MR J.J. DOYLE, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with DR N.A. MANETTA, for the respondent. (instructed by B.M. Selway, Crown Solicitor for South Australia)

BRENNAN J: Mr Peek.

MR PEEK: If the Court pleases. This is an appeal pursuant to special leave granted on 25 August 1994, and that grant of special leave appears in the appeal book at page 85. As the Court knows, it concerns in the broad, first of all an order made by Judge Russell sitting in a criminal jurisdiction in the District Court of South Australia, and then proceedings in the nature of certiorari taken by the Crown ‑ ‑ ‑

BRENNAN J: You can take it that the judgments have been read in the court below, Mr Peek.

MR PEEK: Thank you, Your Honour. The orders - perhaps that is being tendentious - the matters that occurred in front of Judge Russell were contemporaneously noted on the back of the information, and the Court may see that at page 20 of the appeal book - the information commencing on page 19 and on the back of the information on page 20 - and one sees there, on the left‑hand side a little way down under the heading, ”Dietrich Application”, “His Honour Orders”, and those are the first group of orders that His Honour made on 23 June 1993, as later on that page certified by the clerk of arraigns.

Those orders really were in the nature of an adjournment, if I can put it that way; adjournment orders taking a trial out of the list really. But it was done on the basis as to whether anything further could be done in relation to representation of the accused. However, nothing further was done and the Court sees the second set of orders made by Judge Russell on 28 July 1993 immediately below there. On that occasion His Honour ordered a stay of proceedings until further order.

Now, one also sees in the appeal book a transcription of the reasons that were given by Judge Russell on those two occasions that I have already mentioned. The first commences at page 1 of the appeal book, and the Court has read that no doubt so obviously I do not go through that. I do, of course, point out that that particular page is settled by His Honour, as it appears at the top there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Craig v State of South Australia

Details

AGLC: Craig v State of South Australia [1994] HCATrans 94
Case: [1994] HCATrans 94
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Craig against the State of South Australia concerning the validity of a notice issued under section 269 of the *Criminal Law Consolidation Act 1935* (SA). The notice purported to require Craig to attend before a magistrate to answer a charge of murder. Craig sought a declaration that the notice was invalid and that he was not liable to be tried for murder.

The central legal issue before the High Court was whether the notice issued under section 269 of the *Criminal Law Consolidation Act 1935* (SA) was a valid process for commencing criminal proceedings for murder. This involved an examination of the nature of the notice and its compliance with the requirements for initiating a criminal trial in South Australia, particularly in relation to the offence of murder.

The High Court held that the notice was invalid. Brennan, Deane, Toohey, Gaudron and McHugh JJ reasoned that section 269 of the *Criminal Law Consolidation Act 1935* (SA) did not provide a lawful means for initiating a prosecution for murder. They found that the section was intended to apply to summary offences, not indictable offences such as murder, and that the notice issued was therefore a nullity. The Court concluded that the common law requirements for commencing a prosecution for murder, which involve indictment or committal proceedings, had not been met.

Orders