Court of Appeal (WA)|2004-09-08|Before: Malcolm CJ

Michael v Musk Sm & Anor [2004] WASCA 203 (8 September 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MICHAEL -v- MUSK SM & ANOR [2004] WASCA 203

THE CROWN SOLICITOR OF WA ON BEHALF OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

File Number : [2002] WASC 278

Criminal law and procedure - Preliminary hearing - Committal for trial - Appeal from refusal of application for writ of certiorari - Application for stay of proceedings on prosecution - Application entirely without merit

Criminal Law (Procedure) Amendment Act 2002 (WA), s 15

Justices Act 1902 (WA), s 102, s 105, s 107, s 108(1), s 147

Second Respondent : Mr G T W Tannin SC & Ms L A Eddy

Christianos v Young (1990) 3 WAR 303

Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640

Ellis v Ellis [1999] WASCA 30

Galgey v Director of Public Prosecutions [2004] NSWSC 367

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Grove v Gage [2000] WASCA 70

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Michael v Musk & Anor [2002] WASC 278

Murphy v Director of Public Prosecutions [1985] FCA 177; (1985) 7 FCR 55

R v Harry; ex parte Eastway (1985) 39 SASR 203

Re City of Melville; Ex Parte J-Corp Pty Ltd (1998) 20 WAR 72

Re Robins SM; Ex parte West Australian Newspapers Pty Ltd [1999] WASCA 16; (1999) 20 WAR 511

Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397

Sankey v Whitlam (1978) 142 CLR 1

Seymour v Attorney-General (Cth) [1984] FCA 329; (1984) 4 FCR 498

Sherry v Tristam, unreported; SCt of WA; Library No 980706; 30 November 1998

Tovey v Ferre [1981] WAR 21

Whyte v Brosch (1998) 45 NSWLR 354

Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182

Connell v The Queen (No 5) (1993) 10 WAR 424

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Re Attorney-General (Commonwealth); ex parte Skyring [1996] HCA 2; (1996) 70 ALJR 985

Re Section 720 Criminal Code (WA); Ex Parte Michael [2002] WASC 208

1 MALCOLM CJ: This is an appeal from an order of E M Heenan J dated 30 September 2003 dismissing the appellant's application for a writ of certiorari or other relief by which the appellant seeks to have the decision of the learned Judge set aside and an order that Criminal Charge No JOFR241701 against the appellant under s 317 of the Criminal Code (WA) be dismissed or, alternatively, permanently stayed.

2 The appellant was charged by Complaint FR2417 of 2001 with assault occasioning bodily harm to one William Robert Maughan under s 317 of the Criminal Code. On 5 August 2003, her Worship, Mrs J Musk SM, sitting in the Court of Petty Sessions at Joondalup made a decision to commit the appellant to the September 2003 sittings of the District Court for trial on the charge of assault.

3 The history of this matter was dealt with previously by E M Heenan J in earlier proceedings in relation to the same matter, namely, Michael v Musk & Anor [2002] WASC 278 at [2] - [17]. Suffice it to say that on Sunday, 3 December 2000 there was an incident in the Tully Court area on or close to the verge of the houses of Dr Michael and his neighbour Mr Maughan. So far as the incident is concerned, E M Heenan J described it as follows:

"[3] ... Just quite what exactly happened and what led to it is the subject of other proceedings and will be decided elsewhere, but there seems to have been an incident where there was recrimination between Dr Michael and Mr Maughan which led to a pepper spray being brandished and used against Mr Maughan. He suffered some injuries, apparently temporary and minor, and recovered after a period of hospitalisation.

[4] Close to the Michael home is a system of surveillance cameras which by a video process record what has been happening in the vicinity over time. These cameras were evidently running on 3 December 2000, and Dr Michael believes that they have recorded a depiction of the altercation between himself and Mr Maughan which will demonstrate that his behaviour on that occasion was innocent or justified.

[5] Nevertheless, arising from that incident Dr Michael was charged by the police with two offences. One was a summary offence of being in possession of a dangerous weapon, namely a pepper spray, and the second was an indictable offence of assaulting Mr Maughan and occasioning him actual bodily harm. It is important to emphasise that at all times Dr Michael has maintained that he is not guilty of these offences and that his conduct on the day in question was fully justified. Nevertheless, court proceedings have been commenced which should determine whether or not he is guilty of the summary offence or should be put on trial for the indictable offence.

[6] As part of the investigations into this incident Dr Michael brought to the attention of the police the existence of the video surveillance system which I have mentioned and the police, so he explains, seized a number of the videotapes. Although that was nearly two years ago [as at November 2002], the resulting court proceedings have only culminated in a preliminary hearing in the Court of Petty Sessions on 19 April this year before her Worship Mrs Musk in order to determine whether or not the evidence presented to that preliminary hearing warranted an order committing Dr Michael for trial on the indictable offence of assault occasioning bodily harm.

