Supreme Court of SA|1994-06-03|Before: Mr J, Matheson J, Bollen J, Duggan J, Mohr J

MICHAEL JOHN FULLER AND JOSEPH PATRICK CUMMINGS v FREDERICK R FIELD SM AND THE STATE OF SOUTH AUSTRALIA (INTERVENER) No. SCGRG 94/508 Judgment No. 4586 Number of pages - 10 Criminal law and procedure (1994) 62 SASR 112 (1994) 72 A Crim R 592 [1994] SASC 4586 (3 June 1994)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND DUGGAN(3) JJ

CWDS Criminal law and procedure - jurisdiction, practice and procedure - adjournment, stay of proceedings or order restraining proceedings

Summons for judicial review - order by examining magistrate refusing to adjourn or stay committal proceedings on ground that plaintiffs, who are charged with conspiracy and fraud of fences, are likely to be unrepresented during those proceedings - held magistrate had no power to stay proceedings indefinitely. Grassby v The Queen ; , applied. R v Horseferry Road Magistrate's Court ex parte Bennett ; referred to. Supreme court has power to indefinitely stay committal proceedings but held that there was no basis for making such an order in the present case. Clayton v Ralphs and Manos followed.

Criminal law and procedure - Argument based on Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 that, in the case of serious offences, representation at the preliminary examination is essential in order to ensure a fair trial rejected. Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; Goldsmith v Newman and The State of South Australia (1992) 59 SASR 404 referred to.

Solicitors for defendant Field: Director of Public Prosecutions

Counsel for intervener: Mr J Doyle QC with him

JUDGE1 MOHR J I have had the advantage of reading, in draft, the reasons of Duggan J.

I agree with him that the summons for judicial review should be refused for the reasons that he has given and, in particular, that a magistrate hearing a committal proceedings has no power to grant a stay or indefinite adjournment as was sought in this case because of the fact that the accused lacked legal representation: see Grassby v The Queen (1989) 168 CLR 2. This is not to say that in some circumstances a magistrate does not have the power to grant a short adjournment while legal representation is arranged. That will depend on the circumstances as presented to him.

In my opinion the stay granted by Matheson J when he referred the matter to this Court should be discharged. On the material before us there is, in my opinion, no ground for this Court to order a stay or indefinite adjournment. Bollen J: I agree with Duggan J that the summons for judicial review by the plaintiffs should be refused for the reasons which he has given. I am inclined to think that the injunction should now be discharged. I do not think that this Court should make any order of stay or adjournment.

Mr Borick emphasised that in the end he wanted an adjournment until legal representation was available for his clients and that he did not want a stay of proceedings so named. But when he made the order of refusal, Mr Field SM began by saying:- "Mr Borick has made application for an order that these committal proceedings should be stayed or adjourned indefinitely on the grounds that it is unfair to the defendants for these complex proceedings to continue without them being legally represented."

He equated a stay with an indefinite adjournment. No doubt there is a difference. "Stay" is in a sense a stronger order. It may be more difficult to discharge a stay than to put aside an adjournment. But for our purposes I think that the two are the same or at least have the same result. If Mr Field SM had acceded to this submission of Mr Borick he would have prevented proceedings whether he called it a stay or an adjournment. The "natural terminus" of the order however stated would have been availability of legal representation, or, I suppose, the death of the accused.

As the law stands at the moment, I think that the cases of Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, R v Horseferry Road Magistrates Court [1993] UKHL 10; (1994) 98 Cr.App.R 114 and of Cox J in Tasmanian case of Helfenbuaum (1993) 65 A.Crim.R 264 compel us to say that a magistrate sitting to hear a committal proceeding has no power to stay or adjourn the hearing indefinitely by reason of the absence of legal representation for an indigent accused person. Of course, a magistrate has power to adjourn in some circumstances. However, I do not think that power extends to indefinite adjournment or adjournments until representation is available.

I spoke of "the law as it stands at the moment". I do so because I would not be surprised to find that the High Court one day reconsiders Grassby in the light of Dietrich.

JUDGE3 DUGGAN J The plaintiffs have been charged on an information alleging one offence of conspiracy to cheat and defraud and several offences of fraudulent application of property. A preliminary examination into the charges is pending in the Adelaide Magistrates Court. On 11th April, 1994 the plaintiffs made application to the learned presiding magistrate for a stay of proceedings on the ground that they were unable to obtain legal representation for the preliminary examination and that it would be unfair to proceed with the examination in the absence of such representation. In support of their application the plaintiffs placed reliance on Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. The learned magistrate refused the application for a stay of proceedings and the plaintiffs thereupon took out a summons seeking declarations and orders by way of judicial review. They have asked this court to declare that the learned magistrate had jurisdiction to consider the application for a stay of proceedings and they seek orders which would have the effect of preventing the magistrate from commencing or continuing with the proceedings until legal representation is available to them.

The first question which calls for consideration is whether the magistrate has any power to stay the proceedings. The plaintiffs argued before this court that they were doing no more than asking the magistrate to exercise his power to adjourn the matter. However the Commonwealth Director of Public Prosecutions and the Attorney-General for South Australia who was given leave to intervene argued that the plaintiffs were seeking an order which was far more extensive than an adjournment. It was pointed out that the plaintiffs had exhausted their efforts to obtain legal assistance and they were seeking an indefinite stay of proceedings on the basis that any subsequent trial would be intrinsically unfair if they were unrepresented at the committal hearing.

It was argued that a power to stay proceedings indefinitely in order to ensure fairness in the administration of justice can only derive from the inherent jurisdiction possessed by a superior court and not by a magistrate exercising the administrative function of conducting a preliminary examination. In support of this argument the second defendant and the Attorney-General relied upon Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1. In that case a permanent stay of proceedings had been ordered by a magistrate in the course of a preliminary examination. The High Court held that the magistrate was required to proceed in accordance with the statutory obligations imposed in respect of such hearings and decide whether to discharge the defendant or commit for trial. There was no inherent power to terminate the proceedings in any other way. In the leading judgment Dawson J referred to s.41 of the Justices Act, 1902 (NSW) which required the magistrate to consider the evidence for the prosecution and any evidence for the defence and to order the defendant to be either discharged or committed for trial depending upon the view taken of the evidence. His Honour continued (p.18): "There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform. Having regard to the exceptional nature of the occasions upon which the prosecution of an offence will amount to an abuse of the process of the court trying that offence, oppression arising from, and confined to, the committal process itself is difficult to conceive. Indeed, having regard to the inability of a magistrate to stay the trial, it is not possible for him to know conclusively whether the person charged may, having regard to the interests of justice, safely be deprived of the advantage of committal proceedings. No doubt it is possible to conceive of committal proceedings being allowed to be conducted in an oppressive manner. But that is something within the control of the magistrate."

In the present case the application for a stay of proceedings was based mainly on the contention that if the plaintiffs were unrepresented at the preliminary examination any subsequent trial would be unfair. Mr Borick for the plaintiffs invited the court to have regard to "the whole course of the criminal process", a phrase which he took from a passage in the judgment of Mason CJ in Jago v The District Court of New South Wales and Others [1989] HCA 46; (1989) 168 CLR 23 where his Honour said (p.29): "Moreover, objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the

interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Reg v Sang [1979] UKHL 3; (1980) AC 402. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process."

However general oversight of the criminal process is far removed from the role of an examining justice. No such general power is to be found expressly in the Summary Procedure Act, 1921 or by implication from the provisions dealing with preliminary examinations. These considerations were referred to by Dawson J in Grassby's case when he said (p.16): "But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute,its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court."

His Honour went on to draw a distinction between an inherent power and an implied power but, as I have pointed out, a far reaching power of the type contended for by the plaintiffs cannot be implied from the powers given to an examining justice.

