Director of Public Prosecutions (Cth) v Phillip Andrew Bayly (No.2) No. SCCRM 94/406 Judgment No. 4870 Number of Pages 14 Criminal Law and Procedure (1994) 75 a Crim R 575

[1994] SASC 4870

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - jurisdiction practice and procedure - information, indictment or presentment - motion to quash - Accused seeking quashing of indictment - defence claiming accused prejudiced by failure of prosecution, at committal, to file and tender all material required by s104 Summary Procedure Act, to be filed and tendered - substantial compliance by prosecution with s104 - non compliance not malicious and remedied after accused committed for trial - no power to quash indictment on basis postulated, only to grant stay - observations as to type of material required to be filed and tendered by prosecution at committal - any prejudice to accused able to be remedied at trial before jury empanelled.

Summary Procedure Act, 1921 ssl04, 106. Goldsmith v Newman and The State of South Australia (1992) 59 SASR 404 and Brygel v Stewart-Thornton (1992) 2 VR
387, applied. The Queen v Gee and Ors (1936) 25 Crim App R 196; The Queen v Coleshill Justices, ex parte Daries and Anor (1971) 1 WLR 1684 and Neill v North Antrium Magistrates' Court (1992) 97 Crim App R 121, distinguished. R v Chairman of London County Sessions; ex parte Downes (1953) 37 Cr App R 152 and Connolly v Director of Public Prosecutions (1964) AC 1254, considered.

HRNG ADELAIDE, 16-17 November 1994 #DATE 1:12:1994

Counsel for DPP:            Mr P J Rice

Counsel for accused:        Mr P Faris QC with Mr D Grace

Solicitors for accused:     Jon Lister

ORDER
Application refused.

JUDGE1 OLSSON J The factual background related to these proceedings is described in some detail in reasons for decision published by me on 4 November 1994. It is unnecessary, in the course of these reasons, to retrace the same ground.

2. I presently have before me an application, on the part of the accused, to quash the indictment presented against him on the ground that the Crown has failed, in a significant fashion, to discharge the responsibilities imposed on it by section 104 of the Summary Procedure Act, 1921 ("the SPA"). In the result, it is contended, by virtue of what are said to be serious procedural irregularities during the course of the committal proceedings, the order for committal was not properly made and the indictment presented on the basis of it is not well founded. Mr Grace, of counsel for the accused, having so described the basis of the application then re-expressed his proposition in these terms:-
    "... If the mandatory requirements of the ... (SPA) ...
    have not been complied with ... then there has not been a
    valid order for committal."

3. The application seeks to invoke the inherent jurisdiction of the court.

4. I have dwelt at some length on the mode of expression of the application because, in the form in which it was prosecuted, it raises a fundamental threshold question.

5. In essence the complaint of the accused is that, contrary to the requirements of section 104 of the SPA, the prosecutor did not file in the Magistrates Court and supply to him all of the evidentiary material required by section 104(1)(a) of that statute.

6. Even if such an assertion is accepted at face value, it seems to me that the relief sought is misconceived. It must be emphasised that what is complained of is not that the indictment does not disclose an offence known to the law, that the committal order lacked jurisdiction, or that there has been some other fundamental failure to observe the legal process envisaged by the SPA so as to render the committal proceedings void and of no effect, in the jurisdictional sense. It is not, for example, asserted that there has been no compliance with section 104(1)(a). Rather, the complaint is that the accused has been unfairly prejudiced by a failure of the prosecutor fully to satisfy his obligations under that statutory provision.

7. This distinction is of vital importance in relation to the relief sought and what potential remedies are available to the accused, in the event that he is able to make good the factual basis of his application.

8. In the course of his submissions, Mr Grace, made reference to various authorities upon which he based his proposition that, in the circumstances, the Court had inherent power to quash the indictment presented. He was unable to refer me to any relevant Australian authority.