[7] The other charge, the summary offence of being in possession of a dangerous weapon, was proceeding in parallel but was being successively stood over or adjourned pending progress with the indictable charge. At the preliminary hearing on 19 April evidence was led for the complainant. Mr Maughan, the neighbour, was called and gave evidence. It is sufficient to say that the substance of the evidence from Mr Maughan was to the effect that Dr Michael had assaulted him, that the assault had caused him harm, and that Dr Michael had been armed with a pepper spray at the time.

[8] Dr Michael appeared on his own behalf before the learned Magistrate and attempted to cross-examine Mr Maughan. He made a series of submissions in answer to the issue of whether or not he ought be committed for trial. At the end of the proceedings the learned Magistrate concluded that there was a case which required that Dr Michael be committed for trial and made an order that he be committed to stand trial at the next available sittings of the District Court of Western Australia."

4 On 15 July 2002, the appellant was brought before the District Court when Dr Michael sought to have the original videotaped recordings from his surveillance system, which recorded the events on 3 December 2000, produced to him. His Honour Judge Groves directed that the videotapes should be produced or that the application for their production should be heard at a later date and that the prosecution should give due attention to Dr Michael's application.

5 At the same time, Dr Michael applied in the Supreme Court for an order nisi that the order committing him for trial be quashed on a number of grounds including a ground that, at the conclusion of the case for the complainant before the learned Magistrate, her Worship had omitted to put to him the statement required by s 102(1) of the Justices Act 1902 (WA) calling upon him to answer, and offering him the opportunity, to give evidence. In addition, it was contended that her Worship had failed to ask the defendant, pursuant to s 105 of the Justices Act, whether he desired to give evidence or call any witnesses or tender any written statements under s 69 in answer to the application that he be committed for trial.

6 The appellant's applications for orders nisi for certiorari and mandamus came before Pullin J on 30 August 2002. Dr Michael appeared on his own behalf and the Director of Public Prosecutions was represented by counsel. At that stage, counsel for the Director acknowledged that there had been a fatal error of procedure in the Court of Petty Sessions on 19 April 2002 by reason of the failure of the learned Magistrate to observe the procedures required by ss 102 and 105 of the Justices Act. As a consequence, on 30 August 2002, Pullin J granted an order nisi to review the decision to commit for trial and made the order nisi absolute in terms of a minute of proposed orders dated 30 August 2002. The balance of the application was then adjourned. The effect of the order made on 30 August was to quash the order of committal, release Dr Michael from any obligation further to appear before the District Court and grant leave for the resumption of the committal hearing before the learned Magistrate in the Court of Petty Sessions.

7 Part of the relief which Dr Michael had sought before Pullin J on 30 August was an order framed by Dr Michael in his own words to the following effect:

"In the alternative, the DPP on behalf of the Attorney General informed [sic] the Court of Petty Sessions and the District Court that the action against the applicant be made nolle prosequi pursuant to section 581 of the Criminal Code."

8 E M Heenan J noted that the learned Magistrate had declined to make such an order. In my opinion, the Magistrate's decision on that point was clearly correct.

9 The committal proceedings before the learned Magistrate resumed on 14 October 2002. Dr Michael submitted that the learned Magistrate should dismiss the charges against him summarily because of the provisions of s 614 of the Criminal Code, or otherwise because of applications which he sought to have agitated to the effect that the evidence of Mr Maughan, the complainant which had been given on 19 April 2002 was false, that there had been misrepresentations by the DPP to the Full Court, and that there had been evidence withheld from the Court by the DPP.

10 Dr Michael also sought to have a second charge against him relating to the possession of the alleged unlawful weapon, a pepper spray, dismissed on the ground that it was vexatious, frivolous, and calculated to prejudice and embarrass him or was an abuse of process of the Court. His ground for these contentions was essentially, that it was lawful for any citizen to possess a pepper spray. E M Heenan J upheld the refusal of the learned Magistrate to deal with those applications pursuant to s 614 of the Criminal Code, because it was "simply inappropriate" for the applications to dismiss or stay the proceedings to be dealt with at that stage.

11 The situation at that time was that a further hearing was to take place before the Magistrate on 15 November 2002 with a view to resumption of the committal proceedings on 22 November. An application by Dr Michael that those hearing dates be vacated as being oppressive and a denial of natural justice, together with other applications by Dr Michael were dismissed on the basis that they could be renewed before the learned Magistrate.

12 In the meantime, Dr Michael had been given full access to the original videotape and had been allowed to make a copy of it for use at the resumed committal hearing. It was substantially for these reasons that applications for orders nisi for writs of mandamus and certiorari as well as an application for a stay of proceedings in the committal hearing were each refused.