Despite these considerations there is a conflict of opinion in the United Kingdom as to whether examining magistrates have jurisdiction to stay committal proceedings for abuse of process. In the most recent case, R v Horseferry Road Magistrate's Court (Respondents) ex parte Bennett [1993] UKHL 10; (1994) 98 Cr App R 114, Lord Lowry concluded that there was no such power. In support of this view his lordship quoted extensively from the judgment of Dawson J in Grassby. Lord Griffiths expressed a contrary view although he considered that the power was much narrower than that exercised by the Divisional Court. However this court is bound by the decision in Grassby and it follows that the learned magistrate had no power to indefinitely stay the preliminary examination by reason of considerations related to the fairness of the trial.

The question remains as to whether this court has power to stay indefinitely committal proceedings in the circumstances which gave rise to this application and, if so, whether such an order should be made on the facts before us. In Clayton v Ralphs and Manos (1987) 45 SASR 347 this court held that committal proceedings are in principle reviewable by the Supreme Court and, by majority, that the Supreme Court has an inherent jurisdiction to stay committal proceedings for abuse of process. The learned Solicitor-General appearing on behalf of the State Attorney-General, suggested that the second of these propositions may require reconsideration in the light of the decision in Grassby's case. I have some difficulty in accepting that proposition. The limitations upon the power of examining magistrate's cannot fetter this court's general supervisory power to protect inferior tribunals from abuse. Further support for the broad view that a superior court has power to deal with abuses in the criminal jurisdiction in general is to be found in the speeches of the majority of the House of Lords in R v Horseferry Road Magistrate's Court ex parte Bennett. The point was not argued in depth before us and I proceed on the assumption that this court has power to direct a stay of proceedings, if necessary, in order to facilitate a fair trial for the plaintiffs. As I have pointed out, the first limb of Mr Borick's argument in support of a stay of proceedings rested on the broad proposition that in the case of serious offences representation at the preliminary examination is essential in order to ensure a fair trial. Dietrich's case was relied upon in support of the proposition.

It is essential to recognise that the decision in Dietrich's case is confined to cases where an indigent accused is charged with a serious offence and faces the prospect of being unrepresented at trial. The case discusses the role of the trial judge in those circumstances. The effect of the decision was summarised in the following passage in the joint judgment of Mason CJ and McHugh J (177 CLR at p.315): "In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial."

Nothing was said in the judgments of the members of the court as to the significance of an indigent accused being unrepresented at a preliminary examination. The decision focused on the achievement of a fair trial and the significance of legal representation at the trial to ensure its fairness. Important as the preliminary examination is in the criminal justice system it cannot be said to have the same serious consequences to an accused person as those which flow from the trial itself. Of course it is relevant and important to have regard to the role of the preliminary examination in achieving a fair trial. But that is not to say that the absence of representation at the preliminary examination will lead, almost inevitably, to an unfair trial with the result that a stay of the preliminary proceedings will be rendered necessary until legal representation is secured. The issue in this matter cannot be decided by reference to the sort of general principle enunciated by Deane J in Dietrich when he said (at p.337): "It follows from the foregoing that, as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of

serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation."

If I am correct in my view that the issues raised in this case are not to be determined by reference to some general principle of presumptive prejudice then the plaintiffs are left with the submission that, in the particular circumstances of this case, the court should exercise its discretion to stay the proceedings indefinitely. They have advanced the alternative argument, therefore, that a failure to stay the proceedings in this matter would be likely to cause injustice and unfairness at the trial. Some assistance in identifying the considerations relevant to the exercise of the discretion in a case such as this are to be found in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75. In that case the accused was presented on an ex officio information without any preliminary examination. The court was equally divided on the question as to whether a trial held without antecedent committal proceedings should, in the absence of special circumstances, be considered as necessarily unfair. In his judgment Stephen J referred to those matters which were relevant in assessing the impact which the absence of committal proceedings might have on a fair trial. I quote the passage in full because similar considerations are relevant to the circumstances of the present case. His Honour said (at p.105): "To assess what weight a court, in making its evaluation, should give to the absence of committal proceedings requires some analysis of the detriments which their absence occasions to an accused. The most obvious detriment is the loss of the opportunity of being discharged by the committing magistrate. However, in evaluating the extent of this detriment, three factors play their part. First, failure to commit never guarantees, although it no doubt makes it very likely, that no trial will follow: the Attorney-General always retains the power to file an ex officio indictment notwithstanding discharge. Indeed, a case of so unusual a nature as to cause an Attorney-General to file an indictment without prior committal may well be just the sort of case in which, had there instead been prior committal proceedings resulting in discharge, the Attorney-General would nevertheless have proceeded on indictment. Secondly, although the outcome of committal proceedings is of importance, their primary function is not that of a contest between parties; the relative infrequency with which the accused tenders evidence demonstrates this. Thirdly, as in the case of the present Bounty indictment, the evidence which the Crown proposes to tender at the trial may, when application is made for a stay of the trial, be then seen to be such as to make it most unlikely that on any committal proceedings the Crown would fail to make out a prima facie case against the appellant. These factors may, and in the present case do, mean that loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused. An accused also loses the opportunity of gaining relatively precise knowledge of the case against him and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross-examination. A court, in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effect of the first two of these losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence. But the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown's evidence. It is likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused."

