Dimitropoulos v District Court of South Australia No. Scgrg-98-1161 Judgment No. S6836

[1998] SASC 6836

DIMITROPOULOS v DISTRICT COURT OF SOUTH AUSTRALIA
[1998] SASC 6836

Chamber Application
Bleby J

1. This is an application for leave to serve a summons for judicial review.  Such applications are usually conducted ex parte, but on this occasion, pursuant to Rule 98.04A, I allowed, with the consent, I might add, of the plaintiff, the Director of Public Prosecutions to be heard, and also counsel for Mr Griffin, the co-accused of the plaintiff, to whom I will refer in due course. 

2. The plaintiff and two others, including Mr Griffin, are charged on ex officio information with possessing cannabis for sale contrary to s32(1)(e) of the Controlled Substances Act 1984.

3. The trial of the information was listed to commence in the District Court on 17 August 1998.  When the matter was called on before the District Court judge, counsel for the plaintiff’s co-accused, Mr Griffin, announced to the court that Griffin would plead guilty as charged, and that he should be sentenced without delay and before the trial began before a jury, because it was intended that he should give evidence as a prosecution witness. 

4. Griffin was arraigned and pleaded guilty.  The allocatus was read to him and a statement of facts, which was said by his counsel to form the basis of the plea, and which had apparently been agreed by counsel for the Director of Public Prosecutions, was handed to the judge with the consent of counsel for the DPP.  Copies were handed to counsel for the co-accused as well.  Counsel for the plaintiff then challenged the ability of the District Court to accept the plea on the basis agreed.  It was said that on the facts agreed as the basis of the plea, Griffin could not be guilty of the offence.  I will comment on the basis of that submission in due course. 

5. It was said that the facts agreed could not amount to an admission of all the necessary ingredients of the offence.  After hearing argument, the District Court judge on 18 August ruled against the plaintiff’s submissions and decided that he would proceed to sentence Griffin before proceeding to trial of the other two accused.  Further submissions were apparently made against that procedure and a further ruling against the plaintiff was made on 19 August 1998. 

6. The plaintiff now seeks judicial review by way of an order in the nature of mandamus requiring the District Court judge to strike out the plea of guilty by Griffin and to substitute a plea of not guilty.  He also seeks a declaration, on the basis of the facts agreed in the document which was handed to the trial judge, that Griffin could not plead guilty to the offence with which he was charged and a further declaration, either in lieu of or in addition to the first one, to give effect to the relief that is claimed. 

7. Because this is an application for judicial review, the plaintiff requires leave to serve the summons in accordance with Rule 98.03 of the Rules of this Court.  Although no jury has yet been empanelled, I was informed that proceedings before the District Court judge had been presently adjourned pending the outcome of this application.  There has, therefore, been some urgency in reaching a decision on it. 

8. It is difficult to know precisely the nature of the application before the District Court on which the District Court judge was asked to rule.  The point seems to have been taken by way of objection to the trial judge receiving or acting upon Griffin’s plea and an application by the plaintiff that the trial judge should not proceed to sentence Griffin.  The question may, therefore, arise whether an order is necessary by way of an order in the nature of certiorari to quash the decision made by the trial judge as well as an order for mandamus to require him to strike out the plea.  I am inclined to the view that it does so require. 

9. Being a decision of an inferior court and not a statutory tribunal, this could only be given effect to if either the court had made some jurisdictional error or an error of law on the face of the record: Craig v The  State of South Australia (1994) 184 CLR 163. There was plainly no error going to the jurisdiction of the District Court. The court had jurisdiction to accept or reject the plea of guilty, and even if the court were wrong in doing so, it would not be an error which went beyond the jurisdiction of the court: Craig’s Case (supra). 

10. Can it be said that the error of the trial judge, if there was one, is an error on the face of record such as to allow certiorari to run?  Craig’s Case suggests that the record does not include the reasons for decision of the trial judge or the transcript of proceedings, but that ultimately it is for this court to determine what constitutes the record.  Where there is no formal record or the record is incomplete, this court can, if the material is inadequate, construct or complete the record.  All that has been placed before me is a narrative of the events as they occurred by way of an affidavit from the plaintiff, a copy of the ex officio information, the written document said to constitute the basis of Griffin’s plea and the two sets of reasons for the ruling published by the trial judge. 

11. I would be prepared to accept, for the purposes of this application, that the record comprises the information, the document containing the factual basis of the plea and the actual decision of the trial judge on the application before him, but not the reasons.  From that, I think it is possible to determine whether an error of law has occurred. 

12. In order to obtain leave to serve the summons, the plaintiff must demonstrate at least a prima facie case first that the plaintiff himself has standing to seek the relief that he seeks; secondly, a prima facie case that there is an error of law on the face of the record and, thirdly, that there is no compelling reason in the exercise of its discretion why a court ruling on the application would be likely to refuse what is discretionary relief.