13 Subsequent to that decision, the committal proceedings were resumed on 7 April 2003 before Magistrate Musk. In the result Dr Michael was committed for trial. It is that decision which is the subject of the current application for a writ of certiorari.

14 The learned Magistrate's reasons for committing Dr Michael for trial on the charge of assault causing bodily harm were relatively brief. Her Worship recounted the history of the proceedings on the committal, the proceedings in the Supreme Court before Heenan J and the reference of the matter back to the Perth Court of Petty Sessions. On the resumption, ss 102 and 105 of the Justices Act were read to Dr Michael.

15 Dr Michael elected to call witnesses and made a successful application to recall the complainant in order to deal with some new evidence. Dr Michael cross-examined the complainant at length and called a number of other witnesses. The cross-examination of the complainant was not completed and the proceedings were adjourned until 17 July 2003. The cross-examination of the complainant was completed on that day and further witnesses were called. The proceedings were then adjourned to 5 August 2003.

16 The complainant and Dr Michael live in the same street, namely Tully Court in Bull Creek. The complainant, Mr Maughan, lives at No 9 Tully Court. Dr Michael and his family live diagonally opposite at No 8 Tully Court. There is a background of animosity between Dr Michael and the complainant. The prosecution case against Dr Michael is that on the morning of 3 December 2000, he unlawfully assaulted Mr Maughan and thereby did him bodily harm. Dr Michael indicated a plea of not guilty to the charge and reserved his right to give evidence.

17 A number of witnesses were then called, including Mrs Michael. It is not necessary for present purposes to recount their evidence, which was of an alleged history of what might be fairly described as intimidation by Mr Maughan and members of his family of Dr Michael and members of his family.

18 Mrs Michael gave evidence that on the day in question, she drove up to her house. As she did so, she saw the complainant and Dr Michael struggling. Both of them were on the ground with Mr Maughan on top of Dr Michael who was lying on the ground. Mr Maughan had Dr Michael in a neck hold and had forced him to the ground. She noted her husband's glasses on the road. She cried out "stop it" several times. Mr Maughan then stood up and moved away. She described Mr Maughan as having his hands around Dr Michael's neck.

19 Dr Michael had used a pepper spray on Mr Maughan. There was evidence of a number of incidents relating to animosity between Mr Maughan and Dr Michael. At one stage, a violence restraining order was obtained against Mr Maughan. Suffice it to say that the evidence led was such as to raise an issue of provocation and possibly self-defence.

20 It is important to bear in mind that the issue in committal proceedings under the law as it then stood at the time of the relevant proceeding was whether there was sufficient evidence before the Magistrate to commit the defendant to trial.

21 In that respect, the learned Magistrate's decision to commit Dr Michael for trial was made as follows:

"Now, the prosecution case in this matter. The complainant and the defendant live in the same street in Bull Creek. Mr Maughan lives at number 9 Tully Court, and Dr Michael and his family live - - diagonally opposite as I understand it, at number 8 Tully Court. And there is a background between the parties and some general animosity which existed between them at the time of this alleged offence.

Prosecution alleges that on the morning of alleged offence, the parties were outside their respective properties in Tully Court, when the complainant exchanged words with the defendant and that the two of them approached each other on the roadway, still exchanging words. And when the defendant was several metres from the complainant, he took a pepper spray from one of his pockets and sprayed the complainant in the face, causing interference with the complainant's health and comfort. The complainant was unarmed and had not been aggressive towards the defendant at this point. That's the prosecution case.

The defendant does not deny - - does not appear to deny that this happened, but says that the complainant had approached him aggressively and that he, the defendant, was acting in self defence or alternatively, under provocation.

Now, at the conclusion of the hearing of the evidence on a preliminary hearing, the magistrate must determine in an objective manner, not whether on the evidence as it stands, the defendant ought to be convicted, or is likely to be convicted, but whether the defendant could lawfully be convicted. And that is to say, whether there is, in respect of every element of the offence upon which the defendant stands charged, some evidence, which if accepted by a properly instructed jury, could prove the charge beyond reasonable doubt. And that of course is a question of law.

The principal purpose of a preliminary hearing is to determine whether there is sufficient evidence to commit a defendant to take his trial on the charge. And it is not a function of a magistrate on a preliminary hearing to determine issues of credibility. Those are ultimately matters for a jury to determine.

In this hearing a surveillance video recording of the incident has been produced in evidence, but that is inconclusive as to what happened. There is a conflict in the evidence, between the complainant's version of events and what appears to be the defendant's version of events. And in the end it is a question for a jury as to whether the complainant's version of the incident is credible and establishes the charge beyond reasonable doubt.

I am satisfied that on the prosecution case, there is a prima facie case and I therefore commit the defendant to take his trial on this charge."

