Wade v Police - [2013] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WADE v POLICE
[2013] SASC 54
Judgment of The Honourable Justice Blue
16 April 2013
MAGISTRATES - ORDERS AND CONVICTIONS - COSTS
Mr Wade was charged by the Police with one count of a major indictable offence and one count of a summary offence. When no evidence was tendered on the information at a preliminary examination and the information was dismissed, Mr Wade sought an order for costs in respect of the summary offence.
The Magistrate held that section 189B of the Summary Offences Act 1921 (SA) precluded any costs order. Section 189B provides that, subject to an irrelevant exception, costs will not be awarded against a party to a preliminary examination of an indictable offence.
Mr Wade appeals against the Magistrate’s refusal to make a costs order.
Held (dismissing the appeal):
1. Sections 104-107 of the Summary Offences Act 1921 (SA) provide for a single preliminary examination in respect of all charges joined in an information (at [28]-[29]).
2. The reference in section 189B of the Summary Offences Act 1921 (SA) to “an indictable offence” means an offence which will be the subject of indictment in a superior court if a committal is made (at [30]).
3. Under section 102(3) of the Summary Offences Act 1921 (SA), a summary offence joined in an information with a major indictable offence is treated as if it were a major indictable offence for all purposes of the Act including costs. A summary offence joined with only a minor indictable offence is treated as if it were a minor indictable offence for all purposes of the Act including costs (at [32]-[33]).
4. Section 189B of the Summary Offences Act 1921 (SA) precludes the making of a costs order in respect of a preliminary examination of a summary offence which is joined in an information with an indictable offence (at [34]).
Criminal Law Consolidation Act 1935 (SA) ss 134, 170; Summary Procedure Act 1921 (SA) ss 5, 51, 102, 103, 104, 105, 106, 107, 189, 189A, 189B, 189C, 189D; District Court Act 1991 (SA) s 9; Juries Act 1927 (SA) ss 3, 6, referred to.
Konieczka v Police [2006] SASC 288; (2006) 245 LSJS 458; R v Adams (1995) 66 SASR 284, discussed.
Director of Public Prosecutions v Shirvanian & Anor (1998) 44 NSWLR 129; Higgins v Comans & Anor [2005] QCA 234; (2005) 153 A Crim R 565; Grassby v The Queen (1989) 168 CLR 1; Kerr v Mack & Anor [2011] QSC 313; R v Seigneur (Question of Law Reserved (No 1 of 2009)) [2009] SASC 59; (2009) 103 SASR 207, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"an indicatable offence", "party to a prelimininary examination of an indictable offence"

WADE v POLICE
[2013] SASC 54
Magistrates Criminal Appeal:
Blue J:

On 27 August 2012, the respondent, the Police, laid an information in the Magistrates Court at Whyalla against the appellant, Mr Wade, alleging that he committed two offences on 7 June 2012.
The first count was aggravated serious criminal trespass by entering the victim’s place of residence as a trespasser with the intention of committing theft.[1] Aggravated serious criminal trespass is a major indictable offence as defined by section 5 of the Summary Procedure Act 1921 (SA) (“the Act”).[2]
[1] Criminal Law Consolidation Act 1935 (SA) s 170(1).
[2] Because the maximum term of imprisonment exceeds five years and it is not a basic offence (sections 5(3)(a)(iii)(E) and 5(3)(b) of the Act).
The second count was a charge of theft by taking the victim’s purse and contents (the value of which was $2,500 or less) dishonestly and without the owner’s consent.[3] Theft of goods of such a value is a summary offence as defined by section 5 of the Act.
[3] Criminal Law Consolidation Act 1935 (SA) s 134.
Mr Wade engaged a solicitor, who appeared for him. The matter was listed for preliminary examination on declarations on 10 December 2012.
On 10 December 2012, the Police tendered no evidence on the information. The information was dismissed.[4] Mr Wade’s solicitor sought an order that the Police pay his costs in respect of the theft count. This was opposed by the Police on the ground, inter alia, that the Court had no power to make an order for costs by virtue of section 189B of the Act.
