R v Draoui No. Sccrm-04-113

R v DRAOUI
[2004] SASC 130
Court of Criminal Appeal: Mullighan, Nyland and Anderson JJ

MULLIGHAN J This is an application by Mr Draoui, who is charged with multiple offences, for an order that this Court require the District Court to reserve questions for consideration and determination by the Full Court pursuant to s352(2) of the Criminal Law Consolidation Act 1935. More precisely, it is an application for an order that would require the District Court to state a case on a question of law which has been specified.
In essence, the question is whether it is an abuse of process for the Director of Public Prosecutions to proceed to trial in the District Court on the information laid in that court by the Director in which no major indictable offences are charged, and where the accused has not elected to be tried in that jurisdiction.
Very briefly, the background to this application is that the applicant was charged with one hundred counts of various types of offences involving dishonesty in the one information and only one of those counts alleged a major indictable offence.
The information was laid in the Magistrates Court. After committal proceedings, the applicant was committed for trial in the District Court. Another information was substituted for that information to the effect that there are multiple charges, but none of them are major indictable offences.
The matter then came to trial in the District Court and the applicant applied to the trial judge for trial by judge alone and an order was made accordingly.
A fresh information was laid on 7 April 2004 which was the information to which I have referred.
The judge was asked to order that the trial on that information be stayed as an abuse of process on the grounds that the applicant had not elected to be tried on minor indictable offences in the District Court. That application was refused.
The trial judge was then asked to grant leave to appeal against that decision. That application was also refused.
Because the application was refused, the applicant has now brought this application to the Full Court pursuant to s 352(2). The Full Court may require the court of trial to state a case on a question such as that which has been raised.
In my view, there is no basis for this application. The proceedings against the applicant have been properly instituted in the Magistrates Court and the committal for trial has no irregularity.
Once this matter was in the District Court, it is for the District Court to hear and determine the information, including the substituted information. There is no power of which I am aware which would enable the District Court to remit an information to the Magistrates Court on any ground, let alone the ground that it now only contained minor indictable offences.
It is submitted that the trial of minor indictable offences in the District Court has not been in accordance with the election of the applicant and that that is a reason to stay the hearing of the information and to require, in effect, the Director to begin proceedings afresh and to lay an information in the Magistrates Court. In my view, there is no basis for that submission.
Once an information is laid, including for minor indictable offences, it will be heard in the Magistrates Court unless the defendant in the proceedings elects to have a trial by jury. That is not the case here.
The present case is that the information alleged a major indictable offence and, therefore, the information came to the District Court in the usual way. The District Court has all of the necessary powers to hear and determine the information and upon conviction, should that occur, to adequately punish the applicant.
The only difference between a trial in the District Court on a minor indictable offence and a trial before the Magistrates Court, if there is not to be a jury, is that, in some circumstances, a magistrate may award costs against the informant should the information be dismissed. That cannot happen in the District Court, but I do not see that as any reason to stay the proceedings in the District Court and to adopt the course proposed by the applicant.
In my view, the proceedings in the District Court are regular and should proceed. I would dismiss the application.
NYLAND J: I agree with the reasons expressed by Mullighan J and I would also dismiss the application.
ANDERSON J: I also agree and I would dismiss the application.
MULLIGHAN J: The application is dismissed.

In the case of R v Draoui, the applicant, Mr. Draoui, applied for an order requiring the District Court to reserve questions for consideration and determination by the Full Court. This application arose out of Mr. Draoui's charges of various offences, with only one count being a major indictable offence. The application centred around whether it was an abuse of process for the Director of Public Prosecutions to proceed with a trial in the District Court when no major indictable offences were charged, and the accused had not elected to be tried in that jurisdiction.

The legal issues in this case centred around the jurisdiction of the District Court to hear the case, given that no major indictable offences were charged, and whether the Director of Public Prosecutions' decision to proceed with the trial in the District Court constituted an abuse of process. The Full Court was required to determine whether the District Court had the authority to remit an information to the Magistrates Court on the ground that it now only contained minor indictable offences.

The Full Court, comprising Mullighan, Nyland, and Anderson JJ, found that there was no basis for Mr. Draoui's application. The proceedings against him had been properly instituted in the Magistrates Court, and the committal for trial in the District Court had no irregularity. The Full Court held that once an information was laid, including for minor indictable offences, it would be heard in the Magistrates Court unless the defendant in the proceedings elected to have a trial by jury, which was not the case here. The District Court had all the necessary powers to hear and determine the information, and the only difference between a trial in the District Court on a minor indictable offence and a trial before the Magistrates Court, if there was not to be a jury, was that, in some circumstances, a magistrate could award costs against the informant should the information be dismissed. This could not happen in the District Court, but it was not a reason to stay the proceedings in the District Court and to adopt the course proposed by the applicant. The Full Court concluded that the proceedings in the District Court were regular and should proceed.

The Full Court dismissed the application, with all three judges agreeing on the outcome. The order stated that the application was dismissed, and the proceedings in the District Court were to continue as regular.

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