22 The evidence of Mr Maughan that he was sprayed in the face by Dr Michael was evidence of an assault. Issues of provocation and self-defence under ss 246 and 248 of the Criminal Code were raised by Dr Michael. The evidence of the use of the pepper spray is not contested. Hence there was sufficient evidence of an assault to put Dr Michael on trial. It was no part of the function of the learned Magistrate to determine the merits in respect of the issues of self-defence and provocation.

23 In my opinion, there is no basis in law for the current challenge to the decision to commit Dr Michael to trial on the assault charge. I note that Mr Maughan is likewise facing a charge of assault upon Dr Michael arising out of the same incident and that on 26 April 2002, Mr Maughan was committed for trial on a charge of assaulting Dr Michael on 3 December 2000. In the meantime, Dr and Mrs Michael have each obtained an interim violence restraining order against Mr Maughan in the Court of Petty Sessions.

24 In the course of his submissions, Dr Michael relied upon a number of decisions in New South Wales including Galgey v Director of Public Prosecutions [2004] NSWSC 367; and Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 401 - 403. In my opinion, these authorities are of no assistance as they are based on a very different statutory regime and a different criterion for determining whether or not to commit a person for trial. In particular, there is a requirement in New South Wales for the Magistrate to determine on the basis of the whole of the evidence at the committal proceedings whether a jury would not be likely to convict the defendant.

25 The statutory regime for committal for trial in this State, as it stood when Dr Michael was committed for trial, was that which formerly provided in the Justices Act when read with ss 572 and 574(1) of the Criminal Code and the provisions of ss 578 - 593 of the Code relating to indictments. The complaint is the formal charge which initiates the criminal proceedings in the Court of Petty Sessions: see s 4 of the Justices Act.

26 At the committal proceedings, the question to be decided by the Magistrate is whether there is "sufficient evidence" to justify committing the accused for trial. If the evidence is determined to be sufficient for that purpose, the accused will be given the opportunity to plead guilty or not guilty in accordance with s 102(1) of the Justices Act. If there is a plea of not guilty or no plea is entered, the accused will be committed for trial in s 108(1) of the Act. The committal may not be for the offence originally charged, but may be in respect of any other offence in respect of which there is sufficient evidence to warrant committal.

27 Evidence sufficient to put an accused on his trial is some evidence of, or providing a basis for an inference of guilt in respect of each element of the offence charged or some other offence. The evidence at the committal stage need not be evidence which proves the case beyond a reasonable doubt, but there must be evidence which discharges the evidentiary burden to establish that there is sufficient evidence to justify putting the prosecution case to a jury at a trial. The prosecution is expected to present its full case at the committal proceeding and not to withhold any evidence on which it could subsequently rely: R v Harry; ex parte Eastway (1985) 39 SASR 203 per King CJ at 210 - 211; and R v Basha (1989) 39 A Crim R 337.

28 This case clearly raises issues of self-defence and provocation. How these issues are to be dealt with by the Court at a trial was clearly set out by Templeman J in Ellis v Ellis [1999] WASCA 30 at pars [10] - [15]. It may be accepted that at a trial of an offence for assault, it will be for the prosecution to negative any defence of self-defence or provocation under s 264 at the Code beyond reasonable doubt: Grove v Gage [2000] WASCA 70 at par [5]; see also Ellis v Ellis (supra) at par [13] per Templeman J.

29 Dr Michael referred to Sherry v Tristam, unreported; SCt of WA; Library No 980706; 30 November 1998 in which Heenan J upheld the decision of the learned Magistrate dismissing a charge of assault on a policeman on the ground that the prosecution had failed to negative the defence of provocation beyond reasonable doubt. That case did not involve a decision whether to commit for trial, but a determination of the charge itself. It is of no assistance in the present context.

30 On 26 April 2002 in a private prosecution of Mr Maughan by Dr Michael, Mr Maughan was committed for trial on a charge of assaulting Dr Michael. Further, on 4 December 2002, Dr and Mrs Michael applied for and were granted an interim violence restraining order by the Court of Petty Sessions against Mr Maughan. While these bare facts were of relevance, the question for the learned Magistrate remained whether there was sufficient evidence against Dr Michael to justify committing him for trial on the assault charge.

31 In Christianos v Young (1990) 3 WAR 303 at 305 - 307, Malcolm CJ, Wallace and Rowland JJ set out detailed reasons why:

"... an appellate court should be reluctant to review either the conduct of incomplete proceedings ... under the provisions of the Justices Act or the decision of a Magistrate to commit an accused person for trial at the conclusion of such proceedings."

32 In respect of the latter case, reference was made to Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 643, per Gibbs ACJ; Murphy v Director of Public Prosecutions [1985] FCA 177; (1985) 7 FCR 55 at 55 - 58, per Toohey J; Seymour v Attorney-General (Cth) [1984] FCA 329; (1984) 4 FCR 498 at 581, per Jenkinson J (with whom Fox J agreed), and at 503, per Beaumont J, on the other case cited in Christianos v Young at 306 - 307.

