Michael John Fuller and Joseph Patrick Cummings v Frederick R Field SM and State of South Australia No. SCGRG 94/1668 Judgment No. 5008 Number of Pages 16 Criminal Law Administrative Law (1995) 16 Acsr 361

[1995] SASC 5008

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE, J

CWDS
Criminal law - Preliminary hearing - Summary Procedure Actss 104 and 106 - defendant's application for leave to call several prosecution witnesses granted - prosecution applies to withdraw three witnesses - whether prosecutor's discretion restricted by Summary Procedure Act - whether appropriate to apply for judicial review - application for judicial review dismissed.

Administrative law - Judicial review - preliminary hearing - whether judicial review appropriate - remedies available at trial - relevant principles. Summary Procedure Act, 1921ss 104, 106 and 107. Clayton v Ralphs
(1987) 45 SASR 347; Goldsmith v Newman (1992) 59 SASR 404; R v Harry; Ex parte Eastway (1985) 39 SASR 203; R v Walden (1986) 41 SASR 427; Shannon v Ackland
(1990) 55 SASR 125; Howard v Boddington (1877) 2 PD 203 and Barton v The Queen
(1880) 147 CLR 75, applied. Public Prosecutor v Koi (1968) AC 829; Secretary of State for Defence v Warn (1970) AC 394; Ader Muhammed el Dabbah v Attorney-General for Palestine (1944) AC 156; Richardson v The Queen (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657; Grassby v The Queen (1989) 168 CLR 1; Senevirantne v The King
(1936) 3 All ER 36 and Hatton v Beaumont (1977) 2 NSWLR 211, discussed.

HRNG ADELAIDE, 6 December 1994 #DATE 24:3:1995 #ADD 2:5:1995

Counsel for plaintiffs:         Mr K Borick with Mr D Edwardson

Counsel for defendant State:     Mr S Vorreiter

Solicitors for defendant State: DPP (Cwlth)

ORDER
Application dismissed.

JUDGE1 DEBELLE J Application for judicial review of orders made by a magistrate in the course of committal proceedings.

2. The plaintiffs were both at one time directors of two companies, Beach Petroleum NL ("Beach") and Claremont Petroleum N.L. ("Claremont"). On 25 June 1993 they were jointly charged with one Malcolm Keith Johnson with one count of conspiring to cheat and defraud at common law. The particulars of the alleged offence are that between 9 September 1988 and 28 December 1989 at Adelaide and elsewhere they conspired to cheat and defraud Claremont and Beach by dishonestly causing Claremont and Beach to make payments totalling $A35,427,462 to acquire interests in the Burbank Oil Field in Osage County, Okalahoma in the United State of America in circumstances where those interests had been acquired for $US3,706,791.

3. On 25 June 1993 both plaintiffs were also charged as directors of Claremont with six counts of fraudulently applying property of Claremont and five counts of fraudulently applying property of Beach, all offences being contrary to s189 of the Criminal Law Consolidation Act 1935. The particulars of the eleven counts refer to the alleged fraudulent appropriation of very substantial sums of money for purposes other than the purposes of the companies. The offences are alleged to have occurred between 28 December 1988 and 27 December 1989. In the case of one offence the sum involved in the alleged fraudulent application of property is $100,000. In all other instances the amounts are in excess of $200,000. In the case of two offences, the amount involved is in excess of $5M.

4. The plaintiff Fuller was also charged with two other offences that, as a director of Claremont, he fraudulently appropriated property of Claremont, contrary to s189 of the Criminal Law Consolidation Act. One count alleges fraudulent application of $188,447 and the other fraudulent application of $3,735,632.

5. On 20 September 1993 the plaintiffs were jointly charged with thirteen further counts of misusing their position as directors respectively of Beach and of Claremont to gain an advantage for another contrary to s229(4) of the Companies (South Australia) Code 1981. Separate offences are alleged in respect of each company and the offences are alleged to have occurred between 13 September 1988 and 19 January 1990. Again, it is alleged, substantial sums of money are involved in the transactions the subject of each count. The plaintiff Fuller was also charged with two further counts under s229(4) of the Companies Code for making improper use of his position as a director of Claremont. On 22 February 1994 a further information was laid against Johnson alleging fifteen offences against s229(4) of the Companies Code and fourteen offences against ss189 and 269 of the Criminal Law Consolidation Act. Again, very substantial sums of money are involved. They are the same offences with which the plaintiffs have been charged.

