Michael v Regina

Judgment 1BEAZLEY JA: On 19 March 2012, the applicant, Fabian Michael, was committed for trial in respect of an offence of intending to pervert the course of justice contrary to the Crimes Act 1900, s 319. 2Mr Michael now seeks leave to appeal pursuant to the Criminal Appeal Act 1912, s 5F. That section provides, relevantly: "5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court ... ... (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal ... ... (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against ..." Mr Michael would be entitled to seek leave to appeal under s 5F(3) if there was an interlocutory judgment or order made in proceedings. 3In his notice of application for leave to appeal, Mr Michael identified the interlocutory orders against which he sought leave to appeal as being: "1. Judgment made by Magistrate Pierce to commit [Mr Michael] to District Court. 2. Order made by Magistrate Pierce to refuse application to exclude written evidence and quash indictment" 4In his grounds of application, Mr Michael contended that the magistrate erred in failing to comply with the provisions of the Criminal Procedure Act 1986, s 89 in circumstances where he was unrepresented at the committal hearing. The particular grounds of his application were as follows: "The Magistrate did not adhere to this section by reading the prescribed words to [Mr Michael] during the course of the proceedings. The Magistrate committed [Mr Michael] to the District Court for arraignment based on the written evidence which was tendered by the prosecution. On application to exclude the written evidence pursuant to a breach of s 89 Criminal Procedure Act 1986, the magistrate erred by refusing the application to exclude the evidence and quash the indictment." 5Mr Michael sought the following orders: "1. Indictment be quashed and dismissed. 2. Crown pay costs." 6The Criminal Procedure Act, Pt 2, Div 3 makes provision for the manner in which a committal proceeding is to be conducted. In particular, s 74 provides that the evidence of the prosecution is to be given by way of written statements that are in admissible form. This procedure is known as a 'paper committal'. 7The Criminal Procedure Act, s 89 provides: "89 Notice of rights to unrepresented accused person (1) In any committal proceedings in which an accused person is not represented by an Australian legal practitioner, a written statement is not admissible unless the Magistrate: (a) has explained to the accused person the effect of this Division and the accused person's rights in relation to this Division, and (b) is satisfied that the accused person understands his or her rights under this Division. (2) The explanation by the Magistrate must be in the form of words prescribed by the rules." 8One of the 'rights' for which provision is made in Pt 2, Div 3 is contained in s 91 which provides, relevantly: "91 Witness may be directed to attend (1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor. (2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given ..." 9On 24 November 2011, when the matter was mentioned before the Local Court, Mr Michael appears to have indicated to the Court that he was to be legally represented. There was a further mention of the matter on 19 January 2012, when again there appears to have been an indication that Mr Michael was to be legally represented. The committal hearing then proceeded before the Local Court on 19 March 2012, on which occasion Mr Michael was self-represented. The committal hearing proceeded on the basis of a brief of evidence that was placed before the magistrate. The magistrate did not explain to Mr Michael the effect of Pt 2, Div 3 as required by s 89. 10During the course of the committal hearing, Mr Michael indicated to the magistrate that he wished to seek some advice at the morning tea adjournment. That advice appears to have been related to the approach Mr Michael wished to take in circumstances where the Commissioner of Police had failed to answer a subpoena. 11Mr Michael also stated to the magistrate that the informant may be required to be present to give evidence. After the morning tea adjournment, Mr Michael indicated to his Honour that he wished to proceed. 12Mr Michael then made submissions, including referring the magistrate to a significant quantity of case law. There was a short further adjournment. Mr Michael concluded his submissions and the Crown Prosecutor made short submissions to the magistrate. His Honour found a prima facie case and gave Mr Michael the required warning. His Honour then asked whether Mr Michael had anything to say in answer to the charge. Mr Michael indicated that he did not wish to call any evidence but that he wanted "to make an application ... under s 89 of the Criminal Procedure Act". 