33 In my opinion, Dr Michael can only be convicted at trial if, on all the evidence, the tribunal of fact is satisfied beyond a reasonable doubt that his actions on the day in question constituted an assault upon Mr Maughan which was not provoked by Mr Maughan and did not constitute acts committed by Dr Michael in self-defence in respect of an assault committed on him by Mr Maughan.

34 It also needs to be borne in mind that s 579 of the Criminal Code expressly provides that there is no right of appeal against a decision of Justices or a Magistrate to commit an accused for trial. This is a further factor which militates against the exercise of discretion to review the decision. It is also relevant that the right of a defendant to elect a preliminary hearing was abolished by s 15 of the Criminal Law (Procedure) _Act 200_2 (WA), which came into force on 27 September 2002. If the decision to commit Dr Michael was now to be quashed, there would be a question whether Dr Michael would be entitled to a fresh preliminary hearing in the light of the abolition of such proceedings.

35 Grounds 1 to 4 of the grounds on which Mr Michael seeks certiorari are as follows:

"1. The Learned Justice erred in law in failing to have regard to the contents of the Appellant's affidavit of 4th September 2003 and its content (the submission of 29th July 2003) and had the Justice considered the contents of the said submission and the established law, his Honour would have held that:

(a) The law of provocation has been established by all the higher Courts in Australia, something which was not considered by her Worship.

(b) Sections 245 and 246 of the Criminal Code are to be fully considered and applied to achieve justice when provoked assault has taken place.

2. The learned Justice erred in law in not considering that the Police's complainant (William Robert Maughan) was found on 26th April 2002 (on a private prosecution by Dr Michael) that he had a case to answer for assaulting the Appellant on 3rd December 2000 and was committed for trial by his Worship Magistrate Cicchini. The said assault on the Appellant took place during the same incident and prior to his being sprayed by the Appellant.

3. The Learned Justice erred in law in holding that perjury, when committed during the preliminary hearing, is a regular course of criminal procedure and does not constitute exceptional nature of clear instance.

4. The Learned Justice erred in law in failing to have regard to the way the charges were made up against the Appellant when determining his power to overrule the decision of the lower Court by way of issuing a certiorari."

36 In my opinion, these grounds are founded on a misconception of the function of a Magistrate in deciding whether or not to commit a person for trial on a charge of an offence. The function is to determine whether the evidence is sufficient to commit accused to stand trial on the offence or offences charged. In other words, the issue is whether there is a prima facie case on the evidence in respect of the relevant offence. While the function is essentially administrative, the Magistrate must act judicially in arriving at the relevant decision: Sankey v Whitlam (1978) 142 CLR 1 at 82, per Mason J; and Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 9, per Dawson J.

37 For these reasons, grounds 1 to 4 have not been made out.

"The Learned Justice erred in law in holding that the amendment to the Justices Act is important factor to the outcome of his decision, further, the Honourable Justice failed to have regard to the previous successful appeal from the same Learned Magistrate's decision on 30 August 2002 (3 months after the same amendments to the Justices Act) and such an appeal was instituted under identical grounds (that of the Learned Magistrate failing to follow the Justices Act and the Criminal Code)."

39 It was contended in support of ground 5 that the order nisi in respect of the preliminary hearing conducted on 14 April 2002 quashed the decision of the Magistrate to commit and ordered the resumption of the preliminary hearing. The precise point made by this ground is not clear. Insofar as it appears to have been suggested by Dr Michael that the amendments to the Justices Act in 2002 in respect of committal proceedings were applicable to the resumption of the committal proceedings, that suggestion was misconceived. By reason of the transitional provisions in s 15(6) of the Amending Act the complaint will be dealt with in accordance with the law as it stood prior to the Amending Act coming into force: Michael v Musk & Anor [2002] WASC 278 at [11] - [13].

"The Learned Justice erred in law or in law and in facts as he ought not have allowed the Crown Solicitor to act for the DPP and her Worship, the Learned Magistrate, because:

(a) The conflict of interest of the Crown Solicitor in general in any Court proceedings related to the Appellant due to his application under the Vexatious Proceedings restriction Act 2002. Further, it is in the interest of the Crown Solicitor that the Appellant lose the application.

(b) The Crown Solicitor had habitually filed affidavits and information under the previous action CIV2079/94 and the current action CIV1374/03 under Vexatious Proceedings restriction Act of 1930 and 2002 respectively which have contained misleading and incorrect material to further their applications.

(c) The Crown Solicitor's interest was to have another proceeding against the Appellant added to the new action CIV1374/03 with total disregard to s 67 of the Director of Public Prosecution Act 1991."

