Goldsmith v The Queen

[1993] HCATrans 46

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1993

B e t w e e n -

KAMAHL JAMES GOLDSMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN ACJ
GAUDRON J

McHUGH J

Goldsmith 1 5/3/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MARCH 1993, AT 2.02 PM

Copyright in the High Court of Australia

MR B.R. MARTIN, OC:  May it please the Court, I appear with

my learned friend, MR W.F. BRAITHWAITE, for the

applicant. (instructed by J.M. Hartnett, Director,

Legal Services Commission (South Australia))

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS P. KELLY,

for the respondent. (instructed by B.M. Selway,

Crown Solicitor, South Australia)

BRENNAN ACJ:	Yes, Mr Martin.
MR MARTIN:	If the Court pleases, we are concerned with

legislation that came into effect in South
Australia on 6 July 1992 which had the effect in

the matter before Your Honours of preventing the applicant, who is a 16-year-old Aboriginal child

charged with murder, from cross-examining the only

witness who implicates him in the death of the

deceased. The witness is a 16-year-old, at that

time, Aboriginal girl who gave two versions to the police which exculpated the applicant; and then a

third about a month after the incident in question,

in which she alleged that the applicant on the
night of the incident confessed his involvement in

the crime to her.

That confession does not appear in the

transcript before Your Honours. If I may read it
very briefly. There are two very brief passages in

her statement, she, having described that they had

come out of a bedroom and seen the co-accused

assaulting the deceased, said that a little later

they had returned to the bedroom and then,
according to her later statement, the applicant

left the room, came back after 20 minutes and said

to her:

I jumped on his head a couple of times and

dragged him to the fence and chucked him over.

His head fell off when I chucked him over.

And then a little later in the statement she said:

I remember also that when Kamahl -

that is, the applicant -

came inside after he said he had been outside

the front of the house to Shorty -

Shorty being the deceased, he said -

I was giving Shorty mouth to mouth

resuscitation and I was feeling his pulse.	He
then said, "I thought he was still alive so

Goldsmith 2 5/3/93

that is why I jumped on his head a couple of

times.	I think I might have finished him
off".

So a confession in contradictory terms, one minute

mouth to mouth, followed by "I jumped on his head".

So that is the sole evidence, in effect,

against the applicant and that witness was

subsequently provided with an immunity from

prosecution.

It was that witness the applicant sought to

cross-examine, together with the police officers

who had dealt with her and ultimately been involved

in the arranging of the immunity from prosecution.

She is also a witness who is close to the

co-accused, who is her uncle. The co-accused's

preliminary hearing was conducted before the

amendments came into effect. He was charged

earlier than the applicant. Therefore he had the
opportunity and availed himself under the old
provisions of cross-examining this particular

witness at some length and he did so along the

lines of exculpating himself - that is, the

co-accused - and implicating the applicant.

It is our submission that that in itself has

created an unfair balance between two accused where

their interests are in conflict. The old

provisions under the Justices Act - and I am not
sure whether the Court is familiar with the

provisions that applied. If I can perhaps canvass

them briefly.

GAUDRON J:	We have read the statutory provisions.
MR MARTIN:	Thank you, Your Honour.  In that event I do not

need to trouble the Court by going through except

to say, of course, that now it is a matter of

satisfying the Court that there are special reasons

for the calling of any witness for the purposes of

cross-examination. This legislation, we would

suggest, is primarily concerned with matters of

practicality - time and cost of preliminary

hearings; whereas the old provisions, which had

allowance for the case of witnesses who were

victims of sexual assaults not to be called unless

there were special reasons, were purely concerned
with a particular category of witness. That
category of witness, of course, is still catered

for under the new provisions.

BRENNAN ACJ:  Mr Martin, these were proceedings for judicial

review.

MR MARTIN:  Yes, they were, Your Honour.

Goldsmith 3 5/3/93

BRENNAN ACJ:  Not an appeal.

MR MARTIN: That is so. There is no right of appeal.

BRENNAN ACJ:  What is the ground of judicial review which

you rely on?

