Novakovich v Magistrates Court of South Australia - [2014] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
NOVAKOVICH v MAGISTRATES COURT OF SOUTH AUSTRALIA
[2014] SASC 106
Judgment of The Honourable Justice Gray
14 August 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY
CRIMINAL LAW - PROCEDURE - PROSECUTION - COMMITTAL FOR TRIAL BY JUSTICE OR CORONER - SUPERVISORY JURISDICTION OF SUPREME COURT
Applications for permission to proceed with an application for judicial review and a stay of proceedings. A Magistrate made orders at a committal hearing committing the defendant for trial and refusing a number of applications for cross-examination of witnesses.
Whether prejudice from the loss of an opportunity to cross-examine witnesses can be addressed during trial. Whether there is an arguable case for judicial review. Whether it is appropriate to interfere with the Magistrate’s discretion.
Held per Gray J (dismissing the applications):
1. The Magistrate’s reasons do not disclose any errors that would give rise to an arguable case for judicial review.
2. The intervention of the Court in its supervisory jurisdiction should only occur in the rarest of circumstances.
3. Any prejudice that may have arisen from the rulings of the Magistrate can be addressed by the holding of a Basha enquiry.
Summary Procedure Act 1921 (SA) s 101 and s 106; Magistrates Court Rules 1992 (SA), referred to.
Goldsmith v Newman (1992) 59 SASR 404; Mountford v Magistrates Court (SA) (2006) 95 SASR 103; Haydon v Magistrates Court (SA) [2000] SASC 449; R v Bunting (No 2) [2003] SASC 250, considered.

NOVAKOVICH v MAGISTRATES COURT OF SOUTH AUSTRALIA
[2014] SASC 106
Civil
GRAY J.

This was an application by Nikola Novakovich for permission to proceed with an application for judicial review. In addition, an order was sought for a stay of proceedings in Supreme Court of South Australia Criminal Registry action number SCCRM-14-188 pending the determination of the within proceeding.
Introduction
These applications were listed as a matter of urgency as Mr Novakovich was to be arraigned before the Supreme Court on Monday 11 August 2014. On Friday 8 August 2014, following a hearing, I delivered judgment dismissing the applications. I now publish my reasons for doing so.
The relief sought by way of judicial review was as follows:
-an order in the nature of certiorari quashing the order made by the Magistrate in which the Magistrate declined to make an order for the witnesses Aleksander Radosavljevic and Gordana Susa to be presented for oral examination;
-an order in the nature of certiorari quashing the order of the Magistrate to commit Mr Novakovich for trial in the Supreme Court;
-an order in the nature of mandamus directing the Magistrates Court to hear and determine according to law the applications made pursuant to section 106(2) of the Summary Procedure Act 1921 (SA) concerning the calling of the witnesses Aleksander Radosavljevic and Gordana Susa; and
-an order remitting the Supreme Court matter to the Magistrates Court for preliminary examination in accordance with sections 105 and 106 of the Summary Procedure Act.
The applications were supported by an affidavit of the solicitor for Mr Novakovich. The deponent, in the course of the affidavit, briefly set out the history of the matter of the committal proceedings in respect of the application that Mr Novakovich be committed for trial in the Supreme Court for the crime of murder. The affidavit exhibited notices filed in the Magistrates Court seeking orders permitting the cross-examination of four witnesses whose declarations had been filed. The notices identified particular topics on which leave was sought to cross-examine. The affidavit also exhibited declarations provided by the witnesses.
On 8 November 2013, an Information was laid in the Magistrates Court of South Australia alleging that Mr Novakovich murdered Karen Michelle Williams at Coober Pedy in the State of South Australia on 4 August 1990. The Information was laid pursuant to section 101 of the Summary Procedure Act following the arrest of Mr Novakovich in October 2013 and his remand in custody.
On 28 May 2014, the Magistrate conducting the committal proceedings heard oral submissions in respect of the applications for leave to cross-examine witnesses. Counsel appeared both for the defendant and for the Director of Public Prosecutions. Following this hearing, further declarations were provided by the Director to the Magistrate.
