Miller v Cotter

[1999] NSWSC 854

CITATION:	MILLER v COTTER & ANOR [1999] NSWSC 854
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	13018/97
HEARING DATE(S):	19 August 1999
JUDGMENT DATE:	19 August 1999
PARTIES :	Damon Charles Miller (Plt) Peter Cotter (1st Def)
JUDGMENT OF:	Newman J

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Price SM

COUNSEL :	Damon Miller (Plt in person) P Berman (1st Def)
SOLICITORS:	Damon Miller (Plt in person) Director of Public Prosecutions
CATCHWORDS:
DECISION:	Summons dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN J

THURSDAY, 19 AUGUST 1999

13018/97 - Damon Charles MILLER v Peter COTTER & ANOR

JUDGMENT

1    HIS HONOUR: These are proceedings commenced by summons relating to criminal proceedings being heard in the Local Court. The summons issued is based on a number of grounds.

2    Essentially grounds 1 to 3 seek a declaration that the proceedings, if continued, would be in the relevant sense unfair to the plaintiff, and seek a stay on the basis of procedural unfairness. The summons then goes on to seek orders in the nature of mandamus and certiorari.

3    The matters which are before the Local Court are there consequent upon civil proceedings which were heard and determined in this Court by Master Macready on 22 August 1995.

4    The matter before Master Macready was a matter in which a mortgagee sought possession of property. Before the learned Master the only issue was whether or not the principal sum under the mortgage had been repaid. Plainly enough, if it had, the mortgagee would fail. If it had not been paid, then the mortgagee would succeed in obtaining possession.
5    In the event, the learned Master held that the principal sum had not been repaid and made orders favourable to the mortgagee. I gather the matter was the subject of an appeal to the Court of Appeal and subsequently an application for special leave to the High Court. Ultimately the orders made by Master Macready were upheld.

6    The matter came into the criminal justice system because Master Macready made a finding that, amongst other things a receipt dated 4 July 1994 allegedly over the signature of one Henry Allsop, which was produced on behalf of the defendant in those proceedings, by the present plaintiff, Mr Damon Charles Miller, was in effect a forgery. This occasioned the learned Master to refer the papers to the Director of Public Prosecutions.

7 As a consequence of the learned Master’s referral to the Director of Public Prosecutions, two charges were laid against the present plaintiff in the Local Court. The first charge was one laid pursuant to s 300(1) of the Crimes Act 1900 and the second charge was laid pursuant to s 300(2) of that Act.

8    The first charge is essentially one that the plaintiff here did make a false instrument, namely the receipt to which I have referred and the second charge is that the plaintiff used that false instrument, namely the receipt to which I have referred, to cause the mortgagee to accept the receipt as genuine and to act according to the mortgagee’s credit.

9    Mr Allsop, whose signature allegedly appeared on the receipt of 4 July 1994 was acting as an agent for the mortgagee at the relevant time.

10 Prior to the proceedings commencing before the learned magistrate in the Local Court, the solicitor for the present plaintiff quite properly wrote to the Director of Public Prosecutions and indeed to the officer in charge of the investigation pursuant to s 167 of the Evidence Act seeking access to the original of the receipt of 4 July 1994 and other documents which had been in evidence before Master Macready in order that they may be tested by an expert.

11    The upshot of the letters written was that the plaintiff’s solicitors were advised that the document had been lost. Subsequent searches carried out in this Court and apparently elsewhere have not been able to discover the documents which were tendered before the learned Master.

12 At the hearing before the learned magistrate a copy of the subsequent receipt of 4 July was tendered. Objection was raised but the learned magistrate pursuant to s 48(4) of the Evidence Act 1995 admitted the document into evidence.

13    A stay was shortly afterwards obtained and the matter now comes before this Court.

14    The nub of the application before this Court is that the plaintiff has been denied procedural fairness because the loss of the relevant documents, and in particular the receipt of 4 July 1994, has meant that he has been unable to obtain expert examination of the documents and thus is disadvantaged. Accordingly, he puts it that he is so disadvantaged that the relief sought should be granted.

15 I should say at the outset it seems to me that neither mandamus or certiorari can lie in this matter. Mandamus lies only when a mistake of law has occurred which shows that the determination arrived at in the exercise of the jurisdiction is nugatory and void so that the ostensible determination by the magistrate was not a real performance of the duty imposed by law upon him. See R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 228 at 242-243. In other words that the magistrate must have misunderstood the nature of the jurisdiction which he purported to exercise in the matter before him. See Ex parte Hebburn Limited; re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.

16 The principles are generally covered in Waterhouse v Gilmore (1988) 12 NSWLR 270 at 277. I refer also to what had fallen from Priestly JA in Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418.

17    Essentially the plaintiff must show a constructive failure to exercise jurisdiction, and in the instant case it is plain he is unable so to do and accordingly mandamus does not lie.

