Norman James Dunn v District Court of South Australia No. SCGRG 96/1787 Judgment No. 5787 Number of Pages 5 Practice and Procedure

[1996] SASC 5787

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice and procedure - judicial review - criminal proceedings - the applicant for judicial review was indicted in the District Court on an information alleging counts of unlawful sexual intercourse with and indecent assault upon a young child - before a jury had been empanelled, the trial judge overruled an objection taken by the applicant to the admissibility of DNA evidence based in part upon a blood specimen taken pursuant to s81 of the Summary Offences Act - the Court of Appeal of New South Wales has recently refused to follow a decision of the Full Court of the Supreme Court of South Australia in interpreting the permissible scope of a medical examination conducted pursuant to similar statutory provisions in that State and held that evidence of a blood sample taken in similar circumstances should have been rejected - held that notwithstanding the apparent conflict of authority, leave to serve an application for judicial review of the ruling of the District Court Judge should be refused - observations emphasising that applications for judicial review of decisions made in pending criminal proceedings which would have the effect of interrupting the orderly disposal of the proceedings would be permitted only in the most exceptional of circumstances - this was not a proper case in which to consider review, notwithstanding the conflict of authority which gave rise to points which no doubt would have to be resolved by way of appeal in this or in another case - it is far better that such questions of law should be determined in the context of the criminal proceedings after they have been concluded - the course of criminal proceedings is unpredictable - circumstances, such as possible admissions made by an accused person under cross- examination, could arise which might render the point of law irrelevant for the purposes of the proceedings in question. Summary Offences Act 1953s81; Crimes Act 1900 (NSW) , referred to. Franklin
(1979) 22 SASR 101; Fernando (1995) 78 A Crim R 64; Coco (1994) 179 CLR 427; Wong v Evans (1989) 89 ALR 392; Australian Securities Commission v Burns and Ors (1994) 130 ALR 89, considered.

HRNG ADELAIDE, 23 August 1996 #DATE 23:8:1996

Counsel for applicant:     Mr P Cuthbertson

Solicitors for applicant:    Scammell and Co

ORDER
Application refused.

JUDGE1 PERRY J
1. The plaintiff stands charged on the information of the Director of Public Prosecutions filed in the District Court on charges of unlawful sexual intercourse and indecent assault of a young child. The trial has yet to begin.

2. He has instituted an application in this Court for judicial review of a decision made yesterday by the judge of the District Court before whom he was arraigned.

3. Before a jury was empanelled, counsel for the plaintiff raised a question as to the admissibility of what might for convenience be described as DNA evidence derived in part from a blood sample taken from the plaintiff pursuant to s81 of the Summary Offences Act 1953.

4. The Full Court of this Court in Franklin ((1979) 22 SASR 101) construed s81, the relevant provisions of which, despite subsequent amendment, are for present purposes still the same, so as to authorise the taking of a sample of blood in the course of a medical examination performed pursuant to s81(3). Franklin has been followed in this jurisdiction ever since.

5. During the course of the argument before the learned District Court judge, reference was made to a decision of the Court of Appeal of New South Wales in Fernando ((1995) 78 A Crim R 64). In that case the court held that provisions in the Crimes Act 1900 (NSW), which for present purposes cannot be distinguished from the relevant provisions in s81(3) of the Summary Offences Act, should not be construed so as to authorise the compulsory taking of a specimen of blood.

6. In doing so, the majority of the Court of Appeal of New South Wales declined to follow Franklin, which was cited to the court.

7. In taking that course, the Court of Appeal of New South Wales had regard in particular to the decision of the High Court in Coco (1994) 179 CLR 427. But that was a case involving listening devices. While dicta in the judgment of the High Court in that case is pertinent, it is by no means decisive of the question now at issue.

8. The learned District Court judge has adjourned the commencement of the trial until next Monday, 26 August. Unless restrained by an order of this Court, he will proceed to empanel a jury and proceed with the trial.

9. The length of the trial was originally estimated at three to four days, but I have been informed by Mr Cuthbertson of counsel for the plaintiff this morning that the trial may take somewhat longer than that, in view of what may well be a lengthy examination of the witnesses concerned with the DNA evidence.

10. In reaching the ruling that the application of the accused to exclude the DNA evidence be refused, the learned District Court judge relied principally upon the authority of this court in Franklin. Quite properly he regarded himself as bound by that authority. He indicated as well, that even if he was to regard the taking of the blood sample as unlawful, contrary to the authority of Franklin's case, he would nonetheless exercise his discretion to admit the evidence.

