Plaintiff v First Defendant

**1 The plaintiff, Mr Bruno Strangio seeks judicial review of the decision of a magistrate of the Magistrates' Court of Victoria to commit him for trial in the Supreme Court on charges of obtaining and attempting to obtain property by deception, obtaining financial advantage by deception, making and using a false document to the prejudice of others, giving false information, attempting to commit an indictable offence and perjury.

2 The Magistrates' Court, which is the first defendant, has taken no part in this proceeding in accordance with the principles stated in R v Australian Broadcasting Tribunal ex parte Hardiman.[1] The second defendant, Detective Senior Constable Richard Mokos, is the informant.

3 The Magistrate's decision was made on 30 August 2012. Mr Strangio's trial on the charges is scheduled to commence in October 2013.

4 At the commencement of the hearing, Mr Strangio sought judgment in default of appearance. I refused that application. He then sought an adjournment of the proceeding. I also refused that application.

5 Mr Strangio relies on seven grounds to seek orders in the nature of certiorari or mandamus.

6 The first three grounds relate to the Magistrate's decision not to adjourn the proceedings. Those three grounds are as follows:**

1. The learned Magistrate committed a jurisdictional error of law and a nonjurisdictional error of law on the face of the record by failing to conduct the committal proceeding in accordance with:-

1. the requirements of natural justice at common law; 2. the plaintiff's statutory right to a fair hearing pursuant to section 24 of the Charter of Human Rights and Responsibilities Act 2006 (CHRRA);

1. the minimum statutory guarantees prescribed by section 25 of the CHRRA including the following guarantees:

"(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and

(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and

(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978;

(e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and

(f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978; and

(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and

(h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution."

1. The learned Magistrate committed a jurisdictional and nonjurisdictional error of law on the face of the record by failing to adjourn the committal proceeding upon hearing the plaintiff's application as a litigant in person once the plaintiff's former solicitor was granted leave to withdraw from the proceeding on the day of the committal without any prior notice having being given by that solicitor of his intention to withdraw his legal services and the grounds for such withdrawal.
2. The learned Magistrate committed a jurisdictional and nonjurisdictional error of law on the face of the record by failing to adjourn the committal proceeding in order to afford the plaintiff an opportunity to obtain new legal representation, particularly after a second application for such adjournment was made on his behalf by a solicitor from Victoria Legal Aid after the plaintiff's previous lawyer (who had been working under a legal aid grant) was given leave to discontinue his legal services on the day of the committal proceeding in the Magistrates Court of Victoria.

**7 The first ground is a general ground, but when read with grounds 2 and 3, it requires consideration of the Magistrate's determination of Mr Strangio's adjournment application. To understand this ground it is necessary to set out some detail of the hearing on 30 August 2012.

8 At the commencement of the hearing on 30 August 2012, a solicitor, Mr T Magazis, announced his appearance as a friend of the Court. He stated that his office had filed a notice the previous week that he ceased to act on behalf of Mr Strangio, and he sought formal leave to the extent necessary to withdraw from acting. Mr Magazis then proceeded to inform the Magistrate of the following matters. Mr Strangio had pursued a number of applications in the Supreme Court for judicial review of decisions refusing to exercise summary jurisdiction, but that Mr Magazis' retainer had been solely in relation to the committal proceedings. A committal hearing on 26 March 2012 had been adjourned because a judicial review decision was pending. Mr Strangio had an appointment at Mr Magazis' office on 28 June 2012 to prepare for the committal hearing. Mr Strangio contacted his office and said he was not going to keep the appointment because he was seeking to appeal the decision of Coghlan J refusing judicial review of a decision of the Magistrates' Court not to exercise summary jurisdiction in respect of the charges[2].

9 Mr Magazis stated that Mr Strangio contacted his office to have him adjourn the committal hearing. Mr Magazis' office was ready to brief counsel.

10 Counsel for the informant told the Magistrate:**

... we accept exactly what Mr Magazis had to say. He's had the conduct of the matter - he did last year, and he knows the history of this and I understand his position entirely.[3]

11 The Magistrate granted Mr Magazis leave to withdraw and then said to Mr Strangio:

Now, in light of the matters that have just been raised, I understand that you, sir, will be representing yourself in these proceedings.[4]

Well, your Honour, my first application will be that the committal should be adjourned on the basis that the lawyers withdrawn. There lies a reason which - there's more than what Mr Magazis has told you. And on that basis and natural justice, I'm not able to proceed with this committal until such time I engage new lawyers or Legal Aid gives me new lawyers.

I had to contact the Legal Aid about four or five days ago. I've spoken to them there - that Mr Magazis had an intention of withdrawing. All he sent was an email, that's what he told - he send - Mr Magazis say he's going to apply to withdraw. And all Legal Aid told me was that he's a good lawyer and they don't believe he was going to withdraw.

