Supreme Court of SA|1995-08-24|Before: Mr P, Olsson J

R v JASON HACKETT No. SCCRM 94/452 Judgment No. 5210 Number of pages - 10 Criminal law and procedure (1995) 64 SASR 471 [1995] SASC 5210 (24 August 1995)

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA (CRIMINAL TRIAL BY JUDGE ALONE OLSSON J

CWDS Criminal law and procedure - jurisdiction, practice and procedure - limitation of time for prosecution - Summary offences joined in information with major indictable offence pursuant to Summary Procedure Act 1921, s 102 - charges all arising from same set of circumstances - accused committed for trial in superior court on all counts averred in original police information - summary offences charged in police information within time limitations prescribed hy Summary Procedure Act 1921s 52 and Motor Vehicles Act 1959, s 144a - information filed by Director of Public Prosecutions in superior court consequent on committal outside those time limitations - whether, in circumstances, charges of summary offences statute barred - discussion of effect of statutory scheme erected by 1991 amendments to former Justices Act 1927, s 194, now the Summary Procedure Act 1921, and its interaction with Criminal Law Consolidation Act 1935, s 278. Summary Procedure Act 1921 ss 49, 51, 52,102; Motor Vehicles Act 1959 s 144a; Criminal Law Consolidation Act 1935 s 278; s 19; Juries Act 1927ss 3, 6, referred to. A v Scott ; ; A v Butler ; ; Sankey v Whitlam ; ; Scouller v Brown ; ; Crow v Gefkin and Others ; ; A v D'Agostini (1987)45 SASR 204; Rex v Willace 1 Ea.P.C. 186, considered.

HRNG ADELAIDE, 9-11, 18, 30 November 1994, 4 August 1995 #DATE 24:8:1995 #ADD 20:9:1995

JUDGE1 OLSSON J These proceedings derive their genesis from a police information in Form 5 (as prescribed in the Magistrates Court Rules 1992) which was filed in the Magistrates Court on 29 July 1993. It averred the following offences:- "1. On the 1ST day of FEBRUARY, 1993 at PORT WILLUNGA in the said State DROVE A MOTOR VEHICLE IN A CULPABLY NEGLIGENT MANNER, OR RECKLESSLY, OR AT A SPEED, OR IN A MANNER WHICH WAS DANGEROUS TO THE PUBLIC, AND BY SUCH NEGLIGENCE, RECKLESSNESS OR OTHER CONDUCT CAUSED BODILY HARM TO DAVID IAN JARRED SECTION 19A(3) OF THE CRIMINAL LAW CONSOLIDATION ACT, 1935. This offence is designated as a Major Indictable offence.

On the 1ST day of FEBRUARY, 1993 at PORT WILLUNGA in the said State drove a motor vehicle on A ROAD namely CARAVAN PARK ADJACENT TO THE STAR OF GREECE ROAD while HE was disqualified from holding or obtaining a licence.

Section 91 of the Motor Vehicles Act, 1959. This offence is designated as a summary offence.

On the 1ST day of FEBRUARY, 1993 at PORT WILLUNGA in the said State drove a vehicle namely a MOTOR CAR on a road namely CARAVAN PARK ADJACENT TO THE STAR OF GREECE ROAD the registration of such motor vehicle not then being in force under the provisions of Part II of the Motor Vehicles Act, 1959. Section 9 of the Motor Vehicles Act, 1959. This offence is designated as a summary offence.

On the 1ST day of FEBRUARY, 1993 at PORT WILLUNGA in the said State drove a vehicle namely a MOTOR CAR on a road

namely CARAVAN PARK ADJACENT TO THE STAR OF GREECE ROAD without there then being in force, in relation to the said motor vehicle, a policy of insurance complying with Part IV of the Motor Vehicles Act, 1959. Section 102 of the Motor Vehicles Act, 1959. This offence is designated as a summary offence.