MR MARTIN: That the judge of the childrens court, who

conducted the preliminary hearing clearly erred in

his approach to the matter and did not apply the

correct test, that there was an error of law at

that point. Secondly - - -

BRENNAN ACJ: That is not a ground for judicial review, is

it?

MR MARTIN: Well, it has been accepted by the Full Court

that if there is an error in that sense by the

committing magistrate, or judge in this instance,

that is sufficient to ground a case for judicial

review.

BRENNAN ACJ:	Any error?
MR MARTIN:	No, not an error in the application of the

principles, but a misunderstanding of the legal

principles that were applicable, and that is our

case, that the judge in this instance clearly

misunderstood the relevant principles to be

applied.

BRENNAN ACJ:  I do not understand the dichotomy that you are

drawing. Is there any authority that you can point

to that indicates the availability of judicial

review for an error made by the magistrate in the

course of committal proceedings?

MR MARTIN:  Yes. Perhaps if I take Your Honours to the

remarks of the Chief Justice in this instance on

that matter. It is page 22 of the appeal

transcript at line 19. He said:

It has been held by the Full Court in

Clayton v Ralphs and Manos, (1987) 45 SASR 347

that a preliminary hearing is amenable to

judicial review. I am prepared to assume that

an error by the magistrate as to the legal

meaning of the test of special reasons might

so vitiate a committal for trial as to justify

this court in quashing the committal and

directing the magistrate to reconsider his

decision in the light of the true test.

GAUDRON J: That is a large assumption though, is it not?

McHUGH J: It certainly is.

Goldsmith 4 5/3/93

MR MARTIN:  Yes, except that he has gone on - well, the

first matter is that it was held that way by the

Full Court in Clayton v Ralphs - - -

GAUDRON J: Well, not exactly, was it? There was reference

to an error of law in Clayton v Ralphs, but not one

necessarily of the kind there referred to, as to

the legal meaning of the test.

MR MARTIN: Well, Your Honour, it has been accepted on more

review does apply in those circumstances, and the

than one occasion in the South Australian

Full Court has recently confirmed that, in a case

of S v R It was a judgment delivered on 2 March,

and we have copies.

BRENNAN ACJ:  I mean, the problem is not one of judicial

review of a decision to commit, is it? It is a

judicial review of a decision made in the course of

committal proceedings.

MR MARTIN: That is so, and that is why the

Full Court of South Australia has said on more than

one occasion that the remedy is discretionary and

has discouraged proceedings being taken in this

form during the course of the preliminary hearing.

BRENNAN ACJ:  I can understand the latter of those

propositions, but the notion that it is

discretionary in any relevant sense is a little

difficult to see, if the judicial review lies from

an excess of jurisdiction.

MR MARTIN:  We would agree with that, but that is what the

Full Court has said or the Chief Justice said at the top of page 23:

that the grant of relief by way of judicial

review is discretionary.

We would submit that once it is shown that there

was an error in the relevant sense by the learned

judge, then the matter really is outside the realms

of a discretion properly understood.

McHUGH J:  And what do you mean by, in the relevant sense -

jurisdictional error?

MR MARTIN:  An error as to, we would say, the legal meaning

of the test of special reasons.

McHUGH J: But that is just an error within jurisdiction, is

it not? I mean, if the distinction between errors within jurisdiction and jurisdictional error still

remains, and this Court has said it does, then it

is difficult to accept that statement, is it not?

Goldsmith 5 5/3/93

MR MARTIN: If Your Honour is correct. Well we would say in

that event, that that would provide a ground for

this matter to be aired in this honourable Court in remedy is available in these circumstances.

any event, because certainly the South Australian

McHUGH J: But it is not an error that assists you, is it?

I mean, this is a very favourable test from your

point of view.

MR MARTIN: That test is certainly favourable, we would

agree with that, to that extent, yes.

BRENNAN ACJ:  I mean, if the question of whether any error

within jurisdiction is sufficient to enliven

jurisdiction to grant judicial review is to be
agitated, one could scarcely think of a case less

suitable as a vehicle than an interlocutory

application in a criminal committal proceeding.

MR MARTIN:  With respect, we would suggest that is not so.