And then I said, "No, the lawyer told me he's going to withdraw", and I need to do something about it. And all Legal Aid said - [5]

All right, let's just go back to your primary application. Your application is to adjourn the matter.

Well, on the basis that I've been abandoned by my lawyers that had the brief for nearly 18 months. And - and like I said, your Honour - first the lawyer withdraws, Legal Aid didn't bring anybody here to represent - which they've known about last five days, that he has withdrawn.[6]

13 The Magistrate requested Mr Strangio to focus on the application for an adjournment and asked him whether he wanted the proceeding to be adjourned so that he could secure legal representation. Mr Strangio stated:

Or Legal Aid can find me another lawyer, one of the two.[7]

He then stated that legal aid had only been approved for the committal.

14 Counsel for the informant told the Magistrate that the application for the adjournment was strongly opposed. She stated:

Mr Strangio has done his utmost, in my respectful submission, to derail this committal. We've had one adjournment already, that's put it back another six months, or four or five months odd. He's lodged numerous appeals.

We've now got a final determination from the Court of Appeal in respect to that. He lodged his mention - he suggested to your Honour there was a mention on Tuesday before Justice Weinberg and Justice Forrest. They put to him squarely, "What are your grounds for leave to appeal?", and he did not have any.

He has maintained all along and been able to conduct several proceedings without being represented. He has on occasion made mention to Mr Magazis - however Mr Magazis appeared, I believe last time before this court, and as an amicus again, to the informant what was going on.

We are in a position to proceed, and it's getting very long in the tooth. It's time to get on with it.[8]

15 Mr Magazis then sought the opportunity to respond to a number of matters with respect to Mr Strangio and Victorian Legal Aid. Mr Magazis told the Magistrate that legal aid was still in place and that he waited for instructions from Mr Strangio. Mr Magazis stated:

He then sent a number of emails which indicated matters which - when allegations are refuted, that make it untenable for me to be able to act on his behalf. I emailed him advising him that I would contact the court, and I also advised him that his materials were available for collection. That material is copies that he's provided now himself.[9]

16 Mr Magazis refuted any suggestion by Mr Strangio that he had been abandoned and stated:

My office has made clear to Mr Strangio that whilst he's entitled to pursue judicial review applications, that my instructions were limited with respect to his committal matter; that based on Mr Strangio's belief, the decision of the court for review summary jurisdiction is incorrect, that there would not be a contested committal because a decision would be overturned. There was no purpose in having conferences and preparing a committal whilst those matters were pending in the Supreme Court.

He contacted my office, as I indicated, on 28 June and made an appointment. He cancelled that appointment because he was getting Justice Coghlan's decision. Now, once the matter was listed prior to the commencement of this hearing today, he then pursued a course of conduct which is effectively to use myself and my office as a pawn for his own purposes.

He's conducted, your Honour, numerous applications, numerous hearings on his own, unrepresented. Any suggestion that he's been prejudiced as a result of my conduct is totally (indistinct).[10]

Your Honour, Mr Magazis - we put him in the witness box and I'll ask him some serious questions.

He makes a very serious allegation, your Honour. [11]

18 The Magistrate then ruled that Mr Strangio's application for the adjournment would be refused. Her Honour's reasons were that the committal proceeding had been listed before the court previously and was currently listed for the purpose of the twoday contested committal. The charges were some years old. A committal proceeding was essentially an administrative hearing to determine whether there was sufficient evidence on which a jury could convict. The Magistrate accepted there should be opportunities afforded to litigants to be represented. Her Honour then stated:

It would seem to be, Mr Strangio, given the history of this matter that I've been able to ascertain, having regard to the court file itself, and those matters to which reference has been made today in relation to the history of the matter, that there's been ample opportunity afforded to you to be represented in relation to these matters.

I'm not minded to further adjourn this matter, and so it's my intention to refuse your application for an adjournment, and to direct that these committal proceedings commence.[12]

Well, your Honour, on the basis of what you said then, then this court has got a problem. As a natural justice and as for a person, you cannot obligate and force me to run a committal which I'm not familiar with, and to crossexamine witnesses. And therefore, funding is available at Legal Aid, which Mr Magazis said, and my ...[13]

The Magistrate then stated that she had made the ruling and the committal would proceed. She again repeated:

Today we will conduct the committal proceeding.

Well, your Honour, you can run the committal on your own.[14]

**20 Mr Strangio then made an application that summary jurisdiction be exercised. That application proceeded for some time. The Magistrate ruled that it was not appropriate that the charges be heard and determined summarily. That ruling is the subject of ground 7, which I consider below.

21 Mr Strangio then stated that he made another application to adjourn the proceeding to engage lawyers to run the committal. The Magistrate said that she had dealt with that application. The following exchange occurred.

