Administrative law - Judicial review - one of three witnesses called and cross-examined and applicants committed for trial between unsuccessful application to single Judge and Full Court hearing - certiorari not appropriate - remedies available at trial - declaratory relief also refused in all the circumstances.

Supreme Court Acts31, referred to. The Queen v Grieve; ex parte Ellis (1978) 19 SASR 437; R v Mungaribi [1988] NTSC 49; (1988) 92 FLR 264; R v Luczkowski (1990) 54 SASR 169; Van Reesema v Official Receiver in Bankruptcy [1983] FCA 202; (1983) 50 ALR 253; DPP (Cth) v Bayley [1994] SASC 4842; (1994) 63 SASR 97; The Queen v Harry; ex parte Eastway (1985) 39 SASR 203; Clayton v Ralphs and Manos (1987) 45 SASR 347; Coco v Newnham and Others (1990) 97 ALR 419; Pearce and Geddes Statutory Interpretation in Australia 3rd Edn , applied. Shannon v Ackland and Attorney- General for South Australia (1990) 55 SASR 125; Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404; Scurr and Others v Brisbane City Council and Another [1973] HCA 39; (1973) 133 CLR 242; Mayer v Harding (1867) LR 2 QB 410; R v Armitage (1872) LR 7 QB 773; Sankey v Whitlam and Ors [1978] HCA 43; (1978) 142 CLR 1, considered.

HRNG ADELAIDE, 5 September 1995 #DATE 29:11:1995 #ADD 13:12:1995

JUDGE1 COX J This history of this appeal is set out in the reasons of Matheson J.

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.

With that qualification I am in general agreement with the reasons of Perry J.

JUDGE2 MATHESON J The appellants, Michael John Fuller and Joseph Patrick Cummings, applied to a judge of this court for judicial review of orders made by a magistrate in the course of committal proceedings. On 24 March, 1994, their application for declarations and injunctions was refused and an order staying the proceedings before the first respondent that had been made in this court on 13 October, 1994 was discharged. The appellants now appeal to this court from the learned Judge's orders. The appeal raises questions as to the proper interpretation of s106(l)(b) in particular of the Summary Procedure Act, 1929, but I set out the relevant parts of ss104-106 inclusive which came into operation on 6 July, 1992: "Preliminary examination of charges of indictable offence

104 (1) Where a charge of an indictable offence is to proceed to a preliminary examination, the prosecutor must at least 14 days before the date appointed for the defendant's appearance to answer the charge - (a) file in the Court in accordance with the rules - (i) statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; (ii) copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant; (iii) a document describing any other evidentiary material on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance that the material is alleged to have; and (iv) any other material relevant to the charge that is available to the prosecution; and (b) give personally or by post to the defendant or a legal practitioner representing the defendant copies of all documentary material filed under paragraph (a).

(2) If material of the kind referred to above comes into the prosecutor's possession after the time appointed for filing in the Court and giving copies to the defendant or the defendant's legal representative, the material must be filed and copies given as soon as practicable after it comes into the prosecutor's possession.

(3) A statement filed in the Court must conform with the following requirements: (a) it must, ... be in the form of a written statement verified by a declaration in the form prescribed by the rules; (b) ...

(2) In cases where the defendant appears personally at a preliminary examination to answer the charge, the Court will proceed as follows: (a) the charge will be read and the defendant will be asked how he or she pleads to it; (b) the defendant may then - (i) admit the charge; (ii) deny the charge; (iii) assert previous conviction or acquittal of the charge, and if the defendant refuses or fails to plead to the charge, he or she will be taken to have denied the charge; (c) the Court will then proceed as follows: (i) if the defendant admits the charge - the defendant

will be committed to a superior Court for sentence; (ii) if the defendant denies the charge - the Court will consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for an offence;

(iii) if the defendant asserts previous convictions or acquittal, the Court will reserve the question raised by

the plea for consideration by the Court of trail and proceed with the preliminary examination as if the defendant had denied the charge.

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; (d) the defendant may give or call evidence; (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; (b) the need to ensure that the issues for trial are adequately defined; (c) the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and (d) the interests of justice ...

2. The background to the application is set out in the reasons of the learned Judge and I gratefully quote therefrom: "The (appellants) were both at one time directors of two companies, Beach Petroleum NL ("Beach") and Claremont Petroleum N.L. ("Claremont"). On 25 June 1993 they were jointly charged with one Malcolm Keith Johnson with one count of conspiring to cheat and defraud at common law. The particulars of the alleged offence are that between 9 September 1988 and 28 December 1989 at Adelaide and elsewhere they conspired to cheat and defraud Claremont and Beach by dishonestly causing Claremont and Beach to make payments totalling $A35,427,462 to acquire interests in the Burbank Oil Field in Osage County, Okalahoma in the United

State of America in circumstances where those interests had been acquired for $US3,706,791.

On 25 June 1993 both (appellants) were also charged as directors of Claremont with six counts of fraudulently applying property of Claremont and five counts of fraudulently applying property of Beach, all offences being contrary to s189 of the Criminal Law Consolidation Act 1935. The particulars of the eleven counts refer to the alleged fraudulent appropriation of very substantial sums of money for purposes other than the purposes of the companies. The offences are alleged to have occurred between 28 December 1988 and 27 December 1989. In the case of one offence the sum involved in the alleged fraudulent application of property is $100,000. In all other instances the amounts are in excess of $200,000. In the case of two offences, the amount involved is in excess of $5M.

The (appellant) Fuller was also charged with two other offences that, as a director of Claremont, he fraudulently appropriated property of Claremont, contrary to s189 of the Criminal Law Consolidation Act. One count alleges fraudulent application of $188,447 and the other fraudulent application of $3,735,632.

