Biedermann v Magistrates Court of South Australia No. Scgrg-00-534

[2000] SASC 303

BIEDERMANN v MAGISTRATES COURT
OF SOUTH AUSTRALIA
[2000] SASC 303

Civil

1................ DEBELLE J...... This is an application for judicial review of an order made by a magistrate in the Elizabeth Magistrates Court refusing leave to call witnesses for oral examination at a preliminary hearing pursuant to s 106(2) of the Summary Procedure Act 1921.

1. The applicant is charged with the crime of murder. He had been served with a document specified in s 104(1)(a) of the Summary Procedure Act. On or about 1 March 2000, he gave notice under Rule 20 of the Magistrates Court Rules 1992 of the witnesses in respect of whom he intended to apply to examine orally pursuant to s 106. The application was listed before a magistrate on 22 March 2000 for argument. That magistrate did not hear the application but directed the applicant to lodge a further application providing particulars.

2. On 22 March the applicant provided a further list of witnesses with some brief particulars. The application was heard by another magistrate on 24 March. That magistrate refused the application. The magistrate did not give reasons for his decision. He did, however, direct the Director of Public Prosecutions to supply a statement from a Dr Flock. On 20 April 2000, the Director of Public Prosecutions produced a declaration from Dr Flock to the applicant. No application is made in respect of that declaration.

3. The applicant has applied for an order in the nature of certiorari quashing the decision of the magistrate made on 24 March 2000 refusing to grant leave to call witnesses. The applicant also seeks an order in the nature of mandamus that the witnesses listed in the notice filed by the applicant be called to give oral evidence.

4. Two affidavits have been filed in support of the application. They recite the events leading to the decision on 24 March. They do not, however, set out the grounds of the application. Furthermore, there is nothing in any of the papers which discloses the grounds on which the application is made. I will return to this matter.

5. Although the supervisory jurisdiction of the Supreme Court by way of judicial review extends to preliminary examination of charges of indictable crimes: Clayton v Ralphs & Manos (1987) 45 SASR 347, that jurisdiction does not create a kind of general right of appeal from orders made by magistrates in the course of conducting preliminary hearings. Instead, the jurisdiction is available only to review the decision making process and not to review the merits of the decision, the subject of the application: Clayton v Ralphs & Manos (supra) per Jacobs J at 355.

6. Broadly speaking, in this context, an order of certiorari is available to correct jurisdictional error or an error of law on the face of the record. The order is also available to correct a decision which is so unreasonable or unintelligible that it could only have been reached on an erroneous understanding of the relevant statutory provisions: Tzeegankoff v The Magistrates Court (1998) 199 LSJS 296 at 298. In this context, unreasonableness means unreasonableness in the sense identified in the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233. It is not an opportunity to seek to review the decision upon its merits. These principles are entirely consistent with the view frequently expressed by this Court that, once criminal proceedings have been initiated, the administration of those proceedings should be left to the criminal court. It is consistent also with the view that there is no right of appeal from a decision committing a person for trial or from a decision refusing to commit that person for trial: R v Byczko (1982) 30 SASR 578.

7. The only ground upon which the applicant relies in this case is that the decision refusing leave to call these witnesses was so unreasonable that it demonstrates an erroneous understanding of the relevant statutory provisions.

8. Mr Vadasz, who appeared for the applicant, said that the applicant’s defence to the charge of murder is that he acted in self-defence. There are no witnesses to the incident. The case against the applicant is essentially circumstantial. The cause of death was strangulation. The deceased and the applicant had been living in a homosexual relationship. Mr Vadasz submits that the relationship was marked by violence. No evidence of that was put forward. It was simply the assertion of Mr Vadasz. Mr Vadasz also contended that the declarations made by relatives and close friends of the deceased assert that, although the deceased had a quick temper, he was not a violent person. They also assert that the applicant was violent and abusive towards the deceased and that the deceased wished to terminate the relationship.  I note, however, that two witnesses state that the deceased could be violent on occasions.  That must be weighed with the fact that there is evidence that the applicant is substantially bigger than the deceased.