9. At common law the inherent power of the Court to quash an indictment has always been quite limited and, in general terms, usually arises only where, on the face of it, the indictment does not disclose an offence punishable by law, either by virtue of the statement of the offence or a lack of essential pleaded particulars. (See, for example, R v Yates (1872) 12 Cox 233.)

10. In R v Jones and Ors (1974) 59 Cr App R 120 the Court of Appeal recognised that a motion to quash could be entertained on the ground that the offence alleged was not disclosed by the committal depositions or statements, and there had been no committal for trial of that offence. It referred to R v Chairman of London County Sessions; ex parte Downes (1953) 37 Cr App R 152, cited with approval by Lord Morris of Borth-y-Gest in Connolly v Director of Public Prosecutions (1964) AC 1254 at 1300 as authority for that proposition. In the latter case Lord Morris commented (at 1300-1301):-
    "... I agree with what was said by Lord Goddard CJ in Reg v
    Chairman, County of London Quarter Sessions, Ex parte
    Downes, that once an indictment is before the court the
    accused must be arraigned and tried thereon unless (on a
    motion to quash or demurrer pleaded) the indictment is held
    to be defective in substance or form and is not amended, or
    unless matter in bar is pleaded and the plea is tried or
    confirmed in favour of the accused or unless (after the
    indictment is found) the Attorney-General enters a nolle
    prosequi or unless the court has no jurisdiction to try the
    offence disclosed by the indictment. In that case Lord
    Goddard said that he knew of no power in the court to quash
    an indictment because it is anticipated that the evidence
    would not support the charge: indeed, the only ground on
    which the court can examine the depositions, before
    arraignment, is to see whether (in a case where there is a
    count for which there has not been a committal) the
    depositions disclose the offence covered by that count.
    There can be no doubt that a court which is endowed with a
    particular jurisdiction has powers which are necessary to
    enable it to act effectively within such jurisdiction. I
    would regard them as powers which are inherent in its
    jurisdiction. A court must enjoy such powers in order to
    enforce its rules of practice and to suppress any abuses of
    its process and to defeat any attempted thwarting of its
    process."

11. True it is that, in The Queen v Nisbet (1972) 1 QB 37, the Court of Appeal seems to have said that the court may possess an inherent power to quash, to prevent certain types of unfairness or oppression. However, such a concept is difficult to reconcile either with what was said by Lord Morris or the later reasoning of Viscount Dilhorne in Director of Public Prosecutions v Humphrys (1976) 63 Crim App R 95 at 104-107.

12. It seems to me that certain authorities appearing in the published reports are illustrative of the effect of specific, relevant English legislation. They must be viewed with some caution for that reason.

13. Typical of these is the case of The Queen v Gee and Ors (1936) 25 Crim App R 198, relied upon by Mr Grace. This was very much the product of section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act, 1933 (UK). For that reason it is of little assistance for present purposes. An express statutory power to quash for non compliance with the applicable statutory regime was conferred by the enactment itself. Similarly The Queen v Coleshill Justices, ex parte Daries and Anor (1971) 1 WLR 1684 was the product of prerogative proceedings related to failure to observe a specific statutory requirement which went to the heart of the validity of certain committal proceedings, in light of a failure properly to consider whether or not a young offender ought, by virtue of a relevant statute, to be tried summarily rather than be committed for trial.

14. The case of Neill v North Antrim Magistrates' Court and Anor (1992) 97 Crim App R 121, also cited, was in fact an application for judicial review. That case had no bearing on the extent of the inherent power of a judge, sitting in the criminal jurisdiction, to quash an indictment. It stands as authority for the proposition that committal proceedings are susceptible to judicial review and certiorari will lie in relation to a purported committal, under the English legislation, if there is a procedural irregularity which is so serious as to lead to a demonstrable injustice to the accused.