On 20 September 1993 the (appellants) were jointly charged with thirteen further counts of misusing their position as directors respectively of Beach and of Claremont to gain an advantage for another contrary to s229(4) of the Companies (South Australia) Code 1981. Separate offences are alleged in respect of each company and the offences are alleged to have occurred between 13 September 1988 and 19 January 1990. Again, it is alleged, substantial sums of money are involved in the transactions the subject of each count. The (appellant) Fuller was also charged with two further counts under s229(4) of the Companies Code for making improper use of his position as a director of Claremont. On 22 February

1994 a further information was laid against Johnson alleging fifteen offences against s229(4) of the Companies Code and

fourteen offences against ss189 and 269 of the Criminal Law Consolidation Act. Again, very substantial sums of money are involved. They are the same offences with which the (appellants) have been charged.

The prosecution is being conducted by the Commonwealth Director of Public Prosecutions. I will, for convenience, refer to him as "the DPP". In November 1993 the DPP served the (appellants) with a copy of the prosecution brief. It comprised some twenty-four substantial files, commonly known as lever arch files, and included the statements of eighty witnesses. Ten of those witnesses reside in South Australia and twenty-two witnesses reside overseas. The other witnesses reside in other parts of Australia.

The preliminary hearing of these offences commenced before Mr Field SM on 11 April 1994. Mr Vorreiter appeared on behalf of the DPP to conduct the prosecution. Mr Johnson did not then appear and he has not subsequently appeared. A warrant has been issued for his arrest and proceedings are on foot to extradite him from the United Kingdom to Australia. The (appellants) are unrepresented at the preliminary hearing. They have applied for and failed to obtain legal aid. They have, from time to time, been represented by three legal practitioners on discrete matters.

After some earlier hearings on procedural matters, the substance of the preliminary hearing began on 7 July 1994. The (appellants) both pleaded not guilty to all charges against them. In accordance with the obligations set out in s104 of the Summary Procedure Act 1921, the DPP had filed

statements of witnesses, documents and other material. After the (appellants) had pleaded not guilty, the DPP tendered all of the statements of witnesses and other material pursuant to s106(1)(a) of the Summary Procedure Act. The Court admitted them into evidence, subject to any objections as to admissibility.

From time to time the (appellants) applied pursuant to s106(1)(b) of the Summary Procedure Act to call for oral examination some of the witnesses whose statements had been

filed in the Court. The applications were opposed by the DPP. The (appellants) succeeded with some of those applications but failed in others. Three of those applications concerned the witnesses Mr Christian Turner, Mr Sheldon Cordell, and Sir Cecil Burney. The magistrate held that there were special reasons for calling these three witnesses. (Statements of all three witnesses had been

The Prosecutor Obtains Leave to Withdraw Three Witnesses

The DPP had arranged for Mr Christian Turner to be present at the Adelaide Magistrates Court on 21 September 1994 to give evidence. Before he was sworn, Mr Vorreiter, counsel for the DPP, informed the magistrate that he no longer regarded Mr Turner as a witness of truth and applied to

withdraw his statement. The (appellants) opposed the application. The magistrate granted the application and gave leave to the DPP to withdraw the statement of Mr Turner. He expressed his ruling in these terms: 'With respect to the witness Turner the prosecution has obviously fulfilled its duty of supplying his statement and exhibits to it. I note that he is a person who was called upon, as an expert, to prepare an assessment of the value of the interest in the Burbank Oil Field sometime after the transactions to which these proceedings relate. I have regard to the reasons advanced by Mr Vorreiter for seeking to withdraw Mr Turner's statement. Mr Vorreiter has stated that upon further questioning of Mr Turner this morning he cannot be satisfied that he would be a witness of truth. In the circumstances I think I must give leave for that

statement to be withdrawn. I note the objection by both defendants as to that course.'

The (appellants) did not themselves apply to call Mr Turner.

On the same day the DPP applied to withdraw the statements of Mr Sheldon Cor(d)ell and Sir Cecil Burney. The (appellants) both opposed the application. The magistrate adjourned the hearing of the application for argument on 23 September. On 23 September Mr Vorreiter informed the magistrate that he sought to withdraw the statements of Sir

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.'

After the magistrate had made this ruling, Mr Vorreiter applied to tender all the exhibits which had previously been annexed to the statement of Mr Cordell. On 6 October 1994 the magistrate refused the DPP leave to do so. He did, however, rule that some of those documents had been already tendered through other witnesses and could therefore be admitted."

3. The approach of the learned Judge here was first to review the discretion of a prosecutor at common law in deciding what witnesses will be called for the prosecution. Then, by looking at the statutory provisions, he concluded that there was no reason in principle why the decision of a prosecutor to file a statement of a witness under 104(1)(a)(i) should be irrevocable so that he can not alter the category under which the statement has been filed. That conclusion led him to the view that if the statement of a witness has already been tendered, but leave has not been granted to call the witness pursuant to s106(l)(b) that there is no reason in principle why the prosecutor should not be able to withdraw the statement. This conclusion led him to the further conclusion that there is no reason in principle why in a case where leave has been granted to call the witness for oral examination in accordance with s106(1)(b) the prosecutor should not be able to withdraw the statement of a witness on the ground that he no longer intends to rely on that statement. His Honour said: "The prosecutor should not be penalised because a decision not to rely on a witness is made at this late stage rather than at some earlier time either before the statement was filed or before it had been tendered."

His Honour then considered the argument of the plaintiffs based on the use of the word "will" in s106. That word is used in several places. The word "may" is also used in several places. The word "must" is used in subs(3) but that was introduced by the amendments that came into force in 1992, drafted probably by a different drafter. The learned Judge stated his conclusion thus: "To decide that the prosecutor must call a witness on whom he no longer wishes to rely because the statement has been filed under s104(1)(a)(i) is to decide that the prosecutor no longer has any discretion as to the manner in which he proves the prosecution case at the preliminary hearing. That is not, I think, the intention of ss104 and 106. To

construe s106 in the manner contended for would circumscribe the prosecutorial discretion more than it does in the trial.

The fact that the magistrate had determined that there were special reasons for granting leave to call these witnesses

does not affect the position. At the end of the day, it is for the prosecutor to determine how he proposes to prove the

prosecution case. The fact that the magistrate believed there were special reasons might be a ground on which to make an application to the trial judge. But that fact does not impinge upon the prosecutor's discretion to withdraw the witness ...

The provisions of s106 are ... not mandatory, in their operation. For the reasons expressed in Shannon v Ackland

(1990) 55 SASR 125 at 131-133, I think it preferable to state that s106 prescribes a procedure which must be substantially complied with. It does not require strict compliance.

For all of these reasons, the magistrate had jurisdiction to grant leave to the DPP to withdraw (the statements of) these three witnesses and the decision of the prosecutor to withdraw them was not in any respect circumscribed by s106. Nor do I think that s106 imposes any duty on the magistrate conducting a preliminary hearing to require the prosecutor to justify his actions. Depending on the circumstances of each case, it might be appropriate for the magistrate to invite the prosecutor to reconsider his decision. But the magistrate has not power to direct the prosecution to call a particular witness ...

I add that, even if the magistrate had erred, I would in the exercise of my discretion be disinclined to grant the plaintiffs' application as they can apply to remedy whatever unfairness exists by an application to the trial judge. As they could also have applied to call Mr Turner, there is even less justification to make the orders sought in relation to him.

The applications of the plaintiffs must, therefore, be dismissed."

The appellants filed their Notice of Appeal from the decision of the learned Judge on 6 April, 1995, but the appeal did not come on for hearing until 5 September. Meanwhile, as this Court was informed at the hearing, the preliminary hearing before Mr Field SM continued. On 13 June, 1995, Sir Cecil Burney had come to Adelaide, and Mr Vorreiter called him as a witness. The appellants consented to him being called, and to the tendering of his declarations. The transcript reads: "BY CONSENT THE DECLARATIONS OF SIR CECIL BURNEY ARE RE-TENDERED SUBJECT TO OBJECTIONS AS TO ADMISSIBILITY OF CERTAIN PORTIONS. I RE-AFFIRM THE ORDER FOR SPECIAL REASONS

Sir Cecil Burney was then cross-examined by the appellants.

On 21 June, 1995, the appellants applied for the preliminary hearing to be adjourned on a number of grounds, one of which was that their appeal to the Full Court was pending. The learned Magistrate rejected that ground for an adjournment, but for other reasons adjourned the preliminary hearing until 28 June. On that date the learned Magistrate committed the appellants for trial on each information.

There have been a number of decisions of this court on the varying statutory provisions relating to preliminary hearings in recent years. First, I refer to The Queen v Grieve; ex parte Ellis (1978) 19 SASR 437. The Full Court (Hogarth ACJ, Bright and King JJ) had before it an application for an order in the nature of mandamus directed to a special magistrate arising out of proceedings in the course of the preliminary examination of a defendant charged with rape. He refused to order the prosecutrix to be called to appear at the hearing for examination under s106(6a) of the Justices Act, 1921. The grounds upon which the order was sought were that there were at all material times special reasons why the girl should be called for the purpose of cross-examination at the preliminary hearing and that the special magistrate had "erred in the exercise of his discretion".

It is necessary to set out sub-ss(6) and (6a) of s106 of the Justices Act, as it then stood: "(6) The defendant, or his counsel, may before the completion of the case for the prosecution, request - (a) that a person by whom a written statement, submitted under this section, was made; or (b) that a person by whom an affidavit relating to an object tendered as an exhibit under this section, was made, appear at the hearing for the purpose of oral examination, and where such a request is made, that person shall be called, or summoned to appear, for that purpose."

"(6a) Where - (a) the defendant is accused of a sexual offence; and (b) the defendant or his counsel, requests, in pursuance of subsection (6) of this section, that the alleged victim of the sexual offence appear at the hearing for the purpose of oral examination, he (the alleged victim) shall not be called or summoned to appear at the hearing unless the justice is satisfied that

there are special reasons why he should attend for the purpose of oral examination."

At p441, in a joint judgment, their Honours said: "The present proceedings, in effect, are an appeal from the decision of the Special Magistrate as to whether or not special reasons existed. As we understand the case, he decided that they did not, and we think that we have no

jurisdiction to intervene even if we were disposed to disagree with his view. We would add, however, that there may be one circumstance in which mandamus would lie. If a Justice or Special Magistrate, on such an application, were to decide in the case before him that there were special reasons for calling the prosecutrix then we think that he is left with no discretion under sub-s. (6). Once he has made that determination, then the provisions of sub-s. (6) apply of their own force, and he is required to call the prosecutrix for examination and cross-examination. The Act does not give him any discretion once that decision is made. But it seems to us that that was not what occurred here. Although he is not recorded as saying so expressly,the Special Magistrate appears to have concluded that there were no special reasons for calling the girl. We think that the learned Special Magistrate's decision was correct."

This case may not have been cited to his Honour in the case at Bar, and it clearly does not sit comfortably with his decision.

In R v Mungaribi [1988] NTSC 49; (1988) 92 FLR 264 the magistrate had failed to say in committal proceedings against the applicant accused the words prescribed by s110(1) of the Justices Act (NT) which words had the effect of inviting the defendant to give evidence or to say something in answer to the charge, and had also failed to comply with s111 of the Act by giving the applicant an opportunity to call witnesses. Neither counsel at the committal hearing had drawn the magistrate's attention to those provisions. At p268, Martin J said: "On a reading of the provisions in question here, they are mandatory and given the purpose for which they are provided, I am not prepared to construe them as directory. They have stood for many years, and from a time when legal representation may not have been always available to persons in all parts of the Territory where committal proceedings could be conducted. That position may now have changed but the statutory requirements remain, and I do not consider that there is any reason to construe the words in any way

The object of the provisions is one of general policy relating to all persons charged with indictable offences and for their benefit. Public interests are involved. The requirements are indispensable. The duties imposed are imposed upon the Justice conducting the examination and a failure to observe them cannot be rectified or made good by acquiescence, even by experienced legal practitioners.

