Armitage v Magistrates Court of South Australia; James v Magistrates Court of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
ARMITAGE v MAGISTRATES COURT OF SOUTH AUSTRALIA; JAMES v MAGISTRATES COURT OF SOUTH AUSTRALIA
[2024] SASC 141
Judgment of the Honourable Justice McDonald
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
The applicants seek judicial review of a decision made in the Magistrates Court of South Australia on 15 August 2023, in committing the applicants for trial in the District Court of South Australia and ordering that the applicants be remanded for a not guilty arraignment. The Magistrate delivered separate decisions in respect of each applicant, however the judicial review applications, although filed separately, have been heard together.
The Magistrates Court of South Australia were nominated as the respondent in this matter. On 9 February 2024, the Director of Public Prosecutions' application to be joined as an interested party was granted, pursuant to r 22.1 and r 102.1 of the Uniform Civil Rules 2020 (SA). Subsequently, counsel for the respondent informed the Court that the respondent would abide the outcome of the proceedings, except on the issue of costs, and requested to be excused from the remainder of the proceedings. That application was granted on 23 February 2024.
The applicants bring this application on the grounds that the Magistrate made an error of law during the committal proceedings by failing to conduct a preliminary examination of the evidence before the Court and consider whether there was a case to answer prior to the Magistrate making the order to commit the applicants for trial. The applicants further contend that there was a failure by the prosecution to provide and file a committal brief resulting in there being no evidence before the Magistrates Court upon which the applicants could have been committed for trial. The applicants submit that these errors in law resulted in a forensic disadvantage as well as being deprived of natural justice. While the applicants’ application for judicial review was made out of time and not as soon as practicable, it was not pressed by the respondent.
Following the committal, the applicants were separately committed to the District Court for trial. On 19 September 2023, the Director filed a District Court Information jointly charging the applicants with trespass and dishonesty offences with Mr Armitage also charged with providing a false statement regarding the driver of a motor vehicle. The two files were administratively joined into a single file. The applicants then filed an Interlocutory Application seeking that the matters be remitted back to the Magistrates Court for a preliminary examination, on the same grounds as agitated in this judicial review. The Interlocutory Application was dismissed on 22 January 2024, and on 7 February 2024, the Director filed an ex officio Information in the District Court mirroring the original charges.
In bringing this application for judicial review, the applicants seek the decision of the Magistrate to commit them for trial be set aside, and that an order be made requiring the Magistrates Court to reconsider the question of their committal.
Held; application dismissed:
1. The applications for judicial review are dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134(1), s 169(1); Summary Offences Act 1953 (SA) s 74AB(2)(b); Controlled Substances Act 1984 (SA) s 33LA(a); Criminal Procedure Act 1921 (SA) s 103, s 109, s 111, s 113, s 114, s 115; Uniform Civil Rules 2020 (SA) r 22.1, r 102.1, r 143.1(2), r 256.3, referred to.
R v Basha (1989) 39 A Crim R 337; F, BV v Magistrates Court of South Australia (2013) 115 SASR 232, applied.

ARMITAGE v MAGISTRATES COURT OF SOUTH AUSTRALIA; JAMES v MAGISTRATES COURT OF SOUTH AUSTRALIA
[2024] SASC 141
Civil: Judicial Review

McDONALD J: James Ross Armitage and Belinda Marie James (‘the applicants’) have each made applications for the judicial review of orders made by a Magistrate to commit them for trial in the District Court of South Australia, and orders that they be remanded for a not guilty arraignment on 10 November 2023.[1] Although characterised as two separate decisions, they are essentially one and the same.
[1] That date has been delayed pending the determination of the applications for judicial review.
The applicants seek orders that the decision of the Magistrate to commit them for trial be set aside, and that there be an order for the Magistrates Court to reconsider the question of their committal according to the law.
Although each of the applicants have filed separate originating applications, given that they have been jointly charged, and to date their cases have proceeded together, I ordered that the applications be managed and heard together.
The Magistrates Court was nominated as the respondent in the originating application however the Director of Public Prosecutions (‘the Director’) filed an Interlocutory Application to be joined as an interested party pursuant to r 22.1 and r 102.1 of the Uniform Civil Rules 2020 (SA). I granted that application administratively on 9 February 2024. As a consequence, counsel for the respondent advised the Court that her client intended to abide the event save as to the issue of costs; and given the presence of an appropriate contradictor, asked to be excused from the remainder of the proceedings. I granted that application on 23 February 2024.
Representation of the Applicants
The applicants appeared as litigants in person, without legal representation throughout these proceedings. Given that at various junctures they have claimed to be at a disadvantage, it is necessary that I set out the opportunities that they were provided to secure legal representation.
