POLICE v R No. SCGRG-97-1450 Judgment No. S6518 [1998] SASC 6518

On the last mentioned date, the trial had reached the stage of the complainant, that is, the appellant, closing its case. The learned trial Magistrate then considered the matter during the luncheon adjournment. On the resumption of the hearing, after giving ex tempore reasons, he ordered a permanent stay of all of the charges, including that advanced in count 1.

The notice of appeal to this Court puts forward two grounds:

"(1) The learned Magistrate erred in finding "it would be unfair, unjust and an abuse of process if this trial were to continue"; and

(2) The learned Magistrate erred by ordering a permanent stay of all the charges (including the charge to which the respondent pleaded guilty).

At this stage it is necessary to explain in a little more detail the circumstances of the alleged offending, and the subsequent course of events which prompted the learned trial Magistrate to order the stay.

On the day in question, together with a number of other young people, the respondent was in the Belair National Park. The youths, who appeared to be in the age range of between 12 and 17 years, were gathered in an area set aside for barbecues near a parking area. There was a beer keg from which the youths were drinking. Two "ghetto blasters" were playing loud music.

A mobile police patrol came upon the party, whereupon a number of the youths ran off. Several family groups in the near vicinity then complained to the police of what they alleged to have been the unruly behaviour of the youths, including bad language, under-age drinking, unacceptably loud noise and urinating against nearby trees. The police returned to the barbecue area. Soon afterwards the respondent was seen by them to mount a push bike. He was warned not to do so without wearing a helmet.

The police then turned their attention to other youths, whom they attempted to disperse from other nearby areas of the park. Thereupon the respondent re-appeared, still riding his bike without a helmet, and allegedly began to abuse the police officers.

Eventually Constable Barns approached the respondent and indicated that he would report him for "riding without a helmet". He took hold of the respondent by one arm, whereupon the respondent punched Constable Barns in the face. An altercation developed, and Constable Barns and the respondent ended up wrestling on the ground.

Another police officer came to Constable Barns' assistance. The respondent was subdued and handcuffed. He continued to struggle even more violently than before. Eventually he was pulled away from Constable Barns and taken to the rear of the police vehicle where he was held face down on the boot. He continued to kick with his feet and pushed backwards with his body, while screaming abuse at the police.

After the respondent had calmed down, he was taken by another police patrol to Sturt Police Station. He was admitted into custody just after 4.00 pm. Although the officer responsible for taking him into custody did not note the fact in the documentation which was then filled out, the transcript of a video taken at the charge desk indicates that the respondent was complaining of an injury to his ear. He complained that he could not hear out of his left ear and complained that his head was "smacked into ... the windscreen of the car five times".

Nothing was done about his complaint of injuries, and he was locked up in the cells.

In the meantime, Constable Barns was seen at Ashford Hospital emergency department at 4.50 pm complaining of an injury to his nose. This was later diagnosed as a nasal deformity requiring a surgical procedure known as a septorhinoplasty which was subsequently performed by an otorhinolaryngologist.

The respondent was kept in custody for about two hours leading up to his release on bail at 6.00 pm. He immediately attended at Flinders Medical Centre. The case notes indicate that he was examined at 6.42 pm. There was evidence of a discharge of blood from the left ear. He was diagnosed as having suffered a posturo-inferior perforation of the ear drum associated with a mild conductive hearing loss.

He was treated conservatively and eventually the injury healed spontaneously.

During the course of the hearing before the learned trial Magistrate, there was much questioning by counsel on behalf of the respondent directed to the arresting police officers, particularly as to how the respondent came to receive the injury to the ear, as to the nature of the scuffle which took place, and the respondent's subsequent arrest. Medical reports were tendered by the appellant confirming the nature and extent of the injuries suffered by Constable Barns, and medical reports were tendered on behalf of the respondent, confirming the ear injury.

