Di Fede v Police; Di Fede v Police - [2023] SASC 30

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
DI FEDE v POLICE; DI FEDE v POLICE
[2023] SASC 30
Reasons for Decision of the Honourable Justice Nicholson
6 March 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
On 26 May 2021, Ms Louise Di Fede and Mr Adrian Di Fede were charged with aggravated assault. Mr Di Fede was also charged with refusing or failing to comply with a requirement or direction given in accordance with the Emergency Management Act 2004 (SA).
The applicants sought further and better disclosure by the prosecution. Following a status conference on 24 November 2022, the Magistrate found that the prosecution had complied with its disclosure obligations. On 7 December 2022, the applicants applied for permission to appeal that decision to a single Judge of this Court. On 14 December 2022, the application from both applicants were jointly heard before this Court on an urgent basis, and the leave to appeal was refused and the appeals were dismissed. The reasons were to be published at a later date.
Held:
1.The Magistrate was correct in not being satisfied that the prosecution had failed to satisfy its obligation of disclosure.
2.Leave to appeal is refused.
3.Appeals dismissed.

Criminal Law Consolidation Act 1935 (SA) s 20(3); Emergency Management Act 2004 (SA) s 28(1); Joint Criminal Rules 2022 (SA) r 75.1; Magistrates Court Act 1991 (SA) ss 3, 42, referred to.
Sedmak v Police [2008] SASC 307; McIlvar v Szwarcbord [2008] SASC 179; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Siewertsz Van Reesema v Police [2009] SASC 8; Corporation of City of Adelaide v Circelli (2015) 207 LGERA 38; Shahin v El-Shafei; El-Shafei v Shahin [2018] SASC 167; De Jong v Police [2010] SASC 191; Edwards v The Queen (2021) 95 ALJR 808; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; R v H [2004] 2 AC 134; DPP (Cth) v Kinghorn (2020) 102 NSWLR 72, considered.

DI FEDE v POLICE; DI FEDE v POLICE
[2023] SASC 30
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 26 May 2021, Louise Di Fede and Adrian Di Fede (to whom I will refer as the applicants) were both charged with aggravated assault pursuant to subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA). Mr Di Fede was also charged with refusing or failing to comply with a requirement or direction given in accordance with the Emergency Management Act 2004 (SA) pursuant to subsection 28(1) of that act. In the lead up to the trial, the applicants sought further and better disclosure by the prosecution. On 24 November 2022, the Magistrate found that the prosecution had complied with its disclosure obligations.
On 7 December 2022, the applicants applied for permission to appeal that decision to a single Judge of this Court. For all practical effects, the applications and prospective appeals are in identical terms and raise the same issues. The trial was listed for 16 December 2022. On 14 December 2022, I heard the applications on an urgent basis, refused leave to appeal and dismissed the appeals. The Director of Public Prosecutions did not apply for costs and no order for costs was made. I indicated that reasons would be published at a later date. These are my reasons.
Uncontentious background
On 20 May 2021, an altercation occurred between the applicants and a staff member of Stirling Cellars & Patisserie that apparently arose over a disagreement over COVID-19 contact tracing requirements.[1] The next day, the applicants made a formal complaint to the police.[2] Both applicants provided statements to the effect that the staff member had assaulted them. On 26 May 2021, the police charged the applicants with the above charges, together with others which have since been discontinued.[3]
[1]     Second Affidavit of Adrian Di Fede [14]–[17].
[2]     Appellant’s written submissions (5).
[3]     Appellant’s written submissions (6).
The matter was listed for trial to commence on Friday 16 December 2022 at the Mount Barker Magistrates Court.[4] Between 11 and 15 November 2022, the applicants lodged a series of applications or requests seeking better particulars of the prosecution case and disclosure of documents.[5]
[4] Affidavit of Danielle Lisa Gottschutzke [2].
[5] Affidavit of Danielle Lisa Gottschutzke [8]-[13].
On 17 November 2022, a status conference was held.[6] During this hearing, the police prosecutor informed the Magistrate that she had disclosed to the applicants the declarations of all witnesses she intended to call at the trial, the available CCTV footage from Stirling Cellars & Patisserie, and the Declaration of a Major Emergency and the Emergency Management (Public Activities 24) (COVID-19) Direction 2021.[7] Further disclosure had earlier been made of material relevant only to the other, by then discontinued, charges.[8]
[6] Affidavit of Danielle Lisa Gottschutzke [17].