The Originating Application for Judicial Review was filed on 19 January 2024. The matter was called on for a directions hearing on 23 February 2024. On that occasion the applications were listed for hearing on 3 April 2024. Orders were made that the applicants file their written submissions by close of business on 15 March 2024 and the Director file his written submissions by 22 March 2024. Any reply was to be filed by 27 March 2024.
The Director complied with the orders, the applicants did not.
Shortly before the commencement of the hearing on 3 April 2024, I received the applicants’ written submissions that had been filed the evening before. There was insufficient time to enable me to read those submissions before the matter was called on. When I raised the failure of the applicants to comply with the orders of the Court, Mr Armitage claimed that he had not understood the order. It was in this context that Mr Armitage first raised the issue of obtaining legal representation.
Mr Armitage outlined a recent attempt to obtain legal advice through the UniSA Legal Clinic and told the Court that he and Ms James had met with someone, who they later learnt worked as a lawyer at the Crown Solicitor’s Office. Mr Armitage said that the person had used a false name when they met him at the Legal Clinic and Mr Armitage appeared to attribute this as part of a conspiracy aimed at preventing them from obtaining appropriate legal advice. Mr Armitage explained:[2]
… And we believe that us trying to receive legal representation is being hindered or frustrated to a point, and we were considering other alternatives because we just simply cannot seem to get any legal representation at all.
[2] 3 April 2024 T8.
I asked Mr Armitage whether he had made an application for legal aid, and he responded that they had been trying to find a “private lawyer”. He said they would “rather choose that path, rather than legal aid”. He said that they had no “luck” in finding a lawyer. He explained:[3]
We make appointments, we arrive at the appointment, the doors are locked. We’ve had other appointments where we’ve sat down for two and a half hours and then only to be told that they can’t help. We’ve contacted other solicitors, and they’ve just responded and said, ‘We’re not interested in your case’. I’ve put money in other solicitor’s trusts and, just, I’m billed for considering paperwork, but nothing’s been discussed. It’s just, yeah, our legal representation is being hindered. And with what recently happened with the law clinic, yeah, we are convinced that that is the case.
[3] 3 April 2024 T9.
When I questioned Mr Armitage about whether he believed that efforts were being made to deliberately hinder he and Ms James from obtaining legal advice, he replied “yes” and returned to the recent events at the legal clinic.
When pressed on the topic of whether Mr Armitage was ready to proceed with his submissions that day, he eventually requested that the proceedings be adjourned to enable him to explore the possibility of obtaining legal representation from interstate. When asked about what efforts he had made to date to find a lawyer from interstate, Mr Armitage said “none”. He explained that was on the basis that the events at the legal clinic had only occurred relatively recently, and he and Ms James had been fully occupied in preparing their written submissions. On that basis, albeit somewhat reluctantly, I adjourned the hearing until 3 May 2024 to afford Mr Armitage and Ms James the opportunity to instruct a lawyer.
To avoid a similar outcome on the next occasion, I made an order that in the event that Mr Armitage and Ms James were unable to obtain legal representation, they were to file an affidavit setting out the steps that they had undertaken to find a lawyer by the close of business on 26 April 2024.
No such affidavit was filed.
On 3 May 2024, Mr Armitage and Ms James failed to attend Court. A message was received by the Courts Registry that they had been involved in a car accident.
The matter was relisted to 12 June 2024. Mr Armitage and Ms James were again unrepresented. No affidavit had been filed setting out their efforts to instruct a lawyer. Mr Armitage could provide no meaningful explanation for his failure to do so.
On this occasion Mr Armitage, and at times Ms James, made submissions in support of their application for judicial review however, at the end of proceedings indicated that there were further submissions that they wished to put before the Court. On that basis, I made an order that the applicants were to file any further written submissions within 14 days. They took up that opportunity.
Background
The history behind this judicial review is uncontentious.
On 31 August 2022, an Information was filed in the Adelaide Magistrates Court charging Mr Armitage with serious criminal trespass (non‑residential),[4] dishonestly taking property without consent, failing to truthfully answer questions as to the driver of a motor vehicle[5] and possessing prescribed equipment.[6] Each of the charges were either minor indictable or summary offences.
[4]    Criminal Law Consolidation Act 1935 (SA) s 169(1).
[5]    Summary Offences Act 1953 (SA) s 74AB(2)(b).
[6]    Controlled Substances Act 1984 (SA) s 33LA(a).
Counts 1 and 2 related to offending alleged to have occurred on 29 August 2022 at Dulwich. Counts 3 and 4 related to offending alleged to have occurred on 30 August 2022 at Tranmere and the City Watch House. The Information and charges referred to formed the proceedings in the Magistrates Court identified as MCCRM-22-000225.
On 8 November 2022, Ms James was served with an Information and Summons charging her with the first two offences that had been alleged against Mr Armitage. The Information and charges against Ms James was given the case number MCCRM-22-011047.
