De Simone v Director of Public Prosecutions

[2010] VSC 507

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.                 of  

IN THE MATTER of an application

BETWEEN

GIUSEPPE DE SIMONE	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2010
DATE OF JUDGMENT:	9 November 2010
CASE MAY BE CITED AS:	De Simone v Director of Public Prosecutions
MEDIUM NEUTRAL CITATION:	[2010] VSC 507

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INJUNCTION – Urgent application to stay committal – application refused.

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APPEARANCES:	Counsel	Solicitors
Mr De Simone appeared in person
For the Respondent	Mr Tim Doherty	Solicitor for Public Prosecutions

HIS HONOUR:

1. Mr De Simone is the accused in a committal which I was told began in June 2010 before Mealy M.  I was told that there have been 51 hearing days since then.  According to what I was told on this application, the committal is approaching its conclusion.

1. There is a dispute between Mr De Simone, who is appearing for himself at the committal, and the prosecution as to whether appropriate disclosure has been made.  Mr De Simone told me that today the magistrate refused to order the prosecution to make further disclosure and, amongst other things, refused to stay the committal until disclosure was made. 

1. Mr De Simone approached the court urgently this afternoon seeking interim relief.  There was no material placed before the court in support of the application for relief, which was made orally, other than statements from the bar table.  When asked to identify his cause of action Mr De Simone suggested certiorari.  In the course of his submissions he also relied upon provisions of the Criminal Procedure Act 2009 and the Charter of Human Rights and Responsibilities Act 2006.  When asked what specific relief he sought this afternoon, he said that he sought an order staying the committal for a period of two weeks during which time he would institute proceedings to review the decisions which he says the magistrate has made today. 

1. Whilst Mr De Simone appeared without legal assistance, he seemed to me to be familiar with court procedures and with the legislative provisions to which he referred. 

1. I referred Mr De Simone to entries in Williams Civil Procedure concerning committal proceedings.  The passages to which I had regard are at paragraphs 56.1.80 to 95.  I read to Mr De Simone extracts from those passages. 

1. I asked Mr De Simone upon what basis he sought urgent intervention, as it appeared to me that if he had a cause of action he would be in a position to pursue it after the committal was concluded. Initially, he suggested that there would be damage to his reputation. As his submissions developed, he also submitted that the prosecution’s failure to make proper disclosure meant that the purposes provided for in s 97(d) of the Criminal Procedure Act would not be met and that any subsequent remedying of that position would require that the committal be reheard at significant inconvenience to all involved and particularly to himself.

1. On behalf of the prosecution it was submitted by counsel that much of what Mr De Simone had asserted from the bar table was untrue, that there was no legal basis upon which this Court could properly intervene, and that even if there was a legal basis for intervention this Court should not intervene as to do so would fragment the existing proceeding and Mr De Simone could pursue whatever rights he had after conclusion of the committal.

1. I am not at all clear what cause of action Mr De Simone is seeking to invoke.  But assuming that a cause of action does exist, I am not prepared to intervene in these circumstances.  Intervention in the circumstances here would inevitably create significant fragmentation of the proceeding.  I do not consider that the countervailing considerations which Mr De Simone raised warrant intervention.  If Mr De Simone has rights of action it seems to me that he can pursue them once the committal is concluded.

1. Accordingly, Mr De Simone’s application for an order staying the committal is refused. 

1. The question of the costs on this application is reserved.