[7] Affidavit of Danielle Lisa Gottschutzke [20]-[24].
[8] Affidavit of Danielle Lisa Gottschutzke [25].
The applicants sought disclosure concerning why the police had decided to charge them when it was the applicants who had complained that they were the victims of an assault. The applicants further contended that the version of the CCTV footage provided had been altered and requested that the original, unedited footage, be disclosed. The prosecutor told the Magistrate that the footage provided had not been edited and that she declined to provide the other material requested on the basis that it was not relevant to an issue at the trial.
The status conference was adjourned to 24 November 2022 so that the Magistrate could consider the matter.[9] On that date, a finding was announced that the Magistrate was “not satisfied that prosecution has failed with their [sic] obligation to provide disclosure for the purposes of the trial proceeding.”
[9] Affidavit of Danielle Lisa Gottschutzke [27].
Issues
Three main issues arose for consideration before me.
(1)Were the appeals competent?
(2)If competent, did the applicants require leave and, if so, did they need to show and have they shown special reasons in accordance with section 42 of the Magistrates Court Act 1991 (SA)?
(3)Was the prosecution obliged to provide the further disclosure sought by the applicants?
Legal principles
If the appeals are competent they are to be brought in accordance with section 42 of the Magistrates Court Act 1991. Subsection 42(1) provides as follows.
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
“Judgment” is defined in section 3 of the Magistrates Court Act 1991 as meaning a judgment, order or decision and includes an interlocutory judgment. There is no doubt that the Magistrate’s finding, if it were to qualify as a “judgment”, was interlocutory.
The circumstances in which an appeal lies from an interlocutory judgment are constrained by subsection 42(1a)(c) of the Magistrates Court Act 1991.
(1a)An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
Competent appeals
Appeals can only be brought against a “judgment order or decision” and not with respect to incidental rulings in the course of a trial, such as an application for an adjournment or a challenge to the admissibility of evidence.[10] Whilst such incidental rulings might in time contribute to an assertion such as a miscarriage of justice should an adverse result at trial come to be challenged, they, ordinarily, cannot be appealed in advance of the trial.
[10] Sedmak v Police [2008] SASC 307, [18] (Doyle CJ). See also McIlvar v Szwarcbord [2008] SASC 179; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126.
In Siewertsz Van Reesema v Police,[11] Bleby J explained the position.
[11] [2009] SASC 8, [17]-[20] (Bleby J).
Section 42 of the Magistrates Court Act 1991 (SA) creates a right of appeal against “any judgment” of a magistrate in a criminal action. “Judgment” is defined in s 3:
judgment means a judgment, order or decision and includes an interlocutory judgment or order.
Not all decisions made by a magistrate will fall within the definition of “judgment” for the purposes of s 42. It is necessary to distinguish between, on the one hand, interlocutory orders or judgments and, on the other hand, rulings made in the course of a trial. Rulings made in the course of a trial are not judgments and, thus, no appeal lies under s 42 of the Magistrates Court Act against such a ruling, even with leave. If a litigant is dissatisfied with a ruling made in the course of a trial and is dissatisfied with the judgment at the conclusion of a trial, the only redress is to appeal against the judgment, alleging as a ground of appeal, the error in the ruling.
The question of what constitutes a “judgment” or “order” was considered by the Full Court in Legal Practitioners Complaints Committee v A Practitioner. King CJ said:
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing.
Whether a decision is an incidental ruling or an order depends largely on the context in which the decision is made. It is therefore necessary to consider each of the decisions appealed against to determine whether each is an incidental ruling or an interlocutory judgment.
(Footnotes omitted)
Special reasons
In the context of section 42, special reasons require features of a case that are extraordinary, unusual or atypical.[12] Matters that have been considered as amounting to special circumstances include significant questions of law,[13] and misunderstandings or confusion about the correct procedure to be employed such that there is a risk that a miscarriage of justice has occurred.[14]
[12] Corporation of City of Adelaide v Circelli (2015) 207 LGERA 38, [49] (Bampton J).
[13] Shahin v El-Shafei; El-Shafei v Shahin [2018] SASC 167, [44]-[48] (Parker J).
[14] De Jong v Police [2010] SASC 191, [46] (Gray J).
