it did not finally dispose of the rights of the parties. The court held that the Legislature has struck a balance between the interests of parties and has prevented appeals from such interlocutory decisions by not granting an appeal by leave under the Summary Procedure Act and prohibiting an appeal under the Magistrates Court Act. The court concluded that the appeal is incompetent and should be dismissed.

This case highlights the importance of understanding the distinction between final and interlocutory orders when considering the right of appeal in criminal proceedings in the Magistrates Court. It also emphasises the Legislature's intention to limit appeals from interlocutory decisions to ensure the expeditious resolution of cases and to avoid the potential for appeals from any interlocutory order except in the limited circumstances permitted by law.

Orders