15. It is of interest to note that, in the course of his speech, Lord Mustill expressly adopted, as accurate, the following dictum of Dawson J in Grassby v The Queen (1989) 168 CLR 1 at 12-13:-
    "The abolition of the grand jury was effected by the
    Administration of Justice (Miscellaneous Provisions) Act
    1933 (U.K.). It laid down another procedure for the
    indictment of offenders which gave a significance to
    committal proceedings which they do not have in this
    country. Under the provisions of that Act, as amended, a
    bill may only be preferred, save in limited circumstances,
    if the person charged has been committed for trial and,
    where he has been so committed, the proper officer of the
    Crown Court is required to sign a bill preferred for his
    signature. Upon signature the bill becomes an indictment
    and is proceeded upon accordingly. Where committal
    proceedings have resulted in the discharge of the person
    charged, no indictment can be brought except through fresh
    committal proceedings or by leave of a judge of the High
    Court. Thus committal proceedings in the United Kingdom
    have become an integral part of the process leading to
    trial and form a substitute for the grand jury process."

16. With all due respect none of those decisions stand as authority for the proposition which Mr Grace advances in the context of the SPA. I hold that I do not possess inherent power to quash the indictment in this case in the circumstances postulated by the accused. That, however, is not the end of the matter.

17. In Barton v The Queen (1980) 147 CLR 75 the High Court confirmed the existence of an inherent power in the Court to stay or postpone proceedings on an indictment in circumstances in which fairness to an accused dictates such a course. In that case a stay was considered appropriate to ensure that the accused had the benefit of a proper committal hearing, in circumstances in which an ex officio indictment had been presented. As I pointed out in my reasons published on 4 November 1994, an alternative approach, in proper cases, is to permit the conduct of a "Basha" inquiry as a pre-empanelment exercise - an approach which has frequently been adopted in this Court where the Crown proposes to lead evidence which was not the subject of a committal declaration.

18. I propose, therefore, to examine the complaints articulated by Mr Grace in such a setting.

19. In my earlier reasons I commented upon the inappropriateness of the approach adopted by the committing magistrate and intimated that I would be prepared to entertain a proper application for a "Basha" inquiry to remedy any demonstrable prejudice to which the accused has been subjected. However, the present submissions range far beyond that simple area of concern.

20. The accused currently contends that the prosecutor has breached the procedural requirements of section 104(1)(a) of the SPA in such gross degree that the committal process has fundamentally miscarried. It is said, in effect, that there ought to be what is tantamount to a fresh preliminary examination to rectify the situation. At the end of the day the resolution of the present debate very much depends upon the proper interpretation of section 104 and its application to the relevant factual circumstances. This, in turn, requires an examination of the narrative history of these proceedings which, in part, falls to be ascertained by reference to oral evidence given by Mr Edson (a legal practitioner on the staff of the Commonwealth Director of Public Prosecutions) and Detective Sergeant Schulte (of the Australian Federal Police ("AFP")).

21. Sergeant Schulte was the original informant in this matter and also the AFP case officer in relation to the investigation of the accused. However, it is clear that the prosecution, including the committal proceedings, has at all relevant times been in the hands of the Director of Public Prosecutions (Cth) ("DPP"). At the committal stage at least, Mr Edson has been the member of the DPP staff having the conduct of the matter.

22. Mr Edson, therefore, accepted responsibility for the preparation and presentation of the so-called "hand up brief" -although much of the detailed work was done by Sgt Schulte and Mr Edson was generally reliant upon him for provision of information as to what evidentiary material was available to support the prosecution.

23. In mid November 1993 Sgt Schulte delivered copies of a brief of evidence to Mr Edson. One was given to the then solicitors for the accused. Mr Edson informed a Magistrate, at that time, that the brief was incomplete, because certain signed declarations were still to be received from the United States of America. The Magistrate directed that the documents required for the purposes of section 104 of the SPA be collected into a single hand up brief, when all were available, and be filed on or before 29 November 1993.