This is a suitable vehicle, because it involves a

child charged with murder, with drastic

ramifications at the end of the day for his right

to a fair trial and that this is, for that reason,

a good vehicle for the agitation of any of these

points and - - -

BRENNAN ACJ: But this is something which a trial judge can

take on board, is it not, to ensure that he does

have a fair trial?

MR MARTIN:  With respect, we would adopt what was said by

former Chief Justice Gibbs and Justice Mason, as he

then was, in Barton's case, that you cannot isolate
the fair trial question by simply looking at the

trial itself from the preliminary hearing - - -

McHUGH J: But does that not mean, Mr Martin, that if your

client was convicted then, in front of the Court of

Criminal Appeal, you would have grounds for saying

he had not had a fair trial?

MR MARTIN:	He certainly would, Your Honour, but experience says that it is very difficult, of course, at that
stage to satisfy the appellate court of the unfairness attending the trial and that, in a case
such as this, where the whole Crown case rests on a most unsatisfactory basis, that the unfairness is
incurable if he is not permitted to cross-examine
this witness at this stage.

GAUDRON J: But that is a matter to take up with the trial

judge, surely.

Goldsmith 6 5/3/93

MR MARTIN:  Yes, it is, and the Chief Justice recognized

that matters such as this, the unfairness, could be the subject of an application to permanently stay a

trial after the information has been filed, but he

pointed out at the same time that cases where
permanent stays would be granted, thus forcing the
prosecution back to the initial stages, would be

very rare indeed.

So that persons in the position of this

applicant, if they are not able to seek review at this stage of the proceedings, may well be placed

in a permanently disadvantageous position, one

which -is ·almost impossible to cure and one which is

very difficult then to establish in due course

before an appellate court.

If I may revert to that question of the

importance of the preliminary examination, linking

it to the trial, it was in Barton's case,

147 CLR 75, in the joint judgement, beginning at

the bottom of page 99 - and we appreciate this was
concerned with depriving someone of the opportunity
of a preliminary hearing because one of the
important aspects is depriving someone of the

opportunity to cross-examine~ in the very last

line, having referred to the various advantages,

including the opportunity of cross-examining the

Crown witnesses, Their Honours said:

The deprivation of these advantages is,

as the judges observed in Fazzari and as Fox J

noted in Kent, a serious departure from the

ordinary course of criminal justice.

And then, if we can go half-way down the page:

We are not impressed by the argument that

because in the distant past the courts
proceeded to hear trials on ex officio

indictments without benefit of a preliminary

examination, it necessarily follows that we

should take the same course today or that

there is no element of injustice in forcing an

accused to trial without such an examination.

BRENNAN ACJ:  One cannot put the present case on a parallel

with this, can one, because the legislature of

South Australia says that as a matter of ordinary

criminal procedure, there will be no

cross-examination of witnesses.

MR MARTIN: That is so, but the element of unfairness that

attends that is to be ameliorated, in our

submission, by a proper interpretation of what are

special reasons. The point that is addressed here

in the next few lines is that the committal

Goldsmith 5/3/93

proceedings - and this is the context in which the

deprivation of the right to cross-examine and the

meaning of special reasons should be interpreted,

in our submission, is that:

It is now accepted in England and Australia

that committal proceedings are an important

element in our system of criminal justice.

They constitute such an important element in

the protection of the accused that a trial
held without antecedent committal proceedings,

unless justified on strong and powerful

grounds, must necessarily be considered

unfair.

His Honour Justice Stephen pointed out in the last

paragraph at page 105 and over to the top of

page 106 that it is likely that the most serious

detriment that an accused person will suffer will

be the loss to cross-examine Crown witnesses before

the trial and that that disability will be

irremediable.

So, in our submission, that is why the

availability of these proceedings to correct an

irremediable unfairness is. a matter that warrants
the attention of this Court. In our submission,
not only did the learned judge err in the childrens
court, but the Full Court erred in two respects;
the first in its approach to special reasons and a
restrictive interpretation, and the second in its
approach to the Crown obligation which has been
imposed by the new scheme to disclose material

relevant to the charge but upon which it does not

intend to rely. That is a new obligation imposed

by the scheme, and the Full Court effectively said,

"That's nothing but a recitation of the common law

duty of the prosecutor."	So they are the two areas
in which -

GAUDRON J: But you seek no relief, of course, by reference

to the disclosure. You never did, did you?