On 27 June 2014, the Magistrate delivered his ruling, declining to order that any of the witnesses be cross-examined. The Magistrate published reasons for his decision. On this occasion, the Magistrate also committed Mr Novakovich for trial. The Director filed the information in the Supreme Court and, as noted above, the defendant is to be arraigned before a Judge of the Supreme Court on 11 August 2014.
Are the Rulings Amenable to Review?
In Mountford v Magistrates Court (SA), Doyle CJ doubted whether the Magistrate’s decision was amenable to judicial review and in that respect observed:[1]
It might be suggested that the magistrate’s decision is not amenable to judicial review, the decision being no more than a ruling given on a point arising in the course of the preliminary examination. For example, I doubt whether a ruling in the course of a preliminary examination to admit or to exclude an item of evidence can be reviewed in proceedings by way of judicial review. If that is so, and if such a ruling is analogous, that would suggest that the ruling in question cannot be the subject of judicial review proceedings. It may be that the magistrate’s decision can be reviewed only if an error of the kind suggested is capable, in some way, of vitiating the order committing Mr Mountford for trial: see Goldsmith v Newman (at 412) per King CJ. That in turn might raise the question of whether, as a matter of statutory construction, the court should conclude that Parliament intended that a failure to exercise the jurisdiction conferred by s 106(2), once the jurisdiction is invoked, should have the effect of vitiating or invalidating an order committing a defendant for trial. This point also need not be resolved. In Goldsmith v Newman the court was prepared to assume that a decision made under s 106(2) of the SPA was capable of being reviewed by way of judicial review, and no submission to the contrary was made in these proceedings. Similarly, in Haydon this Court treated as reviewable a decision by a magistrate, in the course of a preliminary examination, refusing to order the production of material in respect of which a claim of public interest immunity was made. It is therefore appropriate to proceed on the basis that this decision is susceptible to judicial review.
[1] Mountford v Magistrates Court (SA) (2006) 95 SASR 103, [25].
In the present case, counsel for the Director did not challenge the availability of judicial review. I therefore proceeded on the basis that the decision could be the subject of judicial review.
The Application for a Stay
The defendant contended that the Magistrate had committed jurisdictional error in failing to properly exercise his power to call witnesses for oral examination as required by section 106 of the Summary Procedure Act. That section provides:
(1) Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies:
(a)     the prosecutor 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 permission to call that witness for oral examination;
(c)     the prosecutor may, with the permission 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 permission 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 permission to call a witness for oral examination, the Court must have regard to—
(a)     the need to ensure that the case for the prosecution is adequately disclosed; and
(b)     the need to ensure that the issues for trial are adequately defined; and
(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 permission unless satisfied that the interests of justice cannot be adequately served except by doing so.
(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.
As earlier noted, Mr Novakovich had given notice in accordance with the Magistrates Court Rules 1992 that he would be applying, pursuant to section 106 of the Summary Procedure Act, for leave to call the following witnesses for cross-examination: Aleksander Radosavljevic, Gordana Susa, Deborah Lightfoot and Paul Ward. Counsel for the Director opposed the application in respect of each witness. On 28 May 2014, the Magistrate heard submissions and reserved judgment. On 27 June 2014, the Magistrate dismissed the applications and published reasons.
The Magistrate rejected the applications to cross-examine Ms Lightfoot and Detective Ward, but those matters do not call for consideration on this application.
In the course of his reasons, the Magistrate summarised the prosecution case in the following terms:
The police case is that [Mr Novakovich] killed Ms Williams because she had witnessed him and his then acquaintances, Alexander Radosavljevic and Dean Bulovic carry out an armed robbery in Coober Pedy a few days before the 4 August 1990. On the police case, having killed Ms Williams, [Mr Novakovich] then enlisted the assistance of Rodosavljevic in disposing of her body. Her remains, if she is deceased, have never been found.
Detective Ward was placed in charge of the investigation in 2011. He received the file and interviewed Mr Novakovich in August 2012 and on other occasions. Detective Ward determined that Mr Radosavljevic was a person of significance to the investigation and made contact with Mr Radosavljevic in May 2013. The Magistrate’s reasons record that Mr Radosavljevic provided information to the police and, on behalf of the police, engaged in and monitored multiple meetings and conversations with Mr Novakovich.