[4] Technically, it was “rejected” within the meaning of section 107(2)(a) of the Act.
After argument on 13 December 2012, the Magistrate delivered reasons for judgment on 18 December 2012. He refused the application on the basis that section 189B of the Act precludes a costs order.
Mr Wade appeals against the Magistrate’s refusal to make a costs order in his favour.
Section 189 of the Act gives to the Magistrates Court a general power to award such costs for or against a party to proceedings as the Court thinks fit. However, it is subject to sections 189A to 189D.
Section 189B provides:
Despite any other provision of this Part, costs will not be awarded against a party to a preliminary examination of an indictable offence unless the Court is satisfied that the party has unreasonably obstructed the proceedings.
It is not contended that the Police unreasonably obstructed the proceedings and, for the purposes of this appeal, I ignore the proviso to the section.
This appeal raises the question, where a summary offence is joined with a major indictable offence in an information, whether section 189B of the Act, on its own terms or in conjunction with section 102(3) of the Act, precludes any order for costs.
The regime for indictable and summary offences
Hearing and determination
Part 4 of the Act is entitled “Summary jurisdiction” and prescribes the procedure for the institution, hearing and determination of proceedings for summary offences. Such proceedings are instituted by laying a complaint. They result in a finding by a Magistrate that a defendant is guilty (either by a plea of guilty or after trial) or a finding of not guilty. Sentence is imposed and any ancillary orders are made by the Magistrate.
Part 5 is entitled “Indictable offences” and addresses the procedure for the institution of proceedings and either committal to a superior court for trial or sentence or rejection of the information (after a preliminary examination). Such proceedings are instituted by information rather than complaint.
There is thus a dichotomy between summary offences, which are heard and determined by the Magistrates Court, and indictable offences, which are ultimately heard and determined in a superior court. Proceedings for summary offences are judicial in nature.[5] Committal proceedings for indictable offences are administrative in nature.[6]
[5] Director of Public Prosecutions v Shirvanian & Anor (1998) 44 NSWLR 129 at 136-137 per Mason P (Beazley JA agreeing); Higgins v Comans & Anor [2005] QCA 234; (2005) 153 A Crim R 565 at [37] per Keane JA (McPherson and White JJA agreeing); Kerr v Mack & Anor [2011] QSC 313 at [7] per North J.
[6] Grassby v The Queen (1989) 168 CLR 1 at 11 per Dawson J (Mason CJ, Brennan and Toohey JJ agreeing); R v Seigneur (Question of Law Reserved (No 1 of 2009)) [2009] SASC 59; (2009) 103 SASR 207 at [125] per Kourakis J.
The Act also provides a hybrid procedure for “minor indictable offences” which can have a chameleon-like quality. Part 5 governs the procedure relating to minor indictable offences to the conclusion of the preliminary examination. The defendant is entitled to elect to be committed to a superior court for trial at any time up to a finding at the preliminary examination that there is sufficient evidence to put the defendant on trial.[7] In the absence of such an election, the Magistrates Court is to proceed on the conclusion of the preliminary examination to deal with the charge in the same way as a charge of a summary offence.[8]
[7] If at that point the defendant has not already done so he or she is entitled to be given a reasonable opportunity to so elect: s 107(3)(b)(ii) of the Act.
[8] Summary Procedure Act 1921 (SA) ss 103(3) and 107(3)(b)(ii).
Costs
In respect of summary offences on complaint under Part 4 of the Act, section 189 confers on the Magistrates Court a general power to award costs.
In respect of major indictable offences on information under Part 5 of the Act, section 189B precludes the making of any order for costs by the Magistrates Court.[9]
[9] In the absence of a party unreasonably obstructing the proceedings.
In respect of minor indictable offences which proceed on information to a preliminary examination and either committal to a superior court or rejection of the information for insufficient evidence, it is common ground that section 189B precludes the making of any order for costs by the Magistrates Court.[10]
[10] In the absence of a party unreasonably obstructing the proceedings.