13. I turn first to the question of standing.  In my opinion, it is extremely doubtful whether the plaintiff has standing to bring this application.  The plaintiff is not seeking to withdraw his own plea of guilty, but to prevent the court from accepting the plea of guilty of another party, apparently with the sole purpose and objective of preventing the co-accused from giving evidence against him in his own trial.  Whether an accused person chooses to plead guilty is a matter for him.  The plea constitutes an admission of each element of the offence alleged against the accused.  It is not for a third party to allege that he does not so admit each of those elements and that he should not be dealt with according to law. 

14. It is said that the plaintiff has an interest in the conduct of his own trial in ensuring that Griffin does not become a competent and compellable Crown witness at that trial.  But rejection of his plea of guilty does not make him any less competent as a witness.  It means that he may not be a compellable witness, but the fact that he has chosen to plead guilty, and does not, himself, seek to withdraw that plea, is a fair indication that he intends to waive the privilege that he would otherwise have against self-incrimination in his own or in anyone else’s trial, and that he would be likely to give evidence, in any event, without resorting to the privilege which he would otherwise enjoy.   One must presume that the evidence he would give on oath would be the truth as he understands it and that it would be no different whether given as a Crown witness or as an accused.  Therefore, the supposed interest of the plaintiff said to give him standing is, in the circumstances, somewhat illusory. 

15. Is there an error on the face of the record?  Or if certiorari is not necessary, is the trial judge, as a matter of law, required to reject Mr Griffin’s plea?  The charge on the information is that he possessed cannabis for sale.  The elements of that offence are, first, that he possessed a substance, secondly, that the substance was cannabis and, thirdly, that the possession was for the purpose of sale. 

16. It is said that the facts admitted in the document said to be the basis of the plea disclose that there was temporary possession only or bailment in some form of the cannabis in question by Griffin.  It is said that such possession cannot constitute possession for sale for the purposes of the section because the statement contains no evidence on which he could have derived the necessary knowledge that the crop that he was in possession of was for sale.

17. The statement forming the basis of the plea of guilty will only require a trial judge to reject the plea of guilty if it contains some factual statement which is quite inconsistent with an admission of one of the essential elements of the charge.   There is a variety of ways in which one may have or be deemed to have the necessary degree of knowledge of the purpose of the possession.  Wilful blindness in the sense described by Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 487 - 488 is one way. There is nothing in the statement which is inconsistent with Griffin having the necessary degree of knowledge of the ultimate destiny of the plants or that is inconsistent with the acceptance of that element of the offence which requires that he have possession for the purpose of sale.

18. It is also said that the court cannot accept the plea to a principal offence when it is put on the basis that he aided and abetted the co-accused in their possession of the cannabis. It is said that because s41 of the Controlled Substances Act contains its own accessory provisions and that they differ in effect from s267 of the Criminal Law Consolidation Act 1935, they create a separate offence for aiding and abetting which does not allow a conviction for the principal offence in the case of an aider and abetter. Although the statement forming the basis of the plea uses the phrase that Griffin aided and abetted the co-defendants in the possession of the cannabis for sale, that document is not a technical pleading. It is to be read as a whole. The statement reads that Griffin was assisting the principal organisers. He was no less in possession than they were, and the statement, in my opinion, is consistent with his being a principal offender. It is, therefore, not necessary to pass on whether s41 of the Controlled Substances Act excludes the operation of s267 of the Criminal Law Consolidation Act in respect of breaches of the Controlled Substances Act. 

19. I would, therefore, conclude that there is no prima facie case established that an error of law has been made by the trial judge or that there will be such an error made if he proceeds to sentence Griffin.  I would refuse leave to serve on that ground.

20. However, if I am wrong on either of the first two points, that is, the question of standing and the question of whether there is an error at law, there are, in my opinion, overwhelming reasons why this court would refuse relief, in any event. 

21. Relief by way of mandamus and by way of declaration, for that matter, are both discretionary remedies.  There are a number of reasons, in my opinion, why it would be inappropriate to allow the claim in this case to proceed.  There is a reluctance of courts to interfere with the criminal process, and this is a jurisdiction to be exercised only on very rare occasions. 

22. I refer, by way of example, to what Neaves J of the Federal Court of Australia said in Australian Securities Commission v Burns and Ors (1994) 130 ALR 89 at 92 - 93:

    “It is well established that, although decisions such as those the subject of this proceeding are reviewable under the Judicial Review Act, the jurisdiction to make an order of review is discretionary and should be exercised only ‘in most exceptional cases’: Lamb v Moss 1983 49 ALR 533 at 564. Yates v Wilson (1989) 168 CLR 338; 86 ALR 311; Australian Broadcasting Tribunal v Bond (1995) 170 CLR 321 at 338 to 339; 94 ALR 11. The principle that the court should exercise its power to order a review of committal proceedings only in the most exceptional circumstances applies both in relation to review of the conduct of pending proceedings and in relation to review of the ultimate decision of a magistrate to commit an accused for trial. Wong v Evans (1985) 4 FCR 228 at 234 - 5; 59 ALR 392.”

