Michael v Musk

[2003] WASC 197

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MICHAEL -v- MUSK & ANOR [2003] WASC 197

CORAM:   EM HEENAN J

HEARD:   30 SEPTEMBER 2003

DELIVERED          :   30 SEPTEMBER 2003

FILE NO/S:   CIV 2076 of 2003

MATTER                :Application for a writ of certiorari

BETWEEN:   SHAWKY MICHAEL

Applicant

AND

JACQUELINE MUSK
First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent

Catchwords:

Criminal law and procedure - Preliminary hearing - Committal for trial - Application for order for certiorari to quash order for committal - No error shown - Interference with course of criminal law and procedure only available in special cases

Legislation:

Nil

Result:

Application for order nisi for certiorari refused

Category:    B

Representation:

Counsel:

Applicant:     In person

First Respondent           :     Ms L Eddy

Second Respondent       :     Ms L Eddy

Solicitors:

Applicant:     In person

First Respondent           :     State Crown Solicitor

Second Respondent       :     State Crown Solicitor

Case(s) referred to in judgment(s):

Michael v Musk & Anor [2002] WASC 278

Case(s) also cited:

Ammann v Wegener (1972) 129 CLR 415

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663

Craig v South Australia (1995) 184 CLR 163

Doney v The Queen (1990) 171 CLR 207

Grassby v The Queen (1989) 168 CLR 1

Morrison v Kiwi Elextrix Pty Ltd (1998) 19 WAR 482

R v Macfarlane; Ex parte O'Flanagan & Anor (1923) 32 CLR 518

Re City of Melville; ex parte J-Corp Pty Ltd (1998) 20 WAR 72

Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511; [1999] WASCA 16

Sankey v Whitlam (1978) 142 CLR 1

Talbot v Lane (1994) 14 WAR 120; (1994) 75 A Crim R 115

1. EM HEENAN J:  By an initiating application dated 4 September 2003, Dr Michael seeks an order nisi that the judgment of her Worship Mrs J Musk SM be set aside and that complaint FR2417 of 2001 be dismissed.  This application has been amended to bear the name of an originating motion for an application for an order nisi for a writ of certiorari.

2. The decision of her Worship Mrs J Musk SM was made in the Court of Petty Sessions on 5 August last, committing Dr Michael to the September 2003 sittings of the District Court for trial upon a charge of assault occasioning bodily harm.  The application for the order nisi for certiorari therefore is seeking to quash the order for committal.  It is to be noted that under the provisions of the Justices Act, as now applying, by s 184(3), any decision by justices to commit a defendant for trial may not be the subject of an appeal under Pt VI of the Justices Act. It has been submitted by the Director of Public Prosecutions that by virtue of s 147 of the Justices Act no order, including an order for committal, can be removed into the Supreme Court by certiorari or otherwise for the purposes of being quashed.  On the face of it, these are substantial obstacles to the applicant's claim for the discretionary relief for an order for certiorari.

3. The history of the proceedings against Dr Michael which are the subject of this prosecution have been before the court on at least two previous occasions.  They were reviewed by me in a decision of 13 November 2002, Michael v Musk & Anor [2002] WASC 278, in which an application for certiorari and mandamus was refused.  Subsequent to that decision, the committal proceedings resumed and Musk SM gave reasons for committing the applicant for trial.  Regrettably those reasons do not form part of the formal record before the court today, yet I have been offered a copy of the transcript of her Worship's reasons dated 5 August, and without objection by the Director of Public Prosecutions, I have read those.  There does not appear to me to be any error of law apparent in those reasons.

4. However, in the submissions based on the materials which are before the court, Dr Michael has pointed to exchanges which took place between himself and the learned Magistrate during the course of the proceedings and rulings made on objections to evidence during the course of the proceedings at various points which, so he submits, suggest that the learned Magistrate was not disposed to take into account issues of the credibility of various witnesses for the prosecution or evidence adduced on his behalf which might provide authority, justification or excuse for the conduct which was alleged against him to constitute assault occasioning bodily harm.  Read in isolation, there may be room for some conjecture about whether or not the learned Magistrate fully appreciated the obligation for the prosecution to make out a case which, on the entirety of the evidence, could justify a jury, acting reasonably and drawing conclusions beyond reasonable doubt, coming to a conclusion that the accused was guilty of the offence charged.  But I should stress immediately that these passages do not, collectively, justify such a conclusion overall and that the language employed by the learned Magistrate in her reasons for decision entirely negatives any such suggestion.

5. It follows, therefore, that I do not consider that there has been made out any arguable basis for an error of law or procedure by the learned Magistrate in coming to her decision to commit the applicant for trial.  However, there are even more fundamental reasons for rejecting the application for the order nisi.  First of all, there are many instances of the highest authority which direct this Court, and other courts in similar situations, to abstain from interfering in the regular course of criminal procedure except in the clearest of instances.  The overwhelming public interest is that the course of criminal justice should follow its ordinary routine and be determined in the courts where the proceedings are initiated or to where they have been referred by committal or otherwise.  It would take a case of a very exceptional nature to justify a court removing the cause by certiorari from the ordinary process of criminal procedure.

6. Secondly, there are indications in the Justices Act that Parliament has taken the view that proceedings for committal should not be the subject of appeal and that once a committal order is made the defendant should proceed to trial before a Judge or jury in the ordinary way.  That is but another illustration of the emphasis which the law places on the routine application of established criminal law and procedure without intervention, except in the most exceptional case, by forms of prerogative relief or other judicial review.

7. Finally, there is the question of the utility of any relief which might be granted.  If certiorari were to issue in this case and the decision for the committal of the applicant to be quashed, the situation is that in the light of the transitional provisions following recent amendments to the Justices Act, the original complaint against Dr Michael would stand but there is no longer any apparatus or scope for a committal hearing.  Consequently, the matter would proceed to trial on a direct reference from the Court of Petty Sessions without another committal, and accordingly, no benefit by the applicant could be derived even if, contrary to my other conclusions, Dr Michael were to be successful in obtaining certiorari.

8. Therefore, both for reasons associated with lack of demonstrated merit and for the discretionary considerations which I have mentioned, the application for an order nisi for certiorari or other relief is dismissed.