In the reasons given by the learned trial Magistrate in support of the stay order, after referring to the history of the matter and some aspects of the evidence given, particularly by the police officers, he went on to say:

"The defendant's treatment in custody has worried me and I had a frank exchange with the prosecutor and Mr Alcock. The prosecutor's attitude to the defendant's treatment or lack of treatment in custody is best described as 'a side issue' and should not delay the trial. I was not so sure. Mr Alcock did not ask to be heard on that issue. I adjourned to consider my position and to look at some authorities.

The Youth Court is a specialist court for young offenders. I must be mindful of the charges, the course this trial has taken and the extent of the care that the defendant received in police custody. I was and am still uncomfortable about excluding from my consideration of the charges the care or lack thereof of the defendant in police custody. It must be recalled the defendant was in custody at Belair and at Sturt and did complain of ear injury. He did not get the medical attention that he was entitled to receive. Barns got prompt medical attention.

My own coronial enquiry of a youth that died in custody and the death in custody of other youths that I have sentenced and The Aboriginal Deaths in Custody Commission remind me of the importance of youths in custody getting medical attention. The medical attention does not have to be a hospital admission but at least a visit from a GP as I came to expect from the Police at Murray Bridge. R had a serious ear injury.

R did not get any medical attention whilst in custody. Moloney conceded that the defendant was entitled to medical attention."

The learned trial Magistrate then went on to refer briefly to some of the authorities as to the nature of the discretion to stay criminal proceedings, following which he went on to say:

"It seems that on all the considerations raised, the authorities and the findings I have made that it is appropriate, indeed compelling, that I find that it would be unfair, unjust and an abuse of process if this trial were to continue. There must be a clear message that repeated complaints by young people in police custody about their ill health must be more closely and carefully assessed. That needs to be reflected in the completion of the Prisoner Screening Form. It must also be better appreciated that young people in custody do not have the same confidence in expression as adults.

I make an order of a permanent stay of all these charges as I am empowered to do."

While I have no doubt that the Youth Court has the power in an appropriate case to stay proceedings which are before it because of abuse of process, with respect to the learned trial Magistrate, in my opinion, there were no grounds upon which he could properly make the order under appeal.

The jurisdiction exercised by the Youth Court as defined in the Youth Court Act (1993) provides, inter alia:

(b) has the civil and criminal jurisdiction conferred by the Young Offenders Act 1993; and

(e) has any other civil or criminal jurisdiction conferred by statute."

S17 of the Young Offenders Act provides, inter alia:

17(1) Subject to this Act, the Court will deal with a charge in the same way as the Magistrates Court deals with a charge of a summary offence and, in doing so, has the powers of the Magistrates Court.

18. The procedure to be followed by and the powers of the Court on the trial of an offence are, subject to this Act, to be the same as for the trial of a summary offence in the Magistrates Court."

The question of the power of a Magistrates Court to grant a stay of proceedings on the ground of an abuse of process has been examined in a number of authorities. It is sufficient to refer to the judgment of Olsson J in Wunsch v SA Police[1] (citing and approving Rona v District Court of SA:[2]

"... s9 of the Magistrates Court Act, 1991, carries with it at least an implied power, vested in that court, to ensure that its processes are not abused - subject to the caveat that, in relation to preliminary examinations, the only powers which, logically, can be exercised are those adverted to, in mandatory terms, by s107 of the Summary Procedure Act."[3]

In R v Gagliardi[4] Olsson J made some further observations in the form of a summary of what he identified as the "basic legal concepts" relating to the power to stay proceedings. Part of his summary reads as follows:

"(1) The inherent power of the court to stay proceedings in the criminal jurisdiction is a remedy against prosecutorial oppression. It is not concerned with the manner of a person's trial, but is concerned with the question of whether that person should be tried at all. There are no set categories of case. Whilst instances of the exercise of the power will be rare, it will certainly be invoked where the evidence indicates that it would be unacceptably oppressive or unfair to an accused or an affront to the public conscience to permit the prosecution to proceed: R v Vuckov and Romeo [5] and Whitbread v Cooke.[6]

(2) In considering the exercise of the power the court is required to conduct a balancing exercise. There must be a weighing up of the relevant interests which are at stake - on the one hand, the accused's right to a fair trial and not to be the victim of unreasonable oppression, and, on the other hand, the interest of the Crown in bringing an accused person to trial on a serious charge: Barton v The Queen.[7] Nevertheless, in general, once the court is satisfied that proceedings constitute an abuse of process it will usually be unthinkable to permit them to continue, because that would mean that the court was prepared to permit and endorse its process being employed to inflict oppression and unfairness on an accused: Whitbread's case at 324.