In Sedmak v Police, the appellant was held not to have made out special circumstances.[15] Relevant considerations included that: the order had no final effect in relation to the issues between the parties; the decision could be a ground for an appeal against a conviction after the factual issues had been more fully developed at trial; and the application in question could be renewed at trial, most appropriately at the close of either the prosecution or defence case.[16]
[15] [2008] SASC 307.
[16] Sedmak v Police [2008] SASC 307, [19], [21]-[22] (Doyle CJ).
Disclosure
Rule 75.1 of the Joint Criminal Rules 2022 (SA) is as follows:
75.1—Prosecution disclosure of evidentiary material
(1) Evidentiary material required to be disclosed by the prosecution to the defence in accordance with the prosecution’s common law duty of disclosure must be disclosed by serving on the defendant or youth an evidentiary material brief in the prescribed form.
Edwards v The Queen[17] contains the following statement concerning the duty of disclosure of material which does not form part of the prosecution case:
The common law required, and still requires, disclosure of all material that, on a sensible appraisal by the prosecution: (i) is relevant or possibly relevant to an issue in the case; (ii) raises or possibly raises a new issue that was not apparent from the prosecution case; and (iii) holds out a real (as opposed to fanciful) prospect of providing a lead in relation to evidence concerning (i) or (ii). Further, since the disclosure can occur prior to any crystallisation of the defence case, or any refinement of the prosecution case, expressions in relation to common law disclosure rules, such as “an issue in the case” or “all relevant evidence of help to the accused”, must be given a broad interpretation.
(Footnotes omitted)
The duty of the prosecution to disclose does not permit the defence “to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good”.[18]
[17] Edwards v The Queen (2021) 95 ALJR 808, [48] (Edelman and Steward JJ).
[18] Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300 at [78] (Bell J), citing R v H [2004] 2 AC 134, 155.
A preliminary matter – application for an adjournment
The respondent was one hour and 13 minutes late in providing its written submissions. The applicants contended that this caused them prejudice, as they had retained counsel to advise for two hours, commencing at the precise time (5.00 pm) when the written submissions were due.[19] Further, the written submissions were emailed to the applicants, and not filed, and they did not check their emails until after they had left their lawyer’s office and returned home. They saw the submissions at about 10.00 pm on the night before the applications had been listed for argument. The applicants sought an adjournment of the hearing before me to a date after the trial had been listed to commence. Apparently, their lawyer would not have been available on a date before then.
[19] Transcript p 12 (14 December 2022).
The respondent submitted that all its arguments had been flagged in the directions hearing held prior to the hearing of the applications and that the applicants had fair notice of the issues that were to be raised; they could have discussed these with their counsel even without the written submissions. In addition, the respondent argued that there was nothing in the applicants’ materials that addressed the question of special reasons. The need to show special reasons and how that need might be satisfied, were matters entirely for the applicants. It had been flagged at some length at the directions hearing. On any analysis, a failure to show special reasons would be fatal to the applications.
The applicants contended that it was not reasonable to expect them to “have a stab in the dark” as to what the respondent was going to submit when they had been expecting written submissions that would clearly articulate the respondent’s arguments. The applicants also submitted that they did have special reasons sufficient to obtain leave to appeal against an interlocutory judgment.
I refused the application for adjournment. I was satisfied that the applicants had fair notice of the issues and arguments to be raised by the respondent in response to the applicants’ applications for leave to appeal.
Issues
Competence of the appeals
The respondent submitted that the Magistrate’s finding was akin to a ruling as to the admissibility of evidence, rather than a judgment, order or decision, and that the right of appeal under subsection 42(1) of the Magistrates Court Act 1991 did not arise. The respondent further contended that:[20]
A ruling on an application for a “disclosure order” is necessarily provisional or conditional in that it is subject to the unfolding forensic contest, and, like a ruling as to admissibility, may need to be revisited right up to the closure of the evidence (and conceivably after). If this argument is accepted, the appeals are incompetent.
I accept that the analogy has significant force. The situation may also be analogous to that where the prosecution fails to call a witness in whose evidence the defence has expressed an interest. That failure, ultimately, may sound in a ground of appeal against an adverse trial result. But a purported appeal against a judicial officer’s management of that failure by the prosecution, ordinarily will not be maintainable as distinct from the question of whether the prosecution failure to produce the witness has caused a miscarriage of justice.
[20] Respondent’s written submissions [27].