Although charged on different dates, on separate Informations and given different file numbers, over the course of the various hearings in the Magistrates Court the two files came to be heard and were dealt with together.
On 20 March 2023, the applicants filed the appropriate paperwork to elect for trial in the District Court. This is an important aspect of this sequence of events, as it was only through this election that the applicants became entitled to a committal process. The default position was that these charges would have proceeded to trial in the Magistrates Court absent a committal.
Whilst initially represented, throughout the later stages of the committal process the applicants did not have legal representation.
As is the usual practice, the Director made a charge determination, which was to proceed with all counts on both Informations. An answer charge date was set for 15 August 2023.
On that date, the applicants appeared in the Magistrates Court and entered pleas of not guilty. Immediately upon those pleas being entered, the Magistrate committed the applicants for trial in the District Court with an arraignment date set for 10 November 2023.
It is accepted by the Director that the committals miscarried in that there were three procedural irregularities. These were that the prosecution did not “tender the evidence”, the Magistrate gave no consideration to the evidence and the Magistrate failed to find that there was a case to answer. It is, however, the Director’s position that these procedural irregularity’s have no material consequences, and any disadvantage can be cured in the District Court.
The Magistrate’s failure to consider the evidence
A complaint central to the application before this Court is that prior to making the order to commit the applicants for trial, the presiding Magistrate did not comply with the statutory requirement of conducting a preliminary examination of the evidence, for the purpose of determining whether it was sufficient to commit the applicants for trial as required by s 113(2)(c)(ii) of the Criminal Procedure Act 1921 (SA) (‘the Act’):
113 – Conduct of answer charge hearing
(1)In cases where a defendant does not appear …
(2)In cases where the defendant appears to answer the charge, the Magistrates Court will proceed as follows:
(a)     the charge will be read and the defendant will be asked how the defendant pleads to it;
(b)     the defendant may then—
(i)plead guilty; or
(ii)deny the charge; or
(iii)assert previous conviction or acquittal of the charge, and if the defendant refuses or fails to plead to the charge, the defendant will be taken to have denied the charge;
(c)     the Court will then proceed as follows:
(i)if the defendant pleads guilty …
(ii)if the defendant denies the charge—subject to subsection (3), the Court will consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for an offence;
(iii)if the defendant asserts previous conviction or acquittal …
(Emphasis Added)
Section 113(3) permits for the Magistrate to dispense with the requirements under s 113(2)(c)(ii) in circumstances in which a defendant is legally represented. That subsection provides:
113—Conduct of answer charge hearing
…
(3)If a defendant who is represented by a legal practitioner concedes that there is a case to answer in relation to an offence, the Court may act on that basis and need not itself consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for the offence.
The applicants were not legally represented. It follows that the Magistrate was required to “consider the evidence for the purpose of determining whether it was sufficient to put the defendant on trial for an offence”. There is nothing in the transcript or on the Court record to suggest that the Magistrate engaged in this exercise.
The failure of the prosecutor to tender the committal brief
A further irregularity appears to have occurred during the committal proceedings that adds an additional layer of complexity to this application. That irregularity relates to the filing of the evidence upon which the prosecution relied.
During the course of the committal proceedings the prosecution is required to file a “preliminary brief” and subsequent to that a “committal brief”. Section 106 of the Act states that a preliminary brief is the brief of evidence provided to the Director of Public Prosecutions (the Director) by SA Police in order for the Director to make a “charge determination” as to the appropriate charge or charges to proceed. Until that occurs, the SA Police appear in the Magistrates Court. Section 106(1)(c) of the Act requires that the SA Police, as soon as practicable after providing the preliminary brief to the Director, also provide a copy of the preliminary brief to the defendant, or the legal practitioner representing the defendant, and file a copy in the Magistrates Court. This process commences the committal proceedings.
On 16 May 2023, SA police provided preliminary briefs to the Director and both applicants. The preliminary brief for each of the applicants contained the same 11 affidavits.
In addition to this, the Armitage preliminary brief contained six discs with audio-visual recordings. These were recordings taken from CCTV footage, “walk throughs” by the police of relevant premises and footage from a police body worn camera, as well as a record of interview with Mr Armitage. It is not clear why those recordings were not also filed with the James preliminary brief.[7]
[7] On my understanding of the case against the applicants, with the exception of the police interview with Mr Armitage, the contents of the discs would be admissible against both of the applicants.
The Director made a charge determination in respect of both applicants on 20 June 2023. The Director requested an adjournment of eight weeks in order to complete and file the committal brief.[8] Section 111 of the Act governs the timing and contents of the committal brief that the prosecution are required to provide. That section relevantly states:
[8]    On the James file that occurred in two stages with an initial adjournment of one week and a subsequent adjournment of seven weeks.