11. This case raises once again, the question of the circumstances in which it is proper for this Court to interrupt the course of criminal proceedings in a lower court for the purposes of ruling on a point of law which has arisen.

12. This Court has said again and again that the circumstances will be rare in which it will ever be proper to interrupt the course of criminal proceedings.

13. Every time a point of law arises in a criminal trial in the District Court, there is the potential to come to this Court for judicial review, or by way of appeal pursuant to the amended s353(3)(a) of the Criminal Consolidation Act (it was agreed between counsel that, by reason of the relevant transitional provisions, s53(3)(a) could not be involved in the present case). Clearly, in those circumstances this Court must refrain from entertaining such applications unless the circumstances are most exceptional. Otherwise, the orderly disposal of criminal cases in the District Court would become impossible.

14. At this stage, the plaintiff must obtain leave to serve the proceedings for judicial review, pursuant to Rule 98.04A of the Supreme Court Rules. Mr Cuthbertson, who has put everything which could be said in favour of the application for leave, quite properly draws attention to the fact that if his client is convicted and there is then an appeal, he may be held in custody for some period of time while the appeal process, which could go as far as the High Court, works itself out.

15. But the same can be said of any situation in which a party attempts to come to the Supreme Court with such an application.

16. In Polley v Bright and Anor (4 August 1995, unreported, judgment No 5208) I said (5):
     ÒIt is true that the supervisory function of this Court
    confers jurisdiction in appropriate cases to grant relief by
    way of judicial review, even though to do so might hold up
    the progress of criminal proceedings in courts below. But a
    long line of authority makes it clear that the jurisdiction
    should only be invoked on rare occasions. In Clayton v
Ralphs and Anor (1987) 45 SASR 347 at 365, Jacobs J said:
    ÔIn principle the administration of the criminal law should
    be left to the criminal courtsÕ.Ó

17. In the same case I referred also to Goldsmith v Newman and Anor
(1992) 59 SASR 404 per King CJ at 412.

18. That is not to say that there will be occasions upon which it will be proper for this Court to exercise its supervisory jurisdiction ahead of the commencement of a criminal trial. See, for example, Wong v Evans (1985) 59 ALR 392 per Wilcox J at 399 and Australian Securities Commission v Burns and Ors (1994) 130 ALR 89 per Neaves J at 93.

19. Mr Cuthbertson drew attention to the fact that a jury had not yet been sworn. Be that as it may, the plain fact of the matter is that the present argument has erupted in the District Court at the commencement of a period of several days set aside for the hearing of the case. So that if the case was to go off while this court was to consider the point raised, the dislocation of the District Court criminal list becomes manifest.

20. It is true that the decision of this court in Franklin may be ripe for review, having regard to the fact that there has now emerged a divergence of authority in Australia on the matter. It cannot be denied that there is an interesting and difficult question of law involved, in particular, as to whether or not the court in 1996 is likely to construe s81 of the Summary Offences Act, and the scope of the medical examination which it authorises, in the same manner in which it was construed in Franklin's case in 1979.

21. But that is not the question to be addressed at this stage. I am exercising a broad discretion as to whether or not the application is proper to be served, having regard to SCR R 98.04A. It seems to me, quite apart from the considerations to which I have already referred, that generally speaking it is far better that questions of law arising in criminal proceedings be dealt with after a trial so that the question can then be examined in context. It is impossible in advance to determine what may be thrown up during the course of a criminal trial. Who knows what the trial in this matter will give rise to? Who knows whether or not the accused person may, for example, make admissions in cross-examination which might destroy his defence?

22. I see nothing in this case to take it out of the ordinary. It is just another case in which a question of law as to the admissibility of evidence arises. No doubt it is a question which will have to be addressed at some stage, if not by way of an appeal against any outcome of this case, then in another case. Be that as it may, I am entirely unconvinced that it is a proper case in which it is right to allow the application to be served, with the inevitable consequent postponement of the trial.

23. A matter which must, in any event, be taken into account is that the learned trial Judge has ruled that even if the evidence was properly to be regarded as unlawfully obtained, in the exercise of his discretion, he would admit it.

24. The trial should be allowed to proceed and the case should be heard and determined in the District Court in the ordinary discharge of its criminal jurisdiction. Questions of appeal and other questions which might then arise after completion of the trial can then be dealt with in the ordinary way.

25. The application for leave to serve the proceedings for judicial review is refused.