1 The plaintiff, Mr Hugo Alastair Rich, by originating motion of 148 paragraphs over 34 pages filed in this court on 14 August 2006 has sought prerogative, interlocutory and other relief against 13 defendants, the identities of whom are stated in the schedule to this judgment. By summons filed on the same day he has sought like relief. Mr Rich has appeared in this Court without legal representation. In support of the process an affidavit, unaffirmed by Mr Rich, was filed on 14 August 2006 of 88 paragraphs. As there was cross process by some of the defendants, a supplementary affidavit by Mr Rich affirmed on 7 September 2006 was filed on 12 September 2006.
2 All the defendants but the 13th defendant have appeared before me by way of representation.
3 The 13th defendant magistrate has filed the usual formal appearance abiding the decision of the Court and not making any submissions to the Court. There was additionally a summons filed on 12 September 2006 by Mr Rich for judgment in default of appearance by the 13th defendant. I entirely accept what Mr Rich says, that he did not receive the appearance of the 13th defendant in the prison system. However, the appearance was in fact filed and accordingly that summons falls away.
4 In this Court the matter came on before Justice Teague in the Practice Court on 5 September who referred it out for hearing on 19 September 2006 which happened to be me having just returned from a lengthy circuit. I heard it yesterday and again today.
5 Mr Rich is charged with the murder on 8 March 2005 at Blackburn North of Mr Erwin Kastenberger and with other charges.
6 Committal proceedings are due to commence next Monday, 25 September 2006, listed as an eight week contested committal. The learned Magistrate has already dealt with matters of a preparatory nature and is seized of the matter, although as Mr Rich correctly says, the committal itself will commence - if it does commence - next Monday.
7 It is evident that the real nature of this proceeding is the seeking by Mr Rich of the capacity properly to prepare his defence for the committal proceeding, and by inference, to present his defence at that proceeding.
8 Although it is not evident in the lengthy affidavit material filed by Mr Rich, in fact Mr Rich is represented at the committal proceeding by an instructing solicitor and by counsel; although Mr Rich informs me today, that there is a possibility that he may not be represented by counsel next Monday. However the practical reality is he is legally represented before the Magistrate, although he has not been represented before me. In fact present throughout the proceedings before me, in the body of the court, has been his learned solicitor, Ms Ristivojevic. I have been scrupulous to ensure that she was not drawn into the proceedings by way of any side questioning from Mr Rich, who did not attempt to do so, or by any questioning by me. I have proceeded in a plenary sense on the basis of that Mr Rich is representing himself in this Court.
9 It is not insignificant, however, that after I rose yesterday an affidavit was handed to my Associate by Ms Ristivojevic. The affidavit had been sworn yesterday. To ensure that Mr Rich was not impeded by any minor matter of technicality, the affidavit has been received on that basis.
10 The complaint by Mr Rich as revealed in the process before this Court, and the relief he seeks, are inextricably linked to the committal process in the Magistrates' Court. The nature and ambit of the complaint and relief are the preparation of his defence for the committal in the Magistrates' Court and by inference the presentation of that defence in that Court. They are an incident of those proceedings. They do not stand separately from those proceedings or exist independently of them.
11 When one looks at the affidavits of Mr Rich, it is apparent that the gravamen and substance of his complaint is that he presently is unable to prepare for his committal by way of preparation of defence, and by implication, presentation of the defence once the committal commences. Thus for example, in the first affidavit - and like material appears in the second, which is an even lengthier affidavit which I will not rehearse in this judgment - in paragraph 28 he speaks of "resources required and needed for my court preparedness"; in paragraph 29(c) "for the purpose of preparation of my case"; in paragraph 33 "required to put a defence"; in paragraph 39 "It is respectfully submitted that it is virtually impossible to conduct a defence while being held in custody"; in paragraphs 77 to paragraph 88, thematically, preparation of his defence for the committal, including paragraph 88, "It is respectfully submitted that it is virtually impossible to both conduct and make a defence while being detained in custody". Mr Rich has said to me, which I accept, that what he meant by that expression in paragraph 88 is not a disguised application for bail, but rather that he sought proper access to material in custody so that he can prepare his defence and by implication present his defence.
12 When I asked Mr Rich a question which I thought was a logical question, namely, "Why haven't you asked the Magistrate before whom the committal is to be heard for an adjournment so you can prepare the defence?" Mr Rich replied, "I'm astute enough to read the play and read what's going on". By that "reading of the play", I presume Mr Rich has attributed to himself a foreknowledge of what a Magistrate - fundamentally required to fulfil administration of justice - might do if an application for adjournment was made. Today Mr Rich informed me that on 23 August 2006 - after the filing of these proceedings in this Court - an application for adjournment in fact was made to the learned Magistrate and that the Magistrate said that he would not deal with it because the matter was by then before this Court. I thought when Mr Rich said that, that that would have been an appropriate act of comity by the Magistrate to this Court, that if a matter was before this Court the Magistrate would not pass upon it; certainly not that the Magistrate had failed to deal with the question, or would fail to deal with it. Mr Rich has handed up transcript of that application, and it confirms what I by instinct had anticipated. The following appears: