M v Magistrates Court of South Australia - [2006] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
M v MAGISTRATES COURT OF SOUTH AUSTRALIA
Judgment of The Honourable Justice Besanko
3 March 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW
Application for leave to serve summons for judicial review of decision made by Chief Magistrate refusing leave to call witness for oral examination – whether arguable that plaintiff entitled to remedies sought by way of judicial review – not arguable that Chief Magistrate committed jurisdictional error – not arguable that error of law on face of record – not arguable that Chief Magistrate’s decision was so unreasonable that no reasonable magistrate could have made decision – application for leave to serve refused.
Supreme Court Rules 1987 r 98.04A; Summary Procedure Act 1922 ss 106, 107; Evidence Act 1929 s 69A, referred to.
Workers Rehabilitation and Compensation Corporation v Lieschke (1992) 167 LSJS 432; King v Strickland (1993) 171 LSJS 398; Goldsmith v Newman (1992) 59 SASR 404; S v Metanomski (1993) 65 A Crim R 352; Gee v Magistrates Court (2004) 89 SASR 534; Craig v State of South Australia (1995) 184 CLR 163; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Upham v Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557, considered.

M v MAGISTRATES COURT OF SOUTH AUSTRALIA
[2006] SASC 61
Application

BESANKO J: This is an application for leave to serve a summons for judicial review under r 98.04A of the Supreme Court Rules 1987. The decision which is the subject of the application for judicial review is a decision made by the Chief Magistrate of the Magistrates Court of South Australia on 28 November 2005. The orders sought in the inter partes summons issued by the plaintiff are as follows:
1.An order in the nature of certiorari quashing the order made by the learned Chief Magistrate in Magistrates Court of South Australia Action No AMC-05-16330 on 28 November 2005 by which the learned Chief Magistrate declined to make an order for the witnesses [A] and [B] to be presented for oral examination by counsel for the plaintiff on the application of the plaintiff pursuant to Section 106(2) of the Summary Procedure Act 1921.
2.An order in the nature of certiorari quashing the order of the learned Chief Magistrate made on 28 November 2005 in Action No AMC-05-16330 committing the plaintiff for trial in the District Court of South Australia.
3.An order in the nature of mandamus directing the defendant to order that the witnesses [A] and [B] be presented by the Director of Public Prosecutions for oral examination by counsel for the plaintiff pursuant to Section 106(2) of the Summary Procedure Act 1921 on each of the topics identified in paragraphs 2.1.1 to 2.1.22, 2.1.24, 2.1.29, 2.1.30, 2.1.32 to 2.1.43, 2.1.48 of the Application which appears as exhibit “MS3” to the Affidavit of Matthew Selley (No 2) sworn on 3 February 2006 and filed herein and in paragraph 1.56 of the Outline of Argument which appears as exhibit “MS4” to that Affidavit.
4.An order remitting District Court of South Australia Criminal Registry Action DCCRM-05-1391 to the Magistrates Court of South Australia for preliminary examination in accordance with Sections 105 and 106 of the Summary Procedure Act 1921.
5.A stay of the prosecution of District Court of South Australia Criminal Registry Action No DCCRM-05-1391 pending the determination of this action.
I have referred to the witnesses not by their names, but as A and B respectively. A is the alleged victim of sexual offences, and B is his mother.
The application is supported by three affidavits from a solicitor who is a member of the firm representing the plaintiff.
Under r 98.04A, I directed that the plaintiff serve the summons and affidavits on the defendant, the Magistrates Court of South Australia. The Magistrates Court of South Australia has indicated that it will abide by the decision of the Court.
The plaintiff has been given leave by a master of this Court to join the Director of Public Prosecutions for South Australia as a second defendant in the action. I heard submissions from counsel for the Director on the plaintiff’s application for leave to serve. It seemed to be appropriate to do so because it was not clear to me on first reading the papers that I should grant leave, and, furthermore, there appeared to be a number of factual matters relevant on the application, and I considered that I would be assisted by submissions from the Director. The Director tendered an affidavit from a solicitor within his office.
I should grant leave to serve if I consider that there is a case fit for argument, or, put another way, an arguable case: Workers Rehabilitation and Compensation Corporation v Lieschke (1992) 167 LSJS 432; King v Strickland (1993) 171 LSJS 398.