18    Certiorari requires that an error on the face of the record or a jurisdictional error must be demonstrated. Here, the record is thus far limited to the charge and the magistrate’s reasons. It follows that no relevant error can be demonstrated in terms of certiorari ie an error has to be demonstrated that the learned master mistakenly asserted or denied the existence of jurisdiction. Accordingly, certiorari could not lie in a case such as this.

19 I might also state that in the matters contained in the summons said to found relief, relief is sought under s 112 of the Justices Act. For that section to apply there must be a final order.

20 In the present matter the question which has arisen is the admission of evidence, which is not a final matter that comes within the concept of s 112. Accordingly that section cannot assist the plaintiff here.

21    Thus the matter which remains for determination by this Court is whether or not the court should grant a permanent stay. It is to be assumed for the purposes of this judgment that the documents which have been tendered in evidence before Master Macready are permanently lost.

22 The principles relating to the grant of permanent stays have, over the years, following the decisions of the High Court in Jago v The District Court of New South Wales (1989) 168 CLR 23 are well founded.

23 The law was well summarised by Bell J in the Court of Criminal Appeal in R v Carver (1999) NSWCCA 135 which was determined by that court on 11 June of this year. There Bell J noted that the principles applicable to the question of stay of proceedings are these:

(1) The onus is on the applicant to demonstrate that the prejudice which he would suffer in the event of a trial is unacceptable to the extent that the trial would be unfair.

(2) That there was nothing which the trial judge could do in the conduct of the trial to relieve against this unfairness.

(3) The unfairness must arise from a fundamental defect which goes to the root of the trial. The remedy is discretionary and will be ordered only in exceptional cases. See Jago’s case.

24    In R v McCarthy & Ors, unreported, Court of Criminal Appeal, 12 August 1994, Gleeson CJ observed:

“Time and again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, of lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that the proceedings need to be stayed.”

25    His Honour then referred to what had fallen in R v Adler, unreported, Court of Criminal Appeal, 11 June 1992 and R v Goldburg. In Adler’s case, Gleeson CJ observed:

“The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial and it has not been shown to produce that result in this case.”

26    Here the plaintiff relies particularly on the evidence of a document examiner Judy Walton. She observed that in the absence of the documents which were in evidence before Master Macready she was unable to arrange the undertaking of certain forensic tests. They included:

1. Fingerprinting of documents.

2. Identifying whether the paper contained watermark, which may help to source and date the paper.

3. Examining whether the handwriting is original or photocopied onto the document.

4. Testing of inks as to their physical and chemical properties.

5. Identifying the printing process used to produce the letterhead, such as offset lithography.

6. Using a microscope to magnify and examine the signature on exhibit 3 in order to determine whether the signature contains subtle tremor or other indicia of forgery.

7. Using electrostatic detection apparatus to examine for any latent indentations from other handwriting which may assist in identifying who has produced it.

27    I should say that in his judgment of 22 August 1995, Master Macready observed:

“One thing the cross-examination of Mr Damon Miller demonstrates in respect of this paragraph 25 is that it is perfectly apparent that if what Mr Miller says he was told by Mr Allsop did happen, that he well knew that the receipt which had been handed over on 4 July contained a photocopy signature.”

28    That evidence given before Master Macready would, of course, be admissible evidence as to what the plaintiff had said before Master Macready and would be admissible evidence before the learned magistrate should the occasion for that evidence to be given arise.

29    Furthermore, in the civil proceedings themselves the document was in fact examined on behalf of the plaintiff here by a document examiner, A Dr Strach, who had reported to the plaintiff’s then solicitors Messrs Carroll and Knudsen on 13 January 1995. In other words, there is evidence available to the plaintiff from an expert relating to the veracity of the subject document.

30    Thirdly, in the civil proceedings before Master Macready a Mr Anderson, document examiner, gave evidence. That evidence was supportive of the propositions which underlie the criminal proceedings against the present plaintiff. His evidence was not challenged before the learned master.

31 It would, of course, be better if the documents which were tendered before the learned Master were documents being used in the proceedings in the Local Court. For myself I can see that no technical error has been made by the learned magistrate in admitting the documents which he did as a copy document pursuant to s 48(4) of the Evidence Act 1995 which plainly empowers the admission of evidence of this type.

32    As may be seen from what fell from this Court in cases such as Carver to which I have made reference and statements made by Gleeson CJ in Adler and McCarthy the loss of a document does not automatically give rise to a situation where there must be a fundamental defect which goes to the root of the trial. The remedy is discretionary and is only to be ordered in exceptional circumstances.

33    Here, as I have said, the key document in question has in fact in the form it was when tendered before Master Macready, been the subject of expert examination on behalf of the plaintiff here. That fact of itself in my view together with the other matters to which I have referred, takes this case clearly away from one involving exceptional circumstances.

34    That being so I am of the view that the remedy sought should not be granted and accordingly I decline to make the declaration sought and refuse to stay the proceedings. The summons will therefore be dismissed with costs.

Last Modified: 04/14/2008