On the 1ST day of FEBRUARY, 1993 at PORT WILLUNGA in the said State drove a vehicle namely a MOTOR CAR on a road namely CARAVAN PARK ADJACENT TO THE STAR OF GREECE ROAD contrary to the terms of a defect notice issued under section 160 of the Road Traffic Act, 1961. Section 160 of the Road Traffic Act,

This offence is designated as a summary offence."

The information was therefore presented within 6 months of the date of the alleged offences.

On 21 April 1994, following the conduct of a preliminary examination, the accused was committed for trial on all charges, before the District Court at the sessions to be held in May 1994.

The information subsequently presented to the District Court by the Director of Public Prosecutions on 20 May 1994 reiterated the same five counts as were originally stipulated in the original police information. They were, however, expressed as under:- "JASON HACKETT is charged with the following

First Count Statement of Offence Causing Bodily Harm by Dangerous Driving (Section 19a(3) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence Jason Hackett on the 1st of February, 1993 at Port Willunga, drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to David Ian Jarred.

Second Count Statement of Offence Drive while Disqualified (Section 91 of the Motor Vehicles Act, 1959).

Particulars of Offence Jason Hackett on the 1st of February, 1993 at Port Willunga, drove a motor vehicle, registered number (SA) SSH-655 on a

road while he was disqualified from holding or obtaining a licence.

Third Count Statement of Offence Drive Unregistered Vehicle (Section 9 of the Motor Vehicles Act, 1959).

Particulars of Offence Jason Hackett on the 1st of February, 1993 at Port Willunga, drove a motor vehicle, registered number (SA) SSH-655 on a road with the registration of such motor vehicle not then being in force under the provisions of Part II of the Motor Vehicles Act, 1959.

Fourth Count Statement of Offence Drive Uninsured Vehicle (Section 102 of the Motor Vehicles Act, 1959).

Particulars of Offence Jason Hackett on the 1st of February, 1993 at Port Willunga,

drove a motor vehicle, registered number (SA) SSH-655 on a road without there then being in force in relation to such

motor vehicle, a policy of insurance complying with Part IV of the Motor Vehicles Act, 1959.

Fifth Count Statement of Offence Drive Vehicle contrary to Defect Notice (Section 160 of the Road Traffic Act, 1961).

Particulars of Offence Jason Hackett on the 1st of February, 1993 at Port Willunga, drove a motor vehicle, registered number (SA) SSH-655 on a road contrary to the terms of a defect notice."

By notice dated 16 June 1994, the accused elected for trial by Judge alone in respect of all charges. He had pleaded not guilty as to each count.

On 7 November 1994 an order was made, pursuant to section 110 of the Summary Procedure Act, 1921, for the trial of the accused by a Judge of this Court. The matter was then assigned to me.

At trial, and by consent, the first count only was initially proceeded with. I subsequently found the accused guilty of that offence, for reasons published by me on 18 November 1994.

Following the conviction of the accused of the offence averred in count 1 counsel for the accused submitted that counts two to four inclusive had been charged in an information prosecuted outside of a period of one year from the date of the alleged offence and, having regard to the provisions of section 144a of the Motor Vehicles Act, 1959, were not sustainable. That section reads as follows:- "Notwithstanding anything contained in any other Act, proceedings for an offence against this Act may be brought at any time within one year from the date on which the alleged offence was committed."

He further objected that, having regard to section 52 of the Summary Procedure Act, 1921 the fifth count was also not sustainable, because more than six months had elapsed since the date of the alleged offence.

The real pith and substance of the argument advanced on behalf of the accused was to the effect that, upon completion by a Magistrate of the committal function envisaged by section 107 of the Summary Procedure Act, the original proceedings initiated by the police information of 29 July 1993 were spent. It was contended that the information presented by the Director of Public Prosecutions on 20 May 1994 initiated fresh proceedings which, by then, were out of time. The purported prosecutions as to counts 2 to 5 inclusive were thus, it was said, statute barred.