MR MARTIN: Eventually the disclosure was made.

GAUDRON J: Yes, so you cannot rely on that, other than in

the sense that it might bear on the construction?

MR MARTIN:	We rely on it to say that, as far as our relief is concerned, special reasons existed, there was an
error and the matter should go back to the
magistrate for him or the judge to exercise his
discretion properly in accordance with correct
principles. But associated with that, if the Court pleases, the matter is important and deserves the attention of this Court because the Full Court has
erred in its interpretation of that duty,
Goldsmith	5/3/93

therefore, from this time on unless another matter

comes before this Court in virtually the same way,

that judgment will stand as the test by which the

Crown will judge its obligation to make disclosure

to both the court and to an accused person at the

preliminary hearing.

McHUGH J: But is not the basic question whether or not

Judge Newman erred, and whatever one might think

about the application of the section to the facts

of the case and the decision which he reached, can

you point to any error in what he said?

MR BYRNE:  Yes, if I may take the Court to - I cannot point

to a specific line that we say is wrong, but if one

takes his remarks as a whole he was concerned only

with the question, is this something out of the is the primary question for the judgment of special
ordinary or other than the run of the mill case.

reasons and that is, is cross-examination required

in order to establish the conditions for a fair

trial. The whole emphasis has changed, in our

submission, and this was the approach taken by the

Chief Justice that the question of establishing the
conditions for a fair trial is the primary
question.

Now, we say that if one looks at His Honour Judge Newman's reasons which begin at page 1 of the

appeal transcript and line 10, he says:

in essence "special reasons" must refer to

some facts or circumstances which will justify

the court in treating the case as other than

the ordinary sort of case which Parliament had

in mind when passing the enactment.

He then recites the criteria which are set out in

the legislation. Then points out at page 2

that"The Statute requires" certain "principles" to

be adhered to in the assessing of the evidence

which, of course, is a matter that is not directly

related to special reasons, and then in line 16

says:

special reasons do not exist in this case.

He agreed it "is a serious charge", deals with
that, deals with the fact that it is a child,

concludes this:

is the very sort of case Parliament had in

mind -

said at the top of page 3 -

Goldsmith 5/3/93

It is unfortunate that a co-accused has had

the benefit of a preliminary hearing -

and concludes really toward the bottom of page 3 at

about line 16/17:

In short, I feel that this is the type of case

Parliament had in mind when it introduced the

legislation.

Now, in our respectful submission, he does not address at any time that fundamental question of,

"Is it required in order to establish the
conditions of a fair trial? Will it be unfair to

the applicant if he is not permitted to

cross-examine?"

McHUGH J: But why is not that subsumed under the learned

judge's reference to the interests of justice?

MR MARTIN:  With respect, we would say, by a reading of his

remarks in its entirety, he has clearly not

addressed, although he has referred to the

interests of justice. He does not at any time come

close to the real question of the interests of

justice requiring a fair trial and merely recites,

and is obviously addressing his attention, to the

question of whether this is something that is a

little out of the ordinary, and that is why we say,

on a fair interpretation of it, he was clearly not

addressing the correct test.

If he had addressed the correct test, (1) he must have mentioned it; (2) he should have found,

quite clearly, that there were special reasons,

because this was a compelling case of special

reasons. And that the error can be inferred merely

from that as well as the total impression gained

from all of his remarks.

If the Court pleases, if we do not get over

that hurdle, then I appreciate that the case is in

difficulty, but what we do say is that the judgment

itself requires the consideration of this Court

because it is going to lead to serious prejudice to

accused persons in the future conduct of

preliminary hearings and there is already - - -

GAUDRON J: That is not entirely clear. The points, the

guidelines, set down by His Honour the Chief

Justice do go a very long way along the road that you would invite this Court to take, I imagine.