Your Honour, I understood you, but I make an application again with the purpose now of appealing your decision. I say this on record, that's what I'm gonna be doing this afternoon. And therefore there if you're gonna run the committal, you can. I can't stop you because it's your court, but I'm not gonna be crossexamining no witnesses and I'm not gonna be doing nothing at all. I'm gonna sit on the bench here and wait until you extend my bail, as per the Supreme Court rules.

Okay. Well, you're perfectly entitled to adopt that course. The issue ...

Your Honour, I've got no choice.[15]

22 Mr Strangio then restated that he wanted to make an application to adjourn the proceeding to engage lawyers to run the committal. The Magistrate again said that she had already dealt with that matter. Mr Strangio stated:

Okay. I'll repeat it again, but you refuse to do that. Now I'm putting this court on notice that at the end of your session today there'll be - I'll be going to the Practice Court to get an injunction to stop this committal from proceeding any further. Because of your refusal I couldn't get lawyers.[16]

23 The Magistrate then asked Mr Strangio what part he intended to play in the committal in light of her ruling and whether it was his intention to take no active role in the committal proceeding at all. Mr Strangio stated:

I am not experienced enough your Honour. Sorry, now I don't want to be offensive. I am not experienced enough. See. I've experienced enough -

24 The Magistrate again asked him what part he intended to play in the committal and whether in light of her ruling he was:

"going to sit here", as you've indicated, "and say and do nothing until the conclusion of the committal" at which point presumably you'll invite me to refix bail in relation to the matter.

25 She enquired whether it was his intention not to ask any questions of any of the witnesses who were to be called. Mr Strangio said:

While I've got no files here to be able to go through the files to crossexamine any witnesses. I've got no files at all.[17]

Mr Strangio stated that there were about five folios of files and that he had 'not read them well'. The Magistrate then said that it was likely that if Mr Strangio was not intending to ask any questions the matter could proceed administratively, the prosecutor could proceed on the handup brief and 'so the committal in theory can be finished in about 15 minutes'.[18]

26 Mr Strangio said that he was not going to allow that to happen and that it was not his intention not to crossexamine. He stated:

My intention was application to get a lawyer, because my lawyer abandoned me. You refused that application. Secondly, I repeat it again for my purpose, your Honour, for my purposes, I cannot run a committal without legal because the legal - Legal Aid has funded the money to run the committal. And third, my lawyer's still got the files. I have not read these files.[19]

27 The Magistrate then directed that the committal proceed. Mr Strangio stated:

I'm not committing - I'm not directing the committal to run. I'm asking the committal to be adjourned.[20]

28 The Magistrate said that the prosecution could call their witnesses and:

If you don't ask any questions of the witnesses then their statements will be simply tendered into evidence and at the conclusion of that process the committal will be complete.

But there's a problem. They can run as much as they like. I've got no file, and I've nothing to question them on.[21]

**29 Mr Strangio then asked for a recess for ten minutes and said he needed to make a phone call to a QC that he knew. He again repeated that he had no file and he could not run the committal because he did not know what he was doing.[22] The Magistrate said that he could make his phone call over the luncheon break.

30 Counsel for the informant stated that Mr Strangio 'well and truly' had the material for some time. Mr Strangio objected and said that the material had been given to Mr Magazis.

31 Counsel for the informant told the Magistrate that she had four or five witnesses to call. The Magistrate stated that she understood that Mr Strangio would not be crossexamining them. Counsel said that if that was the case, she would be seeking to proceed by way of straight handup brief for Mr Strangio to be committed to stand trial in the Supreme Court. She referred to Mr Strangio's indication that he was seeking 'some quick advice over the lunch period' and that she was not sure if he understood the situation and that 'we are ready to go'. The Magistrate stated that she would adjourn the proceedings until two o'clock, that that would give him ample time to get advice and that at two o'clock the committal would proceed. Mr Strangio stated:**

But all I was going to say, your Honour, was one word. Natural justice prevails. And under the Human Charter Act, you then rely on all those, well, let the proceedings do what they've go to do.[23]

Just essentially - sorry - that to make this clear, that Mr Strangio is on notice that he does not take up the option to cross-examine those witnesses, that is in fact the prosecution's intention after lunch.[24]

If you say, as you have, "in the event that this committal runs I will not be asking any questions of the witnesses because I'm not in a position to do so" ...

I never said that. I said I cannot run the committal. I don't know what to do. I've got no documents and I can't ask questions to the witnesses because I've got nothing to question them on.