As I understand it the contention of Mr Mancini, of counsel for the accused, was based upon the reasoning to be found in authorities such as R v Scott [1993] FCA 398; (1993) 42 FCR 1 and R v Butler [1939] SAStRp 42; (1939) SASR 265. Reference was made to dicta contained at p22 of the report of the former which emphasize that committal proceedings are ministerial, and not judicial, in nature and that, as was pointed out in the latter, once committal occurs, the Magistrates Court is functus officio, save as to the granting of bail. So, it was contended, no prosecution actually occurs until the Director of Public Prosecutions presents an information to the relevant higher court, following committal.

In my opinion such an argument misconceives the essential thrust of the authorities on which it is based.

True it is that the jurisdiction of the higher court is said to be "enlivened" to deal with the matter, once an information is presented. But that is not to say that there are no proceedings in train by way of prosecution for a criminal offence, except in a situation in which a first instance, ex officio, indictment is presented.

Indeed, in R v Scott (at p22) Cooper J made the point that "Where an Attorney-General refuses to file or present a bill of indictment the prosecution ends and the proceedings are terminated". He was there making the point (or at least recognising) that the original information filed in the Magistrates Court does effectively initiate criminal proceedings, which remain on foot unless there is a dismissal or refusal to commit, or the Director declines to present an information in the higher court following committal. Save for those situations, what takes place following the filing of the original information are no more than procedural steps in the orderly processing of a prosecution, once initiated. It is for that reason that Gibbs ACJ, quite advisedly, made reference in Sankey v Whitlam [1978] HCA 43; (1979-80) 142 CLR 1 at 26 to the concept that "Once criminal proceedings have begun, they should be allowed to follow their ordinary course ... " and that a higher court should be slow to intermeddle in the committal process. (See also the authorities adverted to by Cooper J in Scouller v Brown [1994] FCA 1015; (1994) 72 A Crim R 57 at 60.)

It is also for the same reason that, in R v Butler (supra at p267), the Full Court said "There is no doubt that the proceedings before a Magistrate are, for some purposes, the commencement of the prosecution, which ends in conviction or acquittal in the Supreme Court". This reasoning accords with the principle expressed in Rex v Willace 1 Ea.P.C. 186, in which the court declared that "the information and proceeding before the magistrate was the commencement of the prosecution within the meaning of the Act; and that the variance between the manner of laying the offence in the indictment, and charging it in the commitment, made no difference".

On that reasoning alone it seems to me that the accused's basic contention must be rejected.

However, if I be incorrect in that conclusion, there is an even stronger reason for holding that it is ill founded.

The procedure adopted in the instant case was the product of relatively recent statutory amendment.

By Act No 72 of 1991 (which came into effect from 6 July 1992) the pre-existing Justices Act was substantially amended and re-titled the Summary Procedure Act.

Prior to the lastmentioned date criminal offences fell within three classifications as under:- - simple offences, triable in courts of summary jurisdiction

indictable offences, triable, as appropriate, usually after committal, in either the Supreme or a District Court

minor indictable offences, which were capable of being tried as summary offences if the accused did not elect for trial by jury and the court of summary jurisdiction determined that it was appropriate so to deal with them.

Under such a scheme simple offences were commenced by summons and all other offences were initiated by information. No time limitation applied to indictable and minor indictable offences but, in general, simple offence complaints had to be issued within six months of the alleged offence.

Subject to the relevant statutory provisions, whilst more than one simple offence could be joined in a single complaint and more than one indictable offence could be joined in a single information, it was not possible to join simple and indictable offences in an information.

The 1991 amending statute wrought significant changes in that legislative scheme.

