Haydon v Magistrates Court of SA & Anor No. Scgrg-00-1200

[2000] SASC 449

HAYDON v MAGISTRATES COURT OF SA & ANOR
[2000] SASC 449

WILLIAMS J

1. Summary

1. Mr Mark Haydon has been charged upon information in the Magistrates Court with ten murders in respect of which a preliminary examination has commenced before a Magistrate.  Two others (John Bunting and Robert Wagner) are also charged with these ten murders.  A fourth person James Vlassakis is charged with five of these murders.

2. On 1 December 2000 I refused to allow the plaintiff to serve a summons for judicial review on the Magistrates Court. However, on 15 December 2000 I allowed the plaintiff to re-open the application to raise a further ground of complaint but I then again refused the application for leave to serve. In accordance with s 50(3) of the Supreme Court Act 1935 (SA) and Supreme Court Rules 1987 (SA) (“SCR”) 94.01 the plaintiff now seeks leave to appeal to the Full Court against my interlocutory decisions of 1 and 15 December 2000. 

3. In my opinion this matter does not warrant the attention of the Full Court.

4. In refusing leave to serve I have exercised a broad discretion (as was recognised in Dunn v District Court - see below).  I have exercised this discretion in circumstances where there are virtually no prospects that the Court would grant substantive relief even if the grounds of review (which have little merit) were established.  There are strong policy reasons why the Court will be reluctant to exercise its supervisory jurisdiction so as to fragment the ordinary processes of criminal justice unless the case is exceptional.  There is no reason to think that the plaintiff will be prejudiced by my refusal to grant leave to serve except (arguably) in the very short term.  The underlying question (namely as to whether the plaintiff may inspect a particular document) is already destined to come before the Full Court upon proceedings for judicial review which the plaintiff has already instituted against the Director of Public Prosecutions.  A second set of proceedings against the Magistrates Court would represent needless duplication.  A stay of the preliminary examination in the Magistrates Court (which would be appropriate to preserve the plaintiff’s position with respect to a jurisdictional challenge upon a judicial review) must be weighed against the fact that the plaintiff and his co-accused continue to be in custody and the preliminary examination therefore deserves to be advanced.  Not all of the accused would support a delay.  A consideration of the plaintiff’s position cannot stand in isolation.

5. My reasons for refusing leave to serve and my reasons for refusal of leave to appeal therefrom are intermingled.  There is no question of principle which deserves the attention of the Full Court; my refusal of leave to serve involves the application of a discretion to well known principles; I can see no injustice if my orders are allowed to stand.

6. The plaintiff has requested in the alternative that I refer to the Full Court the question of leave to appeal; I decline this request as I consider that there is insufficient substance in the matter to justify that course.

7. It is necessary to recite the history of this matter (as I have done below) in order to demonstrate the extent of the overlap between two sets of proceedings and why the proceedings against the Magistrates Court are unnecessary.

8. The Director’s letter

1. By letter dated 11 August 2000 the Director of Public Prosecutions notified the plaintiff of the existence of material which has not been filed and served in accordance with s 104 of the Summary Procedure Act 1953 (SA).

2. As now relevant the section provides:

   “(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;

   ...

   (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).”

3. Since the date of that letter some of the material has been released by the Director but an issue remains with respect to a statement taken by an investigating detective.  That statement (which I have read) was made upon the basis of an agreement (formally recited on the face of the statement) that the contents of the statement will not be disseminated except upon the order of a Court.

4. The plaintiff claims a right of access to this material and seeks appropriate orders in order to facilitate inspection.  I treat the Director’s letter effectively as an invitation to Mr Haydon and his co-accused to establish their rights before a court in circumstances where there may be argument as to whether the document in the hands of the Director should be immune from disclosure.

