HORST WILHELM KRONEN v THE STATE OF SOUTH AUSTRALIA [2024] SADC 19

On Review from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE JACKSON) CIV- 23-002835 Applicant: HORST WILHELM KRONEN Counsel: SELF REPRESENTED Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MR E TOSKAS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 18/01/2024 File No/s: CIV-23-012742 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KRONEN v THE STATE OF SOUTH AUSTRALIA [2024] SADC 19 Judgment of his Honour Auxiliary Judge Chivell 27 February 2024 MAGISTRATES - JURISDICTION - DECLARATIONS Application to review Magistrate's order dismissing applications for declarations arising from allegedly unlawful arrest on the grounds that the court lacked jurisdiction to make the declarations sought. Held: The Magistrate lacked jurisdiction to make the declarations sought. Application dismissed. Magistrates Court Act 1991 (SA) ss 32, 38; Crown Proceedings Act 1992 (SA) s 7(2), referred to. Macks v Viscariello [2017] SASCFC 172; Warramunda Village Inc v Pryde [2001] FCA 61, discussed. Fortser v Jojodex Australia Pty Ltd [1972] 127 CLR 421, considered. -- 1 of 7 -- -- 2 of 7 -- KRONEN v THE STATE OF SOUTH AUSTRALIA [2024] SADC 19 1 On 12 June 2020, Mr Kronen was arrested by SA Police Officers on a charge of damaging property. 2 As is usual in such cases, he was photographed, his fingerprints and DNA were taken, and records were kept of the alleged offence and the surrounding circumstances. 3 On 8 October 2020, the charge was withdrawn. In 2023, SAPOL acknowledged in writing that Mr Kronen’s arrest was ‘improper’ as no offences had been disclosed. SAPOL has also agreed to destroy his DNA sample. However, they have refused to destroy or return records of his fingerprints, ‘mugshots’ and ‘other sensitive material’. 4 Mr Kronen sought the following redress from SAPOL in an application to the Minor Civil Jurisdiction of the Magistrates Court: • An acknowledgment that his arrest, the taking of photographs or ‘mugshots’, fingerprints and DNA were unlawful, and that the SAPOL records of these events were inaccurate; • A ‘declaration or finding’ of the unlawfulness described above; • An order that all forensic material and data relating to the incident be returned to him or destroyed; • An order that SAPOL amend its files and records to accurately record what occurred; • An order that SAPOL inform in writing all of his neighbours of his innocence and the impropriety of his arrest; • An order for compensation. 5 The respondent agreed to pay compensation to Mr Kronen but opposed the other claims. 6 In August 2023, the respondent applied for summary judgment in the matter on the basis that: • Judgment be entered in Mr Kronen’s favour in the sum of $11,999.00 plus costs; • The other applications in Mr Kronen’s claim be dismissed on the basis that the Magistrates Court lacked jurisdiction to make the orders sought. -- 3 of 7 -- [2024] SADC 19 2 7 On 26 October 2023, Magistrate Jackson entered judgment in favour of Mr Kronen for the amount mentioned above, and summarily dismissed his other applications for want of jurisdiction. Her Honour gave written reasons for her decision.1 8 Mr Kronen now seeks a review of that decision pursuant to s 38 of the Magistrates Court Act 1991 (SA). 9 In his notice of review, Mr Kronen sought to have the order for summary dismissal set aside and the matter referred back for trial. He acknowledged the force of the respondent’s submission that the declaration and orders he sought were inappropriate. Instead, he sought: • A declaration that on the day of his arrest he had a right to privacy which was violated by the police taking his fingerprints and ‘mugshots’. He did not pursue the issue of his DNA samples, because SAPOL had recently agreed to destroy them; • A declaration that he has a right to have ‘any official records which refer to me be complete, true and accurate’, and that he has a right to have these records ‘appropriately amended’. He says that the records ‘falsely characterise me as a criminal who has escaped conviction in a court of law due to a legal technicality or insufficient admissible evidence’. 10 Mr Kronen referred to the Information Privacy Principles Instruction promulgated by the South Australian Government as a ‘Cabinet Administrative Instruction’ in 1989. 11 Relevantly for present purposes, the Principles include: (1) Personal information should not be collected by unlawful or unfair means, nor should it be collected unnecessarily. … (2) An agency should not collect personal information that is inaccurate or, having regard to the purposes of the collection, is irrelevant, out of date, incomplete or excessively personal. … (6) An agency that has in its possession or under its control records of personal information about another person should correct it so far as it is inaccurate or, having regard to the purpose of the collection or to a purpose that is incidental to or connected with that purpose, incomplete, irrelevant, out of date or when it would 1 CIV-23-002835. -- 4 of 7 -- [2024] SADC 19 3 give a misleading impression in accordance with the Freedom of Information Act 1991. … (8) Compliance with Principles The Committee2 may at any time on its own initiative appoint a person (whether or not that person is a public employee) or the Commissioner for Public Employment to investigate or assist in the investigation of the nature and extent of compliance of an agency with the Principles and to furnish a report to the Committee accordingly. 