ANDERSON v THE MAGISTRATES COURT OF SA & ANOR No. SCGRG-98-738 Judgment No. S6873 [1998] SASC 6873

The information laid in the Magistrates Court is not before me. It charged the plaintiff and one K with murder and with another offence. For convenience, I will hereafter refer to them as the defendants, their status before the Magistrate.

The preliminary examination of a charge of an indictable offence is regulated by the Summary Procedure Act 1921 ("the Act"). It is not necessary to set out all of the relevant provisions. The charge of murder was laid, and the charge proceeded to a preliminary examination. I assume that the prosecutor filed the witness statements and other documents required to be filed by s104 of the Act.

The defendants denied the charge. That meant that the Court was obliged to consider the evidence and to determine whether it was sufficient to put the defendants on trial: s105(2)(c)(ii) of the Act.

Pursuant to r20.02 of the Magistrates Court Rules 1992 the defendant gave notice in writing that she required the production of certain witnesses and that she claimed that special reasons existed for granting leave to call those witnesses for oral examination. That was done under s106 of the Act. Section 106 provides as follows:

"106.(1) Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies:

(a) the prosecutor will tender the statements and other material filed in the Court and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence;

(b) the prosecutor will call a witness whose statement has been filed in the Court for oral examination if -

(i) the defence has given notice, in accordance with the rules, that it requires production of that witness; and

(ii) the Court grants leave to call that witness for oral examination:

(c) the prosecutor may, by leave of the Court, call oral evidence in support of the case for the prosecution;

(e) the prosecutor may call evidence in rebuttal of evidence given for the defence.

(2) The Court will not grant leave to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.

(3) In determining whether special reasons exist for granting leave to call a witness for oral examination, the Court must have regard to-

(a) the need to ensure that the case for the prosecution is adequately disclosed; and

(b) the need to ensure that the issues for trial are adequately defined; and

(c) the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and

but if the witness is the victim of an alleged sexual offence or a child under the age of 12 years, the Court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so.

(4) If a witness is called for oral examination the usual oath will be administered (unless the witness is not liable to the obligation of an oath) and the witness will be examined, cross-examined and re-examined in the usual manner."

The prosecutor accepted that an order should be made under s106(1)(b)(ii) in relation to a number of those witnesses. On 24 February 1998 a Magistrate gave leave to call those witnesses for oral examination. The Magistrate adjourned the matter to 24 March 1998 for evidence to be given, and for submissions to be heard in relation to the question of leave to call the other witnesses for oral examination.

Witnesses were called for oral examination on 24 March and 25 March. On 25 March an application was made orally for an order under s106(1)(b)(ii) of the Act in relation to some further witnesses. On that day an order was made granting leave to call a further six witnesses for oral examination.

On 26 March 1998 further witnesses were called for oral examination. On that day, after the prosecution had closed its case, the Magistrate found that the evidence was sufficient to put the defendants on trial and committed them for trial at the Supreme Court.

When the Magistrate made that decision, not all of the witnesses, in relation to whom an order under s106(1)(b)(ii) of the Act had been made, had been called for oral examination.

I make the following findings in relation to those witnesses.

I put to one side Ms Norman. On the evidence before me I am satisfied that no order was made by the Magistrate in relation to her. Although she was named in the written application made by the defendant, an order was not made in relation to her on 25 March, and I find that the matter of making an order in relation to her was not pursued by counsel for the defendant.

As to Ms Scroop and Mr Dingley, I accept the affidavit evidence of counsel for the Director of Public Prosecutions ("the DPP") at the preliminary examination to the effect that he told the Magistrate and counsel for the defendants that the police had been unable to locate them. As to Mr Scrymgour, I accept the evidence of counsel for the DPP that he informed the Magistrate and counsel for the defence that Mr Scrymgour was a patient in a mental hospital and was unable to give evidence. The transcript records (p122) that on 26 March the Magistrate was informed that Ms Scroop and Mr Scrymgour "are not required at this stage". I find that when this statement was made to the Magistrate, counsel for the defendants acquiesced in the sense of not demurring in any way to their unavailability. I also accept the evidence of counsel for the DPP, that although not recorded in the transcript, the same statement was made in relation to Mr Dingley, and that again no objection was raised by counsel for the defendants.

As to Mr O'Donnell, I accept the affidavit evidence of Ms Juttner, the instructing solicitor to counsel for the DPP, to the effect that there were difficulties locating him. The transcript records (p138) that counsel for the DPP undertook "to advise counsel if the whereabouts of the witness O'Donnell is discovered before the arraignment hearing". That was immediately before the prosecution closed its case. I find that counsel for the defendants made no protest at that statement, which clearly indicated that Mr O'Donnell was not available to be called at the preliminary examination.

As to Mr Burnside and Mr Goold, I accept the evidence of Ms Juttner to the effect that in a conversation with counsel for the defendant an arrangement was made for counsel to speak to each of those persons, rather than cross-examine them at the preliminary examination. I find that counsel for the defendant acquiesced in that arrangement as a substitute for the calling of those witnesses.