111—Committal brief etc
(1)Where a charge of an indictable offence is to proceed to an answer charge hearing, the prosecutor must, at least 4 weeks before the date appointed for that hearing, file in the Magistrates Court a brief (the committal brief) containing—
(a)     statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; and
(b)     copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant (other than sensitive material or documents that are of only peripheral relevance to the subject matter of the charge); and
(c)     a document describing any other evidentiary material (including sensitive material and documents that are of only peripheral relevance to the subject matter of the charge) on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance the material is alleged to have; and
(d)     all other material relevant to the charge (whether relevant to the case for the prosecution or the case for the defence) that is available to the prosecution except material exempt from production because of privilege or for some other reason,
provided that any such material that has already been included in the preliminary brief (filed in the Magistrates Court and given to the defendant or a legal practitioner representing the defendant under section 106) need not be included in the committal brief.
(2)If material of the kind required to be included in the committal brief comes into the prosecutor’s possession after the filing of the committal brief, the prosecutor must file the new material in the Magistrates Court as soon as practicable after it comes into the prosecutor’s possession (and on so doing it will be taken to form part of the committal brief for the purposes of this Act).
(3)If material is filed in the Court in accordance with subsection (1) or (2), a copy of that material must be given to the defendant or a legal practitioner representing the defendant as soon as practicable after it is so filed.
…
(Emphasis added)

It follows that there is no requirement for the prosecution to file a full “committal brief” per se. The effect is that the committal brief consists of a combination of the preliminary brief and any additional affidavits and evidence subsequently filed by the Director.
Section 114 of the Act provides for the manner in which evidence is to be received by the Court during committal proceedings. It relevantly provides:
114—Taking evidence at committal proceedings
(1)Where a charge is not admitted by a defendant in committal proceedings, the following procedure applies:
(a) the prosecutor will tender the statements and other material filed in the Court as part of the committal brief and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence;
…
The tender is notional, in that the material relied on by the prosecution had already been filed in Court, whether that be as part of the “preliminary brief” or the “committal brief”.
For reasons that are not apparent, it would seem that no committal brief or further affidavits were filed by the Director. The only affidavits that were before the Court were those that had been filed as part of the preliminary brief. Although it would appear that the applicants were served with an additional three statements at the committal hearing, these were not filed in the Magistrates Court but were filed in the District Court registry two days later.
It would also appear from the transcript and the Court record, that the prosecutor did not go through the process of “tendering” the statements and other materials.
It is on that basis that it is contended by the applicants that there was no evidence before the Magistrates Court upon which they could have been committed for trial. It is the applicants’ submission that this is a second basis upon which this Court can conclude that they were not lawfully committed for trial, and consequently I should exercise my discretion to grant the relief applied for.
This submission is based on a mistaken belief that because there had been no committal brief filed separately to the preliminary brief, that resulted in there being no evidence before the Court. Affidavits had in fact been filed in the Court in support of the prosecution case, albeit at the time of the filing and provision of the preliminary brief.
The failure of the Magistrate to find that there was a case to answer
The final irregularity that has been identified in the committal proceedings was the failure of the Magistrate to find that there was “a case to answer”, before committing the applicants for trial in the District Court. This is effectively the corollary of the Magistrate failing to consider the evidence.
Section 115 of the Act governs the approach to be adopted by a Magistrate in assessing the evidence in committal proceedings:
115 – Evaluation of evidence at committal proceedings
(1)The following principles govern the Magistrates Court’s approach to evidence in committal proceedings:
(a)     evidence will be regarded as sufficient to put the defendant on trial for an offence if, in the opinion of the Court, the evidence, if accepted, would prove every element of the offence;
(b)     although the Court may reject evidence if it is plainly inadmissible, the Court will, if it appears that arguments of substance can be advanced for the admission of evidence, admit the evidence for the purpose of the committal proceedings, reserving any dispute as to its admissibility for determination by the court of trial.
(2)If the Magistrates Court, after completing its consideration of the evidence, is of the opinion that the evidence is not sufficient to put the defendant on trial for any offence, the Court will –
(a)     reject the information; and
(b)     if the defendant is in custody on the charges contained in the information (and for no extraneous reason) – order that the defendant be discharged from custody.
(3)If, after completing consideration of the evidence, the Magistrates Court is of the opinion that the evidence is sufficient to put the defendant on trial for an offence –
(a)     the Court will review the charges, as laid in the information, in order to ensure that they properly correspond to the offences for which there is, in the opinion of the Court, sufficient evidence to put the defendant on trial and make any necessary amendment to the information; and
(b)     following the review of the charges –
(i)if the defendant stands charged with a major indictable offence – the Court will commit the defendant to a superior court for trial;
(ii)if the defendant stands charged with a minor indictable offence but with no major indictable offence – the Court will, if the defendant has not previously elected for trial by a superior court on that charge, allow the defendant a reasonable opportunity to do so and, if the defendant does so elect, will commit the defendant to a superior court for trial but otherwise will proceed to deal with the charge in the same way as a charge of a summary offence;
(iii)if the defendant stands charged with a summary offence but with no indictable offence – the Court will proceed to deal with the charge in the same way as if the proceedings had been commenced on information charging the defendant with summary offences only.