The decision that the Chief Magistrate was required to make was whether or not to grant leave to call a witness for oral examination under s 106(1) of the Summary Procedure Act 1922 (“SPA”).
By an information dated October 2004, the plaintiff was charged with five counts of indecent assault between 27 October 1991 and 31 May 1992, one count of procuring the commission of an act of gross indecency by a person of the age of 14 years between the same dates, and two counts of sexual intercourse with a person of the age of 14 years, also between the same dates. A is the alleged victim in relation to each count. The Director filed a fresh information in November 2005. The main difference between the two informations is that the second information alleges that the offences occurred between 1 January 1991 and 31 May 1992, rather than 27 October 1991 and 31 May 1992.
The plaintiff issued what is known as a rule 20 application in the Magistrates Court, asking for an order that A, B and certain other proposed prosecution witnesses be called for cross-examination at the preliminary examination. The Chief Magistrate refused to make an order in relation to any of the proposed witnesses the subject of the application. On the application for judicial review, the plaintiff restricts its challenge to the Chief Magistrate’s decision to his refusal to make an order that A and B be called for cross-examination at the preliminary examination.
Section 106 of the SPA is in the following terms:
106—Taking of evidence at preliminary examination
(1)Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies:
(a)     the prosecutor will tender the statements and other material filed in the Court and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence;
(b)     the prosecutor will call a witness whose statement has been filed in the Court for oral examination if—
(i)the defence has given notice, in accordance with the rules, that it requires production of that witness; and
(ii)    the Court grants leave to call that witness for oral examination;
(c)     the prosecutor may, by leave of the Court, call oral evidence in support of the case for the prosecution;
(d)     the defendant may give or call evidence;
(e)     the prosecutor may call evidence in rebuttal of evidence given for the defence.
(2)The Court will not grant leave to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.
(3)In determining whether special reasons exist for granting leave to call a witness for oral examination, the Court must have regard to—
(a)     the need to ensure that the case for the prosecution is adequately disclosed; and
(b)     the need to ensure that the issues for trial are adequately defined; and
(c)     the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and
(d)     the interests of justice,
but if the witness is the victim of an alleged sexual offence or a child under the age of 12 years, the Court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so.
(4)If a witness is called for oral examination the usual oath will be administered (unless the witness is not liable to the obligation of an oath) and the witness will be examined, cross-examined and re-examined in the usual manner.
The Chief Magistrate delivered brief reasons for his ruling. He referred to the fact that the statutory framework is within s 106 of the SPA. He referred to the responsibilities that are placed on the court under that subsection, and he referred to the reasons for judgment of King CJ in Goldsmith v Newman (1992) 59 SASR 404. The Chief Magistrate said that he had considered the submissions made by counsel for the defendant before him (the plaintiff before me) and that he had formed the opinion that it is “not appropriate to direct the attendance of all or any of the witnesses that are referred to”. The Chief Magistrate went on to say that he had formed the opinion that there was a case to answer with respect to each of the counts preferred in the information.
It should be noted at the outset that the plaintiff does not submit that the evidence was not sufficient to support an order that he be put on trial for the alleged offences (SPA, s 107). The plaintiff’s challenge is to the decision not to grant leave under s 106(2). Had I been minded to grant leave, there might have been an interesting question as to whether the leave should extend to the order committing the plaintiff for trial. I gather that the plaintiff’s submission is that if its challenge to the Chief Magistrate’s decision under s 106(2) is successful, then the matter will have to be remitted to the Magistrates Court, and, in those circumstances, the order committing the plaintiff for trial in the District Court must be set aside.
The approach which should be taken in considering whether to grant leave under s 106(2) has been the subject of discussion in a number of well-known authorities: Goldsmith v Newman (supra) at 410-411; S v Metanomski (1993) 65 A Crim R 352 at 355-356; see also Gee v Magistrates Court (2004) 89 SASR 534. I have read those cases carefully. It is not necessary to set out the relevant principles.
I note that in the case of A, the Chief Magistrate was required by the terms of the section not to grant leave unless satisfied that the interests of justice could not be adequately served except by doing so, whereas that additional requirement did not apply in the case of B.