34 The Magistrate then explained the purpose of a committal to Mr Strangio, including that it gave him an opportunity to ask questions of witnesses 'before the matter proceeds to a hearing'. She said:

If you don't ask any questions, then the purpose that lies behind the committal can't be achieved, and so the prosecution is able to simply say "we now seek to have this matter dealt with administratively". The court would be invited in those circumstances where you have no questions to ask, or you find yourself in a position where you cannot ask questions, that the court would be asked to - simply on the basis as filed, to make an order that the matter be directed for hearing in the County or the Supreme Court. [26]

35 After the luncheon adjournment, a solicitor from Legal Aid appeared as a friend of the Court. She said that she had given Mr Strangio some procedural advice and that was where her role at that stage ended. She stated:

I understand he's seeking to adjourn the matter, but I understand now the court is opposed to that course of action.

36 The Legal Aid solicitor asked whether she could be of further assistance, and the Magistrate replied in the negative. The Magistrate asked Mr Strangio:

So, Mr Strangio, you've had some legal advice today and no doubt some advice related to procedural matters. Is that correct?

Yes, I did, your Honour, on the base of getting some briefly, quickly, advice. Look, as I said earlier, because I've got no files, I've got no documents, and there's a five - what do you call, briefs, and a lot of volumes. And if the matter's gonna run to full committal or crossexamination, there's a lot of documents to go there one by one. I would love to crossexamine the witnesses page by page and spend the next two days doing it, but I feel in my opinion that if I take that risk without having the document in front of me, and know which document I've got to crossexamine on, it could probably - might have a major impact on me in due course. So, on that basis, it's not that I'm refusing to run the committal, but my hands are tied. No documents. No legal representation. Not much knowledge of how to run a committal or how to crossexamine properly, well, then basically my hands are tied and I - I can't crossexamine the witnesses.

**37 He said that the Legal Aid solicitor appeared as a courtesy and they were 'prepared to do something to get lawyers onboard, but they can't do it bang now'. They had to assess the file and follow protocol.

So, am I to understand what you're saying, Mr Strangio, is that it's not your intention to crossexamine any of the witnesses who are to be called in this committal?

On the basis of what I just told because I've got no document, I've got no representation, I've got no knowledge how to do it.

Yes. And what I will do for the - for the purpose of the record, any files they intend to file, as you said earlier, as a brief for their cross - their own - their own witnesses, this is what I remember them saying, well then I'm gonna file a rejection to that on the grounds that they're filing the - brief without any actual evidence being extracted, or lawyers to run the case properly. Well, then there'll be - to me, I don't know if I've said the wrong word, it could be an abuse of process on my part, which denies me natural justice. That's all I can say to that.[27]

39 The Magistrate then asked the prosecution how they intended to proceed in light of Mr Strangio's indication. Counsel for the informant said:

In light of him having ample opportunity to obtain legal advice, and ample opportunity to have your Honour explain to him that he has - will be afforded an opportunity to crossexamine witnesses, we now seek to proceed by way of straight handup brief, for him to be committed to the Supreme Court.

40 A discussion occurred about the prosecution's reasons for seeking an order that Mr Strangio be committed to stand trial in the Supreme Court. Counsel for the informant tendered the handup brief. The Magistrate stated:

All right. Thanks. All right. Well, in light of that, and in the absence of any other material I am satisfied that the material presented is such as to indicate that - on the basis of the material tendered, that there is material which, or evidence on which a jury properly instructed could convict in respect of each of the indictable matters presently before the court. I make no determination as to whether a jury properly instructed ought convict, but rather whether or not - that rather the decision I'm obliged to make is whether or not a jury could convict having regard to the evidence at its highest.

And so I make that determination and it is my intention to commit the accused person, Bruno Strangio, to stand trial in respect of each of the indictable matters currently before the court.[28]

**41 The Magistrate then read each of the charges to Mr Strangio and asked him if he pleaded guilty or not guilty. Mr Strangio pleaded not guilty to each charge.

42 Mr Strangio was granted bail on terms similar to those on which he was then bailed.**

**43 Mr Strangio submitted that his rights to legal representation and to crossexamine witnesses at the committal proceeding had been violated.

44 He argued that the court did have power to grant judicial review of the decision to commit him for trial if there had been a denial of natural justice. He relied on the Victorian Court of Appeal decision in McKenzie v Magistrates' Court of Victoria.[29] He stated that the purposes of the committal, which are described in s 97 of the Criminal Procedure Act 2009, could not be achieved unless he had legal representation and unless his lawyer could crossexamine witnesses on his behalf and call whatever evidence was necessary. He alleged that he had been denied natural justice.

45 Section 97 states:**

Purposes of a committal proceeding

The purposes of a committal proceeding are -

(a) to determine whether a charge for an offence is appropriate to be heard and determined summarily;

(b) to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;

(c) to determine how the accused proposes to plead to the charge;

(d) to ensure a fair trial, if the matter proceeds to trial, by -

(i) ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions;

(ii) enabling the accused to hear or read the evidence against the accused and to crossexamine prosecution witnesses;

(iii) enabling the accused to put forward a case at an early stage if the accused wishes to do so;

(iv) enabling the accused to adequately prepare and present a case;

(v) enabling the issues in contention to be adequately defined.