Three classifications of offence were retained, but they were, to some extent, reorganised and were titled:- - summary offences;

The classification of summary offences was essentially similar, as to its practical incidents, to that related to the pre- existing simple offences. Subject to other express statutory provisions to the contrary, section 52 required a complaint in respect of a summary offence to be made within six months from the time when the matter of the complaint arose. The express wording of that section remained unchanged as under:- "52 Where no time is specially limited for making the complaint by any statute or law relating to the particular case, the complaint shall be made within six months from the

It was not amended by the 1991 statute and, curiously, it therefore retained the somewhat anomalous marginal note "Limitation of time for laying information, etc". By virtue of section 19 of the Acts Interpretation Act, 1915 that note does not form part of the section.

However, the section is now to be read in light of the definition of "complaint", which was inserted in section 4 of the Summary Procedure Act. This stipulates that:- "'complaint' includes a charge of a minor indictable offence, if, and when, the Magistrates Court proceeds to dispose of such charge summarily."

It therefore remains an interesting question, which it is not now necessary to decide, as to whether this in any way affects the reasoning in Grow v Gefkin and Others [1945] SAStRp 12; (1945) SASR 78 as to the possible operation of section 52 in relation to minor indictable offences.

So also was it the situation that the broad concept of the manner in which minor indictable offences were to be processed was preserved, save that section 103, as amended, now mandates disposal in the same way as a charge of a summary offence unless the accused positively elects for trial in a superior court.

Major indictable offences continued to attract a committal process and could only be tried in a superior court.

For present purposes the joinder of charges provisions under the amended legislation are of importance.

Section 49(1) of the Summary Procedure Act enacts that where a person is suspected of having committed a summary offence, a complaint may be made, in accordance with the rules, charging that person with the offence. Section 51 goes on to provide that:- "51 (1) A person may be charged with any number of summary offences in the same complaint (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.

(2) The Court may direct that - (a) charges contained in a single complaint be dealt with in separate proceedings; or (b) charges contained in separate complaints be dealt with together in the same proceedings."

Those provisions fall to be contrasted with the content of sections 101 and 102. The former stipulates that, where a person is suspected of having committed an indictable offence triable in South Australia, an information may be laid, in accordance with the rules, charging that person with that offence. Section 102 then proceeds to enact as follows:- 102 (1) A person may be charged with any number of offences in the same information (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.

(2) The charges joined in the same information under subsection (1) may include charges of the following three classes or any two of those classes: (a) major indictable offences; (b) minor indictable offences; (c) summary offences

(3) 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

(3a) Where a person has been committed to a superior court for trial on an information which includes charges for both indictable offences and summary offences, the superior court may, if it thinks fit, order that the charges of summary offences be remitted to the Magistrates Court and dealt with in the same way as if the offences had been charged in a complaint.

(4) The Court may direct that - (a) charges contained in a single information be dealt with in separate proceedings; or (b) charges contained in separate informations be dealt with together in the same proceedings."

This, it will at once be observed, constitutes a marked departure from the scheme of the pre-existing Justices Act, and constituted the basis on which the several charges now before the court were preferred against the present accused. In this regard it should be noted that the amendment to the Justices Act was accompanied by a corresponding amendment to section 278 of the Criminal Law Consolidation Act, which had previously limited joinder in an information to charges of felonies and misdemeanours.

In the course of his submissions Mr Brebner, of counsel for the Director of Public Prosecutions place particular emphasis on the provisions of subsection (3) of section 102 of the Summary Procedure Act.

He stressed that this subsection expressly provided that, in any situation in which an information contained a charge of a major indictable offence, then any summary offence properly included in that information was, by statute, "to be dealt with according to the procedures applicable to major indictable offences" i.e. that, where such an admixture of counts is proffered, all of them are to be processed, from initiation to ultimate disposal by verdict, as if they were indictable offences. So it is, he argued, that, because there is no time limit imposed in relation to the prosecution of major indictable offences, then, by necessary implication, the same situation attaches to summary offences properly joined in a single information with them.