The Magistrate summarised Mr Radosavljevic’s declarations in the following terms:
Initially Radosavljevic told police that he and [Mr Novakovich] had stolen a generator from Coober Pedy a day or so before the 4 August 1990. Thereafter, [Mr Novakovich] came to Radosavljevic and said he had killed Ms Williams as she had seen them commit the robbery and was threatening to inform the police. Radosavljevic said that he assisted [Mr Novakovich] to dispose of the body of Ms Williams.
In a later interview Radosavljevic said that he had lied to police when saying he and [Mr Novakovich] had stolen a generator. He said that in fact he and [Mr Novakovich] and another man, Dean Bulovic had carried out an armed robbery on a Coober Pedy resident known to Radosavljevic as Zoran. He said that this was the crime that Ms Williams had observed; otherwise he maintained the recollection of having assisted [Mr Novakovich] to conceal the body of Ms Williams.
In a declaration dated the 15 August 2013, Radosavljevic refers to an occasion, prior to the disappearance of Ms Williams, when he had drinks in Coober Pedy with [Mr Novakovich,] Bulovic and another person after he, Radosavljevic, had returned from a trip to Adelaide.
In a declaration dated the 2 October 2013 he says that whilst having drinks he falsely bragged that he been [sic] involved in breaking into the Coca-Cola factory in Adelaide and stealing $15,000.00 cash and other property.
In a declaration dated the 12 March 2014 Radosavljevic refers to having discussed his involvement in the matter with his former partners Gordana Susa and Aleisha Fawcett and some other acquaintances. He discusses various contacts he had with police on unrelated matters in the 1990’s and early 2000’s. He also discusses his various contacts with Detective Ward since May 2013 and his knowledge of a reward of $200,000.00 offered for information relating to the disappearance of Ms Williams.
The Magistrate then summarised the submissions advanced by counsel for Mr Novakovich in respect of the application to cross-examine Mr Radosavljevic as follows:
In relation to Radosavljevic, [counsel for Mr Novakovich] said it was necessary to make him available for cross-examination for the following reasons;
On his own admission, Radosavljevic is an accomplice in the crime in question.
Radosavljevic has given police a false account of the crime in which he participated and which Ms Williams had allegedly observed.
Radosavljevic has admitted to a third party, Ms Susa, that he was in fact involved in killing Ms Williams.
Radosavljevic lied to the accused and others about breaking into the Coca-Cola Factory.
A significant period of time from 1990 to 2012 passed between the events recalled by Radosavljevic and his later contact with police in which he has implicated [Mr Novakovich].
That nothing said by Radosavljevic should be taken at face value and the proper presentation of Mr Novakovich’s defence should allow him to ascertain exactly what Radosavljevic does say when he is going to be in the courtroom giving evidence under oath.
The Magistrate summarised the evidence to be given by Ms Susa as follows:
Gordana Susa is a former domestic partner of Radosavljevic; they were together between 1992 and 1996. She gave a statement to the New South Wales Police on the 15 January 1999. She volunteered the statement in the context that she then had taken legal action against Radosavljevic to gain custody of their son. In her statement she refers to a conversation she said she had with Radosavljevic in which he said that he had done a hold-up and had murdered someone. He said “as we came out, a girl came out half drunk. We bashed her. We killed her. We buried her when she was still half alive but there was no way anyone would find her”.
The Magistrate then noted the submissions of counsel for Mr Novakovich in relation to Ms Susa as follows:
In relation to Ms Susa, [counsel for the defendant] submitted that it was necessary to cross-examine her to elicit further and better details of the conversation in which she alleges that Radosavljevic told her he was involved in killing Ms Williams and whether there was any further conversation at any stage between the two of them with respect to Radosavljevic’s declaration that he had been involved in the killing; that is Radosavljevic’s declaration to Ms Susa that he been [sic] so involved.
The Magistrate considered that there was a legitimate concern about the reliability of the recollections of Mr Radosavljevic before concluding:
At face value Radosavljevic has disclosed all of the occasions when he has discussed his knowledge of the matter with police or any person in authority. The mere possibility that Radosavljevic had discussed that knowledge with someone in authority at some time between 1990 and May 2013, other than as disclosed in the declarations, does not in my view constitute a special reason requiring cross-examination of Radosavljevic prior to trial.