**46 In Marwah v Magistrates' Court of Victoria,[30] Kyrou J accepted that a failure to grant an adjournment during a committal might provide a basis for judicial review.

47 Counsel for the informant pointed to the delays in the proceeding and that the first committal mention had occurred on 15 April 2011. On five further occasions the matter was listed for committal mentions. There were many other court appearances, including Mr Strangio's applications to vary his bail conditions, which were made to the Magistrates' Court and the Supreme Court. Only on one occasion was Mr Strangio legally represented. Mr Strangio filed a Form 32 on 10 October 2011 listing eight witnesses he wanted to attend for crossexamination.

48 On 26 March 2012, Mr Strangio appeared unrepresented and sought to vacate the committal hearing because he had Supreme Court appeals on foot. A new date for the committal was fixed for 30 August 2012. Counsel for the informant submitted that Mr Strangio had been given more than enough time to obtain legal representation at the committal but had refused to accept the advice provided to him. He had not been deprived of a fair trial or of his human rights. The committal hearing was a preliminary administrative hearing and not a final determination. Mr Strangio was seeking to unduly delay the hearing of the charges. If it proved necessary the trial judge could conduct a Basha hearing.[31]

49 I am not persuaded that Mr Strangio has established that the Magistrate erred in the exercise of her discretion by refusing an adjournment, or that he has been denied natural justice, or that any of his human rights were infringed or limited by the Magistrate's decision to refuse to adjourn the committal hearing.

50 The onus was on Mr Strangio to justify the adjournment. The Magistrate had a discretion whether to grant an adjournment and had to consider whether Mr Strangio had received a reasonable opportunity to present his case.[32] Mr Strangio's own statements to me indicated, as the Magistrate had been informed, that some days before the committal, his solicitor had told him and the Court that he was ceasing to act in the matter.

51 Mr Strangio had the responsibility to ensure that his solicitor would be representing him, or else to choose to represent himself, or obtain other legal representation. He said that he was unhappy with his solicitor's preparation of his case. His solicitor told him some days before the hearing that he would be not be representing him. Mr Strangio presented no evidence of any steps that he took in that time to obtain the files or obtain other representation. He told Coghlan J on 1 August 2012 that Mr Magazis had informed him two days previously that he was not going to do the committal because he had not received enough funding.[33]

52 I take into account that Mr Strangio had represented himself on many occasions, including before the Magistrates' Court, the County Court, the Practice Court and the Court of Appeal. The matter had been on foot for nearly two years.

53 The transcript of the committal suggests that Mr Strangio came to court determined to press his application that the charges be heard and determined summarily and to seek to review any decision that refused that application. Mr Strangio was able to argue that application without legal assistance.

54 Mr Strangio was not denied a fair hearing or any of the rights conferred by ss 24 or 25 of the Charter of Human Rights and Responsibilities Act by the Magistrate's refusal of an adjournment.

The learned Magistrate committed a jurisdictional and nonjurisdictional error of law on the face of the record by failing to conduct the committal proceeding in accordance with the mandatory statutory requirements prescribed by section 141 of the CPA including the requirement that "the Magistrates' Court must inform the accused, in a manner likely to be understood by the accused, that-

(a) the accused has the right to answer the charge and must choose either-

(i) to give sworn evidence, that is, to enter the witness box, take the oath or make an affirmation and say what the accused wants to say in answer to the charge and then to respond to any questions from the prosecution or the court about the evidence of the accused; or

(ii) to say nothing in answer to the charge; and

(b) in either case, the accused may call any witnesses to give sworn evidence for the accused."

57 Section 141 is in Part 4.9 of the Criminal Procedure Act 2009 which concerns the 'Determination of Committal Proceeding'. Section 141 states:

Determination of committal proceeding where handup brief used

(1) After the evidence for the prosecution is concluded, the Magistrates' Court must enquire whether the accused intends to call any witness or make any submission.

(2) If the accused is not represented by a legal practitioner, the Magistrates' Court must inform the accused, in a manner likely to be understood by the accused, that -

(a) the accused has the right to answer the charge and must choose either -

(i) to give sworn evidence, that is, to enter the witness box, take the oath or make an affirmation and say what the accused wants to say in answer to the charge and then to respond to any questions from the prosecution or the court about the evidence of the accused; or

(ii) to say nothing in answer to the charge; and

(b) in either case, the accused may call any witnesses to give sworn evidence for the accused.

(3) After giving the information referred to in subsection (2), the Magistrates' Court must ask the accused what the accused wants to do.