24. On about 26 November 1993, Mr Edson caused two copies of the hand up brief to be lodged at the Magistrates Court. These were accompanied by a letter explaining that the original declarations and documents had been retained by the DPP and would be tendered on the day of the committal. As to this his evidence was:-
    "... If I could just explain, the reason why the original
    declarations weren't filed on that occasion was because on
    a previous occasion that year original declarations had
    been misplaced by the Magistrates Court and special reasons
    had been granted in that case, and it caused significant
    delay and inconvenience. This brief involved a number of
    interstate and overseas witnesses and I was mindful that if
    this brief was lost, or the originals, there would be real
    problems in replacing it, so that was explained to the
    court. Subsequently the signed declarations arrived and I
    sent copies of them to Mr Bayly personally, because at that
    point in time his counsel from Victoria had sought leave to
    be removed from the file, because of conflict of interest.
    The brief of evidence consisted of witness statements,
    signed witness statements, it consisted of a number of
    documents which were annexed to, either by way of staple or
    immediately following witness statements. Those documents
    were those which were to be tendered through that
    particular witness and it also included a fairly lengthy
    document called a list of evidentiary material as well."

25. The reference to the list of evidentiary material was to a document, some 57 pages in length, which was ultimately included as part of the hand up brief in purported compliance with the requirements of section 104(1)(a)(iii) of the SPA. The first 15 pages described a series of evidentiary materials (some of which were documentary in nature) proposed to be relied upon by the prosecution. The balance of the document set out to describe the significance which the prosecutor sought to attach to each of those materials.

26. I pause at this juncture to make the obvious point that the procedure adopted by the DPP simply did not comply with the requirements of the section. Whatever may have been the basis or justification for Mr Edson's lack of confidence in the ability of the Magistrates Court safely to manage original documentation filed, the plain fact of the matter is that the section requires the original witness statements to be filed although, oddly, it only requires "copies" of documentary exhibits to be filed. It is to be noted that section 106(1)(a) requires the subsequent tender of the evidentiary material "filed in the Court" - not material which may have been retained by the prosecutor for safekeeping. Whether that provision confers on copy documentary exhibits filed pursuant to section 104(1)(a)(ii) some form of evidentiary status, for the purposes of the preliminary examination, is a potentially interesting question which I need not here decide.

27. On the other hand there is no indication in this case that the procedure adopted caused any actual prejudice to the accused. Indeed it seems to have been concurred in by the presiding magistrate.

28. Mr Edson was adamant that the copy witness statements in the hand up briefs were accompanied by copies of any documents referred to in them in plastic sleeves. Some of these are now missing, although the documentation has passed through so many hands since the preliminary examination that it is impossible to say what may have happened to them. So far as I can determine there was never any receipt list generated in the Magistrates Court against which a check may be made. This seems to me to be an obvious administrative deficiency which may well warrant some remedial action to obviate future problems of this type.

29. At any event, when the preliminary examination was eventually proceeded with by Mr Ackland SM, Mr Edson tendered a lever arch file containing all original declarations and attachments, together with the original of the "List of Evidentiary Material" as the top document in it. That list is not now in the file and it is one of life's mysteries as to what has happened to it.

30. So far as I can determine most of the original documentary or other non documentary exhibits referred to in the first 15 pages of the List of Evidentiary Materials was tendered before the examining magistrate. It seems that they were retained in safe keeping by the AFP for use at the eventual trial. All were eventually brought into court during the present application, save for several physical exhibits too bulky to handle for present purposes and quantities of cocaine which were the subject of a controlled destruction.

31. Once again I pause to express some surprise at the destruction of the parcels of drug, even given that video records of these have been made. I point out that these constituted original evidence and, in certain situations, critical questions might arise as to size or shape of packages and the physical composition and characteristics of contents. It is, in my view, quite inappropriate to dispose of such materials prior to trial.

32. Since the preliminary examination additional evidentiary material has come to light. Notable amongst this is content of the file of one Wortley, a special agent of the United States Customs Service, who conducted certain investigations in the United States of America. Copies of certain of this material have been provided to the defence, but Special Agent Wortley has declined to make other items available on the ground of public interest immunity.