    A little further on his Honour said:

    “It may be appropriate for the court to entertain an application for an order of review in a case where a prompt and authoritative decision upon a question of law underlying the prosecution case is desirable: Wong v Evans at FCR at p235; Seymour v Attorney-General (1984) 57 ALR 68. Thus, a decision to commit an accused for trial may be reviewed where it is abundantly clear, without intricate consideration of the evidence, that there has been a failure to establish a necessary ingredient in the charge: Souter v Webb (1984) 2 FCR 193 at 199; 54 ALR 683. But it will not be appropriate to entertain an application for an order of review which involves an examination of the detail of the evidence already considered by the magistrate in determining the existence of a case sufficient to warrant a decision to commit for trial and which may be examined afresh by the trial judge in connection with any submission that there is no case proper to go to the jury: Wong v Evans at FCR 235.” 

23. What Neaves J said relates to the Administrative Decisions (Judicial Review) Act 1977, but, in my opinion, the remarks are just as appropriate to proceedings for judicial review in this court at common law. They are also appropriate where one is considering, as in this case, a detailed analysis of the document comprising a factual basis on which a plea is to be entertained. I am referring there, of course, to the consideration of factual matters to which Neaves J referred.

24. Most of the cases on the topic deal with or relate to review of committal proceedings, and there is authority, indeed, in this Court to like effect.  I refer, for example, to Clayton v Ralphs and Anor (1987) 45 SASR 347 at 365 and Goldsmith v Newman and Anor (1992) 59 SASR 404 per King CJ at 412. However, the authorities apply with equal force to a trial in the District Court, as can be seen from the decision of Perry J in Dunn v The District Court of South Australia (Unreported, 23 August 1996, Judgment No S5787). That was a case where there was an application for certiorari to quash a ruling concerning the admissibility of some crucial DNA evidence based on conflicting judicial authority on the operation of s81 of the Summary Offences Act 1953.

25. There will, therefore, need to be an unusual and exceptional case to justify interference by this court in proceedings on judicial review in the course of a criminal proceeding in the District Court.  Particularly is this so as the procedures require, in due course, service of the summons on the Director of Public Prosecutions and on the co-accused and a hearing before either a single judge or the Full Court with the possibility of further appeals before the matter is even resolved. 

26. There is another reason why, in my opinion, the discretion is unlikely to be exercised in favour of the plaintiff.  Even if there might otherwise be justification for the granting of certiorari or mandamus or other prerogative relief, it would not be granted in order to achieve some indirect purpose.  The purpose of this application is acknowledged by Mr Retalic, appearing for the plaintiff, to be to prevent Mr Griffin from giving Crown evidence at the plaintiff’s trial.  I infer from that that the plaintiff has no interest other than that in avoiding Mr Griffin being convicted. 

27. It was decided, admittedly obiter, by the New South Wales Court of Appeal in Ex parte Mullen; Re Wigley and Anor [1970] NSWR 297 that in a case not dissimilar to this one, in the exercise of its discretion, the court would not make an order for the issue of the prerogative writ of mandamus where the application is not made in good faith or is made to achieve some indirect purpose or where its making is prompted by some ulterior motive.

28. Furthermore, even if the statement for the basis of plea was inconsistent with Mr Griffin’s plea of guilty, and that became obvious during the course of submissions as to the penalty to be imposed, there would be nothing to prevent Mr Griffin from altering or modifying the statement in some way, with the acceptance of the Director of Public Prosecutions, to make his position quite clear.  With that in mind, it would be obvious that these proceedings would, in those circumstances, have a distinct element of futility. 

29. For all those reasons, I am not satisfied that the plaintiff has an arguable case.  Indeed, I am satisfied, to use the language of Rule 98.05(3), that on the evidence before the court there is no reasonable prospect that the court would make any order in the nature of judicial review.  I, therefore, refuse leave to serve the summons. 

30. I exercise the powers conferred upon me by Rule 98.04A(4) par(a) to strike out that part of the summons which seeks judicial review, that is, paragraph 1 of the originating summons.  It will be up to the plaintiff then, in the circumstances, as to whether he seeks to proceed to claim the declarations that he seeks in paragraphs 2 and 3 of the summons, for which no leave to serve is necessary, and whether he seeks to serve the summons on the relevant parties in order to proceed with those declarations.  If he does, then, no doubt, that action will take its usual course by way of directions for pleading or affidavits, as the case may be.