Michael John Fuller and Joseph Patrick Cummings v Frederick R Field SM and the State of South Australia (Intervener) No. SCGRG 94/508 Judgment No. 4586 Number of Pages 10 Criminal Law and Procedure (1994) 62 Sasr - [1994] SASC 4586

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - adjournment, stay of proceedings or order restraining proceedings - Summons for judicial review - order by examining magistrate refusing to adjourn or stay committal proceedings on ground that plaintiffs, who are charged with conspiracy and fraud of fences, are likely to be unrepresented during those proceedings - held magistrate had no power to stay proceedings indefinitely. Grassby v The Queen (1989) 168 CLR 1, applied. R v Horseferry Road Magistrate's Court ex parte Bennett (1994) 98 Cr App R 114 referred to. Supreme court has power to indefinitely stay committal proceedings but held that there was no basis for making such an order in the present case. Clayton v Ralphs and Manos (1987) 45 SASR 347. followed.

Criminal law and procedure - Argument based on Dietrich v The Queen (1992) 177 CLR 292 that, in the case of serious offences, representation at the preliminary examination is essential in order to ensure a fair trial rejected. Barton v The Queen (1980) 147 CLR 75; Goldsmith v Newman and The State of South Australia (1992) 59 SASR 404 referred to.

HRNG ADELAIDE, 9 May 1994 #DATE 3:6:1994

Counsel for plaintiffs: Mr K Borick

Solicitors for plaintiffs: Baker O'Loughlin

Counsel for defendant Field: Mr J Mansfield QC

Solicitors for defendant Field: Director of Public
Prosecutions

Counsel for intervener: Mr J Doyle QC with him
Mr N Manetta

Solicitors for intervener: Crown Solicitor

ORDER
Application for judicial review refused.

JUDGE1 MOHR J I have had the advantage of reading, in draft, the reasons of Duggan J.

2. I agree with him that the summons for judicial review should be refused for the reasons that he has given and, in particular, that a magistrate hearing a committal proceedings has no power to grant a stay or indefinite adjournment as was sought in this case because of the fact that the accused lacked legal representation: see Grassby v The Queen (1989) 168 CLR 2. This is not to say that in some circumstances a magistrate does not have the power to grant a short adjournment while legal representation is arranged. That will depend on the circumstances as presented to him.

3. In my opinion the stay granted by Matheson J when he referred the matter to this Court should be discharged. On the material before us there is, in my opinion, no ground for this Court to order a stay or indefinite adjournment. Bollen J: I agree with Duggan J that the summons for judicial review by the plaintiffs should be refused for the reasons which he has given. I am inclined to think that the injunction should now be discharged. I do not think that this Court should make any order of stay or adjournment.

4. Mr Borick emphasised that in the end he wanted an adjournment until legal representation was available for his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Michael John Fuller and Joseph Patrick Cummings v Frederick R Field SM and the State of South Australia (Intervener) No. SCGRG 94/508 Judgment No. 4586 Number of Pages 10 Criminal Law and Procedure (1994) 62 Sasr [1994] SASC 4586
Case: [1994] SASC 4586
Decision Date: 3 June 1994

CaseChat Overview and Summary

The case involves Michael John Fuller and Joseph Patrick Cummings, who sought judicial review of a decision by an examining magistrate to refuse their application for a stay or adjournment of committal proceedings due to their lack of legal representation. The defendant, Frederick R Field, and the State of South Australia as an intervener, opposed the application. The Full Court of the Supreme Court of South Australia was tasked with deciding whether the examining magistrate had the power to grant an indefinite stay or adjournment and, if not, whether the Supreme Court itself should do so. The court had to determine whether the magistrate's refusal to stay or adjourn the committal proceedings was lawful and whether the Supreme Court should intervene by staying the proceedings indefinitely. The court concluded that the examining magistrate lacked the power to grant an indefinite stay or adjournment based on the absence of legal representation, as per the decision in Grassby v The Queen (1989) 168 CLR 1. The court further determined that while the Supreme Court has the inherent jurisdiction to stay committal proceedings for abuse of process, there was insufficient evidence before it to justify such a stay in this case. The Full Court dismissed the application for judicial review and discharged the stay previously ordered by Matheson J, finding no basis for an indefinite stay or adjournment on the presented facts.

Orders