MR MARTIN: That is so, Your Honour, and I acknowledge that

His Honour in fact in his words addressed the question of ensuring that the conditions for a fair

trial were established. I acknowledge that. What

Goldsmith 10 5/3/93

we say is that His Honour led himself into error,

having addressed that question, at page 17, when

His Honour considered the changes, if you like, to

the purposes of the preliminary hearing by

reference to the fact that no longer were issues of

credibility relevant before the magistrate, and he

then proceeded to find accordingly, at page 18

line 15, that:

A desire for cross-examination for the
purposes of affecting the credibility of a
witness in the eyes of the court conducting

the hearing is not sufficient.

In our submission, His Honour has there failed to

interpret special reasons in accordance with his

own test that he proposed, namely, the establishing

of the conditions for a fair trial. Quite clearly,

in the case before Your Honours, a

cross-examination would be addressed to questions

of credit.	We would say that it was
necessary -

GAUDRON J: But in a particular context.

MR MARTIN:  Yes, quite so. We would say that that

cross-examination was necessary in order to

establish the conditions for a fair trial~

GAUDRON J: But you cannot read what was said there by the

Chief Justice as indicating that context may not

make a difference. The context in which

credibility comes into issue may well make a

difference, and that is left open by the passage.

MR MARTIN:  Your Honour, in our submission, His Honour was

saying in this instance, for example, the desire to

cross-examine on the questions of credit was not

sufficient to establish special reasons. And in
referring to Gun Ex parte Stephenson in that
particular passage, they are the sort of things

that His Honour Justice Wells in that case had

referred to, and His Honour the Chief Justice is

excluding those.

So that is the basis on which we suggest that

His Honour the Chief Justice, we would suggest, really recognized his dilemma, page 21

the test ultimately that has been applied by the context.

line 22 - when he said:

that there is a good deal to be said for the proposition that the need to investigate the

circumstances surrounding Lena Varcoe's change

of story and the grant of the immunity

amounted to special reasons.

Goldsmith 11 5/3/93

What His Honour omits to mention in this context is

an issue of credit which demonstrates that

His Honour's view was that credit cannot amount to

a special reason in conjunction with the earlier

words that we have just addressed. So, in our
submission, His Honour has fallen into error and

imposed a ~ar too restrictive test.

That is the first head of error. The second

concerns the Crown duty of disclosure. That is an

obligation imposed by section 104(l)(a)(iv). The

prosecutor has to file in court under (a) all the

material under (a)(i) to (iii); all the material on

which it intends to rely. And then (iv) -

any other material relevant to the charge that

is available to the prosecution.

In our submission, this is a section which is of

critical importance in the new scheme. It is

designed, in our submission, to provide a degree of

protection for an accused against the potential for

injustice created by the removal of the right to

cross-examine, and it should be given as wide a

possible interpretation in favour of disclosure.

But at the very least the ordinary and natural

meaning of the words should not be read down which

is precisely, in our submission, what the· Full

Court has done in saying that it is no more than a

statutory recognition of the existing duty of a

prosecutor.

The Chief Justice's reasoning - and in one

respect Justice Perry dissented - begins at

page 13, and having examined the purpose - - -

GAUDRON J:	It is hard to say that this actually bears on any error on the part of the Full Court in this
case itself.
MR MARTIN:	Your Honour, I do not argue with that

proposition that it does not bear on the issue of

special reasons.

McHUGH J: Well then, why should we grant special leave to

determine an abstract question?

MR MARTIN:  Because, Your Honour, this is a matter which

will cause great injustice in the future, because

it is the first judgment; it is a judgment by which

the prosecutors will operate; it is, in our

respectful submission, wrong, and so it is an error

of law on - - -

GAUDRON J:  And it is obiter, only?

Goldsmith 12 5/3/93

MR MARTIN: Well, if Your Honour pleases, it is not obiter

entirely to the decision as a whole, because at

page 13 the Chief Justice observed at the top of

the page one reasons advanced for requiring leave:

was that the prosecution had not filed or
tendered statements embodying material which
must have been available to it as to the

circumstances in which the change of story and

immunity came about. This raises the question

of the extent of the prosecution's obligations

So it was not obiter, as such, and if Your Honour

would bear in mind that while the statements have

now been provided, that is, the earlier statements,

to the defence, no material has been provided

concerning the obtaining of the immunity. So that

is still yet to be disclosed by the Crown and the

Crown would say presumably, under the test

that - - -

GAUDRON J: There might be a nice question about that.