I have said enough to show that the committal proceedings were void. Essential steps, required by statute to be undertaken, to ground the magistrate's jurisdiction to commit Mungaribi for trial were not taken. The question now is what orders should be made? There appears to be some doubt as to the power of a superior court to make an order in the nature of certiorari to quash in relation to committal proceedings and the issue was not argued before me. The time available has not allowed detailed research to be undertaken and to review the authorities and consider the conclusion arrived at by M Aronson and N Franklin, 'Review of Administrative Action' (1987) pp 586-587.

In those circumstances I consider that the better course is to make a declaration that the order for committal of Mungaribi for trial was a nullity. From that it follows that proceedings upon the indictment be permanently stayed."

In R v Luczkowski (1990) 54 SASR 169 the accused was charged with three counts of rape, one count of false imprisonment and one count of threatening life. The first count of rape was alleged to have occurred on 26 February, 1989. The other four counts all allegedly took place in relation to the same victim at her home on 17 March, 1989. Counsel for the accused argued that the four 17 March charges should be stayed as an abuse of the process of the court on the ground that the defence had been precluded from cross-examining the victim at the committal.

At p180, Mullighan J said in relation to the provisions then in force under the Justices Act relating to preliminary hearings: "Section 106(6) provides that in certain circumstances, upon the accused giving written notice to the prosecution of his intention to seek the personal attendance of a witness, that witness will be called or summoned to appear for oral examination. However, s106(7) provides that the alleged victim of a sexual offence will not be called or summoned to appear unless the justice is satisfied that there are special reasons for the examination of the alleged victim."

At p181, his Honour said: "I do not think there can be much doubt that an accused person is entitled to cross-examine any witness called by the prosecution at a preliminary hearing unless there is some statutory provision excluding that right: see s106(8). Furthermore s106(6) makes it clear that witnesses whose evidence has been taken in the form of a written statement must appear for oral examination, including cross-examination upon the request of the accused and where he has observed the necessary procedural requirements."

At p182, his Honour concluded: "In my view the loss of the right to cross-examine Miss Jennings on the non-sexual offences in all of the circumstances does not enable this matter to be categorised as an extreme case requiring a stay of the trial of the information in this Court.

Any disadvantage that the accused may have suffered by not being able to cross-examine Miss Jennings at the second committal was not such to cause injustice and prevent a fair trial.

Of course not all defects in a preliminary hearing could justify the stay of a criminal trial. In R v Walden (supra) it was held that such a defect must result in serious and irremediable injustice to the accused. In the circumstances of this matter I do not think that even if the refusal of the special magistrate to require the attendance of Miss Jennings for oral examination with respect to the non-sexual offences was a defect, and I am inclined to think it was, there was any serious consequences to the accused which could result in his not having a fair trial.

Next, I refer to Shannon v Ackland and Attorney-General for South Australia (1990) 55 SASR 125. The facts are summarised in the headnote thus: "The applicant appeared as defendant in committal proceedings, charged with causing death by dangerous driving. Pursuant to s106 of the Justices Act 1921 (as amended), the informant served, within the 14 days required, various statements of witness including those of three doctors. The defendant gave notice in writing, not less than seven days beforehand, requiring those three doctors to attend for oral examination, as he was entitled to do pursuant to s106(6) of the Justices Act.

On a resumption of the hearing, following an adjournment, the three doctors were not available for cross-examination. The defendant applied for an adjournment to a date when it was convenient for them to attend.

The presiding magistrate refused the adjournment and proceeded to find a case to answer and commit the applicant for trial, over defence counsel's submission that the preliminary examination had not been properly completed in accordance with ss106, 110 and 111 of the Justices Act."

At pp133-134, Debelle J said: "Having regard to both the purpose and intention of s106 and to the purpose of committal proceedings, I think that substantial compliance, and not strict compliance, is

Section 106 prescribes the procedure to be followed for the receipt of evidence of prosecution witnesses at a committal hearing. Section 106(2) enables statements of prosecution witnesses to be made in the form of oral evidence or by written statements verified by declaration. Provision is also made for the receipt of the evidence of children. I pass over s106(3) for the moment. Section 106(4) has no relevance in these proceedings. Section 106(5), (6) sets out the requirements to be followed where it is proposed to use written statements. Section 106(5) provides that no written statement may be submitted unless, not less than 14 days before the submission of the statement, the informant gives the defendant or the defendant's counsel a copy of the statement and a notice drawing attention to the provisions

of s106 under which the personal attendance of the witness may be secured. Provision is also made for the defendant to

consent to the submission of written statements. Section 106(6) provides that where the defendant, before the completion of the case of the prosecution, requests that the witness appear for the purpose of oral examination and at least seven days before the request has notified the informant in writing of his or her intention to seek the personal attendance of the witness, then subject to s106(7) the witness will be called or summoned to appear for oral examination. Section 106(7) has no relevance in these proceedings.

The purpose of subs(3) is not entirely clear. I think it is intended to preserve to the examining justice the power to exclude irrelevant and inadmissible evidence, while at the same time providing that once a written statement has been accepted, it will be deemed to form part of the evidence. Notwithstanding the absence of any formula such as 'subject to the requirements of this section', it does not, I think, qualify the operation of subss(5) and (6).

When read together, it is clear that subss(5) and (6) are prescribing prerequisites which must be complied with in the course of the committal hearing. Subsection (5) is expressed in quite unambiguous terms. No written statement may be submitted unless the prescribed procedures are observed. Similarly subs(6) directs that a witness will be called or summoned for oral examination if the defendant has requested it in accordance with the provisions of subs(6). Where the statements have been submitted to the justice (as they were here) and the requirements as to notice prescribed by subs(6) have been followed, the effect of s106(6) is that the witness must be called or summoned to appear for oral examination. The magistrate does not then have a discretion

Later at pp136-137, his Honour said: "Here the Crown was willing to call the witnesses requested by the accused. The magistrate had received the written statements of the witnesses but took steps which prevented those witnesses from being called and being available for cross-examination. The evidence of the three medical witnesses in this case might play an important, if not crucial, part in establishing whether Miss McLean's death was caused by any dangerous driving on the part of Shannon. There is a real risk of prejudice to Shannon if he does not have the opportunity given to him, by the legislation, of cross-examining these witnesses. The opportunity offered to speak to these witnesses out of court is not a sufficient substitute. The witnesses might not have been willing to do so or they might not have been willing to make their records available. It might have been difficult for Shannon's legal advisers to examine any issue as closely as cross-examination might permit. The orders made by the magistrate which prevented these witnesses from being called resulted in a serious non-compliance not only with the provisions of s106(6) but with the intention of the section. It cannot be said that there had been a substantial compliance with s106(6). The decision of Mullighan J in R v Luczkowski (1990) 54 SASR 169 is not I think inconsistent with these views. In that case, Mullighan J in essence held that, in the circumstances of that case, there had been substantial compliance with s106(6)."