…
There is no dispute that a proper interpretation of s 115 of the Act is that even in circumstances in which a defendant has elected to be tried in a superior court, the committal procedures in s 115(3) apply to that prosecution. Section 115(3)(ii) contemplates that the procedures in s 115 as a whole apply to both major and minor indictable offences.
The Director concedes that there is no material before this Court to suggest that the Magistrate conducted a preliminary examination for the purpose of determining whether the evidence was sufficient to put the applicants on trial. The Magistrate certainly made no express findings of fact.
These errors having been established; the question remains as to whether this Court should exercise its discretion to order any of the remedies that have been sought by the applicants.
Developments since the committal proceedings
Before determining that issue, it is necessary to set out the further developments that have occurred since the time of the committal.
The applicants were committed to the District Court on separate files. Following, and consequent upon the Magistrate committing the applicants for trial, on 19 September 2023 the Director filed an Information in the District Court (‘the original District Court Information’) jointly charging the applicants with the trespass and dishonesty offences. On that same Information, Mr Armitage was charged with the offence of giving a false answer about the driver of a motor vehicle. The offence of possessing prescribed equipment was discontinued. The two files were consolidated into a single file, by the District Court Registry.
Subsequent to this, the applicants filed an Interlocutory Application in the District Court for the matters to be remitted back to the Magistrates Court committal list “for a preliminary examination according to law”. The grounds for that application were essentially the same as those that are agitated in this application for judicial review. The Interlocutory Applications were dismissed on 22 January 2024.
On 7 February 2024, the Director filed an ex officio Information in the District Court which mirrored the original District Court Information.
The applications for judicial review
The applications for judicial review first came before this Court on 23 February 2024. As I have mentioned, they were filed on 19 January 2024.
It follows that the applications were made out of time. Rule 256.3 of the Uniform Civil Rules 2020 (SA) (‘UCR’) requires that an action for judicial review be commenced as soon as practicable after the decision was made and “in any event within the six months after the decision”.[9] Whilst the applications were filed within six months of the decision being made, it cannot be said that they were filed as soon as practicable. This is not a matter in which the delay is of any great moment, and it has not been suggested that it has caused the Director any embarrassment.
[9] Uniform Civil Rules 2020 (SA) (‘UCR’) r 256.3(1)(b).
The applicants contend that the errors made by the Magistrate have resulted in them suffering forensic disadvantage, as well as being deprived of natural justice. They have particularised this disadvantage in the following terms:[10]
[10] FDN 1, Applicants’ Originating Application for Review.
4.4Depriving the applicant of committal proceedings, is depriving them of the following:
·       The opportunity to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
·       Better understanding of the charges to determine how the accused proposes to plead to the charge;
·       A fair trial, if the matter proceeds to trial.
·       Assurance that the prosecution case against the accused is adequately disclosed in the form of depositions.
·       The opportunity to hear or read the evidence against the accused and to cross-examine prosecution witnesses;
·       The opportunity to put forward a case at an early stage if the accused wishes to do so;
·       The opportunity to adequately prepare and present a case.
·       An opportunity enabling the issues in contention to be adequately defined.
·       The opportunity of calling evidence in rebuttal.
·       Natural Justice and Procedural Fairness.
· the possibility that the Magistrate will hold that there is no prima facie case or that the evidence is insufficient to put the accused on trial (See: Barton v The Queen (1980) 147 CLR 75 at p.99).
A number of these complaints are misconceived. Whilst the Magistrate’s departure from the proper adherence to the committal proceedings meant that the applicants were not committed for trial in accordance with the requirements of the Act, it does not necessarily follow that they, as a matter of practicality, have suffered any real disadvantage or prejudice.
It is necessary to consider each of the issues raised to determine what, if any, prejudice the applicants have in fact experienced.
Some of the complaints can be immediately addressed as lacking in substance. These are the complaints that the applicants have been deprived of:
2.Better understanding of the charges to determine how the accused proposes to plead to the charge;
4.Assurance that the prosecution case against the accused is adequately disclosed in the form of depositions;
6.The opportunity to put forward a case at an early stage if the accused wishes to do so;
7.The opportunity to adequately prepare and present a case;
8.An opportunity enabling the issues in contention to be adequately defined.
These complaints are illusory, in that the manner in which the committal was conducted had no impact on the fairness of the process to the applicants.