6. The prosecution is being conducted by the Commonwealth Director of Public Prosecutions. I will, for convenience, refer to him as "the DPP". In November 1993 the DPP served the plaintiffs with a copy of the prosecution brief. It comprised some twenty-four substantial files, commonly known as lever arch files, and included the statements of eighty witnesses. Ten of those witnesses reside in South Australia and twenty-two witnesses reside overseas. The other witnesses reside in other parts of Australia.

7. The preliminary hearing of these offences commenced before Mr Field SM on 11 April 1994. Mr Vorreiter appeared on behalf of the DPP to conduct the prosecution. Mr Johnson did not then appear and he has not subsequently appeared. A warrant has been issued for his arrest and proceedings are on foot to extradite him from the United Kingdom to Australia. The plaintiffs are unrepresented at the preliminary hearing. They have applied for and failed to obtain legal aid. They have, from time to time, been represented by three legal practitioners on discrete matters.

Leave to Call Witnesses 8. After some earlier hearings on procedural matters, the substance of the preliminary hearing began on 7 July 1994. The plaintiffs both pleaded not guilty to all charges against them. In accordance with the obligations set out in s104 of the Summary Procedure Act 1921, the DPP had filed statements of witnesses, documents and other material. After the plaintiffs had pleaded not guilty, the DPP tendered all of the statements of witnesses and other material pursuant to s106(1)(a) of the Summary Procedure Act. The Court admitted them into evidence, subject to any objections as to admissibility.

9. From time to time the plaintiffs applied pursuant to s106(1)(b) of the Summary Procedure Act to call for oral examination some of the witnesses whose statements had been filed in the Court. The applications were opposed by the DPP. The plaintiffs succeeded with some of those applications but failed in others. Three of those applications concerned the witnesses Mr Christian Turner, Mr Sheldon Cordell, and Sir Cecil Burney. The magistrate held that there were special reasons for calling these three witnesses.

The Prosecutor Obtains Leave to Withdraw Three Witnesses 10. The DPP had arranged for Mr Christian Turner to be present at the Adelaide Magistrates Court on 21 September 1994 to give evidence. Before he was sworn, Mr Vorreiter, counsel for the DPP, informed the magistrate that he no longer regarded Mr Turner as a witness of truth and applied to withdraw his statement. The plaintiffs opposed the application. The magistrate granted the application and gave leave to the DPP to withdraw the statement of Mr Turner. He expressed his ruling in these terms:
    "With respect to the witness Turner the prosecution has
    obviously fulfilled its duty of supplying his statement and
    exhibits to it. I note that he is a person who was called upon,
    as an expert, to prepare an assessment of the value of the
    interest in the Burbank Oil Field sometime after the
    transactions to which these proceedings relate. I have regard
    to the reasons advanced by Mr Vorreiter for seeking to withdraw
    Mr Turner's statement. Mr Vorreiter has stated that upon
    further questioning of Mr Turner this morning he cannot be
    satisfied that he would be a witness of truth. In the
    circumstances I think I must give leave for that statement to be
    withdrawn. I note the objection by both defendants as to that
    course." The plaintiffs did not themselves apply to call Mr Turner.

11. On the same day the DPP applied to withdraw the statements of Mr Sheldon Cornell and Sir Cecil Burney. The plaintiffs both opposed the application. The magistrate adjourned the hearing of the application for argument on 23 September. On 23 September Mr Vorreiter informed the magistrate that he sought to withdraw the statements of Sir Cecil Burney and Mr Cordell on the ground that neither was willing to come to Australia. He added that neither was willing to co-operate in enabling evidence to be taken in any other form, for example, by video-link. Mr Vorreiter informed the Court that he did not think it was in the interests of justice to ask the Court to take evidence on commission in the United Kingdom stating that the DPP believed their evidence was not sufficiently important to the prosecution case to justify that course. The magistrate granted the application. He expressed his reasons in these terms:
    "In ruling on this application by the prosecution to
    withdraw the declaration of two unco-operative witnesses from
    overseas, namely Sir Cecil Burney and Mr Sheldon Cordell, I bear
    in mind the character and purpose of committal proceedings.
    Committal proceedings are administrative or at the highest
    quasi-judicial proceedings. The purpose of the proceedings is
    for the court to consider the evidence before it for the purpose
    of determining whether there is sufficient evidence to put the
    defendants on trial for the offences charged. It must always be
    at the discretion of the prosecutor to decide whether or not to
    rely upon the evidence of witness A or witness B, and to decide
    which declarations he will seek to withdraw or to tender as part
    of the evidence to be considered by the court at the conclusion
    of the proceedings. I do not read or interpret section 106 as
    excluding the right of the prosecution to seek to withdraw the
    declaration of a witness. It may well be in proceedings such as
    this that there will be problematical consequences for the
    defendants but I do not think it is the function of the
    committal court to seek to accommodate those problems or to
    rectify them. I think they are matters which should properly be
    raised at the trial. I therefore give leave for the prosecution
    to withdraw the declarations of Burney with of course their
    accompanying exhibits and the declaration of Cordell and its
    accompanying exhibits." After the magistrate had made this ruling, Mr Vorreiter applied to tender all the exhibits which had previously been annexed to the statement of Mr Cordell. On 6 October 1994 the magistrate refused the DPP leave to do so. He did, however, rule that some of those documents had been already tendered through other witnesses and could therefore be admitted.

An Application for Judicial Review 12. The preliminary hearing is continuing. The plaintiffs contend that the magistrate's rulings permitting the DPP to withdraw the statements of Mr Turner, Mr Cordell and Sir Cecil Burney deny each of them the real possibility of effectively submitting that the evidence before the Court is not sufficient to put either of them on trial for any one or more of the offences with which they have been charged. They, therefore, seek the following orders:

1. An order in the nature of prohibition or injunction
    staying the preliminary hearing unless and until the
    prosecution make available for examination by the plaintiffs
    the witnesses Christian Turner, Sheldon Cordell and Sir
    Cecil Burney.

2. A declaration that the magistrate did not have
    jurisdiction to grant the application of the prosecution to
    withdraw the statements of the witnesses Christian Turner,
    Sheldon Cordell and Sir Cecil Burney.

3. A declaration that to the extent that the magistrate has
    jurisdiction to grant the applications of the prosecution to
    withdraw the statements of the witnesses Christian Turner,
    Sheldon Cordell and Sir Cecil Burney, such jurisdiction
    should not have been exercised:-

3.1 In the face of objection by the plaintiffs.

3.2 Without consideration of any matter material to the
    exercise of such jurisdiction.

3.3 Without any consideration of whether to grant or
    refuse the application of the prosecution was in the
    interests of justice.

3.4 In the light of the substantial prejudice to the
    plaintiffs having regard to the magistrate's rulings
    granting special reasons for oral examination of the
    particular witnesses.

4. An order in the nature of certiorari quashing the order
    of the magistrate granting the applications of the
    prosecution to withdraw the statements of the witnesses
    Christian Turner, Sheldon Cordell and Sir Cecil Burney.

5. A declaration that the magistrate misdirected himself as
    to the principles upon which any such jurisdiction to grant
    the applications of the prosecution ought to be exercised in
    that the magistrate regarded the applications as being made
    by the prosecution as of right and to be granted by reason
    of the nature of the jurisdiction the magistrate considered
    he was exercising.

6. A declaration that the second named defendant in applying
    to the first named defendant to withdraw the witness
    statements of Christian Turner, Sheldon Cordell and Sir
    Cecil Burney acted in contravention of statutory duties
    imposed by sections 104(1)(a) and 106(1)(a) &; (b) fo the
    Summary Procedure Act 1992.

7. An order in the nature of injunction restraining the DPP
    (except and unless with the consent of the plaintiff's first
    had not obtained) withdrawing or making application to
    withdraw the statements of any other persons in respect of
    whom the plaintiff's have been granted leave to examine and
    have not yet examined.

8. An order in the nature of mandatory injunction directing
    the DPP to call in conformity with section 106(1)(b) of the
    Summary Procedure Act 1992 the witnesses Christian Turner,
    Sheldon Cordell and Sir Cecil Burney and to the extent
    necessary to give effect thereto orders pursuant to section
    59(e) of the Evidence Act 1929 (SA) for the taking of any
    evidence of a particular witness outside the state as may be
    found necessary or expedient. The plaintiffs asked that the application be heard by a single judge of this Court. The plaintiffs also seek other ancillary relief. The substantive issue involved in this application is whether the magistrate had jurisdiction to grant the applications of the DPP and, alternatively, whether if the magistrate had jurisdiction, he erred as a matter of law in granting the applications. Another issue is whether the provisions of ss104 and 106 of the Summary Procedure Act prevent the prosecution from withdrawing a witness.

13. When this application was called on for hearing, the plaintiff sought to tender three affidavits in addition to those filed in support of the application. They were an affidavit by the plaintiff Cummings proving a letter from solicitors acting for Sir Cecil Burney concerning Sir Cecil's unwillingness to come to Australia; an affidavit of Mr S.P. White, a solicitor who had from time to time acted for the plaintiffs, proving conversations he had had with Mr Cordell; and an affidavit from Mr Turner deposing to conversations he had had on 21 September 1994 with Mr Vorreiter before Mr Vorreiter informed the magistrate he did not wish to call Mr Turner. These affidavits seek to add to the material which was before the learned magistrate when he made his decision. In other words, they seek to add to the record. The decision whether the learned magistrate erred should be decided only on the material before him and it is not admissible to seek to add to the record. The affidavits did not deal with any new matters arising out of an affidavit filed by either of the defendants and were not admissible under r98.08(2). There are other grounds on which the affidavits should not be admitted but these are sufficient reasons not to admit them.

The Scope of Judicial Review 14. A preliminary hearing is amenable to judicial review: Clayton v Ralphs
(1987) 45 SASR 347; Goldsmith v Newman (1992) 59 SASR 404, 412. However, it must be remembered that committal proceedings are a preliminary step in the criminal process. In no sense does it produce a final result. The purpose of a preliminary hearing is to determine whether the accused should be committed for trial. If he is not committed the Attorney-General may file an ex officio information. If he is committed, the Attorney-General may decline to proceed. The fact that there has been a committal on an information alleging a particular offence does not mean that there cannot be a further committal on a further information alleging the same offence. The further committal might result from the trial court staying proceedings until there is a further committal, when it is alleged that the committal was defective. All of these are well-known propositions and are noted by Jacobs J in Clayton v Ralphs (supra) at 363. It is for that reason, that as a general rule, deficiencies in preliminary hearings are remedied by appropriate actions at trial such as an application for examination of witnesses in the absence of the jury: see Goldsmith v Newman (supra). In short, as a general rule, if defects occur in the course of the preliminary hearing, the remedy lies in an appropriate application to the trial judge: R v Harry; ex parte Eastway (1985) 39 SASR
203 at 212; R v Walden (1986) 41 SASR at 427; Goldsmith v Newman (supra) at 412. In an appropriate case an application can be made to the trial judge for an order staying that trial on the ground of abuse of process: Clayton v Ralphs (supra) at 362-369; R v Grassby. For these reasons, this Court has confirmed on more than one occasion that in principle the administration of criminal law should be left to the criminal courts and has expressed its concern that applications for judicial review can only lead to a multiplicity of process and result in delay in the administration of criminal justice: Clayton v Ralphs (supra) at 365; Goldsmith v Newman (supra) at 412.

15. In this case, the questions concern the proper interpretation in the events which have happened of ss104 and 106. For the reasons which follow, I have decided that the magistrate had jurisdiction and that the application should be dismissed. However, even if the magistrate had erred, the errors of which the plaintiff complains could have been cured by an application at the trial.

The Procedure at Preliminary Hearings 16. The procedures to be adopted at preliminary hearings are now regulated by ss104 to 107 of the Summary Procedure Act 1921. For present purposes it is sufficient to refer only to s104(1) and (2) and s106. Subsections (1) and (2) of s104 provide:
    "(1) Where a charge of an indictable office 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;

(ii) copies of any documents on which the prosecutor relies
    as tending to establish the guilt of the defendant;

(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 the all
    documentary material filed under paragraph (a).

(2) If material of the kind referred to above comes into
    the prosector'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." It will be noticed that a prosecutor is required not only to file statements of witnesses and copies of documents on which he relies but also to file any other material relevant to the charge that is available to the prosecution. Thus, a prosecutor is required to file not only statements of witnesses on whom he relies but also statements of those witnesses whom he does not intend to call. The effect of those provisions was examined in Goldsmith v Newman
(1992) 59 SASR 404. Commenting on sub-paragraph (iv) of s104(1), the Court held that it constituted statutory recognition of the well recognised responsibility of the prosecution to place before the Court all relevant and admissible material relevant to it irrespective of whether it assists the prosecution case: see King CJ at 409 and Perry J at 413. Their Honours differed on the question whether the provision abrogated the equally well recognised discretion of a prosecutor to refrain from tendering evidence, the truthfulness or reliability of which the prosecution distrusts, subject to disclosure of such evidence to the offence. However, it is unnecessary to examine that issue here. The views expressed in Goldsmith v Newman relate to the duty of the prosecution to comply with s104(1)(a)(iv). In this case the prosecution had complied with that duty. What must be considered is the events which followed the filing of that material.

17. If a defendant denies the charge, the procedures in s106 apply. Section 106 casts a duty on a prosecutor to tender the statements and other materials filed in Court pursuant to s104. Section 106 provides:
    "(1) Where a charge is not admitted by a defendant at a
    preliminary examination, the following procedure applies:

(a) the prosector 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 fr oral examination, the
    Court must have regard to -

(a) the need to ensure that the case for the prosecution
    is adequately disclosed;

(b) the need to ensure that the issues for trial are
    adequately defined;

(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.

18. (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 obligation in s106(1)(a) extends to include material filed in accordance with s104(1)(a)(iv), that is to say, material relevant to the charge that is available to the prosecution notwithstanding that the prosecutor does not intend to rely on it. Thus, the magistrate conducting the preliminary hearing has before him both material on which the prosecution intends to rely and material on which it does not rely. All of the witnesses whom the DPP has withdrawn are witnesses whose statements had been filed pursuant to s104(1)(a)(i).

19. Once statements and other material have been admitted into evidence, the defendant can give notice that he requires the production for oral examination of a witness whose statement has been filed and, if the Court grants leave to call that witness, the prosecution is required to call the witness: s106(1)(b). The notion of granting leave to call a witness as expressed in sub-para(b)(ii) of s106(1) is curious. The prosecutor does not seek leave to call the witness. Instead, it is the defence who seeks to have the witness called by the prosecution so that the witness is available for cross-examination. The Court is in effect granting the defendant's application to require the prosecution to call the witness. Before examining the requirements of s106 in further detail, it is convenient to examine some aspects of the prosecutor's discretion.

The Prosecutor's Discretion 20. At common law, a prosecutor has a discretion to decide what witnesses will be called for the prosecution. The manner in which that discretion should be exercised has been examined on a number of occasions: see, for example, Richardson v The Queen (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657 and R v Harry; ex parte Eastway (1985) 39 SASR 203. Although the first three decisions deal with the calling of witnesses at a criminal trial, the responsibilities and functions of the prosecutor at the preliminary hearing are essentially the same as they are for prosecuting counsel at the trial: R v Harry; ex parte Eastway (supra) at 211. These decisions affirm that, although the prosecutor owes no duty to call all witnesses who will testify as to events giving rise to the offence charged, the prosecutor has a duty nevertheless to present the case in a way which is fair to the accused. The prosecutor does not have a duty to the accused but instead, a duty to the administration of justice arising out of the important role which the prosecutor performs in the process of criminal justice: R v Harry (supra) at 210. The extent of that duty has been discussed in the cases already mentioned. For present purposes it is sufficient to note that, although the prosecutor should call all witnesses essential to the unfolding of the narrative on which the prosecution is based or whether in the result the effect of their testimony is for or against the case for the prosecution: Senevirantne v The King (1936) 3 All ER 36, 49, he nevertheless has a discretion not to call an eye witness where he concludes that the witness is not a credible and truthful witness: Richardson (supra) at 121; see also R v Harry; ex parte Eastway (supra) at 210; Whitehorn (supra) per Dawson J at 674. The discretion extends to deciding whether it is appropriate to tender a witness for cross-examination by the defence: Ader Muhammed el Dabbah v Attorney-General for Palestine (1944) AC 156 at 168 approved in Richardson v The Queen (supra) at 120. The prosecutor should, nevertheless, disclose the evidence to the defence and give the defence the opportunity to call the witness: Richardson (supra) at 121.

21. Although the prosecutor has a discretion as to what witnesses shall be called for the prosecution and although there are limits within which that discretion should be exercised, the Court will not review the exercise of the discretion unless it can be shown that the prosecutor has been influenced by some improper motive. In other words, there is no rule of law which requires the prosecutor to call a particular witness or witnesses: R v Richardson (supra) at 119-121; re Van Beelen (1974) 9 SASR 163, 245; R v Walden (1986) 41 SASR 421; R v Harry; ex parte Eastway (supra) at 212.

Does the New Scheme Limit the Discretion? 22. I turn to the question whether the legislative scheme to be found in ss104 and 106 circumscribes the prosecutorial discretion and prevents the magistrate from allowing the prosecution to withdraw the statement of a witness where an order has been made under s106(1)(b).

23. The obligation imposed upon the prosecution by s106(1)(a) to tender documents distinguishes between the tender of statements and of other material which has been filed in the Court pursuant to s104. The statements which are mentioned in par(a) of s106(1) can only refer to the statements of witnesses filed pursuant to s104(1)(a)(i), that is to say, statements of witnesses for the prosecution on which the prosecutor relies, as tending to establish the guilt of the defendant. The obligation to file documents distinguishes between four classes of documents which have to be filed. They are the classes of documents in each of the four sub-paragraphs of s106(1)(a), namely, statements of witnesses for the prosecution, copies of any documents which the prosecutor relies as tending to establish the guilt of the defendant, a document describing any other evidentiary material on which the prosecutor relies and any other material relevant to the charge that is available to the prosecution. If it were not the intention of s106(1)(a) to distinguish between the statements of witnesses for the prosecution on which the prosecutor relies and the other three classes of material referred to in s104(1)(a), par(a) of s106(1) would have been drawn in different terms. For example, par(a) could have required the prosecutor to tender "all material filed in the court pursuant to s104(1)(a)". By a process of like reasoning the reference in s106(1)(b) to "a witness whose statement has been filed" must refer to the statement of a witness on whom the prosecution relies. If Parliament had intended that the operation of s106(1)(b) should include statements of witnesses on whom the prosecution does not rely which have been filed in accordance with the obligation to file any other material in s104(1)(a)(iv), Parliament could have easily said so. All that would have been necessary to state to achieve that objective would have been to provide in par(b) that the obligation to call a witness applied respect of any witness who has made a statement which had been filed under either par(i) or par(iv) of s104(1)(a). Thus, an order granting leave to call a witness can only be made in respect of a witness on whom the prosecution relies. Such an order cannot be made in respect of a witness who has made a statement which has been filed or tendered as other material relevant to the charge which is available to the prosecution.

24. If in the course of the preliminary hearing, the prosecutor decides that he no longer wishes to call a witness and the statement of witness has not been tendered, the prosecutor is, in effect, deciding that he wishes to alter the category under which the statement has been filed. In other words, he is filing it as any other material relevant to the charge that is available to the prosecution pursuant to s104(1)(a)(iv). There is no reason in principle why the prosecutor should not be entitled to take such a course. According to the circumstances of each case, there could be a number of reasons why the prosecutor would make that decision. For example, other evidence which requires such a decision might have become available after he had discharged the obligation to file in s104. He might, for example, have available a witness, witness B, whose evidence is more credible and in every respect of more probative value than the witness whom he initially intended to call, witness A. The evidence of witness B might demonstrate that the evidence of witness A is wholly unreliable. Section 104(2) expressly recognises the possibility of evidence becoming available after statements and other material have been filed and imposes a duty on the prosecutor to file it. According to circumstances, the prosecutor might seek to file the new material under par(i) of s104(1)(a) and withdraw material which had been filed under par(i) and file it instead under par(iv). Alternatively, the later information may cause the prosecutor to decide to file material initially filed under par(iv) to be filed under par(i) as a statement on which the prosecutor seeks to rely. To say that a prosecutor is unable to alter the category of the material which had been filed is to require an extraordinary degree of foresight or prescience on the part of the prosecutor. Given the nature of a preliminary hearing and the fact that it does not affect the rights of the defendant in the sense of any final adjudication, there is no reason in principle why the decision to file a document under one heading should be irrevocable so that the prosecution is bound by the decision for the purpose of the preliminary hearing no matter what event should later occur. Although the obligations imposed on the prosecutor by s104 might circumscribe the prosecutorial discretion, they do not circumscribe it to the extent of preventing the prosecutor from determining whether, in the light of altered circumstances, he chooses to continue to rely on a particular witness or witnesses for the purpose of establishing the guilt of the defendant.

25. Similarly, if the statement of a witness has already been tendered but there has not been a grant of leave to call a witness pursuant to s106(1)(b), the prosecutor should be able to withdraw the statement. Once again, the effect of the prosecutor's action is to withdraw the tender of the statement as a statement of a witness for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant and, instead, tendering it as any other material relevant to the charge that is available to the prosecution. By a process of like reasoning there is no reason in principle why, in a case where leave has been granted to call a witness for oral examination in accordance with s106(1)(b), the prosecutor should not be able to withdraw the statement of a witness on the ground that he no longer intends to rely on that statement. The prosector should not be penalised because a decision not to rely on a witness is made at this late stage rather than at some earlier time either before the statement was filed or before it had been tendered.

Strict or Substantial Compliance? 26. In furtherance of their argument, the plaintiffs point to the use of the word "will" in s106 and submit that s106 is expressed in mandatory terms. They submit that once leave has been granted to call a witness, the Court has no jurisdiction to revoke that order and permit the prosecutor not to call the witness. Alternatively, they submit that, if the Court was not bound to refuse the application, the Court should only grant the application in exceptional circumstances and must require the prosecutor to call evidence on oath in support of the application. The failure of the magistrate to require the DPP to act in this way materially prejudiced them and, they say, the magistrate erred in law in failing to do so.

27. The nature of the obligation imposed by the use of the word "will" in pars(a) and (b) of s106(1) is to be determined by looking at the whole of the scheme in ss104 and 106. The use of words such as "shall" and "will" do not necessarily resolve the question whether the provisions are mandatory or directory and it is necessary to consider the scope and purposes of the relevant provision to determine that question: Hatton v Beaumont (1977) 2 NSWLR 211, 222.

28. Section 106 prescribes a procedure to be adopted by a court conducting a preliminary hearing. Although procedural requirements are not infrequently held to be mandatory in character, it is, nevertheless, necessary to examine the framework and language of the relevant statutory provisions: Hatton v Beaumont (supra) at 220 and, on appeal, 52 ALJR 589, 591. As a general rule, where the procedural requirements constitute conditions prerequisite to the taking of proceedings, the use of "shall" and "will" will create a mandatory obligation: Public Prosecutor v Koi (1968) AC 829; Secretary of State for Defence v Warn (1970) AC 394. But, in other cases, provisions prescribing a procedure may be directory: see Hatton v Beaumont. In other words, there can be no hard and fast rule. The approach to be adopted was expressed in the oft-cited remarks of Lord Penzance in Howard v Boddington (1877) 2 PD 203, 210-211:
    "There may be many provisions in Acts of Parliament which,
    although they are not strictly obeyed, yet do not appear to the
    court to be of that material importance to a subject matter to
    which they refer, as that the legislature could have intended
    that the non-observance of them should be followed by a total
    failure of the whole proceedings. On the other hand, there are
    some provisions in respect to which the court would take an
    opposite view, and would feel that they are matters which must
    be strictly obeyed, otherwise the whole proceedings that
    subsequently follow must come to an end. Now the question is,
    to which category does the provision in question in this case
    belong?"

For the reasons which follow, an examination of s106 discloses that, although it prescribes a procedure, it does not require that it be strictly obeyed and that a failure to comply with its provisions does not mean that the preliminary hearing was a nullity.

29. These provisions represent the latest development in the evolution of substantial amendments first enacted in 1972 to the procedure for a preliminary hearing. The benefits of a preliminary hearing have been identified to be:

1. knowledge of what the Crown witnesses say on oath;

2. the opportunity of cross-examining them;

3. the opportunity of calling evidence in rebuttal;

4. the possibility that the magistrate will hold that there
    is no prima facie case or that the evidence is insufficient
    to put him on trial or that there is no strong presumption
    of guilt:
    see Gibbs ACJ and Mason J in Barton v The Queen (1880) 147
    CLR 75 at 99. Their Honours go on to note (at 99-100()
    that:
    "The deprivation of these advantages is... a serious
    departure from the ordinary course of criminal justice."

See also R v Harry; ex parte Eastway (supra) and Grassby v The Queen (1989) 168 CLR 1, 15. However, the rights of a defendant have been curtailed by the provisions of s106. As was noted in Goldsmith v Newman (supra) at 408, the purposes of the provisions is to curtail the scope of oral examination of witnesses thereby reducing the burden on the justice system caused by lengthy preliminary hearings to the extent that it is consistent with the interests of justice. Oral examination of witnesses at a preliminary hearing is limited to those occasions whether the Court finds that there are special reasons for doing so.

31. While s106 sets out the procedures to be followed, it does not provide that they are conditions precedent for a valid preliminary hearing. Nor does s106 contain any sanction for a failure to comply with that procedure. If a defendant is committed for trial and it is later discovered that the prosecution has failed to comply fully with ss104 and 106, the committal of the defendant will not be a nullity. The failure to comply with the statutory scheme might be a ground on which to make an application to the trial judge but it is not a matter which will cause the committal to be invalid. This is a necessary consequence of the fact that the purpose of a preliminary hearing is to determine whether there is evidence sufficient to put the defendant on trial for the offence with which he is charged. The question whether there is evidence sufficient to put the defendant on trial depends on the evidence adduced at the preliminary hearing not on the question whether there has been a precise observance of the procedures prescribed by s106. Although the magistrate conducting the preliminary hearing will endeavour to ensure fairness in the conduct of the preliminary hearing, if unfairness or oppression nevertheless occur, that is not a matter which the magistrate can remedy in a preliminary hearing. In conducting a preliminary hearing, the magistrate is performing an administrative or ministerial function which is governed by the Summary Procedure Act and the power to correct unfairness or oppression is vested in the trial court: Grassby v The Queen (supra) at 18-19; see also Clayton v Ralphs (supra) at 361-369. For the reasons mentioned earlier, if defects occur in the course of the preliminary hearing, the remedy lies in an appropriate application to the trial judge. If the conduct of the prosecution at the preliminary hearing results in unfairness to the defendant, the defendant can at the trial apply for an appropriate order, be it an application to stay the trial on the ground of abuse of process or an application to examine in the absence of the jury a witness who was not called at the preliminary hearing.

32. Finally, no provision is made for those cases where it is not possible to call a witness in compliance with s106. A witness may die or might have disappeared and cannot be located. There may be other reasons why a prosecutor is unable to call a witness. The ordinary vicissitudes of life make it impracticable to require strict compliance with s106. It would be a curious result if a committal were to be held to be invalid because, for reasons beyond its control, the prosecution could not call a witness. In other words, to require strict compliance with s106 would be to impose an unreasonably onerous obligation on the prosecutor. The obligation of the prosecutor to call a witness extends only so far as it is reasonably practical in the circumstances of any particular case to call that witness.

33. To decide that the prosecutor must call a witness on whom he no longer wishes to rely because the statement has been filed under s104(1)(a)(i) is to decide that the prosecutor no longer has any discretion as to the manner in which he proves the prosecution case at the preliminary hearing. That is not, I think, the intention of ss104 and 106. To construe s106 in the manner contended for would circumscribe the prosecutorial discretion more than it does in the trial.

34. The fact that the magistrate had determined that there were special reasons for granting leave to call these witnesses does not affect the position. At the end of the day, it is for the prosecutor to determine how he proposes to prove the prosecution case. The fact that the magistrate believed there were special reasons might be a ground on which to make an application to the trial judge. But that fact does not impinge upon the prosecutor's discretion to withdraw the witness.

35. In this case, the application by the plaintiffs for an order that the prosecution call these three witnesses was heard at an early stage in the hearing and before the witnesses were called. That procedure will no doubt often be adopted to avoid inconvenience to the witnesses and the cost and expense of bringing to the Court a witness in respect of whom an order might not be made under s106(1)(b). That is a procedure which is fair to both the witness and to the defendant and, generally speaking, it is the practice which should be adopted. But the fairness and utility of the practice should not obscure the fact that there will be occasions when the prosecutor might in the course of the preliminary hearing become aware of facts which cause him to decide that he wishes to withdraw a witness whom he must call pursuant to an order made under s106(1)(b). I refer again to the example already given where, after filing the statements of the witnesses on whom he intends to rely, the prosecutor might become aware of a more credible witness than one of the witnesses whose statement has been filed. The prosecutor might be willing to accede to an application that there are special reasons why that witness should be called but, at the same time, wish to withdraw the statement of a witness on whom he initially intended to rely, witness A. The defence will continue to have available to it the statement of witness A but not as a witness on whom the prosecution relies. It would be extraordinary if the prosecutor could not in such circumstances withdraw the statement of witness A.

36. The provisions of s106 are therefore directory, not mandatory, in their operation. For the reasons expressed in Shannon v Ackland (1990) 55 SASR 125 at 131-133, I think it preferable to state that s106 prescribes a procedure which must be substantially complied with. It does not require strict compliance.

37. For all of these reasons, the magistrate had jurisdiction to grant leave to the DPP to withdraw these three witnesses and the decision of the prosecutor to withdraw them was not in any respect circumscribed by s106. Nor do I think that s106 imposes any duty on the magistrate conducting a preliminary hearing to require the prosecutor to justify his actions. Depending on the circumstances of each case, it might be appropriate for the magistrate to invite the prosecutor to reconsider his decision. But the magistrate has not power to direct the prosecution to call a particular witness: cf Apostilides (supra). As the magistrate had no discretion to enquire as to the ground upon which the prosecutor sought to withdraw these statements, it follows that it was not necessary for the magistrate to consider whether it should have made an order under s59e of the Evidence Act. It is, therefore, unnecessary to consider whether s59e applies to a preliminary hearing.

38. I add that, even if the magistrate had erred, I would in the exercise of my discretion be disinclined to grant the plaintiffs' application as they can apply to remedy whatever unfairness exists by an application to the trial judge. As they could also have applied to call Mr Turner, there is even less justification to make the orders sought in relation to him.

39. The applications of the plaintiffs must, therefore, be dismissed.