His Honour quashed the order of committal and remitted the matter back to the magistrate so that the three medical witnesses might be called. The magistrate had also failed to follow the procedures prescribed in ss110(1), 110(2) and 111 of the Justices Act. His Honour referred to Mungaribi's case (supra) where Martin J considered ss110 and 111 of the Justices Act (NT) (which were in the same terms as ss110 and 111 of the Justices Act (SA) at that time), and held (as I have already indicated) that they were mandatory in their terms and required strict compliance. Debelle J considered that ss110 and 111 did not require such an absolute standard of compliance and that substantial compliance was sufficient. He held, however, that there had been a complete departure in the case and that he should quash the committal order on that ground also.

The present ss104-106 inclusive in the Summary Procedure Act, 1921, (formerly called the Justices Act) were considered for the first time in Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404. At p408, King CJ said: "The evident purpose of the provisions is to curtail the scope of oral examination of witnesses thereby reducing the burden on the justice system caused by lengthy preliminary hearings, to the extent that that is consistent with the interests of justice. That purpose is sought to be achieved by a legislative scheme contained in (ss104 and 106)."

At p409, his Honour continued: "The system of preliminary hearings by way of statements or declarations supplemented as required by oral examination, existed under the precursors to the present sections. The amending Act has restricted oral examination to situations in which there are special reasons for such oral examination."

At p410, his Honour said: "The purposes and function of preliminary hearings of charges of indictable crimes was discussed in my reasons for judgment in R v Harry; Ex parte Eastway ((1985) 39 SASR 203) and it is unnecessary to repeat that discussion. What was there said remains valid subject to the modifications necessarily inherent in the new provisions. The new provisions have modified the purposes and function of preliminary hearings in three ways. First, proof of facts by means of statements in writing without oral examination or cross-examination has been made the norm. Secondly, issues of credibility are withdrawn from the court conducting a preliminary hearing. The test posed in s107(1) for sufficiency of the evidence to put the defendant on trial is that 'the evidence, if accepted, would prove every element of the offence'. It is no longer open to the court to refuse to commit on the ground that the evidence,

although sufficient in law, is too weak or unsatisfactory, by reason of lack of credibility of prosecution witnesses, to justify putting the defendant on trial. Thirdly, issues of admissibility are to be left to the trial court and the evidence is to be admitted at the preliminary hearing unless admissibility is unarguable. Fourthly, oral evidence is to be allowed if, but only if, special reasons exist for permitting such evidence. Subject to those modifications, the purposes and function of a preliminary hearing, in the light of which the expression 'special reasons' must be understood, remain as discussed in R v Harry; Ex parte Eastway."

At p412, his Honour said: "I add a few remarks as to the invoking of the supervisory jurisdiction of the Supreme Court in relation to a decision as to whether special reasons exist. It has been held by

the Full Court in Clayton v Ralphs (1987) 45 SASR 347 that a preliminary hearing is amenable to judicial review. I am prepared to assume that an error by the magistrate as to the legal meaning of the test of special reasons might so vitiate a committal for trial as to justify this Court in quashing the committal and directing the magistrate to reconsider his decision in the light of the true test. It should be remembered, however, that the grant of relief by way of judicial review is discretionary. The considerations operating against the grant of such relief in respect of committal proceedings referred to in R v Grieve; Ex parte Ellis (1978) 19 SASR 437 remain valid. For the reasons given in his judgment, I agree with the dictum of Jacobs J in Clayton v Ralphs (supra) at 365 'that in principle the administration of the criminal law should be left to the criminal courts'.

Committal proceedings are a preliminary step in the process of criminal justice. Generally speaking, deficiencies in such proceedings can be remedied by pre-trial prosecution discovery of facts or documents or by appropriate action at the trial stage such as the permission of examination of witnesses in the absence of the jury. While magistrates are to be encouraged to conduct preliminary hearings in a way which will facilitate a fair trial and render voir dire hearings and other palliatives at trial unnecessary, both trial judges and those conducting prosecutions will have to be prepared to act reasonably to remedy any dangers to the

fairness of a trial resulting from the new committal procedures. The intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances."

The Full Court dismissed the action for judicial review, holding that in the circumstances of the case, the judge had not misdirected himself as to the meaning of "special reasons" in s106(2).

There is a useful discussion on whether a particular statutory requirement was mandatory or directory in the case of Scurr and Others v Brisbane City Council and Another [1973] HCA 39; (1973) 133 CLR 242. The facts were as follows. A company applied to the Brisbane City Council for town planning consent to the erection of a large store on land owned by the council. In purported compliance with its obligation, the council caused notice of the application to be advertised. The advertisement did not precisely identify the site of the proposed building and it contained a major misprint. It stated the purpose of the building as "a shop (Target Discount Shopping Centre)" and included the further description, "No machinery. The building will be of ONE storey." There were no other particulars in the advertisement. After considering a large number of objections, the council granted consent. Some of the objectors appealed. In a judgment with which the other members of the court agreed, Stephen J said at pp255-256: "The applicable principles determining the choice between a mandatory and a directory interpretation are well settled and are succinctly stated in a passage from Maxwell on the Interpretation of Statutes, 12th ed. (1969), pp.314-315, which has been referred to with approval in a number of the authorities; in S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [1964] VicRp 32; (1964) VR 229, Gillard J. undertook a quite detailed consideration of the application of those principles to a situation not unlike the present. His Honour was there concerned with a notice requirement appearing in Victorian town planning legislation and, although details of that legislation differ significantly from the terms of s.22, his Honour's discussion of the principles affecting a choice between a mandatory and a directory interpretation are, I think, in point in the present case.