13The magistrate indicated to Mr Michael that he was of the view that as Mr Michael was represented on 19 January 2012 when the matter was set down for a paper committal, it was unlikely that the provisions of s 89 applied. His Honour offered Mr Michael the opportunity of an adjournment should he wish to put forward any authority for the contention that s 89 applied. Mr Michael indicated that he did not seek an adjournment and was happy to proceed. The magistrate then proceeded to commit Mr Michael for trial, having formed the view that there was a reasonable prospect of conviction. 14His Honour may have been in error in stating that Mr Michael was represented on 19 January 2012 and there may in a given case be a question as to whether such warning should be given, particularly where during the course of a proceeding a party ceases to have legal representation. However, that question does not arise in this case. 15The meaning of "interlocutory judgment or order" in s 5F has been given a restricted meaning. As the Court explained in R v Steffan (1993) 30 NSWLR 633 at 636: A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done)." 16In particular, it has been held that s 5F does not apply to rulings on evidence: see R v Powch (1988) 14 NSWLR 136 at 138; R v Steffan; or to a ruling that a witness should not be recalled for further cross-examination: R v Powch at 138, or to a ruling by a magistrate refusing to give a direction that a person be required to attend for cross-examination: R v Colby (1995) 84 A Crim R 125. In Colby, the direction the magistrate refused to give was under the predecessor provision to the Criminal Procedure Act, s 91. 17In R v Steffan, the Court explained, at 636, why a ruling on evidence did not fall within the meaning of "interlocutory judgment or order" within s 5F: "If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage however ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a 'judgment', but that is an altogether different usage of the word 'judgment' and denotes the reasons which have been expressed rather than the formal act of the court." 18A refusal to quash an indictment was assumed to fall within the terms of s 5F: see R v Waterhouse (1992) 62 A Crim R 59. The court in that case did not finally determine that question as leave to appeal was refused. 19In the argument on the application before this Court, Mr Michael was asked to identify the judgment or order he contended was an "interlocutory judgment or order" for the purposes of s 5F. He was unable to do so. This was not surprising, as there was not only no order made by the magistrate pursuant to s 89, the terms of the section are such that no order is required to be made. Rather, s 89 imposes an obligation upon a magistrate to provide a specified explanation to a person who is self-represented on a committal hearing. There is no order to be made under the section. Whatever remedy may lie arising from a failure to comply with s 89, it is not to be found within s 5F. 20When this was explained to Mr Michael, he submitted it should be inferred that such an order was made and it should be further inferred that the purpose in bringing s 89 to the attention of the magistrate was as a preliminary step in establishing that the statements of evidence upon which the prosecution case relied were inadmissible. It would follow that there was no evidence before the court upon which the magistrate could have committed him for trial. The result on this argument was that the indictment, which has been filed in the District Court against Mr Michael, should be quashed. 21These arguments failed to identify an interlocutory judgment or order within the meaning of s 5F. In the first place, a judgment or order is either made or given, or not. There is no place for the Court to infer that an order was made. Secondly, s 89, which was the starting point of Mr Michael's argument, does not require the making of an order, as I have already explained, so s 5F does not come into play. Thirdly, Mr Michael did not make an application under s 91, but even had he done so, there is authority in this Court to the effect that a refusal to make an order under that section is not an interlocutory judgment or order for the purposes of s 5F: see Colby, referred to above. Finally, a committal for trial involves an administrative or executive act and does not constitute a judgment or order: see Waterhouse v Gilmore (1988) 12 NSWLR 270. 22The relief sought by Mr Michael is that the indictment be quashed. The finding of a bill of indictment is a separate act from the act of committal: see Criminal Procedure Act, s 8(2); Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520 at 527. The only basis upon which that order is sought is the magistrate's failure to comply with s 89. For the reasons I have given, any such failure is not one that falls for consideration under s 5F. Accordingly, the basis upon which the order to quash the indictment is sought has not been made out. 23It follows, therefore, that Mr Michael has not established that there is an "interlocutory judgment or order" within the meaning of s 5F from which he seeks leave to appeal. Accordingly, the application for leave to appeal should be dismissed. 24HALL J: I agree with Beazley JA. 25S G CAMPBELL J: I agree with the orders proposed by Beazley JA and with her Honour's reasons.