5. The plaintiff’s claims

1. The plaintiff argues that the Director has an obligation to make this material available under s 104 of the Summary Procedure Act before the preliminary examination proceeds and he seeks a stay of the preliminary examination in the meantime; he also contends that he should be able to obtain an order for inspection by resort to a subpoena issued against the Director out of the Magistrates Court.  However, on the return of a subpoena the application to inspect was unsuccessful when the Magistrate on 27 November 2000 declined to make an order as sought.  The Magistrate’s response adopts reasons given on 10 November 2000 upon the return of a like subpoena issued at the instance of another one of the accused.

2. Intervention

1. As each of the accused has his own separate interest in the statement I have permitted each of the other three accused to intervene by counsel in the proceedings before me and to present argument.  I have also heard counsel on behalf of the Director.  The Magistrates Court has been represented by counsel who appeared only to abide my decision.

2. Judicial review of the Director’s action (application for Mandamus)

1. On 1 December 2000 I gave leave to the plaintiff to serve on the Director a summons seeking judicial review of the Director’s action as recorded in the letter.  The leave was granted in accordance with SCR 98.03 upon the basis that an “arguable case” had been identified.  Upon the return of that summons I was asked by the plaintiff to direct that it be argued before the Full Court.

2. On 15 December 2000 I explored the issue with counsel and have satisfied myself that there is no question of fact which requires resolution by me at first instance.  Subject to the filing of a supplementary affidavit by the plaintiff’s solicitor as to some formal facts which have been agreed I have intimated that I will refer the matter forthwith for hearing before the Full Court.  I have asked the parties to hold themselves in readiness to approach the chambers of the Chief Justice regarding the listing of the matter.

3. Judicial review of proceedings before the Magistrate (Application for certiorari, prohibition and stay of proceedings)

1. Concurrent with the abovementioned proceeding against the Director, the plaintiff has also sought leave to serve a summons for judicial review upon the Magistrates Court - but on different grounds and claiming different relief.  Nevertheless the basic question is the same - namely as to whether the plaintiff is entitled in law to see the statement.

2. In essence the plaintiff contends:

   1(a).. That the Magistrates Court lacks jurisdiction to proceed with an examination under s 105 of the Summary Procedure Act until fourteen days after the Director has satisfied his obligation under s 104 with respect to statutory discovery;

   (b)That a stay of the Magistrate’s proceedings should be ordered until the Director has complied with the terms of s 104 by filing and serving the statement.

   2...... That the decision of the Magistrate with respect to the subpoena and with respect to the continuance of the proceedings should be reviewed.  The plaintiff asserts that the Magistrate’s decision to refuse access to the statement was made without appropriate evidence, was unreasonable and made in error.

3. The plaintiff is relying upon jurisdictional error and error on the face of the record.

4. In my view the case put forward has insufficient prospects of success to justify allowing the proceedings for judicial review to be served on the Magistrates Court.  There are also policy reasons why this Court should be reluctant to allow this type of challenge to the day to day decisions of the Magistrates Court, unless the circumstances are exceptional.

5. Having heard preliminary argument I am satisfied that the point which the plaintiff wishes to agitate will be available to be resolved in the proceedings against the Director.  The plaintiff seeks to distinguish the proceedings against the Director and the Magistrates Court by suggesting that considerations of public interest immunity might be approached in a different way upon a consideration of the return of a subpoena than upon consideration of the application of s 104.  I do not agree.  If there is any difference it is so theoretical as to be capable of being discounted for practical purposes.  I regard the proceedings against the Magistrates Court as being unnecessary duplication of the judicial review process which is in train against the Director.

6. The way in which the Court should approach the question of leave to serve has been dealt with in a number of cases.  The Court is rarely prepared to exercise its supervisory jurisdiction when it involves interference in the administration of the criminal processes.  There is no reasonable prospect that the Court would make an order in the nature of judicial review (see Dimitropoulos v District Court of SA (1998) 199 LSJS 7 and Dunn v District Court of SA Judgment No. S5787 - 23 August 1996 unreported per Perry J).  The administration of criminal justice generally should not be fragmented by permitting judicial review of the proceedings of the Magistrates Court.