I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects.

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

with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated."

In Van Reesema v Official Receiver in Bankruptcy [1983] FCA 202; (1983) 50 ALR 253, Shepherd J said at pp265-266: "What did the legislation intend to be the consequence of non-compliance with the relevant provisions? The way in which a court should approach the resolution of such a question has been stated in many cases. In seeking guidance from them I acknowledge the help I have found in the treatment of this subject by Professor Pearce in his work, Statutory Interpretation in Australia, second ed, pp169-76.

In State of Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81 Stephen J discussed, in general terms, the approach of courts to the question of whether particular statutory provisions were mandatory or directory, and if the latter, whether substantial compliance was nevertheless required or not (at 178-180). In Tasker v Fullwood (1978) l NSWLR 20 the New South Wales Court of Appeal said (at 23-4):- 'The remaining submission was that the order made by the court under s27 granting a conditional license was not denied legal effect by the failure to produce any agreement between the applicant and the lessor. The submission raises a question of a type which is frequently encountered. The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this court: Attorney

-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 and Hatton v Beaumont (1977) 2 NSWLR 211. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81. From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case (supra, at 963 et seq). (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the

scope and object of the whole statute: Hatton v Beaumont (supra, at 220). (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v Commonwealth (supra, at 179, 180). (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case (supra, at 965 et seq). A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v Commonwealth (supra, at 118, 162, 179, 180).'

Professor Pearce summarizes the position as follows (ibid at p174): 'The only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of 'substantiality'; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but

no adverse consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation).'

I would respectfully agree with what is there said. Usually there will be one of three situations. Sometimes strict compliance is required; otherwise an act will be invalid. In other cases substantial compliance will be sufficient; in such cases there will sometimes be questions of how substantial the compliance must be. In yet others there may be no compliance at all, but the validity of the act in question will not be affected. Sometimes a case will not lend itself to any question of substantial compliance. There will either be actual compliance or no compliance, with the result that the only question is whether, if there be no compliance, invalidity results. Such a case was, in the view of Stephen J, Victoria v Commonwealth, supra, where invalidity did result. Another is Montreal Street Railway Co v Normandin [1917] UKPC 2; (1917) AC 170, where invalidity did not result.

An example of a case where substantial compliance was sufficient, but non-compliance would have been insufficient, is Samuel Montagu and Co Ltd v Swiss Air Transport Co Ltd (1966) 2 QB 306, where consignors of bullion sought to overcome reliance by a carrier on provisions of the Warsaw Convention which enabled it to limit its liability. The Convention required the consignment note to contain a statement that the carriage was subject to the rule relating to liability established by the Convention. It further provided that if the note did not contain, inter alia, such a statement, the carrier should not be entitled to the benefit of the provisions which excluded or limited his liability. The consignment note departed from the precise language of the Convention, but it was held that it substantially complied with the result that the carrier was entitled to the limitation of liability for which the Convention provided."

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."

Those two cases may be contrasted with R v Armitage (1872) LR 7 QB 773. There a statutory provision that justices, at the hearing of a bastardy summons, "shall hear the evidence of the mother" and make an order "if the mother's evidence be corroborated in some material particular by other testimony", made the evidence of the mother so essential to the jurisdiction that no order could be made without it, even though the woman died before the hearing. In my opinion, that case provided an example of a statutory requirement being truly a condition precedent to the jurisdiction of the tribunal. Compliance could not be dispensed with and jurisdiction failed.

I do not deem it appropriate to deal with difficulties facing prosecutors other than those that arose here. Sometimes I imagine an accused person will waive compliance (see Pearce and Geddes, "Statutory Interpretation in Australia, 3rd Edn para 11.25).

Having reviewed the authorities, I can state my conclusions quite briefly. I have reached the view that the relevant provisions of s106 are mandatory. That certainly appeared to be the view of the Full Court of its predecessor considered in The Queen v Grieve; ex parte Ellis (supra). But even if the section only prescribes a procedure which must be substantially complied with, I do not think the learned Magistrate can be said to have substantially complied with its provisions. More specifically, I would hold that the learned Magistrate did not have jurisdiction to grant the prosecutor's application to withdraw the statements of the three witnesses.

I have anxiously considered whether this Court should quash the order committing the appellants for trial. Mr Borick did not address any argument to this Court to suggest that if all three witnesses had all been called and cross-examined the learned Magistrate might not have committed the appellants for trial. There were a total of eighty witnesses, the case was very complex and it is quite unrealistic to suppose that this Court could form any conclusion at all in the circumstances about the learned Magistrate's decision to commit for trial. There is another aspect to consider. Since the order for committal, an information has been filed in the District Court, and the names of all three witnesses appear on the back thereof. (Rule 1(3) of Schedule 3 to the Criminal Law Consolidation Act requires the names of witnesses intended to be called at the trial to be endorsed on the back of every information). As I understand counsel for the respondents, Turner's name was included in error, but the other two witnesses may now be called by the prosecution at the trial in any event. Be that as it may, the appellants can apply to the trial judge before the empanelment of the jury to cross-examine Turner and Cordell (see DPP (Cth) v Bayley [1994] SASC 4842; (1994) 63 SASR 97 especially at pp119-122). If, for some reason, that proves impossible or inappropriate, the trial judge may be prepared to grant a stay or some other relief. I would not set aside the order for committal.

Section 31 of the Supreme Court Act states: "31 No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not."

Rule 98.01(3) of the Supreme Court Rules states: "(3) Declarations ... may be sought in a summons for judicial review, and on such a summons the Court may grant the declaration ... claimed in lieu of, or in addition to, any order in the nature of, or having the effect of, a prerogative writ at common law if it considers that having

regard to: (a) the nature of the matter in respect of which relief may be granted by way of an order having the effect of an order for mandamus, prohibition, certiorari or quo warranto; (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and (c) all the circumstances of the case; it would be just and convenient for the declaration ... to be granted on a summons for judicial review."