There is an inconsistency between the proposed evidence of Ms Susa and Radosavljevic, insofar as Ms Susa claims Radosavljevic admitted to her that he and [Mr Novakovich] together killed Ms Williams. However, there is no confusion or in my view insufficient confusion on the respective declarations of Susa and Radosavljevic on the point in question so as to constitute a special reason requiring Radosavljevic or Ms Susa be cross-examined prior to trial.
In Goldsmith v Newman,[2] the Court was concerned with an application for judicial review. The particular complaint was that the Magistrate, in the course of conducting the committal proceeding, erred in refusing to make an order for the oral examination of witnesses. In the course of his reasons, King CJ reviewed the authorities and said:[3]
... It has been held by the Full Court in Clayton v Ralphs (1987) 45 SASR 347 that a preliminary hearing is amenable to judicial review … It should be remembered, however, that the grant of relief by way of judicial review is discretionary. The considerations operating against the grant of such relief in respect of committal proceedings referred to in R v Grieve; Ex parte Ellis (1978) 19 SASR 437 remain valid. For the reasons given in his judgment, I agree with the dictum of Jacobs J in Clayton v Ralphs (supra) at 365 “that in principle the administration of the criminal law should be left to the criminal courts”.
Committal proceedings are a preliminary step in the process of criminal justice. Generally speaking, deficiencies in such proceedings can be remedied by pre-trial prosecution discovery of facts or documents or by appropriate action at the trial stage such as the permission of examination of witnesses in the absence of the jury. While magistrates are to be encouraged to conduct preliminary hearings in a way which will facilitate a fair trial and render voir dire hearings and other palliatives at trial unnecessary, both trial judges and those conducting prosecutions will have to be prepared to act reasonably to remedy any dangers to the fairness of a trial resulting from the new committal procedures. The intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances.
[Emphasis added.]
[2] Goldsmith v Newman (1992) 59 SASR 404.
[3] Goldsmith v Newman (1992) 59 SASR 404, 412.
In Mountford,[4] a person charged with a criminal offence sought leave to serve judicial review proceedings to challenge a ruling in which a Magistrate refused to grant leave for certain witnesses to be called for cross-examination. The Magistrate was not satisfied that there were special reasons for doing so. It was argued that the reasons given by the Magistrate disclosed an error of law on the face of the record and it was further contended that the Magistrate failed to exercise the jurisdiction conferred by section 106 of the Summary Procedure Act, in that he misconceived the test to be applied. Mountford sought an order quashing the order for committal. A Judge of this Court refused leave to serve the proceedings and the matter came before the Full Court.
[4] Mountford v Magistrates Court (SA) (2006) 95 SASR 103.
The Court refused leave to appeal. The Court considered whether it was reasonably arguable that the Magistrate had failed to exercise the jurisdiction conferred on him and, in the particular circumstances, the Court concluded that there was no apparent error in the Magistrate’s approach. In the course of his reasons, the Chief Justice addressed the question of whether there was any utility of sending the matter back to the Magistrates Court and in that respect observed:[5]
Another relevant matter to consider is that Mr Mountford has been committed for trial, and is now before the District Court. Sending the matter back to the Magistrates Court would result in further and undesirable delay. If the trial judge thinks that fairness requires that Mr Mountford be given an opportunity to question A or B in the absence of the jury, the trial judge can allow that to be done. This is not a factor that should in any way influence a magistrate when dealing with an application under s 106. But it is a relevant factor for this Court. And, in the background, there is the often-stated reluctance of this Court to interfere with the administration of the criminal law.
[Emphasis added.]
[5] Mountford v Magistrates Court (SA) (2006) 95 SASR 103, [49].

Perry J, on this topic, expressed the following view:[6]
In any event, whatever the supposed merits of the case, there is a long line of authority which supports the view that to invoke the supervisory jurisdiction of the Supreme Court by means of an application for orders in the nature of judicial review with respect to orders made on a preliminary examination of criminal charges will rarely be justified: see the observations of King CJ, with whom Perry and Duggan JJ concurred, in Goldsmith v Newman ...