There is a further consideration relevant to the present case. Recent amendments to the Summary Procedure Act, 1921 have had the effect of substantially modifying the right to cross-examine prosecution witnesses at the preliminary examination. In particular s.106 provides: "(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, 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 interest of justice cannot be adequately served except by doing so."

The new provisions also require the prosecution to file and tender relevant material although it does not rely on such material in support of its case.

These provisions were considered by this court in Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404. The preliminary proceedings remain of importance in facilitating the fair trial of an accused, but the effect of any failure to properly and effectively pursue the rights given to an accused in the course of such proceedings must be considered against the background of the limitations now imposed upon cross-examination.

Finally there are the more general considerations relevant to a stay of proceedings, namely, "the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice". (Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 396.)

The matter was argued before the learned magistrate on the basis of general principle. The plaintiffs asked him to accept that Dietrich's case was of direct application. The argument as it was put required only a narrow factual basis. That argument having failed before this court, however, I am of the view that there is insufficient information before us upon which to exercise the discretion to stay the proceedings. The charges against the plaintiffs are serious and no doubt they would give rise to complex proceedings. Statements of the prosecution witnesses have been filed and delivered to the applicants but they are not before this court. No material upon which to assess the merits of any application to cross-examine witnesses is available to us. Although claims have been made by both applicants that they are indigent no formal enquiry into the claims has been made. In the absence of all this information it is impossible to say whether directions which might be given by a trial judge on such matters as the provision of further particulars and other material could ensure a fair trial even though the plaintiffs were not represented at the preliminary examination.

These difficulties in assessing the impact of lack of representation at the preliminary examination demonstrate the desirability of leaving such an assessment to the trial judge whose duty it is to facilitate a fair trial, however inconvenient that course might be because of other considerations. In a case such as Barton where an attempt was made to indict without a preliminary examination the situation is more obvious and the assessment more easily made. In the present case, however, I am not persuaded on the material presently before the court that an indefinite stay of proceedings is justified.

In my view the summons for judicial review should be dismissed. An appeal against the order of Matheson J staying the committal proceedings until further order is also before us. At the hearing of the matter the court refused to interfere with the order made by Matheson J and in my view his Honour's order was an appropriate direction to give pending the outcome of the application for judicial review. However for the reasons which I have given I would now discharge the order.

MICHAEL JOHN FULLER AND JOSEPH PATRICK CUMMINGS v FREDERICK R FIELD SM AND THE STATE OF SOUTH AUSTRALIA

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Judgment (36 paragraphs)

MICHAEL JOHN FULLER AND JOSEPH PATRICK CUMMINGS v FREDERICK R FIELD SM AND THE STATE OF SOUTH AUSTRALIA (INTERVENER) No. SCGRG 94/508 Judgment No. 4586 Number of pages - 10 Criminal law and procedure (1994) 62 SASR 112 (1994) 72 A Crim R 592 [1994] SASC 4586 (3 June 1994)

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Cases Cited (11)