The leading authority on whether declaratory relief should be granted in regard to committal proceedings is the judgment of Gibbs ACJ in Sankey v Whitlam and Ors [1978] HCA 43; (1978) 142 CLR 1, especially at pp20-27. Amongst the cases his Honour referred to were Bacon v Rose (1972) 2 NSWLR 793 and Willesee v Willesee (1974) 2 NSWLR 275. At p24 his Honour said in relation to those cases: "In the former case it was claimed that the plaintiff was exposed to proceedings that had been wrongly brought, and in the latter that the proceedings were being conducted in a manner contrary to that provided by statute. There was in these cases clear power to grant a declaration. In both cases the question involved was principally one of law and the decision of that question was determinative, in the first case, of whether the proceedings should continue and, in the second case, of whether they should be conducted in public or in private. In these circumstances there were good reasons for exercising the discretionary power of the court by granting a declaration."

At pp25-26 his Honour said: "In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an

appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. I am not intending to criticize those concerned with the conduct of Bourke v

Hamilton (1977) 1 NSWLR 470, or to show any disrespect for the careful judgments delivered in that matter - indeed I have derived much assistance from them - when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration - in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v Dunn (1973) 2 NSWLR 468, at p470, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf Ibeneweka v Egbuna (1964) 1 WLR 219, at p224) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.

Notwithstanding the importance of refraining from interfering with the ordinary course of committal proceedings I have formed the opinion that we should proceed to dispose of the questions raised by Mr Sankey's claim."

The Court made a declaration on Mr Sankey's application that certain documents should be produced, and on Mr Whitlam's cross-claim the Court made a declaration that the charges laid under s86(1)(c) of the Crimes Act were unknown to the law. I also refer to The Queen v Harry; ex parte Eastway (1985) 39 SASR 203 at p212, Clayton v Ralphs and Manos (1987) 45 SASR 347 at pp364-365) and to Coco v Newnham and Others (1990) 97 ALR 419..

I have vacillated as to whether this is one of those rare cases (like Sankey v Williams) where declaratory relief should be granted in regard to an error occurring in a preliminary hearing. It was, indeed, a serious error from the point of view of the appellants, more serious, for example, than some rulings on admissibility of evidence. Before Sir Cecil Burney was called, and the appellants were committed for trial, I consider the learned Magistrate's order should have been quashed. However, nothing can now be achieved from the point of view of the appellants by a declaration, and at trial they will no doubt be able to call in aid the judgments of members of this court on any application they may be advised to make. I would hear counsel as to whether it might be proper to grant the appellants the costs of both Supreme Court hearings in all the circumstances.

Since writing these reasons, I have read the draft reasons of the other members of this court. It is unnecessary for my decision to express a view on whether a magistrate has power to recall his order granting leave for a witness to attend for oral examination. I imagine it could be done by consent, but there is no express power to do so in the Magistrate Court Rules, and I query whether s76a of the Summary Procedure Act authorises the recall of such orders. I prefer to leave that question open. However, I agree with Cox J that the "statements" referred to in paragraph (a) of s106(1), and "statement" referred to in paragraph (b) thereof, refer only to statements of witnesses for the prosecution on which the prosecutor relies, see s104(1)(a)(i)-(iii) inclusive.

JUDGE3 PERRY J The circumstances leading to this appeal are set out in the reasons for judgment of Matheson J.

The changes in the procedures relating to the conduct of preliminary examinations which find expression in ss104-107 (inclusive) of the Summary Procedure Act 1921, being provisions inserted by Act No 72 of 1991 which came into operation on 6 July 1992, were the subject of detailed consideration by this Court in Goldsmith v Newman and Anor (1992) 59 SASR 404, and in particular in the judgment of King CJ in that case.

It is unnecessary to repeat what was said in that case as to the manner of operation of the new procedures, except to confirm certain aspects which are important for present purposes.

The material to be filed in court and to be given to the defendant in accordance with s104(1), includes both material "on which the prosecutor relies as tending to establish the guilt" of the defendant (s104(1)(a)(i)-(iii) inclusive) and "any other material relevant to the charge that is available to the prosecution" (s104(1)(a)(iv)). As was made clear in Goldsmith v Newman and Anor (supra), the absence of the words "on which the prosecutor relies as tending to establish the guilt" of the defendant from the latter provision must clearly be taken to identify an obligation to disclose and file other relevant material upon which the prosecutor does not so rely. This is subject to the qualifications identified in the judgment of King CJ, and in particular as to material going only to credit, or evidence "the truthfulness or reliability of which the prosecution distrusts" (Goldsmith v Newman and Anor (supra) per King CJ at 409).

Irrespective of the category within those set out in s104(1)(a) particular material filed in court falls, the whole of that material must be tendered at the hearing of the preliminary examination (s106(1)(a)). This is subject only to "any objections as to admissibility upheld by the court". Subject to that qualification, all of the material so tendered by the prosecutor must be admitted by the court into evidence. Inevitably, this may well include material upon which the prosecutor does not rely, and in particular material falling within the category identified in s104(1)(a)(iv).

Separately, if the requirements set out in s106(1)(b) have been met, the prosecutor is obliged to call a witness "whose statement has been filed in the court", for oral examination. It is unnecessary to traverse again the observations made in Goldsmith v Newman and Anor (supra) as to the approach which should be adopted in considering whether or not "special reasons" exist such as to justify an order granting leave to call a witness for oral examination (see particularly Goldsmith v Newman and Anor (supra) per King CJ at 409-411).

While it is true that s106(1)(b)(ii) provides for the grant of "leave to call" a witness, that choice of words should not be understood to qualify the obligation imposed on the prosecutor by the opening words of s106(1)(b), namely, "the prosecutor will call a witness whose statement has been filed in the court for oral examination if-".