33. I am in no doubt that Mr Edson, as prosecutor, bona fide provided to the solicitor for the accused details or copies of all relevant evidentiary material, the existence of which he was aware, as and when it was available. However, in the course of recent requests for discovery of documents, it became apparent that, prior to the preliminary examination, Sgt Schulte had received into his possession from the United States a copy of a transcript of an interview with one Sterling-Burela, who is said to have been an accomplice with the accused in the alleged importation. Apparently Sgt Schulte did not inform Mr Edson of the existence of this document until recent enquiries were made as to the contents of relevant AFP files. As I understand the position a copy has now been made available to counsel for the accused.

34. In giving evidence Sgt Schulte explained that he had not included this with material for the hand up brief because it was of a hearsay nature and it was his understanding that it was not admissible material. Whether or not his assessment was correct as a matter of law, it must be said that I am satisfied that there was nothing sinister in the omission to inform Mr Edson of the existence of the transcript. Sgt Schulte honestly thought that it was irrelevant for the purposes of the hand up brief.

35. Against that background I now turn to the matters debated by counsel.

36. In doing so it is first necessary to direct attention to the applicable provisions of the SPA.

37. As was pointed out by King CJ in Goldsmith v Newman and The State of South Australia (1992) 59 SASR 404 ("Goldsmith") the amendments of the SPA which came into effect on 6 July 1992 were designed to bring about certain quite specific modifications of the purposes and functions of preliminary examinations, as those had previously been expounded in The Queen v Harry; ex parte Eastway (1985) 39 SASR 203. The key features were:-
    - proof of facts (for the purposes of the committal
    proceedings) by means of statements in writing, without
    oral examination or cross examination, was made the norm;
    - issues of credibility were withdrawn from the examining
    magistrate;
    - most issues of admissibility were to be left to the trial
    court - evidence was only to be rejected where it was
    patently inadmissible;
    - oral evidence was to be allowed if, but only if, special
    reasons were shown to exist for permitting it. This
    particularly related to applications for leave to cross
    examine witnesses, which had to run the gauntlet of the
    criteria set out in section 106(3) of the SPA.

38. In the lastmentioned regard the learned Chief Justice set out to provide some guidance as to what might fairly be regarded as special reasons. In so doing he made the point that an unduly restrictive attitude ought not to be adopted; and that any decision on an application for leave "should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court."

39. The primary responsibilities of a prosecutor, in relation to an indictable offence, are spelt out in section 104 of the SPA in these terms:-
    "Preliminary examination of charges of indictable offences
    104. (1) Where a charge of an indictable offence is to
    proceed to a preliminary examination, the prosecutor must
    at least 14 days before the date appointed for the
    defendant's appearance to answer the charge -
    (a) file in the Court in accordance with the rules -
     (i) statements of witnesses for the prosecution on which
     the prosecutor relies as tending to establish the guilt
     of the defendant; and
     (ii) copies of any documents on which the prosecutor
     relies as tending to establish the guilt of the
     defendant; and
     (iii) a document describing any other evidentiary
     material on which the prosecutor relies as tending to
     establish the guilt of the defendant together with a
     statement of the significance that the material is
     alleged to have; and
     (iv) any other material relevant to the charge that is
     available to the prosecution; and
    (b) give personally or by post to the defendant or a legal
    practitioner representing the defendant copies of all
    documentary material filed under paragraph (a).
    (2) If material of the kind referred to above comes into
    the prosecutor's possession after the time appointed for
    filing in the Court and giving copies to the defendant or
    the defendant's legal representative, the material must be
    filed and copies given as soon as practicable after it
    comes into the prosecutor's possession.
    (3) A statement filed in the Court must conform with the
    following requirements:
    (a) it must, subject to paragraph (b), be in the form of a
    written statement verified by a declaration in the form
    prescribed by the rules;
    (b) if the witness is a child under the age of 12 years or
    a person who is illiterate or mentally retarded, it may be -
     (i) in the form of a written statement taken down by a
     police officer at an interview with the witness and
     verified by the police officer as an accurate record of
     the witness's oral statements at the interview insofar as
     they are relevant to the subject matter of the charge;
     or
     (ii) in the form of a videotape or audiotape record of an
     interview with the witness that is accompanied by a
     written transcript verified by a police officer who was
     present at the interview as a complete record of the
     interview.
    (4) Where a videotape or audiotape is filed in the Court,
    the prosecutor must -
    (a) provide the defendant with a copy of the verified
    written transcript of the tape at least 14 days before the
    date appointed for the defendant's appearance to answer the
    charge, or, if the tape comes into the prosecutor's
    possession on a later date, as soon as practicable after
    the tape comes into the prosecutor's possession; and
    (b) inform the defendant of the defendant's right to have
    the tape played over to the defendant or his or her legal
    representative and propose a time and place for the tape to
    be played over.
    (5) The time proposed for playing the tape must be at least
    14 days before the date appointed for the defendant's
    appearance to answer the charge, or, if the tape comes into
    the prosecutor's possession at a later date, as soon as
    practicable after the tape comes into the prosecutor's
    possession, but the proposed time and place may be modified
    by agreement.
    (6) If -
    (a) a statement filed in the Court under this section is
    false or misleading in a material particular; and
    (b) the person by whom the statement was made -
     (i) knew that the statement was to be used for the
     purposes of a prosecution; and
     (ii) knew that the statement was false or misleading,
    that person is guilty of an offence.
    Penalty: Division 5 imprisonment."

