Brygel v County Court of Victoria & the DPP

[1998] VSC 99

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No.7373 of 98

ALAN ANTHONY BRYGEL	Plaintiff
V
COUNTY COURT OF VICTORIA AT	First Defendant
MELBOURNE CONSTITUTED BY HIS HONOUR CHIEF JUDGE WALDRON
AND
THE DIRECTOR OF PUBLIC	Second Defendant
PROSECUTIONS

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JUDGE:	COLDREY, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 1998
DATE OF JUDGMENT:	9 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 99

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Originating motion - Refusal to order transcription of non-evidentiary parts of committal proceedings - No denial of natural justice - Application for joinder of summary offence on presentment - Operation of s.359AA of Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the First Defendant	No appearance
For the Second Defendant	Mr. R. Taylor	Peter. C. Wood, Solicitor for Public Prosecutions

HIS HONOUR:

1. This matter came before the Court by way of originating motion. The plaintiff appeared in person and the secondnamed defendant was represented by Mr. R. Taylor of counsel. No objection was taken to the form of the proceeding on behalf of the secondnamed defendant and, in particular, no objection was taken that the matter had not first been brought before a Master of the Supreme Court. Neither was any point made as to whether the more appropriate procedure may have been by way of judicial review pursuant to Order 56 of the Rules of the Supreme Court.

2. The principal orders sought by the plaintiff were as follows:

"1.	The decision of Chief Judge Waldron on Monday 21st September, 1998 in not giving me the running transcript of the committal by way of him ordering for a running transcript to be transcribed from the running tapes of the committal be quashed and that the other charge that is a summary offence be joined to the other two charges which are Indictable.
2.	That a running transcript be made available to the Plaintiff and the Office of Public Prosecutions."

1. The genesis of this matter was a committal proceeding before Magistrate Mr. B. Braun commencing on 27 July 1998 and lasting for five days, at the end of which the plaintiff was committed for trial for rape (digital) and indecent assault. The plaintiff also faced a summary offence of assault (being the offence mentioned in the orders sought and which the plaintiff seeks to be joined to the indictable offences). The trial of this matter is set down for 26 October 1998 but the plaintiff has foreshadowed an application for a nolle prosequi prior to that time.

2. It is common ground that following the conclusion of the committal proceedings, the plaintiff received depositions recording the evidence given in the Magistrates' Court. That evidence was recorded in accordance with Part VI of the Evidence Act 1958. That depositional material did not include a transcript of any legal discussion between the parties and the Magistrate held in the course of the proceedings. This is in accord with both the normal practice and fulfils the current legislative

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requirements.

1. However, at one stage of the committal proceedings application was made by the prosecutor on behalf of the DPP for a complete transcript of the proceedings. The Magistrate doubted his capacity to make such an order but suggested that the Crown write to the Chief Magistrate seeking the additional material, indicating its willingness to pay for it and, further, intimating that it would provide a copy of such material to the plaintiff. In the event no such application was made by the DPP. It appears that subsequently the plaintiff wrote to the Chief Magistrate seeking provisions of the additional material. A reply from the Chief Executive Officer of the Magistrates' Court of Victoria, (Mr. Pat Armstrong) indicated that a full transcript of the proceedings could be obtained at a specified cost from the Victorian Government Reporting Service and that the Court was not prepared to order its provision at the Court's expense. That letter also noted, as is the fact, that the plaintiff had been provided with a tape of the full proceedings by the Melbourne Magistrates' Court (see Ex.AAB2 to the affidavit of Alan Anthony Brygel sworn 1 October 1998).

2. In the hearing before this Court the plaintiff produced transcript of part of the legal discussion transcribed from that tape by Spark & Cannon, law reporters. It contained (inter alia) comments concerning a witness Mrs. Golgov whose evidence was led as to recent complaint. It is common ground that such material, whilst on the tape, is merely referred to as "legal discussion" in the depositional material supplied.

3. It was argued by the plaintiff that a full committal transcript was relevant both to the preparation of his case for trial and for any application for a nolle prosequi. In essence it was submitted that the failure to have such material in transcribed form was a denial of natural justice.

4. It was also submitted that Chief Judge Waldron erred in finding that he did not have the jurisdiction to overturn the decision of the Chief Magistrate of Victoria

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that additional transcript would not be provided by the Magistrates' Court.

1. This matter came on before his Honour Chief Judge Waldron on 21 September 1998 where these issues were extensively canvassed (see Ex.AAB3 to the affidavit of the plaintiff). The Chief Judge expressed the view that the committal proceedings were independent of the trial of the matter and in the circumstances the Court did not have jurisdiction to order the provision of the full transcript of proceedings at the committal. His Honour also expressed the view that, given the lack of relevance and admissibility of the material in any trial and the fact that the plaintiff was in possession of the tape covering the whole of the committal proceedings, there was no cause to order the provision of a full transcript.

2. Insofar as the joining of the summary offence to the presentment, his Honour ruled that it was the prerogative of the Crown, through the Director of Public Prosecutions, and not the Court to decide what matters should be included on a presentment. (This is distinct from the power of the Court to order severance of counts placed upon a presentment).

3. In my view, his Honour's conclusion that he lacked the power to make the order in the form sought by the plaintiff was correct. Indeed, by the stage of the application the plaintiff had been committed for trial and the Magistrates' Court was functus officio. That is not to say that a trial court would not have the power to stay proceedings as an abuse of process if it considered that the situation here revealed precluded the plaintiff from obtaining a fair trial and constituted a denial of procedural fairness. His Honour effectively considered this in finding that there was no cause to order the provision of the full transcript of the proceedings at the committal. He took into account the fact that legal argument between the Magistrate and the parties could not be relevant or admissible in the conduct of the subsequent trial and, in any event, he had regard to the fact that a full tape of the committal proceedings had already been made available to the plaintiff.

4. Insofar as it is thought by the plaintiff that any view of witnesses expressed by the

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Magistrate would in any way assist an application for nolle prosequi, he may isolate and use any such passages from the tape. (It is to be noted however that the Magistrate committed the plaintiff for trial and, in determining whether a nolle prosequi should be entered, it is the view of the Director of Public Prosecutions which is relevant and not that of the committing Magistrate.)

1. In all the circumstances it could not be said that there has been any denial of natural justice.

2. In relation to the issue of the joining of the summary offence, the Chief Judge's analysis is clearly correct and, in addition, s.359AA(3)(a)(ii) permits the joining of a summary offence (which would normally be heard by the Magistrates' Court: see s.25 Magistrates' Court Act 1989) only where the person charged with the offence states his intention of entering a plea of guilty in respect of it. That is not the present situation. Accordingly the orders sought by the plaintiff must be refused.

NOTE:  This prosecution was discontinued by the Director of Public Prosecutions on 26 October 1998 when the entry of a nolle prosequi was announced in the Melbourne County Court.

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