Once an order giving leave to call a witness for oral examination has been made, it would be subversive of the orderly conduct of the preliminary examination to allow the prosecutor to choose whether or not to comply with the order. If there has been a change in circumstances which might be thought to justify an application to vary or recall the order, that is another matter.

I do not understand the learned Judge appealed from as suggesting otherwise, in the following passage from his reasons (17): "... an examination of s106 discloses that although it prescribes a procedure, it does not require that it be strictly obeyed and that a failure to comply with its provisions does not mean that the preliminary hearing was a nullity."

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. On the other hand, I do not take the learned Judge to be suggesting other than that the court is obliged to follow the procedure which is clearly laid down, and that the prosecutor is bound to comply with any order giving leave to call a witness for examination, so long as the order stands.

In this case, I think that an element of confusion was introduced when the prosecutor sought leave to "withdraw" the statements in question, and when leave to do so was given by the learned Special Magistrate.

In the first place, I am not sure what the expression "withdraw" means in this context, given the statutory provisions. If a statement is filed, it must be tendered in evidence at the hearing of the preliminary examination, subject only to a successful objection. The prosecutor has no choice but to do so, having regard to the terms of s106(1)(a).

Once an item of evidence is tendered, I do not see how the court has a discretion to allow its tender in some way to be recalled and the item removed from evidence. I know of no situation in which, pursuant to the ordinary rules of evidence, an item of evidence, once tendered, can be withdrawn. On the other hand, a party can always intimate that he or she no longer relies on an item of evidence.

Neither do I think that in the ordinary case a document, once filed pursuant to s104(1)(a), can be removed from the court file.

However, those observations are subject to the qualification that one would have to acknowledge a residual discretion to permit a document to be removed from the file if it was filed in error, for example, if by mistake a document relating to a different case was filed in the proceedings. In such circumstances I suppose that it could also be removed from evidence if it was mistakenly tendered. But absent such an exceptional situation as that, I do not think that a prosecutor can properly be permitted to "withdraw" a statement or other material, whatever the expression may mean, or remove it from the court file.

Certainly, I do not think that the fact that the prosecutor no longer relies on a statement as tending to establish the guilt of the defendant could ever be a ground for allowing it to be withdrawn, whether the expression is to be taken to mean withdrawn from filing or in some way withdrawing it as an exhibit. This must be so, as statements upon which the prosecution does not rely as tending to establish the guilt of the defendant will in any event commonly fall within category 104(1)(a)(iv) and be subject to the obligations of disclosure, filing and tender.

Furthermore, there may be good reasons in the interests of justice why a defendant should be permitted to examine a witness at the preliminary hearing, even although the witness is not relied on by the prosecutor. There is nothing in the sections which would justify a construction which would preclude that course being taken.

In particular, I would construe the words in s106(1)(b) "a witness whose statement has been filed in the court" to include a witness whose statement does not come within category 104(1)(a)(i), but falls within the category of "any other material relevant to the charge" identified in s104(1)(a)(iv).

It is true that there may be some tension between that view of the provisions and s104(3), which sets out various requirements as to the form to which a statement filed in court must conform. However, in this case, it has not been suggested that the statements in question did not conform with the requirements of s104(3). While I am of the view that a written statement, for example, unverified by declaration as required by s104(3), but which is clearly "material relevant to the charge" within the meaning of s104(1)(a)(iv), and which is filed in court pursuant to that provision, could properly be made the subject of an order for oral examination under s106(1)(b), it is unnecessary to decide the point in order to dispose of the appeal. All of the statements in question, were, I assume, filed under s104(1)(a)(i), although the evidence that they were so filed is not clear.

Furthermore, if a statement is filed under s104(1)(a)(i), I do not think that it would be right to allow the prosecutor subsequently to attempt to change the category under which it is to be regarded as having been filed. I understand that a procedure is in place which obliges the prosecutor to mark statements and other material to indicate under which of the categories in s104(1)(a) the prosecutor files the document. It would introduce an unacceptable element of instability into preliminary examinations to allow that categorisation, in some way, to be changed at the whim of the prosecutor. If during the course of the preliminary examination the prosecutor no longer wishes to rely on a statement filed under s104(1)(a), he or she can easily make that clear at the stage of addresses, or earlier, simply by informing the court accordingly.

I would further hold that once an order for the calling of a witness for oral examination has been made, it is not open to the prosecutor to attempt to subvert the operation of that order by indicating that he or she no longer relies on the witness as a witness whose evidence tends "to establish the guilt of the defendant". In any event, for the reasons which I have given, the same obligations as to filing, disclosure and tender, and the same right in the defendant to seek an order for oral examination, apply whether the prosecutor relies on the statement of a witness or not.

It must be accepted, however, that occasionally circumstances will arise in which it is proper to recall an order giving leave for a witness to be called for oral examination. The witness, for example, may die before being called, or the witness's whereabouts may be unknown, or the witness may leave the jurisdiction and be unresponsive to a request to attend. In such circumstances, there would be jurisdiction to recall the order.

It seems to me that in this case, if there was a difficulty in securing the attendance of one or more of the witnesses with respect to whom there had been an order for oral examination, that should, if the circumstances creating the difficulty were known at the time the application for leave was made, have been ventilated at that stage as a matter going to the grant of leave.

If the circumstances giving rise to a difficulty in complying with the order arose subsequent to the making of an order giving leave, the Magistrate should have considered whether or not the circumstances justified the recalling of the order. It is not a proper exercise of the Magistrate's jurisdiction to permit the "withdrawal" of the relevant statements, whatever that concept may mean.

Notwithstanding those comments, I do not think that it is necessary that there should be a formal declaration by this Court as to the extent of the jurisdiction of the learned Special Magistrate to allow the "withdrawal" of the statements of the witnesses in question. I think that the explanation which I have given as to the manner of operation of the procedures is sufficient. A declaration would not alter the practical outcome of the case, given that I agree with Matheson J that in the circumstances it would not be proper for this Court to quash the order committing the appellants for trial. I am unable to perceive that any irregularity occurring during the course of the preliminary hearing cannot be overcome by an appropriate exercise of his or her powers by the trial Judge.