40. In Goldsmith King CJ (with whose reasons Duggan J agreed) went to some pains to explain the general impact of subsection (1)(a).

41. As he indicated, placita (i) and (ii) present little difficulty. They refer to the original declarations and to copies of documents sought to be relied upon by the prosecutor as tending to establish the guilt of the defendant. Leaving aside the curious requirement that copies of original documentary exhibits must be filed and tendered the only qualification on the placita stressed by the learned Chief Justice was that the material filed must be, at least arguably, legally admissible. That must be the touchstone of the outer ambit of material to be placed before the court.

42. In the course of his judgment King CJ expressed the view that placitum (iii) authorises the filing and tendering of documents the contents of which would not be legally admissible under the ordinary rules of evidence, although the admissibility of the contents would have to be ruled upon if objection were taken.

43. I do not take this to have been intended as an all embracing exposition of the ambit of operation and effect of placitum (iii). What is clearly in contemplation is a descriptive document which sets out to give notice to an accused of not only the existence of evidentiary material not comprehended by placita (i) and (ii), but also of the manner in which the prosecutor will seek to use and rely upon that material as part of the Crown case.

44. So it is, in the instant case, that the document titled "List of Evidentiary Material" was filed as the prosecutor's compliance with placitum (iii) and set out to identify evidentiary material and the basis of reliance upon it. In point of fact that document spanned not only a range of non documentary materials, but also documents which possibly should have been dealt with under placitum (ii) - some of which had not been supplied to the accused. In my opinion it was never intended that a document described under placitum (iii) should refer to documents copies of which were required to be filed pursuant to placitum (ii). The phrase "any other evidentiary material" employed in placitum (iii) plainly refers to material other than that to which placita (i) and (ii) relate. Nor can it be said that it is a sufficient compliance with placitum (ii) to say that relevant documents are referred to in a document prepared for the purposes of placitum (iii). In the case at bar it appears to me that some confusion existed in the mind of the prosecutor as to the respective ambits of operation of the first three placita.

45. In addressing plactium (iv) King CJ noted that, on one interpretation, this could literally comprehend all material potentially relevant to the charge, irrespective of its ultimate admissibility under the rules of evidence. For reasons which he expressed (and with which I respectfully agree) he opined that the statutory provision must be read down so as to include admissible material only. He was also of the view that the word "relevant" was not employed in its widest connotation so as to include collateral matters which merely went to the credit of a witness.

