MICHAEL JOHN FULLER and JOSEPH PATRICK CUMMINGS v FREDERICK FIELD SM and COMMONWEALTH DPP No. SCGRG 94/1668 Judgment No. 5346 Number of pages - 27 Criminal law - administrative law - [1995] SASC 5346 - SASC 1995 case summary

MICHAEL JOHN FULLER and JOSEPH PATRICK CUMMINGS v FREDERICK FIELD SM and COMMONWEALTH DPP No. SCGRG 94/1668 Judgment No. 5346 Number of pages - 27 Criminal law - administrative law - [1995] SASC 5346 - SASC 1995 case summary — Zoe

[8]

There is a question whether the prosecutor may be obliged under s106(1)(b) of the Summary Procedure Act to call as "a witness whose statement has been filed in the Court" someone whose "statement" is in evidence at the preliminary hearing only because it was tendered as "other material relevant to the charge that is available to the prosecution" in accordance with s104(1)(a)(iv) of the Act. It is plain that s104 distinguishes between statements of witnesses and other evidentiary material on which the prosecutor relies as tending to establish the guilt of the defendant and, on the other hand, the "other relevant material" described in sub-par(iv), and I think that the same distinction is preserved in the language and policy of s106. It is entirely understandable that the prosecutor should be obliged in particular circumstances (namely, where special reasons exist) to put into the witness box for cross-examination by the defendant any witness upon whose evidence, alone or with others, the prosecutor intends to ask the Court to commit the defendant for trial. There is no obvious reason, however, why the prosecutor should be obliged to call persons whose statements are simply being provided to the defence in this formal way in accordance with the general responsibility of a prosecutor to place before the court all relevant and admissible material available to it irrespective of whether it assists the prosecution case or not. Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404, at 409. The distinction may not be of great practical importance in view of the narrow interpretation that was placed on sub-par(a)(iv) by the majority in Goldsmith v Newman, but it is a distinction that is reasonable and it is also reflected in the terms of s106. Indeed, the use of the term "witness" is hardly appropriate for a person upon whose evidence the prosecutor has deliberately decided not to rely in the Magistrates Court or at the proposed trial. In my opinion, the "statements" referred to in par(a) of s106(1), and the "statement" referred to in par(b), refer only to statements of witnesses for the prosecution on which the prosecutor relies that have been filed accordingly under s104. Even if the "other material relevant to the charge" that is filed under sub-par(iv) of s104(1)(a) includes a document in normal statement form, whether complying with the requirements of sub-section(3) of s104 or not, it will not, in my opinion, be a "statement" within the meaning of s106(1)(b). It follows that the prosecutor cannot be required to call the maker of such a statement for oral examination. Of course, it will always be open to the defendant to call him if he wishes to do so.

[41]

Cecil Burney and Mr Cordell on the ground that neither was willing to come to Australia. He added that neither was willing to co-operate in enabling evidence to be taken in any other form, for example, by video-link. Mr Vorreiter informed the Court that he did not think it was in the interests of justice to ask the Court to take evidence on commission in the United Kingdom stating that the DPP believed their evidence was not sufficiently important to the prosecution case to justify that course. The magistrate granted the application. He expressed his reasons in these terms: 'In ruling on this application by the prosecution to withdraw the declaration of two unco-operative witnesses from overseas, namely Sir Cecil Burney and Mr Sheldon Cordell, I bear in mind the character and purpose of committal proceedings. Committal proceedings are administrative or at the highest quasi-judicial proceedings. The purpose of the proceedings is for the court to consider the evidence before it for the purpose of determining whether there is sufficient evidence to put the defendants on trial for the offences charged. It must always be at the discretion of the prosecutor to decide whether or not to rely upon the evidence of witness A or witness B, and to decide which declarations he will seek to withdraw or to tender as part of the evidence to be considered by the court at the conclusion of the proceedings. I do not read or interpret section 106 as excluding the right of the prosecution to seek to withdraw the declaration of a witness. It may well be in proceedings such as this that there will be problematical consequences for the defendants but I do not think it is the function of the committal court to seek to accommodate those problems or to rectify them. I think they are matters which should properly be raised at the trial. I therefore give leave for the prosecution to withdraw the declarations of Burney with of course their accompanying exhibits and the declaration of Cordell and its accompanying exhibits.'

[96]

I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v. Lyme Regis Corporation (1962) 1 QB 718 provides a modern instance of this. When the requirement is that 'particulars of the application' should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation. The situation is quite different from that encountered when some formality of time or procedure has been neglected, or when some question of waiver arises, as it did in Edward Ramia Ltd. v. African Woods Ltd. (1960) l WLR 86; (1960) l All ER 627. That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute. I have found the particulars in the present instance to be inadequate and, whether as a result of a mandatory interpretation or of a directory one, the outcome will be the same; the council, or its delegate, here proceeded to a determination of the application without either strict or substantial compliance

[106]

Amongst the concerns expressed by the learned Judge and which led him to his conclusion was that no provision had been made for those cases where it was not possible to call a witness in compliance with s106. However, in that situation, I think the maxim known as lex cogit ad impossibilia would apply, and the section should be understood as dispensing with the performance of what is prescribed. Oft quoted examples of the application of the maxim include R v Leicestershire Justices [1850] EngR 482; (1850) 15 QB 88; 170 ER 391. There an act provided that an appellant should send notice to the mother of an intention to appeal against a bastardy order, in default of which the appeal should not be allowed. It was not possible to comply with the statutory requirement as the mother had died before the notice could be served. The appellant was excused from compliance and could pursue his appeal. I refer also to Mayer v Harding (1867) LR 2 QB 410. There the act in question made the transmission by an appellant of a case stated by the justices to the superior court named in his application within three days of receiving it a condition precedent to the hearing of the appeal. The court was closed during the three days in question and compliance was impossible. In his judgment, Mellor J (Shee J concurring) said: "As regards the conduct of the parties themselves, it is a condition precedent. But this term is sometimes used rather loosely. I think it cannot be considered strictly a condition precedent where it is impossible of performance in consequence of the offices of the court being closed, and there being no one to receive the case. The appellant lodged the case on Wednesday, that is, he did all that was practicable for him to do. I think we should strain the statute, if we gave it the construction contended for by ... which might be productive of very inconvenient results. This does not interfere with the principle that the parties themselves can not extend the time by their own acts. Here all that was possible was done, and I think that is sufficient."

MICHAEL JOHN FULLER and JOSEPH PATRICK CUMMINGS v FREDERICK FIELD SM and COMMONWEALTH DPP No. SCGRG 94/1668 Judgment No. 5346 Number of pages - 27 Criminal law - administrative law

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Judgment (146 paragraphs)

MICHAEL JOHN FULLER and JOSEPH PATRICK CUMMINGS v FREDERICK FIELD SM and COMMONWEALTH DPP No. SCGRG 94/1668 Judgment No. 5346 Number of pages - 27 Criminal law - administrative law (1995) 66 SASR 1 [1995] SASC 5346 (29 November 1995)

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Legislation Cited (6)

Cases Cited (22)