The Director disclosed its case to the applicants during the committal and has continued to do so since that time, by the provision of the various affidavits and copies of the exhibits. That is the basis upon which the applicants are able to understand the case against them. It is important to note that amongst the numerous complaints made by the applicants, there has been no suggestion that there has been inadequate disclosure. There is nothing that would have occurred that would have assisted the applicants in understanding or in preparing to defend the case that they have to meet, had the Magistrate turned his mind to the appropriate test.
It is also a relevant consideration that if, in fact, there was any confusion over the nature of the prosecution case or the allegations against the applicants, they have now also had the benefit of a detailed prosecution case statement.
I will next deal with the contention that the applicants have been deprived of:
5.The opportunity to hear or read the evidence against the accused and to cross‑examine prosecution witnesses.
9.The opportunity of calling evidence in rebuttal.
As to the former, as I have said, the applicants had the prosecution brief of evidence. The only potential disadvantage suffered was that the applicants were deprived of an opportunity to make an application to cross-examine prosecution witnesses as part of the committal process. Under s 114 of the Act, there is power for a defendant to make an application for a witness to be presented for cross-examination.
Relevantly, s 114(1)(b) reads:
114 – Taking evidence at committal proceedings
(1)Where a charge is not admitted by a defendant in committal proceedings, the following procedure applies:
…
(b) the prosecutor will call a witness whose statement has been filed in the Court as part of the committal brief for oral examination if –
(i)the defendant has filed and given to the prosecution a notice in accordance with section 112(2) indicating that the defendant required production of that witness; and
(ii)the Court grants permission to call that witness for oral examination
…
However, pursuant to s 114(2):
(2)The Court will not grant permission to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.
Subsection 114(3) outlines the factors to be considered in determining whether special reasons exist:
(3)In determining whether special reasons exist for granting permission to call a witness for oral examination, the Court must have regard to –
(a)     the need to ensure that the case for the prosecution is adequately disclosed;
(b)     the need to ensure that the issues for trial are adequately defined; and
(c)     the Court’s need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and
(d)     the interests of justice,
…
Given the nature of the test, and the ability of the prosecution to obtain addendum affidavits to meet any deficiencies in its case, it is the experience of the Courts that it is only on very rare occasions that permission is granted for a witness to be called to give evidence as part of the committal process.
A further difficulty for the applicants is that they have not identified which witness or witnesses they would have made applications to cross-examine, let alone the basis upon which that application would have been made. Even if the applicants were in a position to identify the witness that they would have applied to have called, there is now a further remedy available to them in the form of what has become known as a ‘Basha’ inquiry.[11]
[11] R v Basha (1989) 39 A Crim R 337.
There is now an entrenched practice in the District Court for a Judge to permit the cross-examination of a witness in the absence of a jury in advance of a trial. This occurs in circumstances in which an accused has potentially been prejudiced by the prosecution proposing to call evidence at trial, which was not part of the brief at the committal. This is a remedy that is not uncommonly used when it is said that an accused has suffered a forensic disadvantage in not having had the opportunity to apply to cross-examine the witness at the committal. Such a remedy would be available to the applicants in the event that they could establish a proper basis upon which a witness should have been called in the Magistrates Court.
As to the issue raised about the applicants having lost the opportunity to call evidence in rebuttal, I assume that what is meant is that they have lost the opportunity to give or call evidence. To make good this complaint, it would be necessary for the applicants to indicate who they would have called and the evidence that they would have elicited. They have not done so.
I will deal with contentions 1 and 11 together. These are:
1.The opportunity to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
11.The possibility that the Magistrate will hold that there is no prima facie case or that the evidence is insufficient to put the accused on trial (see Barton v The Queen (1980) 147 CLR at p.99)
I make the assumption that in contention 1 the applicants are referring to the Magistrate having had an opportunity to determine whether there is sufficient evidence for the charges to be committed to the District Court.
There is merit to this complaint in that if the Magistrate, after consideration of the evidence, was of the opinion that the evidence was not sufficient to put the defendants on trial for the offence, the Magistrate was required to reject the Information, effectively ending the prosecution.[12] That consideration was not undertaken in the applicants’ committal hearing.
[12] Criminal Procedure Act 1921 (SA) s 115(2)(a).
In determining whether the applicants have experienced any disadvantage, it is important to bear in mind that even had the Magistrate found that there was no case for the applicants to answer, that would not be fatal to a successful prosecution.
The Director has the power to lay an ex officio Information. That much cannot be disputed. Pursuant to s 103 of the Act, the Director may lay an Information, including an ex officio Information, where there has been no committal for trial. Relevantly, s 103(2) provides:
103 – DPP may lay information in superior court
…
(2)The fact that an information charging an indictable offence has been filed in the Magistrates Court does not prevent the Director of Public Prosecutions from subsequently presenting to the Supreme Court or District Court an information charging the same offence if the Director of Public Prosecutions thinks fit (and the information filed in the Magistrates Court will, on the giving of written notice by the Director of Public Prosecutions to the Registrar of that fact, be taken to have been withdrawn).