MR MARTIN: Well, the Crown would say at the moment

GAUDRON J: Quite distinct from any question raised by this

case.

MR MARTIN: Well, Your Honour, it is raised because it is

linked to the question of special reasons in the

manner in which the Chief Justice has linked it

and, in our submission, bearing in mind the

difficulty of these matters reaching this Court for

a proper interpretation of the section, in our

submission, this is the appropriate vehicle for it

to be aired and considered, this particular issue.

BRENNAN ACJ:  How is it connected to the question of the

error which you seek to impugn by your proceedings

for judicial review?

MR MARTIN:  Your Honour, it is connected simply because it

is part of the judgment. I cannot suggest that in

terms of the special reasons and the failure of the magistrate, that this obligation on the Crown is in

that way directly connected. His Honour the judge
in the childrens court in fact - I do not know

whether he directed the Crown - but effectively

told the Crown they should produce the statements.

So that was done. I acknowledge that the fact that

in that sense it is not directly connected to that

question of special leave, should cross-examination

have been ordered or permitted, in this particular

instance.

Goldsmith 13 5/3/93

BRENNAN ACJ: That means that you got the previous

statements. Perhaps you should have got them under

that section. But you got them, in any event.

MR MARTIN: That is so.

BRENNAN ACJ:  And it was the circumstances associated with

the giving of those previous statements that might

have been explored in cross-examination.

MR MARTIN:  Not just the giving of them, but we add to that

the circumstances in which the immunity was granted

and those circumstances have not been disclosed.

BRENNAN ACJ: Well then, it may prove in time that you have

not had all the material that should have been

given to you.

MR MARTIN: That is so.

BRENNAN ACJ:  And in that event there will have been a

failure, perhaps, on the part of the Crown to have

done that which conditions the right of the Crown

to seek committal under this new procedure.

MR MARTIN:  That could turn out to be the situation if

disclosure is ever given. But the problem that is

faced at the moment is that the Crown, presumably,

would say under this section as now interpreted by

the Full Court in this judgment, we do not have to

disclose that.

McHUGH J: Well there is some support for that view, is it

not, if you are relying on subparagraph (4) because

what about the provisions of 104(1)(b). There is

an obligation on the Crown to:

give personally or by post to the defendant or

a legal practitioner representing the

defendant copies of all documentary material

filed under paragraph (a).

MR MARTIN: That is so.
Mc.HUGH J:	No reference to - - -

MR MARTIN: That is simply the disclosure to the defendant

of all the material that is filed, namely, any

other material relevant to the charge.	The Crown
says:	we do not have to file in court, and hence

we do no have to disclose to the defence, material related to the circumstances in which immunity was granted - statements of police officers, or notes,

any of that sort of material. If that is correct,

if this judgment stands - - -

Goldsmith 14 5/3/93

GAUDRON J: But, first of all, the judgment does not deal

with that question in terms, at all, does it?

MR MARTIN: Well, it does, Your Honour -

GAUDRON J:  And certainly, whether or not they have to give

the information about the immunity, does not depend
on the exception that the Chief Justice allowed,

namely the Crown prosecutor's discretion not to

disclose material that he thought was just

untruthful or unreliable.

MR MARTIN: Well, two steps, if I may. The first is, the

Chief Justice does say that material related to the

granting of the immunity is not required to be

filed or disclosed under this subsection. He says

that at the top of page 15. It really starts at

the bottom of page 14 where he excludes matters

going to credit. _n our submission he is wrong.

He says the word "relevant" at the very bottom of

the page - it starts at line 20. He says:

"relevant" in paragraph (iv) should be

understood as excluding matters, even those

related to the circumstances of the case,
which merely affect the credit of a witness.
Material relating to the circumstances

surrounding the change of story by, and the

grant of immunity to, Lena Varcoe fall into

that category and I consider that there was no

obligation on the prosecution to file or

tender such material.