I am strongly inclined to accept the prosecution contention that the two purported appeals were incompetent. However, I do not need to finally decide this. Most of the discussions of the distinction to be drawn here occur in the context of so called incidental rulings delivered during a trial, see, for example, the observations of Bleby J in Siewertsz Van Reesema set out earlier. As his Honour noted, context will be very important to the drawing of the distinction. I do not need to form a final view here because on any analysis, the requirement for special reasons must be satisfied and the applicants have failed to do so.
Special reasons
If the purported appeals were to be competent, the applicants were obliged to identify special reasons. The duty of disclosure is an ongoing one. There is nothing preventing the applicants from issuing subpoenas or renewing the disclosure requests should more information come to light. These considerations militate against there being anything special in this matter. There is no reason to think that a miscarriage of justice is inevitable or even likely. The applicants have not pointed to anything that might qualify as special reasons and overcome the Court’s strong predilection against allowing the fragmentation of criminal proceedings.
I am satisfied that, in the event of competency, leave to appeal should be refused for failure to comply with the requirement of subsection 42(1a)(c) of the Magistrates Court Act 1991.
Disclosure
The applicants contended that in order to prepare their defence, they needed to know how they went from being “the victims of assault” to being charged with the above offences.[21] They submitted that the Magistrate misconstrued rule 75.1, which they contended meant that the prosecution “must” provide disclosure as part of their common law obligation “without [the applicants] having to justify the scope, breadth, depth, relevance, extent or nature of the disclosure being sought”.[22] The applicants submitted that rule 75.1 removed any discretion by the Magistrate or the prosecution as to what documents needed to be disclosed.[23] The applicants maintained that their request for disclosure was not a fishing exercise and that all the information requested was directly connected to their case.[24]
[21] Appellant’s written submissions (7).
[22] Second Affidavit of Adrian Di Fede [26]. See also Appellant’s written submissions (vii).
[23] Appellant’s written submissions 6(D).
[24] Second Affidavit of Adrian Di Fede [8].

The respondent made three arguments as to why the request for further and better disclosure and any appeal against the Magistrate’s finding ought to fail. First, the scope of the request for disclosure was so broad as to be oppressive and to not “trigger disclosure”.[25] Second, the duty of disclosure is only enforceable by way of an issue of a subpoena, rather than an application for disclosure as occurred here, as stated by the New South Wales Court of Appeal in DPP (Cth) v Kinghorn,[26] and hence the applications for orders of disclosure were incompetent for this reason.[27]
[25] Respondent’s written submissions at [25]-[26].
[26] (2020) 102 NSWLR 72, [136].
[27] Respondent’s written submissions at [25]-[26].
The third contention was that:[28]
[R]ule 75.1 of the Joint Criminal Rules 2022, properly understood, does not vest a power to order disclosure nor does it impose a duty to disclose. Rule 75.1(1) acknowledges that the duty to which the rule relates is the duty imposed by the common law. Rule 75.1 is thus not a rule that governs what must be disclosed, nor for that matter is it a rule that governs when disclosure must be made. Rather it is a rule that governs how disclosure is to be made.
I accept the correctness of the third contention. The applicants’ arguments concerning the meaning and proper construction of rule 75.1 are untenable. However, this on its own does not answer the question as to whether or not the prosecution had complied with its common law duty.
[28] Respondent’s written submissions at [25].
I accept the prosecution’s first contention. I do not need to form a final view as to its second. In any event, in the absence of evidence to the contrary, a court will presume that the prosecution has properly discharged its duty of disclosure. The lis between these two parties concerned whether the prosecution could prove that the applicants had assaulted the complainant, not whether they had been assaulted, and not whether the police had acted properly in formulating the charges against the applicants. The prosecution had a duty to disclose all material that can be seen, on a sensible appraisal by the prosecution to be potentially relevant to an issue in this case of alleged assault or which might raise a new, but not fanciful, issue relevant to this case. The applicants orally and in their written materials have only ever spoken in generalities with unsupported assertions as to the police conduct. They have provided no evidence to indicate that disclosure concerning the police conduct, in the respect complained of by the applicants, might be relevant to the issues raised by the charge of assault to be tried in due course.
Conclusion
For the above reasons, I was satisfied at the conclusion of the hearing that: the Magistrate had been correct in not being satisfied that the prosecution had failed to comply with its obligation of disclosure; that leave to appeal should be refused; and that the appeals should be dismissed. I so ordered.