12 It is common ground that the Privacy Principles are not legally enforceable against a government instrumentality, except of course, by the Government itself. I agree with the submissions of Mr Toskas, counsel for the respondent, that any order issued by a court which compelled compliance with the Instructions would amount to a mandatory injunction and is therefore prohibited by s 7(2) of the Crown Proceedings Act 1992 (SA). 13 Mr Kronen submitted that the declarations he now seeks should be made because on the day of his arrest: • He had a right to withhold a sample of his DNA, his fingerprints and his ‘mugshots’ from SAPOL officers; • SAPOL officers violated that right by taking these things from him; • SAPOL has no right to retain any of those things and should dispose of them; and • He has a right to have all of those things returned to him, or to have them destroyed. 14 The Magistrates Court of South Australia has the power to make declaratory judgments by virtue of s 32 of the Magistrates Court Act 1991 (SA) which states: The Court may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed. (My emphasis). 15 Mr Toskas submitted that since the Privacy Principles are not legally enforceable, they are not within the jurisdiction of a Magistrate. I agree. 16 Further, since the Privacy Principles are not legally enforceable, they do not create rights which, if made the subject of a declaration, could be regarded as binding. In that sense, any such declaration would not serve a legitimate purpose. 2 ‘The Committee’ is defined as the ‘Privacy Committee of South Australia constituted by Proclamation’. -- 5 of 7 -- [2024] SADC 19 4 17 In Macks v Viscariello,3 the Full Court of the Supreme Court of South Australia quoted from Young, Declaratory Orders:4 Although the declaratory judgment does not involve a cause of action in the usual sense, the authorities have established that six factors must be present before there can be a declaratory order. These factors are present when the following conditions are met: 1. There must exist controversy between the parties …; 2. The proceedings must involve a ‘right’ …; 3. The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order, which is usually referred to as ‘standing’ or ‘locus standing’ …; 4. The controversy must be subject to the court’s jurisdiction both within the court’s own charter and also within the jurisdiction so far as private international law rules are concerned …; 5. The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim …; 6. The issue must be ripe – it must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility. 18 The passage from Warramunda Village Inc v Pryde5 quoted in Macks6 is also apposite to this case: The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording, in summary form, conclusions reached by the court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which my right or liability flows. 19 Mr Kronen submits that the declarations would have utility personal to him. He submitted:7 17. I submit that even if the IPPS Instruction were not to be enforced, having the Magistrates Court clarify my rights in this manner is of immense importance. ‘Binding declarations of right’ of the kind that I propose would provide invaluable guidance regarding how I should conduct myself if or when confronted by SAPOL officers in future. The ‘declarations’ would allow me to better understand: What precisely are my rights? – and – Can I rely on the (sic) South Australia’s system of justice to protect me, my welfare and my rights if I should attempt to exercise those rights in future? – And if so, how? Or must I come to accept that SAPOL (and its officers) can simply do as it pleases? On a broader basis, these ‘declarations’ would 3 [2017] SASCFC 172 at [677]. 4 Young, P.W., QC, Declaratory Orders (2nd Ed, 1984), [202]. This passage was cited with approval in Fortser v Jojodex Australia Pty Ltd, [1972] HCM 61, [1972] 127 CLR 421, [437]-[438]. 5 [2001] FCA 61, [2001] 105 FCR 437, [8]. 6 Supra, at [682] 7 FDN 8. -- 6 of 7 -- [2024] SADC 19 5 also assist members of the general public who might be faced with questions such as these. 20 This is not sufficient to justify a declaration. No ‘right or liability’ as described in Warramunda Village would flow from it. 21 Mr Kronen is clearly frustrated by the lack of enforceability of the Privacy Principles. This is undeterminable. 22 If the remedies contained in para. 8 of the Privacy Principles quoted above, headed ‘Compliance with Principles’ are insufficient then that is a matter for Parliament. 23 I conclude that the matters raised by Mr Kronen do not come within the jurisdiction of the Magistrate, within the meaning of s 32 of the Magistrates Court Act. Magistrate Jackson’s decision to dismiss Mr Kronen’s application, in relation to the non-monetary aspect of his claim, was correct. 24 The application for review is dismissed. -- 7 of 7 --