(4) At the conclusion of all of the evidence and submissions, if any, the Magistrates' Court must -

(a) if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, discharge the accused; or

(b) if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, commit the accused for trial in accordance with section 144; or

(c) if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which the accused is charged, adjourn the committal proceeding to enable the informant to file a chargesheet in respect of that other offence and, if a chargesheet is filed, must commit the accused for trial in accordance with section 144.

(5) If the informant does not file a chargesheet for the other offence within the period of an adjournment under subsection (4)(c), the Magistrates' Court must discharge the accused.

58 Rule 54 of the Magistrates' Court Criminal Procedure Rules 2009 states:

For the purposes of section 141 (2) of the Criminal Procedure Act and as provided by section 398 of the Crimes Act 1958, the caution set out in section 398 of the Crimes Act and in Form 37 may be used by the Court.

59 Form 37 is headed 'CAUTION TO BE GIVEN TO PERSON CHARGED' and states:

"You now have the right to answer the charge against you and you must choose either:

(a) to give sworn evidence, that is, to enter the witness box, take the oath or make an affirmation and say what you want to say in answer to the charge. This is known as giving sworn evidence. When you have given your evidence you may be asked to respond to questions about it by the prosecution or the Court;

(b) you may say nothing in answer to the charge.

In either case you may call any witness or witnesses to give sworn evidence for you. What do you desire to do?"[3]

**60 Section 141 requires the Court to carry out three steps of present relevance. First, the Magistrate must ask an accused whether he or she proposes to call witnesses. Secondly, if the accused is unrepresented, the Magistrate must inform the accused of the rights that are referred to in s 141. Thirdly, the Magistrate must ask the accused what he or she wants to do. The Magistrate did not undertake any of these steps. Section 141(4) required the Magistrate, after those three steps were completed and any submissions made, to decide whether the accused should be discharged or stand trial, or in specified circumstances to adjourn the proceeding to enable the informant to file a charge-sheet in respect of another indictable offence.

61 Those three steps form an important part of one of the purposes of a committal: to enable the accused to put forward a case at an early stage if he or she wishes to do so: see s 97(c)(iii) of the Criminal Procedure Act 2009.

62 In Grasby v The Queen,[34] Dawson J described the purposes of a committal in the following terms:**

The importance of the committal in the criminal process, should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is sufficient evidence, should not be pursued. Indeed, the significance of the magistrate's decision is clearly reflected in the requirement now contained in s.41 (6) of the Justices Act that the magistrate should discharge a defendant if he is of the opinion that, having regard to all of the evidence, a jury would not be likely to convict. Furthermore, the value of committal proceedings to a person charged may be such as to warrant a trial being stayed or postponed where an ex officio indictment has been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial.

**63 Section 68 contains a similar requirement to s 141 when the Magistrates' Court exercises summary jurisdiction and the accused is unrepresented.

64 Counsel for the informant was not able to point to any express passage in the transcript where the Magistrate informed Mr Strangio of the matters required by s 141 of the Criminal Procedure Act. However, she submitted that reading pages 50 to 62 of the transcript together, demonstrated that the Court made Mr Strangio aware of his rights. I do not accept that submission. I do not consider that the Magistrate, at any stage of the hearing, informed Mr Strangio of the matters required by s 141. The Magistrate did not carry out the three important steps to which I have referred that form part of committal.

65 The discussion at the committal hearing focused on whether Mr Strangio was proposing to crossexamine prosecution witnesses. The Magistrate was concerned to learn whether Mr Strangio was proposing to take part in the committal and particularly whether he was going to cross-examine the informant's witnesses. There was no discussion of whether he was going to give or call evidence. The passages of the transcript that I have set out above, especially those contained in paragraphs 25, 28 and 34, suggest that the Magistrate considered that once any cross-examination of the prosecution witnesses was completed, that she should, without more, decide whether Mr Strangio should be committed to stand trial. This approach overlooked the Magistrate's obligation to inform Mr Strangio of his right to give or call evidence and to ask him what he wanted to do.

66 At committals in Victoria, it may be infrequent for the accused to give evidence or to call witnesses. It may also be infrequent that such evidence would lead to an order that the accused be discharged. However, the legislation requires that the magistrate inform unrepresented accused of the rights that s 141 gives to them. Those rights are important in enabling an unrepresented accused to receive a fair hearing.[35]

67 Mr Strangio appeared well aware of court procedure and had made frequent court appearances in connection with these charges. He had commenced a number of legal proceedings that could only delay their determination. He may well have been aware his right to give evidence or call witnesses. However, he made no statement that waived the Court's obligation to follow the procedures contained in s 141.