41 In my opinion, there is clearly no conflict of interest in the State Solicitor acting for the Director of Public Prosecutions at the same time as acting for the Attorney-General in other unrelated proceedings against Dr Michael in the Supreme Court. There is no substance in ground 6.

7. The Learned Justice erred in law or in law and in facts in holding that the amendment to the Justices Act as to the abolishing of the Preliminary Hearing is a major factor in not granting the certiorari and had his Honour noted the history of the matter, he would have held that:

(a) The matter was not raised by the Crown Solicitor in his submission due at 12 noon on 26 September 2003 as ordered by the Honourable Justice Barker on 15 September 2003.

(b) The submission of the morning of the hearing (30 September 2003 at 9am) was designed to 'ambush' the Appellant.

(c) The previous successful appeal CIV 1725 of 2002 was granted after the amendment to the Justices Act.

(d) The delays was [sic] caused by the DPP in 19th April 2002, when arrogantly refused to bring the Appellant's original video security tape of the event and wrongly addressed her Worship at the conclusion of the first Preliminary Hearing. This delays [sic] caused by the DPP extended the matter by 1 year and 4 months.

8. The Learned Justice erred in law and in facts in allowing the Counsel for the Crown Solicitor to address him and use the written submission and its differently contained law which was filed 3 days after the specified time and date in defiance of the order by the Honourable Justice Barker on 15th September 2003."

43 The late filing of submissions by a party could entitle the opposing party to seek and obtain an adjournment: Whyte v Brosch (1998) 45 NSWLR 354. The appellant made no application for an adjournment when he appeared before E M Heenan J on 30 September 2003. In my opinion, an adjournment would not have been warranted in any event because the further submissions did no more than correct a failure to refer to the relevant legislative provisions in the outline of submissions originally filed.

44 For these reasons each ground of the appeal fails.

Dismissal of Charge FR2417/01 or Permanent Stay of Proceedings

45 Dr Michael also sought an order dismissing the relevant charge or, alternatively, a permanent stay of proceedings on the charge. Under the law as it stood at the relevant time the learned Magistrate had no power to dismiss the charge, but only a power to discharge Dr Michael pursuant to s 106 of the Justices Act as it stood before the amendment in relation to committal proceedings: Tovey v Ferre [1981] WAR 21 at 22 - 23, per Jones J.

46 The Supreme Court has an inherent power or jurisdiction to stay proceedings for an abuse of process: Williams v Spautz [1992] HCA 34; (1991) 174 CLR 509 at 518, per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. It is apparent from what I have already written that there was no abuse of process in this case. In order to justify a permanent stay of criminal proceedings there must be a fundamental defect in the proceedings which goes to the very root of the proceedings: Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 24, per Mason CJ. No application for a permanent stay was made by Dr Michael when he was before E M Heenan J on 30 September 2003.

47 In any event, there was no evidence put before the Court which would justify a permanent stay.

48 For those reasons I would dismiss the application for a permanent stay of proceedings.

49 In my opinion, the present application is entirely without merit for the reasons stated by E M Heenan J. The jurisdiction of the Supreme Court to grant Certiorari in relation to an order of justice under the Justices Act for error of law on the face of the record was excluded by s 147 of the Act: Talbot v Lane (1994) 75 A Crim R 115 per Malcolm CJ at 125 (with whom Kennedy and Ipp JJ agreed). The term "order" in s 147 is defined in s 2 of the Act to mean an order made on a complaint of any matter, not being a complaint of a simple offence. The complaint in this case was of an indictable offence. Section 147 of the Act provides that:

"No conviction or order shall be quashed for want of form, or be removed by certiorari or otherwise into the Supreme Court, and no warrant of commitment on a conviction shall be held void by reason of any formal defect therein; provided it is therein alleged that the party had been duly convicted, and there is a good and valid conviction to sustain it."

50 The exclusion of the remedy of certiorari is in the present case fatal so far as the appellant's application is concerned.

51 Section 147 of the Justices Act is a privative clause, but does not exclude certiorari for jurisdictional error: Re City of Melville; Ex Parte J-Corp Pty Ltd (1998) 20 WAR 72 at 76 - 77 per Ipp J.

52 The test for jurisdictional error in relation to a Magistrate conducting a preliminary hearing is that ordinarily applied in respect of a decision of an inferior Court: Re Robins SM; Ex parte West Australian Newspapers Pty Ltd [1999] WASCA 16; (1999) 20 WAR 511 at 517 - 519, per Ipp J. While it was conceded that the Magistrate made a jurisdiction error on 19 April 2002, this was cured on 7 April 2003 when ss 102 and 105 of the Justices Act were read to Dr Michael. There was no other jurisdictional error made in the course of the preliminary hearing or in respect of the decision to commit Dr Michael for trial on 5 August 2003.

53 By ss H-14 of the Criminal Law (Procedure) Amendment Act 2002 (WA), ("the Amending Act"), which came into force on 27 September 2002, the right of a defendant to elect a preliminary hearing was abolished. By s 15 of the Amending Act it is provided that if, before the coming into operation of the Amending Act, proceedings had been commenced, but not completed under the former s 101B, or a complaint stood adjourned under the former provisions to a date for a preliminary hearing, but that hearing had not commenced, the new provisions under the Amending Act apply in relation to the complaint. Section 15(6) of the Amending Act provides that where a preliminary hearing has commenced under the former provisions, but not completed, the complaint will be dealt with under the former provisions.

54 The effect of a grant of certiorari in the present case would be that the decision to commit and the order of committal would be quashed and the proceedings on the complaint adjourned to a committal mention with no right of the appellant to elect to have a preliminary hearing. It follows that, even if there was a jurisdictional error, the grant of an order of certiorari at this stage would be futile.

55 In my opinion, there was clearly sufficient evidence to go before a jury on the relevant charge and it would be for the jury at the trial to

determine the merits of the case on the whole of the evidence. In my opinion, the decision of the learned Judge, the subject of the appeal, was entirely correct for the reasons which his Honour gave. For these reasons, I consider that this appeal should be dismissed.

56 MURRAY J: In this case I have had the advantage of reading in draft the reasons for decision published by Malcolm CJ. I agree with his Honour's conclusion that the appeal and the applications to dismiss the complaint or to order proceedings upon it to be permanently stayed, should be dismissed. I wish only to add a few observations of my own.

57 For present purposes, it is sufficient to note that after a regularly conducted committal proceeding in the Court of Petty Sessions the first respondent committed the appellant for trial for the offence of assault occasioning bodily harm, an indictable offence, the subject of the complaint before the Court. Her Worship made that order on 5 August 2003, giving short reasons, set out in the judgment of Malcolm CJ, for doing so. The order of committal for trial was made under the Justices Act 1902 (WA), s 107 as it then was, which provided inter alia that such an order was to be made "if, on a preliminary hearing, in the opinion of the justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence ...". The committal was to the relevant court of competent jurisdiction, the District Court.

58 Perusal of the reasons of her Worship reveals, in my respectful opinion, that her Worship correctly addressed the relevant question, whether there was a prima facie case upon which a reasonable jury, properly instructed, might find the appellant guilty beyond reasonable doubt. The question to the sufficiency of the evidence, if accepted by a jury, to prove guilt of the offence in question to the requisite standard. No question of the likelihood of conviction arises, as opposed to the position at least in New South Wales: cf Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397.

59 In the course of the committal proceedings, when asked if he wished to call witnesses, pursuant to s 105 of the Act, the appellant did adduce evidence. It is clear that in doing so he was seeking to raise the issues that in assaulting the complainant the appellant was acting in self-defence, or alternatively under provocation within the meaning of that term as defined by the Criminal Code (WA), s 245. Section 246 provides that a person is not criminally responsible for an assault committed upon a person when the accused person is acting under provocation within the terms of the section. Section 248 provides for self-defence against an unprovoked

assault. In broad terms, the section makes it lawful, when a person is unlawfully assaulted and has not provoked the assault, to use such force as is reasonably necessary to make effectual defence against the assault within the limitations provided for in the section.

60 These sections provide "defences" which, if raised by the facts and not negated by the prosecution beyond reasonable doubt, will result in the acquittal of the accused person whose conduct might otherwise be found by a jury to constitute an offence. They are matters for a jury to determine on the trial of the accused person. They were not matters relevant to the Magistrate's inquiry in terms of s 107 of the Justices Act upon the preliminary hearing.

61 In my view, at the stage of the preliminary hearing or committal proceeding, evidence about such matters as self-defence and provocation was irrelevant and ought not to have been admitted. But for present purposes it is of no moment that such evidence was received by her Worship in this case. What is clear, however, is that her Worship was perfectly correct when she observed that upon reaching the conclusion that there was a prima facie case of assault by the appellant, it was not open to her on the ground of self-defence or provocation to decline to commit for trial.

62 Her Worship's decision to commit was not appellable: Justices Act, s 184(3). That has been the position since that subsection was enacted in 1996. The application made to this Court by the appellant was properly treated by Heenan J as being an application for an order nisi for a writ of certiorari. That was all it could be, although the appellant tacked on to that application, consequential applications that the complaint which had been before the Court of Petty Sessions should be dismissed, or proceedings upon it permanently stayed. On 30 September 2003, Heenan J dismissed the application for an order nisi for certiorari. In my respectful opinion, his Honour was undoubtedly right to do so.