In respect of minor indictable offences which proceed, pursuant to section 107 of the Act, to summary hearing and determination by a Magistrate under Part 4, it is common ground that the Magistrates Court has the power to make an award of costs under section 189 which is not precluded by section 189B.[11] The Full Court proceeded on this basis in Konieczka v Police.[12]
[11] It is unnecessary to consider whether the Magistrates Court has power to order the payment of costs in respect of work undertaken up to the preliminary examination stage. The Full Court in Konieczka v Police [2006] SASC 288; (2006) 245 LSJS 458 appears to have proceeded on the assumption that the Magistrates Court does have such power.
[12] (2006) 245 LSJS 458. This was before the enactment of section 189B, but a provision to similar effect was then contained in section 189(2) of the Act.
Joinder of differently classified offences
Sections 51(1) and 102(1) of the Act permit the joinder of charges of multiple offences in a complaint[13] or information if they arise from the same set of circumstances or a series of circumstances of the same or a similar character.
[13] Provided they are all summary offences.
Subject to that requirement, section 102(2) permits the joinder in the same information of charges of major indictable, minor indictable and/or summary offences.
Section 102(3) provides that, where a charge of a major indictable offence is joined with a charge of a minor indictable or summary offence in the same information, all charges are to be dealt with according to the procedures applicable to major indictable offences. This means that, unless the charges are severed, the Court has no jurisdiction to deal summarily with any of the charges in the information.
Section 102(3) further provides that, where a charge of a minor indictable offence is joined with a charge of a summary offence in the same information (but with no charge of a major indictable offence), all charges are to be dealt with according to the procedures applicable to minor indictable offences. This means that the defendant can elect to be committed to a superior court in respect of all offences or to have all offences dealt with summarily, but (subject to severance) all offences must be dealt with in the same way.
This scheme is continued by the District Court Act 1991 (SA). Section 9(3) provides that the District Court has jurisdiction to try, convict or sentence for a summary offence where the offence is charged in the same information as an indictable offence.
The rationale of section 102(3) of the Act and section 9(3) of the District Court Act 1991 (SA) is that all offences which are connected (arising from the same or similar sets or series of circumstances) ought generally to be heard and determined in the same court at the same time in the same way. That rationale was succinctly described by Lander J in R v Adams[14] as follows:
The scheme of the legislation is to keep together all charges for offences that arise out of the same set of circumstances. That is, of course, desirable for a number of reasons. It allows, subject to the overriding discretion to grant separate trials on separate charges, for the one trial of all offences arising out of the same facts, and in that sense, achieves the ends of the administration of justice. It allows for the one court to be aware of and to participate in the sentencing process, so that the possibility of two courts adopting different and conflicting sentencing regimes is avoided.[15]
[14] (1995) 66 SASR 284.
[15] Ibid at 294.
Section 102(4)(a) of the Act empowers the Magistrates Court to sever the charges in a single information so that they are dealt with in separate proceedings.
Construction of section 189B
Section 189B of the Act precludes an award of costs “against a party to a preliminary examination of an indictable offence”.[16]
[16] In the absence of a party unreasonably obstructing the proceedings.
Mr Wade contends that, where two or more charges are joined in an information, there is a different preliminary examination of each offence (albeit they are heard concurrently). Accordingly, where a charge of a summary offence is joined with a charge of an indictable offence, there is a preliminary examination of the summary offence and a different preliminary examination of the indictable offence. Section 189B does not apply in respect of the summary offence because its preliminary examination is not “of an indictable offence”.
I reject this contention. Given that section 102 of the Act contemplates multiple charges in a single information, but requires there to be an inherent link between them, sections 104 to 107 of the Act providing for the procedure at a preliminary examination should be construed as providing for a single preliminary examination in respect of all charges joined in the information, just as there is a single trial of all charges joined in a complaint.