(3) There are two potential, but distinct and different, facets to be considered. Can there, in all of the circumstances, now be a fair trial of the accused?: Herron v McGregor;[8] see also R v Clarkson.[9] In any event would the continuance of the criminal proceedings against an accused, in all of the circumstances, be so oppressive as to constitute an affront to the public conscience?: Moevao v Department of Labour[10] and Jewitt.[11]"

What must be borne in mind is that ordinarily a stay of criminal proceedings will only be granted if the circumstances preclude a fair trial, or are such that it would clearly be oppressive, in the sense of being unfair to the accused, to allow them to be maintained. Circumstances commonly said to give rise to the sort of procedural unfairness which will be addressed by a stay are long delay,[12] double jeopardy,[13] or procedural unfairness in the conduct of the trial which cannot be remedied without injustice to the accused.[14]

Not all allegations of misconduct on the part of the police in the course of investigating a crime and in their treatment of the accused will give rise to circumstances which can properly found an application to stay. Impropriety attaching to aspects of police investigation, including the interrogation of an accused person, will sometimes render evidence inadmissible, or give rise to a discretion to exclude it. Such impropriety would not normally be cause for a stay.

Neither do I see how matters going to the physical management of an accused person after he or she has been placed in custody after arrest could ordinarily give rise to the sort of procedural unfairness that can found an order for a stay. I gave examples to counsel during the course of argument. For example, if a woman was charged with murdering her husband, it would not be a ground to stay the proceedings if she was to be raped by a police officer while in custody. Other less extreme examples could be given.

Alleged mistreatment while in custody can, of course, result in administrative procedures being invoked, including police disciplinary procedures. But unless the mistreatment gives rise to grounds upon which evidence might be excluded, for example, in the case of evidence improperly obtained from an accused person while he or she is in custody, I do not see how such matters impact upon the propriety of the trial process.

I suppose there may be extreme cases where the physical treatment of an accused person in custody might disable him or her from being able properly to mount a defence to the charge. But short of such an extreme case, any suggestion that there has been a failure properly to attend to the reasonable physical requirements of a person held in custody, whether those requirements be as to medical treatment or otherwise, must be left to be dealt with by other means.

For these reasons, in my opinion, notwithstanding the justifiable concern expressed by the learned trial Magistrate as to the omission to arrange appropriate medical attention for the respondent for his ear condition while he was in custody, the evidence did not disclose any proper basis upon which the learned trial Magistrate could properly stay the proceedings.

I would allow the appeal and order that the matter be remitted to the learned trial Magistrate for him to proceed with the hearing.

(1995) 180 LSJS 217 at 225

[2] (1994) 178 LSJS 75.

[3] The power of a Magistrates Court with respect to preliminary examinations is somewhat more limited. See R v Grasby [1989] HCA 45; (1989) 41 A Crim R 183 at 192-3.

[4] (1987) 45 SASR 418.

[5] (1986) 40 SASR 498 at 521-522.

[6] (1986) 5 ACLC 305 at 323-324.

[7] [1980] HCA 48; (1980) 147 CLR 75 at 102.

[8] (1986) 6 NSWLR 246.

[9] Unreported, 12 May 1987, Supreme Court, Vic.

[10] [1980] 1 NZLR 464.

[11] (1985) 20 DLR 651.

[12] Jago v District Court of NSW [1989] HCA 46; (1989) 87 ALR 577 and see the other authorities noted in Lunn Criminal Law South Australia (Butterworths).

[13] R v O'Loughlin ex parte Ralphs (1971) 1 SASR 219.

[14] R v Koolmatrie and Ors [1989] SASC 2037; (1989) 52 SASR 482.