[Footnotes omitted. Emphasis added.]
[6] Mountford v Magistrates Court (SA) (2006) 95 SASR 103, [106]. See also Haydon v Magistrates Court (SA) [2000] SASC 449, [4].
In F, BV v Magistrates Court (SA),[7] the Court considered an application for judicial review in respect of an order for committal made by a Magistrate. Questions arose as to the proper construction of the terms of the statute creating the alleged offence. It was contended that the Magistrate had misconstrued the section and had not conducted the relevant enquiries before ordering a committal. The Full Court heard and determined the application for judicial review. In the course of my reasons, I made the following observation:[8]
At the outset of the hearing, a question arose as to whether it was appropriate for this Court, notwithstanding the concession of the existence of jurisdictional error, to decline to grant any relief on the basis that all the points being argued before this Court could be argued as preliminary matters in the District Court following arraignment. The Director accepted that each of the points to be argued could be addressed by that Court. The advantage of such an approach would be to minimise the risk of the fragmentation of the criminal process. All relevant matters would be argued and resolved as part of the criminal process in the trial court and would be subject to the usual rights of antecedent review and appeal.
Later in my reasons, I observed:[9]
I wish to add one further comment in regard to the suitability of these matters to be addressed through the process of judicial review. I consider that there was a clear basis for this Court not to embark on the issues of construction. All the contentions that the defendant has advanced could have been raised as preliminary matters in the District Court, the court of trial. Proceeding by way of judicial review raises the spectre of the splintering or fragmentation of the criminal process. The prospects of further appellate review remain with consequent delay and expense. If the matters are dealt with within the criminal process, those prospects are diminished. The matter did not proceed in this way. I view this as an exceptional case. Generally, such contentions should be advanced within the criminal process in accordance with long established general practice.
[Emphasis added.]
I consider that the observations extracted from the above authorities have application to the present application.
[7]    F,BV v Magistrates Court (SA) (2013) 115 SASR 232.
[8]    F,BV v Magistrates Court (SA) (2013) 115 SASR 232, [118].
[9]    F,BV v Magistrates Court (SA) (2013) 115 SASR 232, [147].
The gravamen of Mr Novakovich’s complaint is that he should be permitted to cross-examine Mr Radosavljevic and Ms Susa before trial so that he might be in a position to properly defend himself at trial. In the course of submissions in support of the application for a stay, counsel acknowledged that, if the stay were refused, Mr Novakovich may apply to the Supreme Court trial Judge for a Basha inquiry. Such an inquiry may be ordered where, in the view of the Court, a defendant has been prejudiced when that witness who was not called at the committal hearing is to be called in the trial. In this circumstance, a trial judge may permit cross-examination in the absence of the jury, in what is loosely called a voir dire hearing. The following of this procedure is not designed to give the defendant any greater right of cross-examination than would have existed under a committal hearing.
In Bunting (No 2), Martin J reviewed the authorities concerning Basha inquiries and, in particular, noted the following:[10]
... Through use of a Basha inquiry, the ability of the court to minimise prejudice is not limited to the provision of statements and particulars. The loss of an opportunity to cross-examine witnesses at the preliminary examination is not irremediable. Regardless of whether the cause of the inability to cross-examine at the preliminary examination was an erroneous ruling by a magistrate or the later production of the witness, generally speaking a trial court will be able to overcome or minimise prejudice caused by that inability by permitting cross-examination of the witness prior to the empanelling of a jury. This procedure enables an accused to explore those matters that the accused would have explored in cross-examination at a preliminary examination without the inhibiting presence of a jury. Subject to matters such as the effect of a delay, and leaving aside the question of losing the opportunity of submitting that the accused should not be committed for trial, by this means an accused can usually be placed in the same position as the position in which the accused would have been had cross-examination been permitted at the preliminary examination.
In referring to the use of a Basha inquiry, it is appropriate to sound a note of caution. The availability of a Basha inquiry is a significant feature to be considered by a court when faced with an application to stay proceedings on the basis that a trial will amount to an abuse of process or will be unfair to an accused. However, in other than unusual situations, the availability of that procedure should not influence a magistrate in deciding whether special reasons exist to permit a witness to give oral evidence at a preliminary examination. There is always a risk that the delay between the preliminary examination and the trial might cause irreparable prejudice or that cross-examination left to a Basha inquiry will result in the need for further investigations and cause a delay in proceeding with a trial before a jury. If cross-examination is appropriately permitted at the preliminary examination, it might result in an early plea of guilty.