9. According to Mr Vadasz, the defence case is that it was the deceased who was a violent person, that the deceased had a bad drug problem, and that it was the applicant who wished to terminate the relationship. It was submitted the applicant should be able to examine issues such as the temper of the deceased and violence or abuse within the relationship, including the allegation that the deceased had marks on his throat for some days before he was killed.

10. Mr Vadasz also asserted that the relatives and friends of the deceased have exhibited animosity towards the applicant and that there is some collusion in their statements. A reading of the statements of the relatives discloses that there are differences between them. It is difficult, therefore, to accept much of the submission that there has been collusion between the relatives and friends of the deceased.

11. This application relates to seven witnesses who are relatives and close friends of the deceased and to four witnesses who were either ambulance officers or police officers. As to the four witnesses who were either ambulance officers or police officers, it is said that their evidence is important as it relates to the position of the deceased at the time of death and as to whether the room exhibited any signs of a struggle. As to those matters, it is acknowledged that the deceased was moved for the purpose of attempting to revive him. I do not think any examination of these persons is likely to add materially to the evidence on that issue. Secondly, it is acknowledged that there are photographs of the room in which the deceased died. They provide objective evidence of the state of the room at that time. More relevantly, Mr Vadasz has not submitted anything which in any way demonstrates that in relation to those four witnesses, the magistrate erred in deciding that there were no special reasons justifying calling those persons, or that the decision was in any respect so unreasonable that this Court should interfere.

12. As to the remaining witnesses, it is apparent from the submissions made by Mr Vadasz that the applicant seeks, as it were, to have a dress rehearsal of the cross-examination of those witnesses. This Court has said that the fact that the defence may be deprived of the opportunity of cross-examining a witness twice, thereby testing the witness’ ability to tell a consistent story, is not sufficient as to constitute special reasons: Goldsmith v Newman (1992) 59 SASR 404 at 410.

13. Mr Vadasz also submitted that the examination may well eliminate possible areas of contention and thus the application to call witnesses falls within the first two categories identified by King CJ in Goldsmith v Newman (supra) at 410 as circumstances which may constitute special reasons. Here again, I think that the submissions of the applicant demonstrated no more than a desire to have a dress rehearsal of the cross-examination of those witnesses. More importantly, whether I am correct in the observation or not, the fact remains that the applicant has not in any respect demonstrated that the decision of the magistrate was so unreasonable that this Court should interfere.

14. I add that it is not enough that this Court may have considered that there are special reasons for calling a witness pursuant to s 106: S v Metanomski (1993) 65 A Crim R 352. It must be demonstrated that the magistrate’s decision is tainted either by jurisdictional error, an error on the face of a record, or is so unreasonable in the sense that I have described.

15. For these reasons, I dismiss the application for an order in the nature of certiorari. It follows that I should also dismiss the application for an order in the nature of mandamus.

16. I have already referred to the fact that the affidavit filed in support of the application did not disclose grounds of the application. Notwithstanding that fact, leave to serve the application was granted. The obligation to specify the grounds upon which an application for judicial review is based is expressed in Rule 98.04. It is inappropriate to grant leave to serve unless and until the grounds of the application are provided. In the absence of those grounds, it is not possible to know whether there is any merit in the application. The requirement to obtain leave to serve the application is a kind of screening process intended to ensure, first, that there is a decision which is amenable to judicial review and, secondly, that there are grounds which might call that decision into question.

17. Thus, the affidavit in support of the application for judicial review must state the grounds. In other words, the necessity for grounds to be stated is a condition precedent to the grant of leave.

18. Any application for leave to serve an application for judicial review which comes to this Court without evidence of the grounds on which it is based will, as a general rule, be refused.

19. For all of these reasons, the application is dismissed. There will be no order as to costs.