In my opinion this is the plain intendment of the amended legislation, subject only to the power of the Court to stay a prosecution of a joined summary offence if the circumstances warrant a finding that the joinder is oppressive and/or otherwise an abuse of process. Had the intention of the legislature been otherwise it could readily have said so; and it did not. As to section 52 of the Summary Procedure Act in particular, it seems to me particularly significant that this specifically attaches, in its operation, to the making of "the complaint", being a procedure restricted to the disposal of summary offences not joined with a major indictable offence. This distinction is especially important when it is borne in mind that, as I have recited, the statutory definition of complaint includes a minor indictable offence disposed of summarily.

True it is that section 144a of the Motor Vehicles Act speaks of the initiation of "proceedings for an offence" rather than the making of "the complaint", but it seems to me that this is a distinction without a difference. The present critical consideration is the statutory intendment as to the basis of dealing with categories of offence pursuant to section 102 of the Summary Procedure Act, by way of contrast with the statutory provisions related to matters processed in accordance with sections 49 and 51.

Moreover, such a conclusion is lent added force by the fact that section 278(1) of the Criminal Law Consolidation Act was expressly amended so as to excise reference to its application to felonies and misdemeanours and to render it generally applicable simply to "two or more offences" justiciable under that legislation. The Parliament plainly intended that the relevant court was to be empowered, on a common basis, to deal with all offences founded on the same facts or which form, or are part of, a series of offences of the same or a similar character. The only limitation, in the case of related summary offences, is that they arise from the same set of circumstances as a major indictable offence or from a series of circumstances of the same or a similar character.

I consider that Mr Brebner is patently correct when he contends that the legislature has thus drawn a clear distinction between those summary offences which are linked (in the manner indicated) with major indictable offences and those which are not. The very language employed in the statute preserves the concept espoused in Grow v Gefkin and Others (supra) and also recognised in R v D'Agostini (1987) 45 SASR 204 at 207.

There is simply no warrant, within the four corners of the current legislative scheme, for contending that, having stipulated for circumstances in which what would otherwise be dealt with as summary offences on complaint may be processed as if they were major indictable offences through the committal process to trial in a superior court, are, nevertheless, by implication, to remain subject to limitation provisions which are, in terms, restricted in application to proceedings initiated by complaint.

For the sake of completeness I should mention that Mr Mancini sought to contend that the provisions of sections 3 and 6 of the Juries Act prohibit the contemporaneous trial of major indictable offences and summary offences, an asserted circumstance from which he sought to derive some comfort in support of his contention that, somehow, section 52 of the Summary Procedure Act and section 144a of the Motor Vehicle Act remained applicable to proceedings commenced on information in conformity with subsection (3) of section 102 of the former statute. All that need be said in that regard is that the definition of "criminal inquest" merely directs its attention to the trial of any indictable offence without in any sense attempting to modify section 102 of the Summary Procedure Act. That section clearly provides that a summary offence properly joined with a major indictable offence is to be dealt with according to the procedures applicable to the latter. To that extent it constitutes a qualification of the general provisions of the Juries Act and does not conflict with them.

Having regard to the reasoning which I have expressed I have concluded that there is no substance in the objections raised by Mr Mancini and I overrule them.

The accused will be arraigned on counts two to five inclusive and required to plead to them.

Summary Procedure Act 1921

Motor Vehicles Act 1959

Criminal Law Consolidation Act 1935

Interpretation Act 1915

Magistrates Court Rules 1992

Summary Procedure Act 1921

Motor Vehicles Act 1959

Criminal Law Consolidation Act 1935

Interpretation Act 1915

Magistrates Court Rules 1992

R v JASON HACKETT No. SCCRM 94/452 Judgment No. 5210 Number of pages - 10 Criminal law and procedure

At a glance

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Judgment (74 paragraphs)

R v JASON HACKETT No. SCCRM 94/452 Judgment No. 5210 Number of pages - 10 Criminal law and procedure (1995) 64 SASR 471 [1995] SASC 5210 (24 August 1995)

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Legislation Cited (14)

Cases Cited (3)