68 By failing to adopt the steps required by s 141, the Magistrate made a jurisdictional error in misapprehending or disregarding the nature or limits of the Magistrates' Courts' functions or powers: Craig v State of South Australia.[36]

69 The next issue concerns the consequence of the Magistrate not following the procedure contained in s 141. The long established position in Victoria is that certiorari will not lie to quash the decision of a magistrate to commit, or not to commit, an accused person to stand trial see Potter v Tural.[37]

70 The undesirability of permitting challenges to committals, with consequent fragmentation of proceedings, has often been stated. Such challenges impede the process of justice and affect both prosecution witnesses and the accused. In this matter, Mr Strangio has taken a number of steps that have delayed the determination of the charges.

71 Counsel for the informant accepted that if I found that there had been non-compliance with the requirements of s141, them the matter would have to be remitted to the Magistrates' Court[38]. I consider that that submission was correct. However, I should state my reasons as to why that must be the outcome of the proceeding.

72 In Director of Public Prosecutions v Theophanous,[39] Osborn J summarised the existing law on judicial review of committals as follows:**

In Victoria, certiorari (or an order in the nature of certiorari) will not be directed to an examining magistrate in respect of a decision as to committal. On the other hand, mandamus (or an order in the nature of mandamus) may be directed in certain circumstances. Declaratory relief may also be available. A committal hearing is a quasi-judicial hearing in the sense that it does not result in a final decision dispositive of the question whether an individual should be presented for trial. The question of the appropriate form of relief (if any) is of course dependent upon the establishment of either an excess of jurisdiction or an error of law.

73 In Brygel v StewartThornton,[40] JD Phillips J decided that even if certiorari did not lie to quash a decision in committal proceedings, mandamus might go to compel the performance of a duty in circumstances where there had been a refusal to exercise jurisdiction, whether that refusal was actual or constructive. His Honour was concerned with the provisions then governing the use of the hand-up brief procedure in committals which included:

The handup brief referred to in clause 1(1) must be served personally on the defendant at least 28 days, or such other period as is prescribed, before the committal mention date unless the defendant consents in writing to a lesser period.

**74 The handup brief served in that case was defective as it omitted some of the required documents. JD Phillips J considered that although the legislation used the word 'must', it remained necessary to ascertain the result that Parliament intended if there was noncompliance with the statutory requirements. His Honour held that the provision required substantial compliance with the statute and, that as that had not occurred, what was done at the committal was a nullity and mandamus would issue requiring a new committal to be held.[41]

75 In the recent High Court decision in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia,[42] Gummow, Hayne, Crennan, Kiefel and Bell JJ stated that:**

It should be added that the species of jurisdictional error, constituted by a refusal or failure to exercise jurisdiction, is remedied by mandamus without any order in the nature of certiorari quashing any decision which refuses or fails to exercise jurisdiction, This is because the "ostensible determination is not a real performance of the duty imposed by law upon the tribunal".

**76 I consider that the terms of s 141 make clear that the magistrate is to decide whether to discharge the accused or commit him to trial under s 141(4) only after the steps set out in s 141(1)-(3) have occurred and 'at the conclusion of all of the evidence and submissions, if any'. The magistrate, after the conclusion of the evidence for the prosecution, must enquire whether the accused intends to call any witnesses or make any submissions. If the accused is unrepresented, the magistrate must provide the accused with the information referred to in subs (2) and then ask the accused what he or she wants to do.

77 Unless the court carries out each of the steps required by s141, a committal in the form required by law does not occur. The decision and orders that the accused stand trial are therefore 'ineffective, null and void' to use the words of JD Phillips J in Brygel's Case.[43] Subject to the remaining matters that I next consider, Mr Strangio is entitled to an order that the Magistrates' Court conduct a committal according to law.

78 The making of an order in the nature of mandamus is discretionary. I have considered whether Mr Strangio's conduct in connection with the hearing of the charges justifies the Court refusing to make an order in the nature of mandamus. I have set out some of the history of the matter. Mr Strangio has made many applications that the Magistrates' Court exercise summary jurisdiction. He has made many applications to vary his bail conditions. It may well have been that if the Court had performed the steps required by s 141, Mr Strangio would have followed the frequent practice of accused at a committal and neither given evidence nor called witnesses. He may well have still been committed for trial if he had given evidence or called witnesses. I have taken into account the undesirability of Courts interfering in the committal process and of causing fragmentation of proceedings.

79 However, I consider that in this instance, an important part of the committal hearing required by the Criminal Procedure Act did not occur and that an order in the nature of mandamus should issue to require that a committal in accordance with law occur.

80 I do not consider that the possibility that evidence might be taken after the committal or that a Basha hearing[44] might occur are adequate alternative remedies in circumstances where the committal has not been conducted in accordance with the statutory requirements.