…
This section vests the Director with a broad discretion to lay charges in the District or Supreme Court regardless of the outcome of the proceedings in the Magistrates Court.
Guideline 4 in the ‘Director of Public Prosecutions South Australia – Statement of Prosecution Policy and Guidelines’ sets out the relevant considerations applicable to a decision to lay an ex officio Information:
Guideline Number 4: Ex officio Information
To present an information in the absence of prior committal proceedings must be regarded as constituting a significant departure from accepted practice. Given that a purpose of committal proceedings is to filter out those cases where there is an insufficient basis for the accused being placed on trial, to indict in the absence of committal proceedings will deny the accused the opportunity of securing a discharge before the Magistrate.
A decision to indict in the absence of prior committal proceedings will only be justified if any disadvantage to the accused that may thereby ensue will nevertheless not be such as to deny the accused a fair trial. Further, such a decision will only be justified if there are strong and powerful grounds for so doing. An ex officio information should not be presented in the absence of committal proceedings unless the evidentiary and public interest considerations outlined in the prosecution policy are satisfied.
Where an ex officio information is presented in the absence of committal proceedings the accused will be provided with all relevant witness statements and full details of the case that the prosecution will present at the trial and any other material in accordance with disclosure principles.
On the other hand, a decision to indict, notwithstanding the accused was discharged at the committal proceedings, will not constitute as great a departure from accepted practice. The result of committal proceedings has never been regarded as binding on those who have the authority to indict. An error may have resulted in the Magistrate discharging the accused, and in such a case the filing of an ex officio information may be the only feasible way that the error can be corrected. Nevertheless, a decision to indict following a discharge at the committal proceedings should never be taken lightly. An ex officio information should not be presented in such cases unless it can be confidently asserted that the Magistrate erred in declining to commit, or fresh evidence has since become available and it can be confidently asserted that, if the evidence had been available at the time of the committal proceedings, the Magistrate would have committed the accused for trial. In the event that fresh evidence is received, consideration will be given to reinstituting the committal proceedings.

Of significance in determining the current application:
●It is recognised that to lay an ex officio Information in the absence of committal proceedings will deny the accused the opportunity of securing a discharge before the Magistrate.
●That any disadvantage suffered by an accused would not be such that it would deny an accused a fair trial.
●An ex officio Information should not be presented unless there are strong and powerful reasons to do so.
●A decision to lay an ex officio Information, however, will not constitute a great departure from accepted practice.
●It is accepted that it may be appropriate to use an ex officio Information to rectify an error that has occurred in the Magistrates Court.
The Director exercised his discretion to lay an ex officio Information against the applicants after their unsuccessful attempt to stay the proceedings in the District Court. Whilst there is no evidence as to why that decision was made, the obvious inference is that it was in recognition of the irregularity that had occurred in the Magistrates Court. In circumstances in which the allegations against the applicants are relatively straight forward and full disclosure had taken place, it was no doubt seen as a pragmatic and efficient alternative to remitting the matter back the Magistrates Court. In considering that decision in the context of the discretionary nature of the remedies available on a judicial review, it comes back to the question of what, if any, disadvantage the applicants have experienced as a result of the Director adopting this course.
No such prejudice or disadvantage has been established. If there is in fact no case for the applicants to answer, on the basis that there is inadequate evidence for the Director to prove the charges, there remain remedies in the District Court. It would be open to the applicants to apply for a stay of proceedings on the basis that the prosecution is “foredoomed to fail”, or they could make a submission that there is no case to answer at the close of the prosecution case.
The two remaining complaints raised by the applicants are that they have been deprived the opportunity of a fair trial and deprived of natural justice and procedural fairness. It is not sufficient for the applicants to make bald assertions of unfairness and prejudice; it is incumbent upon them to demonstrate the manner in which the asserted unfairness has worked against them. They have not done so.
Additional issues raised by the applicants during the course of submissions
The laying of the ex officio Information amounts to an abuse of process
During submissions, the applicants developed an argument that the filing of the ex officio Information was an abuse of process either of itself, or because it was motivated by some improper purpose. Without descending into the merits of those submissions, the question of whether there had been an abuse of process is not a matter that is relevant to the exercise of the Court’s discretion in these judicial review proceedings. Whether or not the proceedings in the District Court amount to an abuse of process, is a matter for the District Court.
The applicants were deprived of an opportunity to withdraw their election to be tried in the District Court
A further submission that only crystalised during the hearing on 12 June 2024, was that because of the procedural irregularities, the applicants were deprived of an opportunity to withdraw their election to be tried in the District Court.