Part 5 of the Act provides for preliminary examinations of indictable offences: it does not provide for preliminary examinations of summary offences as such. It is artificial to treat the preliminary examination in respect of an information joining indictable and summary offences as being in part a preliminary examination of an indictable offence and in part a preliminary examination of a summary offence. There is only a preliminary examination of all offences because section 102(3) provides that the summary offence is to be treated as if it were an indictable offence.
In any event, the reference in section 189B to “an indictable offence” should be read as referring to any offence charged on an information which will be the subject of indictment in the superior court if a committal is made. The reasoning of the Full Court in R v Adams[17] is apposite to section 189B. In R v Adams,[18] the defendant was charged in one information with one count of producing cannabis (a major indictable offence) and two counts of possessing cannabis for sale (summary offences). It appears that he was committed by the Magistrates Court for trial in the District Court. His trial proceeded in the District Court before a judge and jury. Having pleaded guilty to the major indictable offence, he was found guilty by the jury of two summary offences. The defendant appealed on the ground that section 6 of the Juries Act 1927 (SA) only provided for a trial by jury of an indictable offence. Section 6 of that Act provided that a “criminal inquest” was to be tried by a jury (subject to that Act) and section 3(1) defined a “criminal inquest” to mean a trial of any indictable offence. The Full Court (Lander J dissenting) held that the phrase “indictable offence” in section 3(1) meant an offence triable on an indictment. Cox J (Perry J agreeing) said:
the natural meaning of the words “indictable offence”, standing alone, is simply an offence triable on an indictment, which in this State is the criminal process by which a person is formally charged in the Supreme Court or District Court with a crime triable in such Court. I think that is the meaning that “indictable offence” must have in s 3 of the Juries Act. So read, s 3, and therefore s 6, are not themselves concerned with the classification or identification or selection of specific offences as appropriate for trial by jury according to their nature or gravity or other characteristics, or depending whether they conform with the notion of an indictable offence as a technical term in other legislation, but are simply using the expression “indictable offence” to mean no more than it literally says – offence triable on indictment. … A summary offence within the meaning of s 5 of the Summary Procedure Act will in certain circumstances be such an offence.[19]
[17] (1995) 66 SASR 284.
[18] (1995) 66 SASR 284.
[19] (1995) 66 SASR 284 at 286.
In addition, section 102(3) of the Act provides:
Subject to subsection (3a) if an information contains a charge of a major indictable offence, all charges of minor indictable or summary offences included in the same information will be dealt with according to the procedures applicable to major indictable offences and if the information includes a charge of a minor indictable offence, but no charge of a major indictable offence, all charges of summary offences included in the same information will be dealt with according to the procedures applicable to minor indictable offences (but the penalty that may be awarded for an offence is unaffected by the fact that the offence is dealt with according to procedures applicable to offences of a more serious class).
Mr Wade contends that, while section 102(3) applies procedures applicable to indictable offences to summary offences which are joined in an information with indictable offences, questions of costs involve substantive rights as opposed to procedures. I reject that contention. The intention of section 102(3) is (in the absence of severance) to treat summary offences joined in an information with indictable offences as if they were indictable offences for all purposes of the Act. The Act itself is confined to governing procedures as opposed to substantive rights. The provisions of sections 189 to 189D dealing with costs are part of those procedural provisions. If joined with a major indictable offence, the summary offence is treated as if it were a major indictable offence for all purposes of the Act, including costs. If joined with only a minor indictable offence, the summary offence is treated as if it were a minor indictable offence (with its chameleon-like quality explained at [14] above) for all purposes of the Act, including costs.
This construction is reinforced by the words in parenthesis at the end of section 102(3) which provide that the penalty for the offence (which is a substantive matter stipulated in different legislation) is unaffected by the fact that the offence is dealt with according to procedures applicable to indictable offences.
Conclusion
The Police were “a party to a preliminary examination of an indictable offence” within the meaning of section 189B of the Act. The Magistrate was precluded from making a costs award against the Police. He correctly dismissed the application for costs.
I dismiss the appeal. I will hear the parties as to any further orders.