[Emphasis added.]
[10] R vBunting (No 2) [2003] SASC 250, [43]-[45].
Having regard to the foregoing, in my view, any prejudice that may have arisen from the rulings of the Magistrate can be addressed by the trial Judge holding a Basha inquiry, if appropriate. This could take place as part of pre-trial procedures and, if need be, by the conducting of a voir dire hearing, either before or at the start of the trial.
It is also relevant to record that an order for committal has no binding force or effect. Following the order for committal, the discretion to place a defendant upon trial rests with the Director, who, notwithstanding an order for committal, may decline to file the Information. Similarly, the Director may file ex officio if the Magistrate declines to commit.
I do not consider that Mr Novakovich has made out the case for a stay and, accordingly, I declined to order a stay. Mr Novakovich is to be arraigned before a Judge of this Court on Monday 11 August 2014. It will be open to Mr Novakovich to make any application he may be advised in respect of a Basha inquiry or any other relief that he may seek to address any suggested prejudice that he claims to have arisen.
Permission to Proceed with the Application for Judicial Review
In reaching his conclusion to reject the applications for permission to cross-examine, the Magistrate had specific regard to the terms of section 106(3) of the Summary Procedure Act as set out above. The Magistrate drew attention to the following observations of King CJ in Goldsmith v Newman:[11]
... The test posed in s 107(1) for sufficiency of the evidence to put the defendant on trial is that "the evidence, if accepted, would prove every element of the offence". It is no longer open to the court to refuse to commit on the ground that the evidence, although sufficient in law, is too weak or unsatisfactory, by reason of lack of credibility of prosecution witnesses, to justify putting the defendant on trial. Thirdly, issues of admissibility are to be left to the trial court and the evidence is to be admitted at the preliminary hearing unless admissibility is unarguable. ...
The Magistrate also extracted the following observations of Doyle CJ in Mountford:[12]
... One of the points made in Goldsmith v Newman is that ordinarily at a preliminary examination facts are proved by means of written statements. The opportunity to cross-examine a complainant and witnesses is no longer one of the routine aspects of a preliminary examination. Special reasons must be shown before there will be cross-examination. Showing that the defendant is disadvantaged by the loss of the opportunity to cross-examine at the preliminary examination does not of itself establish the existence of special reasons for the purposes of s 106(3). To my mind it is significant that the statutory scheme necessarily deprives a defendant of a number of the advantages that the defendant had under the earlier procedure by way of preliminary examination.
[11] Goldsmith v Newman (1992) 59 SASR 404, 410.
[12] Mountford v Magistrates Court (SA) (2006) 95 SASR 103, [43].
I reached the conclusion that Mr Novakovich should be refused permission to proceed with the application for judicial review.
Earlier in these reasons, I have extracted the Magistrate’s summary of the effect of the relevant witness declarations. The Magistrate identified the relevant statutory provisions and addressed both the authorities of Goldsmith v Newman[13] and Mountford.[14]He set out, as mentioned above, his reasons for concluding that he was not satisfied that special reasons within the meaning of section 106 of the Summary Procedure Act existed.
[13] Goldsmith v Newman (1992) 59 SASR 404.
[14] Mountford v Magistrates Court (SA) (2006) 95 SASR 103.
I do not consider there to be any substance to the suggestion that the Magistrate misunderstood the relevant legal principles, had regard to any irrelevant material, or failed to have regard to any relevant material. I do not accept that an arguable case has been made out for judicial review.
Further, it is to be recalled, as observed by King CJ in Goldsmith v Newman,[15] that the intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances. As discussed above, if any relevant prejudice to the trial of the defendant may arise, those concerns may be addressed through the holding of a Basha inquiry.
[15] Goldsmith v Newman (1992) 59 SASR 404, 412.
Conclusion
For the foregoing reasons, I dismissed the application for a stay and refused permission to proceed with the application for judicial review.