Section 109(3) of the Act provides that a defendant who has elected for trial of a minor indictable offence by a superior court, may withdraw the election at any time before the committal proceedings are concluded. The applicants did not withdraw their election, however claimed that they were deprived of that opportunity given the manner in which the committal was conducted. Mr Armitage submitted to the Court:[13]
And also, in the committal, if the committal is followed according to the law, there is also other opportunities, like we have the chance to withdraw our election by the end of the committal. That is where someone can look at the evidence that has been presented, and if they choose to withdraw the election, they have that choice. And because of what happened, that is one thing that we were deprived of, and that can’t be remediated later, it can’t be fixed.
[13] 12 June 2024 T24.
There are two difficulties with that submission. The first is that there is an air of artificiality to the suggestion that the applicants were deprived of any real opportunity to withdraw their election. Had the irregularities not occurred, they would have still been committed (or discharged) on the same day. There was no indication from either applicant that they wished for a further opportunity to consider whether they wished to withdraw their election.
The second issue is more fundamental. During submissions I asked the applicants directly whether they would have withdrawn their election had they been given the opportunity. I also raised the possibility of the filing of affidavits if that was in fact their position. They did not take up that offer and would not commit as to whether at the time of committal, or even now, they wished to withdraw their election. Even when counsel for the Director indicated that a pragmatic approach may be adopted if the complaint really was about the opportunity to withdraw the election, and suggested that the applicants file supporting affidavits, they would not commit. Mr Armitage responded by saying:[14]
How is a person to make a decision on whether they want to be tried in a superior court without looking at any of the evidence? That is the purpose of the committal proceedings. The Act states that is why the defendant gets an opportunity to do so.
[14] 12 June 2024 T33.
I repeat again that there had been no suggestion that there has not been full disclosure of the prosecution brief, and the applicants also now have the benefit of the comprehensive prosecution case statement.
I do not accept that the applicants were genuine in their complaint that they have been deprived of an opportunity to withdraw their election and be summarily tried. They were given the opportunity to put that to the Court and they chose not to do so.
Interlocutory application
On 12 June 2024, the Ms James filed Interlocutory Applications for “Judgment for failure to disclose basis” under r 143.1(2) of the UCR. The order sought was “Judgment in favour of the applicant in the action on the grounds that, no reasonable basis to contest the application is capable of being disclosed”. Effectively, Ms James appeared to be seeking an order that the Director had no basis upon which to contest the application for judicial review and for that reason sought an order that judgment be granted in her favour on the basis that to contest the application was “frivolous, vexatious or an abuse of the processed of the court”.
I dismissed the application and indicated that I would provide reasons at the time of the delivery of this judgment.
Putting aside the procedural irregularities in this interlocutory application, for the reasons that follow, I do not accept the contention that there is no basis for the Director to resist the application for judicial review.
Should the Court in its discretion grant relief against the Magistrate’s order for committal?
In F, BV v Magistrates Court of South Australia,[15] Kourakis CJ made some general observations about the likelihood of success of applications for judicial review of committal proceedings. His Honour said:[16]
In the ordinary course, the limited legal effect of a committal in enlivening a duty to bring within a specified time an Information in the District Court or Supreme Court, which the Director of Public Prosecutions is empowered to bring at any time would rarely attract the intervention of this Court in its supervisory jurisdiction. A defendant does not have a right, in the strong sense, to a summary trial of a minor indictable matter. Moreover, most deficiencies in the committal process can be cured at trial. For these reasons, applications for judicial review of committal proceedings generally will not enjoy good prospects of success of attracting a favourable exercise of the discretion to grant relief.
[15] (2013) 115 SASR 232.
[16] Ibid at [82].
The relief sought by the applicants in this Court is discretionary. Relief may be refused in the Court’s discretion on a number of grounds. A consideration relevant to this application is that despite any irregularity that took place in the Magistrates Court, the applicants have not demonstrated that they have suffered any adverse consequences.
It is also a relevant consideration to the exercise of the discretion that there is nothing about the situation in which the applicants find themselves, that cannot be remedied in the District Court.
The Director’s primary submission is that given that there are proceedings filed in the District Court, which is the venue of trial as elected by both applicants, which election has never been resiled from, there is no purpose to be served in granting the relief sought by the applicants, which is essentially that their committal proceedings be quashed. Even if those committals were quashed, the proceedings in the District Court would still remain extant.
There is force in that submission. The applicants have failed to identify any clear adverse consequence that they have suffered as a result of the irregularities that took place at the committal. To the contrary, the application appears to be based on a concern that because the appropriate proceedings were not adopted in the lower court, there must inevitably be some disadvantage to them. That does not necessarily follow as a matter of logic or law.
I dismiss the applications.
I refuse the relief sought by the applicants.

[2024] SASC 141

6 December 2024