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…

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.

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Details

AGLC: 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
Case: [1994] SASC 4870
Decision Date: 1 December 1994

CaseChat Overview and Summary

The case of Director of Public Prosecutions (Cth) v Phillip Andrew Bayly involved an application to quash an indictment on the basis of alleged procedural irregularities during the committal proceedings. The accused argued that the prosecutor had failed to comply with the requirements of section 104 of the Summary Procedure Act, 1921, leading to a miscarriage of the committal process and the need for a fresh preliminary examination. The court was required to determine whether the alleged non-compliance with the statutory provisions was sufficiently serious to warrant the quashing of the indictment or, alternatively, whether the accused's rights could be adequately protected through other means. The court held that, while there were instances of non-compliance with section 104, these were not the result of malicious intent and had been remedied by the provision of all relevant material to the accused. The court concluded that the accused's rights were sufficiently protected by the ability to conduct a "Basha" inquiry if necessary and that the inherent jurisdiction of the court did not extend to quashing the indictment on the grounds presented. The application to quash the indictment was therefore refused.

Orders