Now, in our submission, that leaves the Crown in the position, even under the prosecutor's

discretion, of not being obliged to provide that

material to the defence. And, if we go back a

step, His Honour decided on page 14 that the

section was concerned only with material that would

otherwise be admissible, and may I give an example:

if the police have information, and it might be

hearsay information, that the crime was committed

by someone other than the applicant, and their line

of inquiry is something that they say, "Well, that

is the end of that line of inquiry", they do not

have any obligation, according to the Chief

Justice, to disclose that material which might, in

the normal course of events, have been disclosed by

a cross-examination of the investigating officer.

McHUGH J: Yes, but that is because, as the Chief Justice

said, section 106 requires the prosecutor to tender

all statements and other material filed in the

court, and you can hardly expect the legislature to

require the prosecutor to file material which is

not admissible.

Goldsmith 15 5/3/93

MR MARTIN:  In our submission, that is exactly what the

legislature did intend - at least it is arguable -

because the legislator has required the prosecution

to file and tender material upon which it does not

intend to rely. The legislature has not been

framed with concerns, in our submission, of

admissibility, and of the usual concept that you

only tender the material you are relying upon.	It
is a new process of discovery or disclosure with
which it is concerned, and it has involved the
court to that extent.	The traditional

restrictions, such as those posed by Your Honour,

are no long applicable, in our submission.

That was the second matter, to answer

Your Honour, that point has been determined. The

final matter of course was the Chief Justice's view

at page 15, not only that it:

is no more than a statutory recognition of the

well recognised responsibility of the

prosecution to place before the court all

relevant and admissible material -

but in line 21, His Honour saw:

no reason to interpret the provision as.

abrogating the equally well recognised

discretion of a prosecutor to refrain from

tendering evidence the truthfulness or

reliability of which the prosecution

distrusts -

With the greatest of respect, His Honour has left

the section no work to do at all and he has, in our

submission, read the section down in a context in

which it should be quite the opposite approach.

Justice Perry at pages 30 and 31 disagreed with

His Honour on this particular issue and, in our

submission, to this extent Justice Perry is

correct. He begins at page 30, line 13. He did

not agree: 

that material which the prosecutor might
regard as untruthful or unreliable is

excluded ..... would be contrary both the

express terms of s 104(l)(a)(iv) and to the
spirit of the amending Act to leave such

material ..... out  -

He realized the problem associated with that.

But that is an inevitable consequence of the manner in which the legislation has been framed.

Goldsmith 16 5/3/93

In our submission, this being an important

protection to offset the potential for unfairness,

the interpretation of the court does not achieve

that object.

So for that reason, to answer Your Honour

Justice McHugh's earlier question, that is why it

is so important that this matter be considered by

this Court in conjunction with the special reasons

and the particular question and the right that has

been denied to this applicant. If the Court

pleases.

BRENNAN ACJ:  Thank you, Mr Martin. We need not trouble

you, Mr Solicitor.

Assuming that in principle there is no reason

why the Supreme Court of South Australia should not
exercise a jurisdiction judicially to review

decisions made in the course of committal

proceedings, we are not satisfied that that

jurisdiction would extend to the mere correction of

an error of law committed in the course of hearing
those proceedings.

The present application relates to a decision

not to permit cross-examination of a witness, a
statement of whose evidence had been tendered by
the prosecution. An application for special leave

to appeal will not readily be granted to canvass a

question arising at an interlocutory stage of a
criminal proceeding, nor will special leave be
readily granted to consider a question of law when

the intermediate court decided the question not on

appeal but on an application for judicial review

when the question relates to the procedure to be

followed in the course of an exercise of

jurisdiction by the primary tribunal.

The applicant submits that the duty imposed on

the prosecutor by section 104(l)(a)(iv) of the

Summary Procedure Act 1921 (S.A.), as amended,

to file material relevant to the charge that is

available to the prosecution is not discharged only

by the filing of admissible documentary

evidence. Although there is much to be said for

that submission, that question does not arise as a

step in the line of argument leading to judicial

review.

Accordingly, this is not a case appropriate for the grant of special leave, and special leave

is refused.

AT 2.47 PM THE MATTER WAS ADJOURNED SINE DIE

Goldsmith 17 5/3/93