Goldsmith v Newman (supra) was not a case which involved the application of the additional requirement. It is important to note that King CJ said that he was inclined to disagree with the conclusion reached in the court below that special reasons did not exist. However, the former Chief Justice said that there was no appeal from the decision of the committing court, and he dismissed the application for judicial review. Mere disagreement was not enough; one of the grounds for judicial review had to be established.
In S v Metanomski (supra), the application of the additional requirement was involved. Again, the former Chief Justice was inclined to think that, contrary to the decision of the court below, special reasons existed, but again he noted that there was no appeal. He said (at 356):
The fact that he reached a decision which might be erroneous on the merits does not mean that he misconceived the test which he had to apply. There is no appeal from the magistrate’s decision. The decision is not so unreasonable that it could have been arrived at only as a result of an erroneous understanding of the legal test. It follows that no error of law has been demonstrated. There is therefore no legal basis for the grant of the orders sought and the question of whether the discretion of the Court should be exercised to grant such relief in relation to what are criminal proceedings does not arise.
On an application for judicial review of the decision of an inferior court, the plaintiff must show, relevantly, a jurisdictional error, or an error of law on the face of the record. The leading authority in this country on what those legal concepts mean is Craig v State of South Australia (1995) 184 CLR 163 at 176-183.
The thrust of the plaintiff’s challenge is that, in all the circumstances, there is considerable uncertainty as to the prosecution case concerning the dates upon which the offences are alleged to have been committed. The plaintiff alleges that the offences, or at least some of them, could not have occurred on the dates and at the places identified in A’s statement. In that regard, he refers to statements of other witnesses. He points to the fact that, when the fresh information was changed, the dates in the information were changed and no explanation for the change by way of further witness statements or otherwise has been forthcoming. A related point is that the prosecution’s case is that A suffered a number of physical and psychiatric problems as a result of the offences, but, says the plaintiff, there is evidence which suggests that some problems pre-dated what appear to be the dates of the alleged offences. The plaintiff also submits that A did not complain until over 10 years after the offending, and that A’s statements during that period are inconsistent with what he is now saying.
I have read the written submissions put in support of the plaintiff’s rule 20 application in the Magistrates Court.
It seems to me that it is certainly arguable that, at least as to the dates of the alleged offences, there is a basis upon which a magistrate could find that there were special reasons to grant leave to call A and B for oral examination under s 106(1). However, that is not the test. The test is whether there is an arguable case that the plaintiff is entitled to the remedies sought by way of a judicial review.
The discretion which a court exercises under s 106(2) of the SPA is a broad one. That is evidenced by the fact that, in reaching its decision, the court must have “regard” to various matters, and that one of those matters is “the interests of justice”. Furthermore, in the case of A, the victim of alleged sexual offences, the court is not to grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so. That involves an assessment and weighing up of a number of factors.
In this case, the Chief Magistrate had jurisdiction to decide the application and he did so. It is true that his reasons are brief, but he has referred to the relevant section of the SPA and the leading authority. He is an experienced magistrate and the result he reached is not so extraordinary or surprising on the facts that it is arguable that it should be inferred that he asked himself the wrong question. I do not think it is arguable that he committed a jurisdictional error. Nor, in my opinion, is it arguable that there is an error of law on the face of the record. Even if it is assumed that the reasons are part of the record (and that may not be the case (Craig v State of South Australia (supra) at 180-182)), I do not think that by using the word “appropriate” the magistrate was intending to express what he considered to be the applicable test. In my opinion, he was doing no more than expressing his conclusion in rather general terms. As to the allegation by the plaintiff that the magistrate’s decision will be set aside if he can show Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), even if I assume, without deciding, (see Upham v Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at 582-585 per Doyle CJ and Bleby J; Gee v Magistrates Court (supra) at [140]) that Wednesbury unreasonableness gives rise to an error going to jurisdiction, I am not satisfied that it is arguable that the Chief Magistrate’s decision to refuse leave was so unreasonable that no reasonable magistrate could have made the decision.
In my opinion, the application for leave to serve should be refused. I will hear the parties on other orders.