63 There is a privative clause in the Justices Act , s 147. Certiorari will not go to an order of a Court of Petty Sessions except in a case where the Court is found to have acted without jurisdiction or it has otherwise committed a jurisdictional error: Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72; Re Robins SM; Ex parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511. There is in this case absolutely no warrant for the view that her Worship made any jurisdictional error, either because she misunderstood the nature of the proceedings and the question before her, or otherwise as the term "jurisdictional error" is known to the law in this context. The grounds of appeal from the decision of Heenan J have been set out and discussed by Malcolm CJ. I respectfully agree that none has merit and the appeal should be dismissed.

64 As to the dependant or consequential orders sought, nothing need be said, but I think it may be useful to note that in the proceedings brought before this Court, if certiorari lay the result would be to quash the committal order. The Court would have no power to dismiss the complaint. That was an order which her Worship could not make. Her power as it then existed under s 106 of the Justices Act was that if, having heard the evidence offered by the prosecution, she was of opinion that it was not sufficient to put the appellant upon his trial for any indictable offence, her Worship was required to order the appellant, if he was in custody, to be discharged. As to the complaint then under inquiry, it could not be dismissed and could again be proceeded upon if further evidence became available.

65 Nor, as Malcolm CJ has explained, would there be any basis upon which the proceedings upon the complaint could be permanently stayed. But I note in that regard that the evidence before us was that, the committal for trial having been ordered, an indictment for the offence of assault occasioning bodily harm has been presented against the appellant in the District Court on 10 September 2003. Nothing could thereafter be done to put the clock back. If there were grounds for certiorari and such an order was made quashing the committal, the indictment would remain extant and valid, albeit ex officio within the meaning of the Code, s 579. Upon that ground alone it would be appropriate to refuse certiorari even if such an order might otherwise have been made.

66 Finally, there is another reason why certiorari would not be granted even if it were otherwise available. As Malcolm CJ has observed, by amendments to the Justices Act made by the Criminal Law (Procedure) Amendment Act 2002, Part 2, the process of committal for trial following a preliminary hearing was abolished. More complete disclosure provisions were incorporated in the Act and, subject to compulsory examination of any witness by the prosecution under s 102, upon their completion the Court of Petty Sessions is required to commit the defendant to a superior court for trial or sentence, depending upon the plea made: s 104(3) and (4). Under s 104(2), the defendant is not to give or tender any evidence and may not submit "that there is insufficient evidence ... to put the defendant on his or her trial for the offence."

67 Those changes came into operation on 27 September 2002. This committal process was only able to be completed by virtue of the

transitional provision contained in the Amendment Act 2002, s 15(6). If the committal order was to be quashed upon the ground of certiorari, that transitional provision would, in my opinion, have no further application because it would no longer be the case that there was a preliminary hearing which had been commenced but not completed under the old provisions. In this case, on the contrary, the old committal process would have been completed, albeit subject to a finding of jurisdictional error. On the grant of certiorari the matter would be remitted to the Court of Petty Sessions to be processed under the new provisions and upon completion of the disclosure process committal for trial would be inevitable. Upon that ground also, therefore, it would be appropriate to refuse the grant of certiorari when, in the circumstances mentioned, the grant of that relief would be futile.

68 For all those reasons, in my opinion, the appeal should be dismissed and the consequential relief sought should be refused.

69 MCLURE J: I have had the advantage of reading in draft the reasons to be published by Malcolm CJ and Murray J. I agree that the grounds of appeal are without merit generally for the reasons given by the Chief Justice and Murray J and that the appeal should be dismissed.

70 However, I should wish to record my disagreement with the view that evidence concerning matters of self-defence and provocation is irrelevant and ought not to have been admitted by the respondent in the committal proceedings. That issue is now largely of academic interest because the process of committal for trial following a preliminary hearing was abolished by the Criminal Law (Procedure) Amendment Act 2002 (WA) which came into operation on 27 September 2002. Under the former procedure, a defendant could elect to give evidence or call any witness under s 105 of the Justices Act 1902 (WA). The appellant made an election to call witnesses at his committal hearing. Under s 107 of the Justices Act if, in the respondent's opinion "the evidence is sufficient to put the appellant upon his trial for the indictable offence", then she was under a duty to order him to be committed to take his trial before a court of competent jurisdiction. In forming the relevant opinion, it follows from s 105 that the respondent was required to consider all evidence properly tendered on the appellant's behalf in the committal hearing. I see no justification in the language of s 105 and s 107 or in principle for excluding evidence that is relevant to the defence of the charge, including evidence of matters concerning self-defence and provocation. In my view, the respondent properly had regard to that evidence in reaching her opinion as to the sufficiency of the evidence to put him upon his trial.

Public Prosecution Act 1991

Law (Procedure) Amendment Act 2002

Michael v Musk Sm & Anor [2004] WASCA 203

At a glance

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Judgment (121 paragraphs)

Michael v Musk Sm & Anor [2004] WASCA 203 (8 September 2004)

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Legislation Cited (2)

Cases Cited (18)