46. All members of the Court in Goldsmith considered that placitum (iv) operated only to require the filing of material which was ultimately admissible in accordance with the rules of evidence, whether the prosecutor sought to rely on it in proof of the charge or not. Thus, for example, police operational records would not normally be caught by such a provision. The majority held, however, that placitum (iv) did not require a prosecutor to file material the truthfulness or reliability of which the Crown distrusted - given, nevertheless, the ever present obligation to disclose the existence of such material to the defence (Richardson v The Queen (1974) 131 CLR 116 at 121). In the instant case the Sterling-Burela transcript was clearly not admissible, but its existence was a matter which the DPP was bound, as it did, separately to disclose to the defence.

47. These conclusions are binding upon me and I apply them. However, it seems to me that they do not constitute exhaustive pronouncements of the potential full span of operation of placitum (iv). In my opinion that provision is couched in sufficiently wide terms to require the prosecutor to file all evidentiary material relevant to the charge which is not documentary material encompassed by placita (i) to (iii) inclusive. It is apt to comprehend items such as video tapes, audio tapes and other items which may constitute vital evidence which might not otherwise not be tenderable in terms of section 106(1)(a) of the SPA if not filed.

48. The substance of the defence argument was to the effect that, in using the seemingly imperative word "must", section 104 imposes a strict regime, non compliance with which necessarily gives rise to a situation in which an accused has not been the subject of either a fair or valid committal proceeding. That being so, any resultant indictment should not be the subject of a trial unless and until proper compliance with sections 104-107 of the SPA has been achieved.

49. The short answer to such a proposition is to be found in the reasoning of J.D. Phillips J in Brygel v Stewart-Thornton (1992) 2 VR 387 ("Brygel"), which focused upon Victorian legislation bearing some similarity to the scheme of the SPA. It also used the word "must". Having observed that the interpretation of this type of statutory expression must derive from the whole scope and purpose of the relevant enactment, J.D. Phillips J pointed out that the various requirements of the statute were of a disparate nature and that non compliance necessarily gave rise to differing impacts. He felt it impossible to conclude that any degree of non compliance should ipso facto vitiate a committal order. He considered that the statutory scheme should be approached on the basis that it constituted what he described as a "multitude" of directions intended, in their totality, to regulate the conduct of committal proceedings; and that the practical consequences of any non compliance must be the touchstone of the ultimate effect. At the end of the day, what is required is substantial compliance with the statutory scheme - a test which gives rise to issues of fact and degree, in the sense of the resultant extent of prejudice flowing to an accused. Inherent in such a consideration must be a balancing of interests which, at least in conceptual terms, is not dissimilar to the type of process of reasoning adverted to by Deane J in Pollard v The Queen (1992) 176 CLR 177 at 202-204, albeit in a rather different topic context.

50. Where, then, does such an approach lead in the instant case?

51. It is undoubted that there were several incidents of non compliance with section 104 of the SPA, although none of these was the product of guile or sinister intent. On the contrary, it seems to me that, at all stages, Mr Edson's motives have been of the best and he has genuinely attempted to honour what has been his understanding of his statutory and common law obligations.