81 As previously stated, counsel for the informant accepted that if I found that there had been noncompliance with the requirements of s 141, then the matter would have to be remitted to the Magistrates' Court. I consider this is to be a case where that course is necessary.**

82 Each of these grounds must be read in conjunction with ground 1 that is set out above and which relies on the right to a fair hearing as provided in s 24 of the Charter of Human Rights and Responsibilities and the rights contained in s 25.

The learned Magistrate committed a jurisdictional and nonjurisdictional error of law on the face of the record by failing to ensure that the informant had procured witnesses to attend Court for the purpose of crossexamination in accordance with section 129 of the CPA.

**84 This ground has no substance. Mr Strangio had been given leave to crossexamine the witnesses that he wished by previous decision of the Magistrates' Court. The informant had arranged for the eight witnesses, whom Mr Strangio sought to crossexamine, to attend court. No right of Mr Strangio was infringed by any failure to procure witnesses to attend for cross-examination.

The learned Magistrate committed a jurisdictional and nonjurisdictional error of law on the face of the record by finding that there was sufficient evidence to support her decision to commit the plaintiff to stand trial in the Supreme Court of Victoria when such a decision was not reasonably open on the evidence before the Court.

**87 The Magistrate relied on the contents of the handup brief that had been provided to Mr Strangio. She stated that in the light of it and in the absence of any other material, that there was material or evidence on which a jury properly instructed could convict in respect of each of the charges.

88 Mr Strangio has not pointed to any matters connected with the Magistrate's reliance on the handup brief that might support this ground.

89 I have found that the Magistrate made a jurisdictional error by failing to comply with the procedure required by s 141 of the Criminal Procedure Act, but I do not consider that the Magistrate erred by finding that the handup brief contained sufficient evidence to commit Mr Strangio to trial.

90 Mr Strangio has not established that there was any infringement of his rights given by s 24 or s 25 of the Charter by the Magistrate's reliance on the hand-up brief as providing a basis to commit him to stand trial.

The learned Magistrate committed a jurisdictional and nonjurisdictional error of law on the face of the record by failing to provide any reasons or sufficient reasons in support of her decision to commit the plaintiff to stand trial in the Supreme Court of Victoria in respect of charges which could be heard summarily in the Magistrates Court of Victoria or, alternatively, which could be heard in the County Court of Victoria.

**93 Mr Strangio had made previous unsuccessful applications to have the charges heard and determined summarily.

94 The Magistrate provided extensive reasons extending over six pages of transcript[45] for her decision not to deal with the matter summarily. In essence they were that the offences 'represent serious offending' and that it was not appropriate that they be heard and determined summarily. The Magistrate obviously meant that the charges represented serious allegations of offending. I am not persuaded that any jurisdictional error has been shown in the Magistrate's decision dismissing Mr Strangio's application that the charges be heard summarily. Mr Strangio did not establish any jurisdictional error or infringement of Mr Strangio's rights under the Charter in this respect.

**96 Mr Strangio has established ground 4, but not the other grounds. He is entitled to an order in the nature of mandamus that a committal proceeding according to law be conducted by the Magistrates' Court of Victoria in respect of the 25 charges bearing case number A12504795.

97 To avoid any uncertainty, I will declare that the orders made by the Magistrates' Court of Victoria on 30 August 2012 in case number A12504795 committing Mr Strangio to stand trial in the Supreme Court of Victoria on the 25 charges are null and void.**

[1] [1980] HCA 13; (1980) 144 CLR 13.

[2] Strangio v The Magistrates' Court of Victoria [2012] VSC 333; leave to appeal refused 28 August 2012.

[29] [2013] VSCA 81.

[30] [2013] VSC 278.

[31] R v Basha (1989) 39 A Crim R 337; cf s 198 of the Criminal Procedure Act 2009, Director of Public Prosecutions v Denysenko [1998] 1 VR 312 and Director of Public Prosecutions v Tran [2013] VSC 153 at [40].

[32] See the considerations discussed by Kyrou J in Marwah v Magistrates' Court of Victoria [2013] VSC 278 at [29]-[30].

[33] Transcript 1 August 2012 p24, Exhibit RAM7 to the affidavit of Richard Andrew Mokos of 19 August 2013.

[34] [1989] HCA 45; (1989) 168 CLR 1 at 14; cf Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 99.

[35] Cf Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100.

[36] [1995] HCA 58; (1994) 184 CLR 163 at 177.

[37] [2000] VSCA 227; (2000) 2 VR 612.

[39] (2009) 27 VR 295 at 300 [15] and see per Maxwell P in Rich v Magistrates' Court of Victoria [2007] VSC 65.

[40] [1992] VicRp 70; [1992] 2 VR 387.

[41] Cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384

[42] [2012] HCA 25; (2012) 289 ALR 1 at 16 [57].

[43] [1992] VicRp 70; [1992] 2 VR 387.