As to the witness Mr Colquhoun, I find that he attended at court and delivered to the court certain videotape recordings of interviews of the defendant, and that in the presence of counsel for the defendant the Magistrate was told that Mr Colquhoun was not required as a witness.

As to the witnesses Mr and Mrs Brooks, the transcript records (p121) that on 25 March counsel for the defendant told the Magistrate that they would "... not be required at this stage ..."

I find that the Magistrate proceeded to commit the defendant for trial without recalling his order granting leave to call each of the above witnesses for oral examination.

I find that the Magistrate did so after counsel for the defendant had either told the Magistrate that the attendance of the witness was not required by the defence, or after counsel for the defendant has acquiesced in a statement to the Court that implied that the witness was not required to or would not be able to attend at court. I further find that counsel for the defendant made no objection to the Magistrate proceeding to decide whether or not to commit the defendant for trial without the above witnesses being called for oral examination.

In the proceedings before me counsel for the State of South Australia tendered by consent a letter written by counsel who appeared for the defendant at the preliminary examination. That letter was received as the evidence that counsel would have given if called. Counsel for the defendant did not ask to cross-examine on the letter. The letter does not deal specifically with each of the witnesses in question. It is to the effect that a decision was made to proceed with the preliminary examination to avoid delays (both defendants were in custody) and on the basis that the prosecutor had indicated that the DPP would consent to certain witnesses being called for cross-examination before a jury was empanelled.

It is appropriate to record that, on the information available to me, no criticism could be made of the conduct of counsel for the defendant. It is readily understandable that, rather than delay the preliminary examination, other ways of acquiring the information that would have been acquired by cross-examination should be explored.

The letter states that counsel was instructed by the defendant to proceed as he did. In her affidavit in these proceedings, the plaintiff says that she did not instruct her counsel "... to withdraw any application for special reasons". Despite that, I accept what counsel says in the letter. I do so the more confidently because the decision to proceed is readily understandable under the circumstances, and because counsel was not cross-examined.

I therefore find that counsel for the defendant acquiesced in the Magistrate making his decision to commit the defendant for trial, without the above witnesses being called, and that he did so upon instructions from his client.

There is no suggestion that the agreement of counsel to the course followed was procured by any sort of deception or unfairness. There is no suggestion that the defendant cannot apply to a Judge of this Court for leave to cross-examine witnesses before the trial begins.

The importance of the preliminary examination as part of the criminal process is well established. In that connection it is sufficient to refer to what this Court said in Goldsmith v Newman (1992) 59 SASR 404. Section 106 of the Act, as it presently stands, does not erode the importance of the committal. While the oral examination of witnesses is now limited, the preliminary examination still ensures that there is sufficient evidence to warrant putting the defendant on trial, and still contributes to the efficient conduct of a trial by ensuring that the case for the prosecution is adequately defined and that the issues for trial are adequately defined.

This Court has considered the operation of s106 of the Act, and of its predecessor provisions, in a number of decisions. I refer in particular to Fuller v Field [1995] SASC 5346; (1995) 66 SASR 1, where this Court reviewed a number of the earlier decisions and expressed views upon the operation of the present s106.

In Fuller v Field the Court held that once the Court grants leave to call a witness for oral examination, it is obligatory upon the prosecutor to call that witness: Matheson J at 19, Perry J at 23, Cox J agreeing with Perry J at 3. Matheson J appears to have taken the view that the failure by a prosecutor to call such a witness could invalidate a decision to commit a defendant for trial: at 19-20. As I understand his decision, he decided not to quash the order for committal in the exercise of the Court's discretion. Perry J, with whom Cox J agreed, appears to have taken a contrary view about a failure to comply with the obligation imposed by s106. He said (at 23):

"In particular, I agree that a failure to comply with the procedures laid down in s106 would not normally mean that the preliminary hearing was a nullity."

I mention that the facts in Fuller v Field were far removed from the present case. In that case the Magistrate made an order giving leave to call certain witnesses for oral examination. Later the Magistrate gave the prosecutor leave to withdraw the filed statements of those witnesses, a procedure which the Court, not surprisingly, regarded as irregular. The Court held that there was no power to withdraw a statement that had been filed. However, because of certain remedial measures later taken, the Court unanimously declined to quash the order for committal.

The Court in Fuller v Field did not have to consider a case like the one now before me. I consider that a decision by a Magistrate to commit a defendant for trial, although a witness in respect of whom an order has been made under s106(1)(b)(ii) has not been called for oral examination, may be infected by jurisdictional error. In such a case the Court has failed to comply with a statutory pre-requisite to the decision to commit for trial. But I wish to make it clear that in saying that I am contemplating a case in which the order for committal is made in disregard of the defendant's right to examine the witness orally and is made over the opposition of the defendant. I also contemplate the case as one in which there is no good reason why the witness should not be called.

It is not necessary to so decide in this case. I merely make the point that the right to examine orally a witness in respect of whom an order has been made is an important right, and there may be circumstances in which a disregard of that right will be a jurisdictional error of the type identified in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177. But in my opinion in the present case the Magistrate was entitled to proceed as he did, and there was no error of law on his part, let alone a jurisdictional error.

In my opinion s106 must be understood as operating in an existing legal system with certain well established incidents.

One of those incidents is the ability of a party, by counsel, to waive compliance with rights, particularly procedural rights, that the party has in legal proceedings. I do not suggest that this right has a universal operation. However, it certainly operates in a variety of situations, in criminal cases as well as in civil cases.

Section 106(1)(b) is the means by which a defendant at a preliminary examination can obtain an important procedural right, the right to examine orally a witness upon whose evidence the prosecution relies. While in deciding whether to make an order, on application by the defendant, the Court must consider more than the interests of the defendant, the interests of the defendant are a very important consideration. I have no difficulty in regarding the right to examine orally a witness, once an order has been made, as a right vested in the defendant.

In my opinion, after an order has been made giving leave to call a witness for oral examination, it remains within the power of the Magistrate to recall or to set aside such an order at the instance of, or with the consent of, the defendant upon whose application the order was made. There is nothing at all surprising, in our adversarial system, in the notion that a defendant who has obtained such an order may request that it be recalled or set aside or consent to it being recalled or set aside. Even though the interests of the defendant are not the sole criterion by which the Magistrate decides whether to grant leave to call a witness for oral examination, I can think of no good reason why the Magistrate should be powerless to recall such an order after it has been made if the defendant so wishes. It is not difficult to think of all sorts of good practical reasons for doing so. The death or long term absence from the State of the witness is one reason. Another reason is that the defendant might agree, in the light of further developments, that the testimony of the witness has become unimportant. It would be surprising if, once an order granting leave has been made, both parties and the Court were unable to undo the making of the order, regardless of the circumstances.

There are various routes by which the power to do so may be found to exist. The first is the well established principle that the statutory conferral of a power is usually taken to carry with it the power to do things that are fairly incidental to or consequential upon the conferral of power. In the present context I consider that the power to recall the order could properly be so regarded. Alternatively, the necessary power might be found in s76A of the Act, which gives the Court power to set aside a conviction or order in particular circumstances, in particular if the parties consent to having it set aside. Another possible approach is to say that the conferral of the power to conduct a preliminary examination upon a Magistrate carries with it by implication the procedural powers that a Magistrate would ordinarily have, and that power to recall an order is one such power.

However the result is reached, I consider that a Magistrate has power to recall an order granting leave to call a witness for oral examination, if that is done with the consent of the prosecutor and of the defendant. I have already found that counsel for the defendant consented to the Magistrate proceeding without the relevant witnesses having been called. I do not have to decide whether a Magistrate can do so even if the defendant does not consent. Nevertheless, for what it is worth, in my opinion it is likely that a Magistrate can do so. For example, in the case of a witness who has died, the Magistrate surely must have power to recall the order made, even over the opposition of the defendant, rather than leave the preliminary examination unable to be completed. In relation to this point I agree with the view expressed by Perry J in Fuller v Field [1995] SASC 5346; (1995) 66 SASR 1 at 25.

In the present case it would have been better if the order giving leave to call the relevant witnesses for oral examination had been formally recalled or set aside by the Magistrate. But that is a matter of form only. In my opinion the defendant had, through her counsel, waived her right to oral examination of the witnesses in question at that stage, and had acquiesced in the Magistrate proceeding to decide whether there was sufficient evidence to put her on trial. The Magistrate was entitled to act upon the defendant's waiver of her right, as he evidently did. All that is missing is the formal order recalling or setting aside the earlier order.

It follows that no error of law was made by the Magistrate in proceeding as he did, let alone an error that deprived him of jurisdiction to commit the defendant for trial. Properly understood, this is not a case of a party to proceedings purporting to consent to a non-observance of or breach of a statutory requirement relating to those proceedings. The statutory requirement, that the prosecutor call the witness for oral examination, was subject to a right vested in the defendant to waive that obligation, and to set aside a power in the Magistrate in certain limited circumstances to recall the order and terminate the obligation. Subject to matters of form, that is what occurred.

It follows that the Magistrate's decision to commit the defendant for trial should stand. It is not necessary to decide whether, in the exercise of the Court's discretion, the decision to commit should not be quashed. It is not necessary to consider the exercise of the discretion because no ground for quashing the Magistrate's order has been made out.

For those reasons, at the conclusion of the hearing in this matter I dismissed the application by the defendant for an order quashing the decision of the Magistrate to commit the defendant for trial. I also refused to make an order directing that certain named witnesses be called for oral examination. I also refused to grant certain ancillary relief that had been sought. As well, I ordered the plaintiff to pay the costs of the defendants.