52. I turn therefore to what were said by the defence to have been important deficiencies on the part of the prosecution in compliance with it statutory obligations.
    (1) So far as can now be ascertained, a number of
    documentary exhibits which should have been both filed and
    served on the accused were certainly not served; and some
    may not even have been filed, although it is not now
    possible to be certain of this. On the other hand there
    was full disclosure of the nature and purpose of all
    relevant documents in the List of Evidentiary Material
    which, I accept, was filed and served. In the case of the
    missing annexure to the statement of the witness Bevan, the
    detail of the annexure is, in any event, actually set out
    in the body of the statement itself. Copies of all
    relevant material have now been supplied or it has been
    made available to the accused for access.
    (2) It is true that a copy of the Sterling-Burela
    transcript was not filed (due, in part, to the fact that
    the prosecutor did not even know of its existence).
    However, bearing in mind the reasoning of King CJ in
    Goldsmith, it was not in fact admissible and therefore not
    required to be filed. As soon as its existence was
    ascertained it was, however, made available to the defence.
    It must be emphasized that there is nothing in the SPA
    which, in any sense, purports to abrogate the well
    established common law duty of a prosecutor to disclose to
    the defence any materials which may potentially be relevant
    to the defence case and which particularly bear directly on
    issues of credibility. (See authorities such as The Queen
v Easom (1981) 28 SASR 134, R v Bryant and Dickson (1946)
31 Cr App R 146, Dallison v Coffery (1965) 1 QB 348, R v
    Fenn (1959) 23 Journal Crim Law 253, Baksh v R (1958) AC
167, R v Clarke (1930) 22 Cr App R 58, R v Collister and
Warhurst (1955) 39 Cr App R 100.) However, this is an
    obligation which is quite separate and apart from the
    requirements of section 104 of the SPA.
    Herein, then, lies the answer to the criticism which Mr
    Grace sought to advance in relation to the use by King CJ
    of the word "credibility", rather than "credit", when
    discussing placitum (iv) of the section in Goldsmith.
    (3) Mr Grace asserted that there is no formal record of the
    prosecutor tendering the documents filed in the Magistrates
    Court, as required by section 106(1)(a) of the SPA. True
    it is that there is no full transcript of the preliminary
    examination, but I unreservedly accept Mr Edson's evidence
    on oath that he did tender the relevant documentation,
    given that the original declarations were substituted for
    the copies then on the court file. There is therefore
    nothing in the point sought to be raised.
    (4) It was argued that certain of the documents adverted to
    in the statements were not in fact with the material filed
    in court and tendered to the examining magistrate and that
    copies of other documents referred to in the List of
    Evidentiary Material were not supplied to the accused. I
    have already indicated that, on the material before me, it
    is by no means clear whether this was or was not the
    situation in each instance - due to lack of definitive
    records related to the receipt and transmission of
    documents and the number of hands through whom they have
    passed in the court system.

53. In any event there was no requirement to file and then serve copies of other than those documents which fell within placita (i) and (ii) and the List filed under (iii). However, all relevant material has now been made available to the accused.

54. It is clear that none of the physical, non documentary material was filed (eg video tapes, the table, etc.). On the other hand, these were all described in the list of evidentiary material and the accused has access to them, save to the extent that all but representative quantities of the cocaine have been destroyed.

55. In my view this material ought, technically, to have been filed in the Magistrates Court. On the other hand it is impossible to perceive how the accused has been prejudiced by that situation, in light of his knowledge of it. Moreover I think that there is considerable force in the argument advanced by the Crown Prosecutor that it is highly debatable as to whether a good deal of the material was strictly required to be filed, because it primarily related to other persons involved in the overall incident and was, at best, of marginal relevance or importance in relation to the case against the accused.

56. In the final analysis I have come to the conclusion that, whilst there may have been some technical failures to comply with the requirements of section 104 of the SPA, nevertheless, there was substantial compliance with it. Any deficiencies have since been made good - save to the extent that any residual arguments as to public interest immunity and relevance require to be resolved. The accused has present access to all non disputed materials and ample time within which to consider it prior to empanelment of the jury. To the extent that any residual prejudice may arise by virtue of non availability of materials at the preliminary examination this can readily be overcome in the context of any proper "Basha" type inquiry, as envisaged in my earlier reasons for decision. It will be for the accused to demonstrate the need to hold such an inquiry and the proper ambit of it. On an overview of all of the material now before the Court it is difficult to perceive how the examining magistrate could have done other than commit in light of it. It seems unrealistic to me to suggest that the accused has lost a practical right to submit that there was no basis for committal.

57. Against that background I formally reject the application to quash the indictment and intimate that I see no basis for granting a stay in relation to it. The rights of the accused can amply be protected by appropriate pre empanelment processes.